The medical innovation bill: Will parliament sleepwalk into danger for patients and access to justice?

Abstract

Lord Saatchi’s Medical Innovation Bill (also known as the ‘Saatchi Bill’) had its second reading in the House of Lords on 27 June and at the time of writing is about to start the committee stage. It purports to encourage innovative medical treatment by removing the fear of litigation. In my view, the Bill is both unnecessary and poses a grave threat to both patient safety and access to justice. The level of debate so far has been disappointing, but once peers appreciate the seriousness of what is being proposed and its (hopefully) unintended consequences, I am hopeful that it will receive proper scrutiny. The Bill is based on what most serious commentators seem to agree is a completely false premise – that innovative and potentially life-saving treatment is being denied to patients because of doctors’ fear of clinical negligence litigation. Lord Saatchi has failed to provide any evidence to back his assertion that this is the case, whereas those who are in the best position to know, including the likes of the NHS Litigation Authority, the Medical Defence Union, and the British Medical Association, all confirm that there is no evidence of such a problem. If treatment is refused, it is likely that this is either because the NHS will not fund the treatment, or simply because the doctor does not think it is the right treatment or safe. However, the Bill ignores all of that and would sweep away current definitions of negligence. It would allow an individual doctor to carry out any treatment provided that the patient consents to it, even if this flies in the face of all the evidence and advice from experts. The Bill has been presented by Lord Saatchi and his considerable publicity machine as if it is all about providing a last chance for cancer patients who have exhausted all evidence-based treatment options. However, that is not the case. As was confirmed in the debate in the Lords, as currently worded the changes would apply to any kind of medical treatment, including cosmetic treatment. All the doctor would need to do to be in the clear is persuade the patient and to ‘consult’ others (not to get approval from anyone). This has serious patient safety implications. Anyone who is familiar with the case of Dr Ian Paterson who damaged scores of women in the Midlands whom he persuaded to agree to his own variation of breast surgery can see how getting consent from patients is not a sufficient safeguard on its own. The strongest voice of reason in the Lords debate came from cross-bench peer Baroness Masham, who is a longstanding advocate of patients’ rights. As well as the threat to patient safety, she pointed out that the Bill would leave patients who have been harmed by negligent treatment (as we would define it now) without any redress. This is something which supporters of the Bill and many of the peers who took part in the debate do not even seem to have recognised as something worth worrying about. She challenged Lord Saatchi for evidence to support his claim that innovative treatment is being denied because of fear of litigation – but with no response. Lord Saatchi made it clear that he expects the Bill to sail through the Lords and to become law before the next election (in 2015). Those who value patient safety and justice must hope that it does not, and that the Bill receives the scrutiny that such an important topic deserves. Basing legislation on an emotional response to the death of loved ones and pure anecdote is not a good idea. Parliament must not sleepwalk into this dangerous and unnecessary legislation.