There has been belated coverage of the Bill in the BMJ in recent weeks, notably Prof Sir Michael Rawlins writing in support on the entirely misunderstood and misrepresented basis of Butler-Sloss’s remarks in Simms v Simms – a case which rather proves that there is no need for this legislation at all. The article and its responses are here.
The latest letters include responses from solicitor Dr Darren Conway, stating ‘the bill will cause serious problems for the medical profession. It should be rejected’; the response from clinical research consultant Les Rose listing many current consultation responses from organisations against the Bill; Consultant Oncologist Santhanam Sundar’s response ‘legal hurdles and clinical irrelevance’; Professor Bewley’s response as above and a letter from Nigel Poole QC: The “Saatchi bill” is mistargeted and will put vulnerable patients at risk.
Nigel Poole QC’s letter states:
The Medical Innovation Bill is unnecessary, mistargeted, and will put vulnerable patients at risk.1 In its response to the public consultation, the BMA said it “strongly believes that the draft bill should not become law.”2 I agree.
The bill’s laudable aim is to promote responsible medical innovation, but the draft on which the government has consulted seeks to do so by providing that doctors who give treatment that no responsible body of medical opinion would support shall not be negligent.
The bill is aimed at the wrong target. As the Medical Defence Union said,3 4 medical negligence law does not prevent responsible innovation. Doctors who act in accordance with a responsible body of medical opinion are not negligent, even if most other doctors would not support the treatment given (the Bolam test). Sir Michael misunderstands the judgment of Lady Butler-Sloss in Simms. Far from holding that the Bolam test obstructed innovative treatment, she deployed it to justify allowing untried treatment to be given to two patients with variant Creutzfeldt-Jakob disease. Whether that was a good decision or not, it cannot be used to argue that the current law impedes innovation.
The bill has nothing to say about matters that have a real bearing on innovation, such as funding or regulation.
“Innovative treatment” is not defined, so the bill applies to all negligent decisions to treat, whether innovative or not. It does require that certain procedural steps should be taken by the doctor before making the decision, but, by definition, the decision would still be one that no responsible body of medical opinion would support. Contrary to some reports, the bill does not require other professionals to endorse the doctor’s decision.
Surely there are better ways of promoting responsible innovation than by removing the right of redress to patients who are harmed as a result of treatment that no responsible body of doctors would support?
Surely there are better ways; as stated by Dr McCartney, ‘the intentions may be honourable—more honourable would be the bill’s withdrawal.’