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Medical Innovation Bill

The Medical Innovation Bill was recently introduced by Lord Saatchi following the sad death of his wife, who died from ovarian cancer in 2011. It has been suggested the Bill is a response to Lord Saatchi’s belief that doctors are unwilling and fearful to undertake an innovative treatment, due to the fear of litigation.

The purpose of the Bill is said to be to encourage responsible innovation in medical treatment. The Bill stipulates that it is not negligent to depart from the existing range of accepted medical treatments for a particular condition under circumstances defined in the act, so long as the decision is taken “responsibly” by the particular doctor. Those circumstances allow the doctors to undertake the proposed treatment, even if they know the proposed treatment does not or would not have the support of a responsible body of medical opinion.

This is clearly very worrying and appears to suggest a doctor can embark upon an innovative and unexplored treatment without the fear of litigation, regardless of whether all other doctors would deem it to be an unreasonable and irresponsible treatment.

The Bill was put forward by Lord Saatchi, who is neither a lawyer nor a doctor, and it is evident the Bill is drafted without clear understanding of current law. In fact, doctors already have the freedom to innovate under the current law, which balances protection for patients with allowing doctors to suggest a non-standard type of treatment to their patients, provided there is a respectable body of medical opinion which supports his actions, and it would stand up to logical analysis.

It is frightening to think that if the Bill is passed, doctors would have a statutory defence to a medical negligence claim against them that the treatment provided was simply ‘innovation’, and therefore it cannot be negligence, even if that treatment has resulted in serious injury to, or even death, of a patient.

Emma Broomfield, Associate at Lanyon Bowdler states “To depart from the current approach and allow a doctor to reach his own conclusion as to what is responsible   when by definition there is not a responsible body of medical opinion who would support that treatment - would allow doctors to recommend, and provide to their patients, treatment that has not been adequately trialled and tested. The bill throughout refers to the decision being based on what the individual doctor considers is reasonable, and there is no requirement for this assessment being evidence-based.

“Patients are in a vulnerable position and many will accept what a doctor advises them and assume any treatment proposed has been independently and objectively assessed to be safe and appropriate.”

The Bill is at an early consultation stage at present and there are a lot of steps to be taken and consideration to be given to the Bill before it can become an Act of Parliament, but if it does come into force it will clearly drastically change the current well established law in this area.

I am a member of the Clinical Negligence Department at Lanyon Bowdler, the team is made up of eight solicitors, three of whom are members of the Law Society’s Panel of Clinical Negligence Specialists. As a Department we feel strongly this bill is not in the best interests of patients, and have made our representations to APIL (Association of Personal Injury Lawyers) who will make national representations to Government.