A new Bill has been introduced in the House of Lords this week which is aimed at furthering pioneering treatment of cancer patients. The new Medical Innovation Bill comes from Lord Saatchi following the death of his wife, Josephine Hart, who lost her fight to cancer. The Bill focuses on removing the liability of doctors in clinical negligence cases involving cancer patients if they are undertaking innovative treatment and procedures in relation to cancer patients.
So why do we need this Bill?
The answer is ‘defensive medicine’. This is where doctors, for fear of malpractice litigation, deter from providing innovative treatment and procedures which could further a cure or enhance treatment for a particular condition. What the Medical Innovation Bill appears to want to achieve is an end to the fear in doctors of being sued for clinical negligence, particularly if they are trying to enhance treatment, cures or understanding of a condition. This Bill achieves this by providing the doctor with what appears to be a statutory defence in cases where they were being innovative with treatment of a condition.
Is this Bill the way forward in achieving this aim?
On first reading, the Bill appears wider than the media has suggested and may apply to more than just cancer treatment. In the current form it does not appear to be limited to particular types of treatment and covers everything that can be defined as a ‘condition’, with cancer merely cropping up as an example of a condition. This suggests that innovative treatment of any medical condition can defeat the doctor’s liability to the patient who has suffered treatment that would otherwise be negligent but for the doctor’s innovation. This has the potential to promote doctors to undertake risky treatments and could encourage a ‘guinea pig’ type approach to some patients. However, the Bill does enforce that the treatment must be in the patient’s best interests and the principles of informing the patient and consent are still required in relation to any innovative treatment.
It is certainly clear that defensive medicine is not desirable and steps should be taken to further treatments and cures in relation to certain conditions, particularly those such as cancer that kills a large number of people every year. However, if the Bill is the way forward it should not be so wide as to promote a guinea pig culture when providing new treatments to patients and provide a defence when it goes wrong, particularly in cases where innovation was inappropriate or unnecessary. Whether this Bill is the answer to defensive medicine is unclear however, it must be ensured that litigants deserving of compensation for negligent treatment are not denied this by the technicality of some innovation in their treatment.
All information is correct on the date of posting.