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Saturday 6 June 2015

Saatchi Bill - Pointless and Dangerous

We will shortly see the return of the Medical Innovation Bill which is promoted as a Private Peers' Bill by Lord Saatchi. The bill was derailed earlier this year when Liberal Democrat MPs blocked its debate. Lord Saatchi is more confident of success as that particular hurdle has been spectacularly wiped out by the electorate. 

The Bill has populist support, which, alarmingly, includes the Labour Leadership candidate and shadow Health Secretary, Andy Burnham –

From a lawyer’s perspective the Bill is pointless and, if anything, slightly dangerous. The idea behind it is that medical practitioners should not be deterred from trying innovative medical techniques for fear of being sued. The key section of bill says –

‘It is not negligent for a doctor to depart from the existing range of accepted medical treatments for a condition if the decision to do so is taken responsibly.’ (s1 (2)).

We need firstly to look at the legal position as we have had it since 1957 – when I was 2 years old! This was a case called Bolam v Friern Hospitals Management Committee. This set out the classic test for deciding whether a medical practitioner has been negligent –

"a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."

Note the word ‘responsible’. In other words it is for the medical profession to decide what is acceptable practice – not lawyers, judges or politicians. This has been with us for all of my professional life. It is not a perfect test but it works. I’ll come back to this in a minute.
Another important factor in medical treatment is patient consent. If a doctor interferes with a patient’s health without informed consent they could be guilty of assault. This was looked at by the Supreme Court earlier this year in the case of Montgomery v Lanarkshire Health Board. When deciding what should be said to a patient about risk  the test is this –

“The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.”

So let’s say a patient is facing a life threatening condition and there is innovative treatment available that could fail. What we need to ask is firstly whether there are responsible doctors who, faced with these facts, would regard the proposed steps as reasonable. If so then then it is not negligent. The word 'reasonable' straddles Saatchi’s bill and the old Bolam test. Then if we look at the 2015 case of Montgomery the patient’s consent to that treatment is also crucial – ‘the importance to the patient of the benefits sought to be achieved by the treatment.’ So a patient who has consented to treatment which would be acceptable to a responsible body of doctors, has no basis to litigate, provided the risks and benefits have been properly considered.

I have acted for hundreds of patients over the last 25 years and have never had a case where this issue has arisen.

This is why the Bill is pointless. It adds nothing to what we already have. Indeed the Bill says as much in Section 2 – ‘Nothing in Section 1 … affects any rule of the common law to the effect that a departure from the accepted range of medical treatments for a condition is not negligent if supported by a responsible body of medical opinion.’

Why is it dangerous? Because it should always be for the medical profession to set the bar in  relation to treatment. There need not not be unanimity but so long as there is reasonable support among doctors then lawyers and politicians should not keep out of it.

This is clearly an issue of some importance to Lord Saatchi who has had his own tragic experience. But that cannot be the basis for legislation. As The Spectator’s Isabel Hardman says –

“Saatchi drew up this legislation after the death of his wife, Josephine Hart, from ovarian cancer. His Bill is undoubtedly borne from grief and a desire to do something to stop very sick people dying if there is something that can be done to save them. But a bill borne from grief is not automatically a good bill. Neither is a bill introduced by someone who has great power and commands great respect from those in government. A grieving person can be wrong, as can a powerful person.

I hope that Parliament sees sense and is not influenced by emotion or populist support.

[The aim of this blog is to raise issues of law and procedure for discussion - it should not be treated as legal advice in relation to any particular issue.]

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