The Medical Innovation Bill is back!

I have previously written on the disaster that was the Lord Saatchi’s Medical Innovation Bill.

Shortly after a significant campaign by patients, medics and lawyers alike the bill was unable to pass through Parliament to become law.

Now following the general election I understand that Lord Saatchi is considering reintroducing the Medical Innovation Bill somewhat unchanged.

The bill, by way of a recap, was apparently intended to allow for medical innovation. Lord Saatchi seemingly believed the medical profession was frightened to try new innovations  due to the fear of being sued. This has never been in fact the case and the medical profession has continued to innovate at a pace despite the apparent hindrances suggested by Lord Saatchi.

The bill provided for very little in the way of protection for patients, particularly those who were vulnerable. In essence it did indicate that the doctor had to obtain the consent required by law to carrying out proposed treatment but it indicated “it is not negligent for a doctor to depart from the existing range of accepted medical treatment for a condition if the decision to do so is taken responsibly”.

That responsible decision was the medic’s. Most of the references to decisions in the bill relate to medics. Patients are somewhat peripheral to the process.

The bill always placed the decision of the doctor at the heart of any treatment. The emphasis has been throughout that the doctor in essence makes a decision as to whether treatment should be commenced and as long as the patient has been informed of the risks that is enough. The doctor does not have to have a great deal of other medical input into that decision. Even the negative view of colleagues wasn’t sufficient to prevent the treatment.

The bill was flawed on all sorts of issues but since its first demise the law has been clarified with some force. In March 2015 the Supreme Court gave judgment in Montgomery v Lanarkshire Health Board.

Other people will write in detail about the case itself but it clarifies how the law of negligence interacts with patient/doctor relationships.

In short the Supreme Court emphasised that it was the patient’s decision to undergo treatment, not the medic’s. It was not and has never been the doctor’s decision whether certain treatment should commence. The doctor’s role is to provide information for the patient to make an informed decision.

It has always been accepted that in reality many patients will go with the recommendation of their doctors. If a doctor recommends a particular form of treatment, it is likely that the patient will go with their advice, viewing it as coming from an expert. Some medics have worked on this basis for many years and sadly some continue to do so. As a clinical negligence lawyer clearly I would have a slightly jaundiced view of this blanket acceptance of medical advice. Most doctors are responsible but in my work I come across those who have a more paternalistic attitude to patients and their treatment. Consent, for them, is an irritating tick box exercise, rather than fundamental to the proper practice of medicine.

However  the Supreme Court has made clear that the role of the doctor is to inform. It is then the role of the patient to make a decision.

There are of course a number of factors which will influence decisions being made in any event. There are funding issues, waiting lists , capacity (i.e. whether the patient is able to make a decision or not), but for the vast majority of patients choosing elective treatment , the Supreme Court has made clear that the decision is the patient’s not the medic’s.

A brief reading of the former bill by Lord Saatchi indicates that this was never at the forefront of his mind. Quite the opposite. Many of the treatments he appears to have anticipated were complex cancer treatments for people facing life-limiting circumstances. His whole analysis suggests that it is the doctor who is in charge and the doctor making treatment decisions. If the bill is to be re-introduced it is hard to see how it could be work with the recent decision.

The personal circumstances by which Lord Saatchi came to bring the bill before Parliament are tragic. It does not however give him the right to interfere with the process by which medical decisions should be made and the rights of patients to be fully informed in order to provide their consent. It is not (and indeed never was) the role of doctors to determine medical treatment.

If the Saatchi bill is re-introduced (as it appears is likely), I would urge everyone to read the bill and documents surrounding it. This does not help the patient. This merely provides a licence for maverick doctors to experiment without the proper controls in place. It does not address the issue that the patient is the one who should be in charge of what is being done to them or their family member, not the medical team.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*