Monday, 22 December 2014

The Saatchi Bill - True or False?

Here is the current version of the Medical Innovation Bill, following its Report Stage in the House of Lords in December 2014.

As the Bill approaches its Commons stages, the following statements about the Bill seem to me to be true. I don't flatter myself that Lord Saatchi, his professional support team or government ministers read this blog, so if you want to know whether they believe the following statements are true or false, you will have to ask them yourself. If you do extract a response, please post a comment.

1.     The Bill applies whether or not a patient has a terminal illness or degenerative condition.

2.     The Bill applies whether or not a patient has exhausted all "standard" or conventional treatments.

3.     The Bill applies to private treatment as well as to treatment within the NHS.

4.     The Bill does not change the regulation or funding of new treatments.

5.     If passed, the Bill will have the following consequences:

a)     A doctor who would now be found negligent for deciding to treat a patient in a way which no responsible and rational body of medical opinion would support, will not be negligent if he/she takes the decision to treat "responsibly" within the meaning set out at section 1(3) of the Bill (provided also that the doctor believes that the treatment is in the patient's best interests and that lawful consent has been given for the treatment) - the "Saatchi Defence".

b)     Hence, in some cases, patients or their families who would now be entitled to compensation for injury or death caused by negligent treatment will no longer be so entitled.

6.     If a doctor makes out the Saatchi Defence, the court cannot apply either of the Bolam or Bolitho tests to find that doctor to have been negligent.

7.     In order to make out the Saatchi Defence, a doctor must first obtain the views of one or more doctors who have appropriate expertise and experience in dealing with patients with the condition in question but:

a)     There is no requirement that the other doctor has seen or examined the patient in question or has seen the patient's records.

b)     There is no requirement that the other doctor must agree to or support the proposed treatment - the doctors may disagree.

c)     The Bill does not require that the other doctor is independent from the treating doctor.

d)     The Bill does not require the other doctor to have experience or expertise in the proposed treatment or mode of treatment.

8.     In order to make out the Saatchi Defence a doctor must take full account of the views obtained from another doctor, or other doctors, "in a way in which any responsible doctor would be expected to take account of such views" but:

a)     That may include rejection of the  views of the other doctor(s).

b)     This is a different requirement from the current legal requirement that a decision to treat is one which would be supported by a responsible and rational body of medical opinion.

c)     This is a new legal requirement on doctors, previously untested in the courts. The treating doctor cannot be any more certain that he has met the test that he can be that he has met the Bolam/Bolitho test - whether he has done will be for the courts to decide. So the threat of litigation is not removed.

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