Thursday, 20 November 2014

Medical Innovation Bill

I attended a dinner last night at which one of the topics discussed was Lord Saatchi's proposed 'Medical Innovation Bill'.

I am not convinced of the necessity of this Bill and am confused by how it will interact with existing medical law. The particular issue that troubles me is the Bill's seemingly contradictory position on the Bolam test and 'negligence'.  I am not fully reassured by the analysis at

To my understanding, defending negligence alleged in  relation to therapeutically motivated actions would in part be reliant upon demonstration of a Bolam -satisfactory level of peer expert support of those actions; the support of a 'responsible body of medical opinion'. However this Bill would now assert that departure from the 'existing range of accepted medical treatments for a condition' will not be negligent  'if the decision to do so is taken responsibly' (s1(2), Medical Innovation Bill). The Bill defines making a decision 'responsibly' in this context, as simply being to have obtained and taken into account the 'views of one or more appropriately qualified doctors in relation to the proposed treatment'

Section 2 of the Bill would provide that

'Nothing in section 1 affects any rule of the common law to the effect that a  departure from the existing range of accepted medical treatments for a  condition is not negligent if supported by a responsible body of medical  opinion.'

My concern is that this Bill would allow that any treatment however experimental or 'innovative' , given to a patient by a doctor would be legally defensible as long as the approval of at least one other expert doctor is obtained - even if a larger 'body' of expert medical professionals would not have advised that treatment. Can one individual expert now constitute a 'body' for the purposes of Bolam and negligence?

If anyone can actually answer the question of how one would innovate 'responsibly' yet remain Bolam compliant and defensible were it to go wrong, I would be keen to read views.