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The fine line between innovation and negligence…

…and why we oppose The Access To Medical Treatment (Innovation) Bill.

The Access to Medical Treatment (Innovation) Bill (“the Bill”) is a Private Members Bill sponsored by Daventry MP, Mr Chris Heaton-Harris. Its predecessor, the Medical Innovation Bill (also known as the “Saatchi” Bill) was originally brought about by Lord Saatchi following the death of his wife to ovarian cancer.  Lord Saatchi campaigned to change the law so that, with consent, doctors could treatment patients dying of cancer and other diseases with new and innovative treatments.
The essence of the Bill is that a doctor will not be found negligent when departing from standard practice if they have acted “responsibly” in treating seriously ill patients. The proposal is that the Secretary of the State for Health will hold a database of medically innovative treatments and the results of innovative treatments will be registered. Advocates of the Bill argue that doctors are too fearful to innovate for fear of redress in the form of clinical negligence (medical negligence) claims and that this is a hindrance to medical progress.
The current law in relation to Clinical Negligence (medical negligence) is as follows. The case of Bolam v Friern Hospital Management Committee established what is now known as the Bolam test.  The Bolam test essentially states that if a doctor has acted in accordance with the standard of a responsible body of medical opinion, then he or she is not negligent.  The proposed Bill would essentially set aside the long established Bolam test.  The Bill proposes that where a doctor has taken a decision to treat in a responsible manner, even when no other doctor would support that the treatment was given, there is no negligence.
We at Wilson Browne firmly oppose this proposed Bill. We are of the view that the Bill does not protect patients but in fact exposes them to harm.  Sir Robert Francis QC, author of the two Mid Staffordshire NHS Foundation Trust enquiries, which have dominated the news in the last couple of years, says “The law of negligence does not prevent responsible innovation and never has.” He goes on to say “There is an alarming lack of accountability of scrutiny or other safeguard built into the Bill. It explicitly frees the doctor to offer treatment which has no support from responsible medical opinion.”
We are also of the view that the current law allows for innovation which is expressly permitted for doctors where it is reasonable. We would argue that the current law allows innovation whilst also protecting against negligent treatment.  The British Medical Association agrees that the Bill is unnecessary and says “We have no evidence to suggest that the threat of litigation is a barrier to the provision of innovative treatment……. and we strongly question the necessity and desirability of introducing statute to clarify or change the law in this area.”
The main difficulty with this Bill is that it protects a doctor who makes a decision that none of his/her colleagues would support. Indeed it goes further than this and protects the doctor who makes the decision with no logical or reasonable basis.  In our opinion, this can only be dangerous for patients.  The law as it stands, protects patients and this proposed Bill deprives patients who have been subjected to negligent treatment of any remedy.
Conservative MP Doctor Sarah Wollaston, Chair of the Commons Health Committee, has said “We need to be very careful about what we mean by innovation, and to accept that there are also very dangerous innovations. If, as a result of this well intentioned Bill, we inadvertently end up with people being, in effect, experimented on by irresponsible doctors who are able to get off scott free, we will have to come back to this place and amend it.”
There are numerous bodies opposing the Bill including a British Medical Association, the Royal College of Surgeons, the Royal College of Paediatrics and Child Health and Cancer Research UK along with other charities.
The Bill has so far progressed to the Committee Stage and has Government support, but is facing stiff opposition. Those wishing to oppose the Bill should contact their local GP.