‘Experimenting’ – The Telegraph’s latest

So, the day after the consultation closed there was another piece of skewed journalism by The Telegraph. Here in unapologetically crass terminology from Martha Gill (they pay her for her blogging? seriously?) we were presented with “Why experimenting on the dying is a brilliant idea” throughout which assertions were that ‘at least’ patients would be making use of themselves; ‘at least…you haven’t fought against the dying of the light’.  I wonder if Ms Gill has spent any time with dying patients? I wonder if she has cared for palliative cancer patients, spent time with them at home, in hospital, in hospice? I have and I find her remarks demeaning.  Kate Granger has written articles on living with cancer for the guardian that should be read – her most recent here and here.

Semantically however this blog is revealing – experimenting, finding cures – we see the true stripped back meaning behind Saatchi’s bill: to experiment, to regard these people as expendable. This is in direct contravention of the principles of innovative treatment which are surely to be weighed on that individual’s best interests.   So – innovative treatment? or ‘therapeutic research’? The latter was ruled out by the World Medical Association back in 2000 (you know them, the Helsinki Declaration?)

Some other fundamental inaccuracies exist within the piece regarding the suing culture in the UK. As someone who was both affected by and worked in clinical negligence, I can state emphatically that there is no such culture when it comes to these claims. This is not and never has been the pile ’em high sell ’em cheap of the rear-end-shunt. These cases are intricate, take years of careful, clever preparation and fight against a systemic problem, a system that is top-mid-down complicit in concealment. The chances of success in a claim for clinical negligence are always precariously swinging about 50% in even some of the best cases. To prove a case it must be shown there was a duty of care, a breach of the standard of care and that this itself was causative of the damage. New client enquiries are frequently turned away; of those that are accepted the cases must have real merit.

There is little avaricious mentality in claimants – frequently a claim is driven by a real, practical need for future care provision: care needs that are not being met by the NHS. Whether it’s right that a baby born with cerebral palsy through negligence is awarded millions in compensation, to adapt a property, pay carers, meet physical and educational needs; and one who has cerebral palsy without negligence is awarded nothing at all; is only worth discussion in the setting of a fully functioning redress system, NZ-like and statute based. Whether anyone would access justice then, whether any amount paid would be high enough to account for the huge costs of living with the consequences of clinical negligence, whether any unsafe practices or systems would be investigated, who knows. Until then claimants require justice and adequate care provision for their needs.

In cases of bereavement a paltry sum cannot replace the lost loved one. It cannot atone for the harms and sequelae extending long into the claimant’s life. In most cases we know that claimants are motivated not by money but by a need to have an explanation, at times an apology; or by a real desire to change a policy which caused harm to prevent future harms occurring.   The claims process is tough and often traumatic itself. The cases can take years. The process does not leave claimants satisfied. I will state again, that the numbers speak for themselves – before the government interference and stripping away of legal aid/ meddling with CFAs, only around 6,000 cases were brought out of a total of > 1million known adverse incidents. Very modest.  In 2009/10 just 6,652 clinical negligence cases were notified to the NHSLA. The 2010/11 figures are of 8,655 being notified, many of which being repeat incidents,  increased categories of never events that still happen;  systems and safety going awry here. In that year the clinical negligence damages still accounted for only 0.7% of the NHS budget.    Lord Woolf’s support for the bill, I suggest, is not in isolation to his involvement before in reforms designed to cut legal expenditure. The LASPO evisceration of legal aid has already removed access to justice for many. 
Penningtons  state ‘the question could be asked whether the Government’s real aim is to reduce the cost of clinical negligence claims overall – by making them more difficult to bring – rather than reducing the cost of legal aid’. This bill would remove any remaining recourse to justice, destroying almost all chances of success for people affected by clinical negligence.

The assertion by the bill’s PR team that doctors fear litigation appears to be based perhaps solely on the opinion of those not in clinical practice or medically qualified themselves. The repetition of the sound bite from an F2 doctor, who rather informally says ‘will my ass get sued’, by a process of elimination leaves me personally in doubt as to whether they had anyone else in the medical profession to support this view.  Doctors have expressed that they do not fear innovation, despite the best efforts of the Saatchi campaign to scaremonger support ‘your entire livelihood ….’ and misrepresent the law.  I do not know anyone who fears innovating appropriately.  Doctors have spoken out to state that this is wrong.  Margaret McCartney is clear on the fact ‘it is currently not negligent for a doctor to depart from the existing range of medical guidelines for a condition’. We all know we can depart from guidelines where it is appropriate to do so.  Esteemed Professor Michael Baum has emphatically stated that never once has fear of litigation impeded him in innovating: ‘NEVER ONCE HAVE I ENCOUNTERED INTERFERENCE OR OBSTRUCTION ON LEGAL GROUNDS’, emphasising this later when he writes:  ‘I have never once experienced any obstacle that could even indirectly be linked to fear of litigation.’ 

The MDU, representing half of UK doctors,  would surely want a bill that can be used to defend against malpractice litigation.  They, however, have stated it is unnecessary and likely to cause harm, and will act to impede innovation.

The legal basis for justifying this bill has been poorly understood and blindly regurgitated by one-sided PR articles and the bill team. This is because there is no legal basis.  Negligence has never been defined as not following the standard procedure and to believe it has is to fundamentally confuse standard with standards.  Negligence is falling below the minimum of standards; it is not ascribing to one standard course.  Treatment is generally required to be supported by ‘a’ responsible body of medical opinion, even if it is a very small minority one. In Bolam this was the case itself: ‘a’ was used in the directions, not ‘the‘.  Simms v Simms is the case where Baroness Butler-Sloss states ‘…The Bolam test ought not to be allowed to inhibit medical progress’ – the law so clearly recognises the need for innovation and is protective of those who innovate responsibly.  Departure should have some logic and reason to it  but not necessarily be backed by any substantial body – just for the rationale to be in some way logical or explicable:  surely this is the very lowest we can all expect from our doctors? how is this anti-innovation, then?

Perhaps Martha Gill is attempting to be the self-styled Katie Hopkins of blogging, knowing her comments to be laughable.  For ‘there are of course some caveats’, The Telegraph piece adds tentatively at the very end; ‘just because a new treatment helps one patient, it doesn’t mean it will help others’.  No, it doesn’t.  It puts the individual at significant risk, and n=1 is not going to help patients in the future. To coercively gain support in this way is suggesting this will lead to empirical research studies, though this is not a part of the bill (yet is a part of current practice).  By making claims it can help another again shows the true intention to be one of research, the true worth of the person with cancer as an example to be expendable. To better care, many drugs that we know do work could be funded, pharmaceutical development could progress to provide drugs for more patient groups at lower costs, and better, faster access to trials and research funding for small projects and technology advances could be available. We need more evidence funded for there to be more drugs available faster, and for more people to make optimal clinical decisions. Not less evidence.    Current research and legal guidance allows innovative individualised treatments but also safeguards patients responsibly.

This bill would achieve no reasonable aim:  it would however remove all access to justice, trample over any true informed consent or autonomous process,  increase red tape and legal interference and contravene existing laws and regulations. It would instantly dehumanise ‘the dying’ to no more worth than a lab rat.  A ‘wasted death’ indeed.

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