In December 2012 we set out our concerns about the proposed legislation Lord Saatchi is sponsoring. The stated aim of the legislation is to codify existing practice and create a statutory defence of medical innovation. The concern being that doctors are prevented from trying new unorthodox treatments due to fear of litigation.
In our original post we expressed our concern that there was no need for such a defence as the law already protects responsible doctors. We were also concerned that it would seem to be a risk that patient were put at risk by their informed consent not being central to the changes.
Lord Saatchi has done a lot of work on the proposed bill since we first set out our concerns and we have now spoken to his office about them. What is clear from the Bill as it is now presented is that patient consent is central to Lord Saatchi’s proposal so that there will be no risk of patients being unaware of the experimental nature of their treatment. In that regard we are happy to confirm that Lord Saatchi has allayed our fears about the Bill.
As lawyers we remain concerned that the Bill is not needed as the common law already provides adequate protection to the doctors. The brutal statistics from last years trials indicate that the medical profession is not at risk as many within it fear. Out of the cases brought last year only 1 Claimant was successful at trial. 13 were not successful. Whilst there are many more Claimants who successfully settled their cases the success the medical profession has at court indicates that the law protects them where necessary. In many ways the common law is paternalistic where medicine is concerned as it has to ensure that public policy (and by that we mean the health of patients) allows doctors to act in the best interests of their patients. In some jurisdictions it is the case that the law can cause defensive practices but that is not true (thankfully) in the UK.
What is clear however is that there is a perception amongst some practitioners of medicine that the law is stacked against them and that innovation is stifled as a result. If nothing else a healthy debate about Lord Saatchi’s proposals will hopefully allay those concerns whether the Bill becomes law or otherwise.
Mark Slater, Clinical Negligence Partner