Will the Access to Medical Treatments (Innovation) Bill change the common law of medical negligence? It seems that the government does not believe that it would.
On 29 October 2015, Dr Darren Conway, Senior Associate of Tollers Personal Injury wrote to George Freeman MP, Minister for Life Sciences, expressing concerns about both the Saatchi Bill and the Access to Medical Treatments (Innovation) Bill which largely incorporates the Saatchi Bill. Darren referred to my blog, and in particular my post on the AMTIB. He referred to Mr Freeman's statement in the House of Commons that "I want to be clear that this Bill in no way changes patients' rights to claim for negligent treatment". Darren contended that the AMTIB bypasses Bolam and would change the current law to the detriment of avoidably injured patients.
This was Mr Freeman's response to that part of Darren's letter, dated 16 November 2015:
"I note you have referenced Nigel Poole QC's blog summary on the Bill. I have had sight of this and, while I acknowledge Mr Poole's comments and I am keen that any Bill does not inadvertently create any additional legal complexity or uncertainty, I disagree with him on several points.
The Bill brings the common law Bolam test forward, as far as it is possible to do so. Under both the common law and the Bill a doctor must act responsibly, and this will ultimately be for the court to determine. Although clause 3(2)(a) is not identical to Bolam, because it is not possible for a court to determine of if there is support from a responsible body of medical opinion in advance, it is difficult to see how the outcome of its application will be different from Bolam in practice. If a doctor seeks the views of one or more appropriately qualified doctors in relation to the proposed treatment, and as a result does not think the treatment would have the support of a responsible body of medical opinion, it is difficult to think of circumstances where it would be responsible for the doctor nonetheless to proceed with the treatment, particularly given the requirement under clause 3(2)(b) that they must take account of those views in an objectively responsible way. A doctor who proceeded on this basis would be at risk of a successful negligence action. We do not think the Bill provides any fewer safeguards for patients than those provided under the common law.
It is right that patients are entitled to seek compensation if they believe they have received negligent care and the Bill does not alter this position. The Bill is not intended to protect a doctor who is negligent in the manner in which the treatment is provided and does not do so. Clause 4(3) of the Bill clarifies this point.
However if the doctor carried out the procedure correctly (i.e. not negligently) and had made the decision to innovate responsibly in accordance with this Bill, but there were adverse consequences from that procedure, they would be protected in the same way that they are under the current law."
I would be prepared to agree that if the "other" doctor advised the treating doctor not to go ahead with treatment, he would be unlikely to do so, although he might find another doctor with a different opinion.
It is fair to say that the Bill would not prevent patients from bringing negligence claims. They could still bring them, but in some cases it would be more difficult for them to succeed in obtaining redress for their injuries and loss.
It is also right to note that clause 4(3) now states that the Bill "does not affect liability in respect of the negligent carrying out of medical treatment." That is welcome, although how the courts will determine what is a decision to treat and what is treatment when the bill defines treatment to include "management" and "inaction", is another matter.
All of those contentions by Mr Freeman might be fair, but they miss the point. The objection raised by Darren was a different one: the Bill does not simply "bring forward" the Bolam test, it changes the common law of medical negligence. It will provide doctors with a defence to negligence claims which does not currently exist.
In virtually every defended clinical negligence case the defendant will have secured advice from a medical expert that the doctor involved acted in accordance with a responsible body of rational opinion. Yet claimants succeed in many defended medical negligence claims. The fact that the treating doctor and an expert doctor both genuinely believe that the treatment decision was in accordance with a responsible body of medical opinion does not make it so.
If the Bill is passed that will change. An injured patient's claim for compensation would be defeated if two doctors had agreed that the treatment decision was in accordance with a responsible body of opinion and the other steps at section 3 were fulfilled. In those circumstances the court could not find the doctor negligent, even if it would have found him negligent using the Bolam (and/or Bolitho) tests.
In short, the current common law provides that a doctor is negligent if he fails to act in accordance with any responsible body of rational opinion. That is a matter for the court to decide, not doctors. Under the Bill a doctor who would otherwise have been found negligent could succeed in defeating a claim by demonstrating that he had met the requirements of section 3. But those steps will not guarantee that the treatment decision was one which would be supported by a responsible body of rational medical opinion.
The concern is not so much for those cases where a doctor is unable to find another doctor who agrees that the treatment decision is responsible, but for those cases where a doctor does secure the agreement of another that the decision is responsible, and the treatment goes ahead and harms the patient.
If you practise in the field of medical negligence you may have a view as to whether Mr Freeman's analysis of the impact of the Bill(s) on the common law is correct. I am sure the government and MPs would be interested to have your views. Please leave them as comments below or on twitter.