Why there is no legal or medical justification for the Saatchi bill – BMJ

Time and again it has been stated that there is no legal or medical basis for the Bill. I like others have been frustrated by the refusal to listen to clear fact and some not-overly-complex law. I therefore warmly welcome today’s BMJ Editorial entitled ‘Why there is no legal or medical justification for the Saatchi bill’  Some included herewith – full text at bmj.com

‘Commentary supporting the bill states: “Under present law, any deviation by a doctor from standard procedure is likely to result in a verdict of guilt for medical negligence.” It continues, this is why “there is no cure for cancer.”

These are major overstatements. Common law rests on the Bolam principle, which states that a doctor is not negligent in prescribing an unproven experimental treatment if it is supported by a responsible body of medical opinion.

This “professional consensus” defence already accommodates innovation by minority opinions. For example, professional consensus approved a 1% minority opinion in favour of spinal surgery (by spinal surgeons) despite a large majority of neurosurgeons disapproving of the surgery (De Freitas v O’Brien [1995] Med LR 108). Doctors can prescribe unlicensed drugs and, in extreme cases, untested drugs awaiting approval, as they did for patients with variant Creutzfeldt-Jakob disease (Simms v Simms [2002] Fam 83). The Department of Health has not suggested that law is an obstacle to medical innovation…

The most thorough discussion of the legal aspects of the bill is by the Saatchi campaign’s barrister. Notably, he found “little to demonstrate that innovation is stifled by the risk of being sued.” He concludes that the bill did not “effect a substantive change in the law” but it may influence how doctors perceive the law. This is a major concession to those who dispute the need to change the law. If doctors’ perceptions are the problem, besides changing the law, softer solutions are available, including clarification and codification by professional bodies…

The health secretary has committed “that the government will seek to legislate at the earliest opportunity, subject to the results of the consultation.” In this he should be guided by the analysis of cases identified in the consultation. The consultation responses of 22 organisations did not identify a single instance of existing law deterring a doctor from innovation.  These responses also identify the risk of making the doctor’s decision more subjective, the weakness of reliance on the “responsible officer,” the shift of risk to patients from any sponsoring organisation and diversion of attention from relevant clinical trials…

That this bill has got so far is testament to Saatchi’s campaigning skills and, perhaps, the extent of his grief. But the lack of support for his two key arguments for change is striking. Even his own legal advice states that the bill leaves existing law unchanged. Numbers of medical negligence cases are likely to fall. The legal case for reform is weak. If the bill becomes law, it may be more as a memorial to a deeply missed partner than as a contribution to improving cancer care.’

 

There was never a legal justification for the Bill, and the only action the team should take is to withdraw this dangerous ill-thought through concept and take stock of the consultation responses, their comments and their recommendations for something to ‘back’ that would be of real benefit to patients, clinicians and progress.

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