At the outset of this we wish to express our deepest sympathy and condolences for Lord Saatchi who has introduced a bill at the House of Lords following the death of his wife. It is always a cause for great sadness when someone loses their fight with cancer.
What is concerning is that Lord Saatchi appears to have been told that doctors are unable to make progress in cancer treatments because of the fear of medical negligence litigation. If Lord Saatchi has been told that his wife died because a doctor was unwilling to try a treatment that would amount to innovation and was unwilling to do so purely for fear of litigation, then this is a matter for the GMC to investigate, as that would appear to be deeply inappropriate. It is also completely and utterly legally wrong.
Any doctor who wishes to push forward the boundaries of medical science has always been at liberty to do so. The law as it stands protects doctors who do this. The test the Court will apply is whether any reasonable and responsible practitioner in those circumstances would have done the same thing. Whilst on the face of it that would appear to suggest that new treatments could be negligent, that misses the point. If a patient has a terminal illness for which there may be a new untested treatment, then there is no reasonable and responsible body of practising doctors who would fail to offer that treatment to that patient so long as the patient was aware that it was potentially an experimental treatment and that the outcomes were unknown. No doctor would be criticised by a Court had that been done.
Lord Saatchi wishes to introduce statutory defence to a medical negligence claim involving cancer treatment that includes innovation. In other words, if a doctor causes injury or death as a result of a treatment that no other doctor considered reasonable or responsible, Lord Saatchi’s bill would allow the defence organisation to argue that the doctor was innovating. On the face of it this seems an attractive proposition.
However, for that to be an attractive proposition we would have to live in a world where cancer treatments were not being tested and new treatments being worked on. The simple fact is that we live at the pinnacle of human scientific knowledge. There are various specialist cancer centres in the UK doing sterling work advancing the boundaries and saving more lives each year. If Lord Saatchi was correct, then hospitals such as the Christie Hospital in Manchester and the specialist centres in London would simply not exist because they would be sued out of existence for trialling new and untested treatments.
Lord Saatchi’s bill may have an unintended and far more dangerous consequence. The law as it stands would permit any doctor to innovate so long as they can justify the treatment to their peers (that is to say other doctors not lawyers) and the patient is aware that the treatment is new. It appears that Lord Saatchi wants a situation where doctors don’t have to tell patients that the treatment is new and untested. That would render being a cancer patient as close to being a laboratory rat as a human being could get. It would also open up the possibility that unless the bill is worded so tightly as to not change the law at all, innovation could become a Defence to something far worse than simple negligent treatment.
Lord Saatchi has a name that is associated with advertising and the media. The media currently (possibly at the behest of the Government) is beating a drum that sends out a message suggesting that doctors live in perpetual fear of litigation. It is not clear where this information has come from. There is no statistical or empirical evidence to back up that suggestion, nor is there any suggestion of defensive medicine being practised. Once again, it would appear that Daily Mail headlines and alarmist reporting about compensation culture is being used as a justification for ill thought out legislation.
The law as it stands protects patients from the state. Doctors generally do not set out to deliberately harm patients (although historically there have been one or two) and the law recognises that. The law already takes a paternalistic approach that allows doctors to limit the information provided to patients so as to not to scare people by risks that are so statistically small they need not know about them. This is in stark contrast to other jurisdictions where they have a policy of informed consent. The Courts and the law already do all they can to ensure that doctors are not the subject of a legal witch hunt. In fact, speaking as a medical negligence lawyer, it is more often the case that the test causes injustice the other way.
Cancer cases in particular have a unique set of problems that mean not only do doctors treating cancer patients barely require extra protection at law, but arguably already have it. Whilst it is deeply saddening to hear that Lord Saatchi’s wife lost her fight with cancer, this is not an unusual story and one that clinical negligence lawyers and oncologists hear all too often. Despite the advances being made, there are still cancers that are too aggressive or discovered too late to be curable. Whilst it is hoped that advances will continue to reduce the number of incurable cancers, many will remain incurable due to the simple physiology of the human body.
What this means in many cases involving cancer treatment is that despite negligence on the part of treating doctors (all well intentioned, but on that occasion prone to human error) there is no claim as the condition would have been incurable on the balance of probabilities. That means that if the cancer only had a 50/50 prospect of successful treatment, the law already considers it to have no prospect of successful treatment. With that in mind it is therefore highly surprising that our legislative body is wasting its time drafting, debating and considering legislation to provide protection to the one area of medicine that is already protected by the science and the medicine itself. That is before one even considers the fact that the law does not seek to penalise those who try and advance the boundaries of medical knowledge.
The only doctors who would have cause to be concerned if they were innovating are those who would not be able to justify the risks they were taking with patient lives or well-being in the pursuit of their scientific quest. Whilst it is always desirable that treatments improve and more conditions become curable, it is not desirable that people are left to suffer or die without recourse for them or their loves ones simply because the media believes it should be correct. The common law has evolved to protect the medical profession (and/or other professions) so that they can do their job sensibly and competently without any fear of litigation.
One hopes that the NHS Litigation Authority and the defence unions who represent doctors have not lobbied for this legislation. That would be disingenuous and a deliberate attempt to mislead the public.
As a clinical negligence lawyer it is often the hardest job that we do to inform a family or a dying person that despite errors in their treatment they have no claim because their treatment would have made no difference as far as the law is concerned. When they learn that with appropriate treatment they may have had a 49% chance of survival or even a 50% chance of survival, but that the law considers that to be no chance at all, is both difficult to explain and sometimes hard to justify on a moral level. To then have to add in the fact that even though the treatment may have been negligent the doctor was simply innovating and therefore is beyond reproach would surely add insult to injury and death.
One hopes that the Government takes a step back, takes a deep breath and asks for evidence that oncologists and surgeons treating cancer patients are holding back new treatments or potential advances in healthcare that could be passed by their ethics committees, for fear of litigation. One suspects that no such evidence exists outside of the papers or the whispering campaigns from lobby groups.
No-one working in clinical negligence wants to see doctors victimised for doing their jobs. It is an area of law where the damages are simply an attempt to make good what can never be properly made good. There are no winners in these cases but Lord Saatchi risks creating some more losers.