Disclosure of documents subject to implied undertakings
The report stage of the Medical Innovation Bill begins today, on Friday 12 December. Lord Saatchi has submitted further amendments to the Bill, which is now substantially altered. Unfortunately this billl was pretty much a sow’s ear at the outset, and no amount of alteration will make it into a silk purse.
The real problem is the basic premise, which is that doctors should receive statutory protection for experimenting on vulnerable people. Scientifically, ethically, and legally this is simply a very bad idea.
Lord Saatchi is well connected, and has many supporters for the Bill, including Lord Woolf. Earlier in the year Lord Woolf wrote in the Daily Telegraph of how, as a Judge, he sat in cases where doctors were sued in negligence because they innovated in the treatment they offered, rather than following generally accepted medical standards. I understand that he subsequently issued a gracious apology for not being able to name the cases. However, it remains disappointing that Lord Woolf, who has done so much to improve our legal system, and bring clarity to the law, should lend his support to a Bill which does just the opposite.
I have been a Claimant clinical negligence lawyer for nearly 25 years. During that time I have never sued a doctor for innovating. Such a cause of action does not exist in English law. Cases against doctors are claims in negligence. To succeed we have to show that the medical treatment fell below the standard of a reasonably competent practitioner, and that it caused the injury complained of. This is the Bolam test which is relied upon to both bring and defend claims. It is clear, easy to understand, and quite rightly, gives doctors a very high degree of protection.
That test has been used for almost 50 years, and during the same period there has been a massive amount of medical innovation. There have also been some tragic examples of medical innovations going terribly wrong – for example the use of thalidomide for morning sickness. That is why we need to have a well-developed system of checks and balances that ensures innovation happens, but within the careful framework of scientific, ethical and legal control. If we seek to water that down, particularly by means of poorly drafted legislation, then we do so at our peril.
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