Move over H.L.A. Hart – a new quasi jurisprudential vehicular analogy is about. In a google hangout hosted by Dr Ranj, Maurice Saatchi states his case.
“I think the reason why the bill has gained so much support is reflected in remarks made by Professor Stephen Kennedy at Oxford. He put it this way:
What patients and their lovers, mothers, daughters, sisters, want to know is ‘ has everything been done? Is there anything else that could be done? Is there anything that we can do?’ that’s what people want the answer to – usually in terms of mounting desperation.
Scientific progress at the moment comes to a dead halt at the bedside of the cancer patient. Because, let’s take the position of the doctor who is dealing with a cancer patient. He knows what the prognosis is, which is a poor life quality followed by death. Being a decent, humane person the doctor would like to attempt some kind of innovation. At that point, standing between the doctor and the patient, appears a red light in front of the doctor. I use the phrase red light advisedly. I was advised to use it by one of the most senior judges in the country. A red light. This red light says to the doctor are you sure you want to go ahead along this path of innovation.. if you do, and anything goes wrong, you are likely to be found guilty of medical negligence. Your reputation, your livelihood, your entire life is going to be put on the line. Faced with that, a normal person would say perhaps it’s safer to stick to the well-worn path of the standard procedure. And you can see in that way that the scientific process… that scientific process of trial and error has come to what I’d called a dead halt. That’s the problem as defined by the Bill..”
He has, of course, repeatedly expressed the opinion of doctors as complacent, self-interested beings of pre-conventional morals only concerned with the consequences for their career and bank balance, and not with patients’ lives.
He then emphatically defends his case – because it’s like driving through a red light, right?
Dr R: ‘One thing I have to point out is that…a lot of legal professionals …have expressed concerns over this Bill. Now what would you say to them Lord Saatchi because I cannot reassure them as a medical professional, this is going to have to come from the people involved in the Bill itself ?’
Saatchi: ‘Well what is their concern?’
Dr R: ‘Their concern is that it does leave people open to abuse, to exploitation; and that law already exists and this doesn’t actually add any more to it. Case law already stipulates that the Bolam test shouldn’t be used to hinder the progress of science.’
Saatchi: ‘Yes it does.
But there must be a reason why all the hundreds and hundreds of doctors, and thousands and thousands of patients are so in support of this Bill. They can’t all be living on another planet.’
Dr R: ‘..You could argue that’s the result of a very, very good publicity campaign, and obviously your background is in advertising and publicity; but the MDU says they do not see a need for this Bill. They say that the evidence just isn’t there from their point of view obviously and they’re seeing it from their side.’
Saatchi: ‘Yes I’ve heard what the MDU say which is that there are no cases of doctors being sued for lack of innovation therefore they say well there’s no problem here.’
Dr R: ‘You could say that those cases don’t happen because they are afraid of innovating and therefore…that’s the argument from the other side isn’t it..’
Saatchi: ‘I mean, it’s a really, it’s a fantastic argument and we should try and deal with it.’
‘Let me make an analogy.. I was talking before about a clear path and the red light. There are very very few, er I’m just checking with the House of Lords library, but I believe there are very few, hardly any, prosecutions for motorists who go through a red light. The reason for that is that um if I ask you whether you’re afraid of red lights you wouldn’t say yes I’m afraid of red lights.
Every motorist knows what a red light means which is if I go through this red light and I’m caught, I’m going to lose my licence. If I hurt anyone on the other side of this red light I’m going to go to prison. So consequently people don’t go through red lights. Exactly the same applies in the red light analogy by the bedside. There people don’t have to say I’m terrified of litigation any more than they have to say I’m terrified of red lights. They both know.. doctors know and motorists know what this red light means, and therefore it’s very important for people to look at, um, the culture of litigation which now exists.’
‘…I cannot imagine that you could have a wall of litigation of that* kind, whether these…this is not to do with innovation, that doesn’t create a culture of risk aversion and a culture in which the only safe path is to stick to the status quo. That, that must be the result. That’s why so many people have said in support of this Bill that ‘we want to change the culture’. The Department of Health wants the NHS culture to be less risk averse, more innovative. It produces many documents and people give speeches to that effect. But I think the reason people support the Bill is that I think they’ve seen you can’t change the culture without changing the law because the law is there and it creates the culture that it has. Therefore this change is of tremendous significance in terms of altering the culture.‘ *(out of context post LASPO, misleading figures quoted that do not represent litigation or settlement expenditure)
Now, if one were to explain negligence in medicine in the simplest of ways to an individual with no understanding whatsoever, such as David Tredinnick, Chris Grayling, Jeremy Hunt, Lord Saatchi’s crew of advisers, any of them – well, a really handy analogy is the standard and duty of care expected generally in the most basic terms when driving a car on the road – sure you can go faster in some places, you can buy a convertible, you can have pink seats and blast 80s hits at full volume, your car can be spraypainted like a batmobile, you can be the Stig (well, maybe – is the role still a zero hours contract?)
But what might kill someone would be, oh, I dunno, something obviously bad, like driving straight through a red light. Blindfolded. At speed. Outside a village primary school. Even if there’s a colleague in the back of your car screaming no. Onwards, you tragically mow down lots of grannies, children, pushchairs and a young boy excited about his new bicycle.
At a busy junction, are people to only fear being caught if they jump a red light? Are they to have no regard for the safety of other road users and consider not only their licence but the high chance of being involved in a nasty crash? or of causing an accident that may easily leave families, lives, devastated?
The Bill doesn’t investigate new routes. It doesn’t pave new roads. It adds nothing, no new rights or reassurances – it makes the journey no better for doctor or patient. While unnecessary, and unhelpful to the vast majority of doctors, it unfortunately does have the effect of promoting very dangerous, unsafe practice on potentially all patients, all over the country. This inconceivably terrible idea is still charging ahead when it should have come to a halt on this road long ago. It must now be stopped.