"Laws are like sausages. It is better not to see them being made."
Lord Saatchi himself was not prepared to await the results of the consultation. Between the close of the consultation and the government's response, he has introduced a new version of his bill into the House of Lords where it has already had its second reading and will now go to the committee stage.
As troubling are claims that were made about the consultation process. In The Telegraph on 1 May 2014 Lord Saatchi wrote:
"Last week, the Department of Health closed the public consultation into the Medical Innovation Bill ... And thanks to the Secretary of State, and his legislation team at the Department of Health, it has been a model of a Government listening.
"We now have the results. A staggering 18,655 people - including doctors and patients, relatives of the bereaved and soon-to-be-bereaved, scientists, lawyers, legislators and the man and woman in the street - have responded wholeheartedly in support of this Bill. Fewer than 100 were against it..."
In contrast the Government's official response states:
"By the end of April 2014, comments from 70 people had been published online and a further 100 responses to the consultation had been sent directly to DH" (the Department of Health).
Lord Saatchi's additional 18,500 people comprised about 16,000 who signed an online petition created by the Saatchi Bill Team, and another 2000 who were channelled through a Saatchi Bill website. His claim that "fewer than 100" respondents were against the bill is not established by the government's response. Of course if over 85 opposed the bill, then a majority of the 170 respondents opposed it. To the consultation question of whether the bill should become law the government states, "There was support for the bill in some responses..." [emphasis added] but goes on to state the reasons given by others for not supporting the bill. If the government has not said how many of the 170 responses it received supported the bill, how can Lord Saatchi know?
The fundamental premise underlying the bill is that current clinical negligence law impedes medical innovation. The bill seeks to promote innovation by protecting doctors against being found negligent. If that premise is wrong, the bill is unnecessary and fundamentally flawed.
The government asked respondents "Do you have experience or evidence to suggest that the possibility of litigation sometimes deters doctors from innovation?" The government reports that some individuals said they did have such evidence, as did the British Association of Surgical Oncologists. However,
"many of the respondents who said "no" were medical bodies, including the Academy of Medical Royal Colleges and the Royal Colleges of Pathologists, of Physicians and Surgeons of Glasgow, of Radiologists, and of Surgeons of Edinburgh. It has been argued that "top doctors" are least likely, and the "rank and file" most likely, to be deterred from innovating by the fear of litigation, so it is worth noting that the British Medical Association and the two medical defence organisations that replied to the consultation also answered "no" to this question....
"Other respondents also answered no to this question. These included:
- medical research charities (including Cancer Research UK, Leukaemia & Lymphoma research, the Motor Neurone Disease Association, the Muscular Dystrophy Campaign, Parkinson's UK, Prostate Cancer UK and Target Ovarian Cancer);
- other bodies active in research and science (including the Academy of Medical Science, the Medical Research Council, the Wellcome Trust and the British Pharmacological Society);
- bodies primarily concerned with patients (including Action against Medical Accidents, Genetic Alliance UK and the Teenage Cancer trust);
- NHS England, the NHS Litigation Authority and the National Institute for Health and Care Excellence."
The evidence was therefore overwhelming - fear of litigation does not deter medical innovation. In an eye-opening article Dr Prentice, President of the Royal College of Pathologists, describes the overwhelmingly negative response of the royal medical colleges at a consultation meeting concerning the Saatchi Bill at which Lord Saatchi spoke.
"Meetings of the Association of Royal Medical Colleges can be tedious and divisive but this one was remarkable for the colleges' unanimous, professional rebuttal of Lord Saatchi's assertions... Lord Saatchi's PR team have not produced any examples of inhibition of research and development for this reason [fear of litigation]. But "No rational argument will have a rational effect on a man who does not want to adopt a rational attittude" (Popper) so there has been no let-up in the propaganda pumped into the media."
Proponents of the bill seem to think that it is sufficient to say that many people could benefit from new treatments and therefore a bill called the Medical Innovation Bill which seeks to encourage doctors to provide new treatments must be "a good thing". What a Bill is intended to do is not the same as what it will do. The bill makes one fundamental change to the law and one only - it allows doctors who would currently be found negligent to avoid being found negligent by following certain procedural requirements. Doctors who are not negligent are not protected by the bill, only negligent doctors. The bill protects them against being sued by their own patients who are harmed when the doctor gives them treatment which no responsible body of doctors supports.