Tuesday, 24 November 2015

The Effect of the Saatchi Bill on the Common Law. Who is right?

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.

Monday, 9 November 2015


I was called to the Bar in 1989. I sometimes think that I joined the legal profession but will retire from the legal services industry. Through political, cultural and regulatory pressures, the practice of law has become heavily commercialised. This has eroded some of the cherished  traditions of our independent profession. Now another is under threat: pupillage. 

Barristers in independent practice are self-employed and they are in competition with each other. But, subject to some exceptions, to become a practising barrister you must first undergo a twelve month apprenticeship known as pupillage. For the first six months the pupil simply follows an established barrister, his or her pupil supervisor, learning the ropes. During the second six months, pupils remain under close supervision but they are "on their feet" and can represent clients in return for a fee.

I benefited from having a superb pupil supervisor. I have supervised seven pupils myself and greatly enjoyed doing so. When operated properly the pupillage system can work very well, but it depends on the generosity of established barristers and their chambers. Pupil supervisors are not paid for their supervision. Indeed they usually pay their pupil's incidental expenses. The cost to chambers of recruitment and training is considerable. My chambers typically receives 300 to 400 pupillage applications each year. Barristers spend many hours of unpaid time sifting applications and interviewing candidates. Then, during pupillage, as well as the unpaid time spent on instructing and training pupils, chambers' members make a pupillage grant or award (typically in the region of £20,000 or more for each pupil). All in all, I imagine it must cost a chambers at least £40,000 in cash and in unpaid time to recruit and train each pupil. 

Once a pupil becomes a fully fledged barrister they will become more experienced and ultimately will be in competition with all other barristers, including those who gave them their pupillage. Of course there may be benefits to the chambers concerned, but essentially the provision of pupillage is altruistic.

Commercial pressures will continue to bring this reliance on the generosity of the Bar into sharp focus. There are already signs that the number of pupillages may be falling. Over the next ten years that number could well drop further. Uncertainty about the future of the criminal and family bars is liable to contribute to the downturn. There will be increasing pressures to cut overheads as fees are reduced. The ties that bind a barrister and his chambers together have weakened in this more competitive environment. More and more barristers move chambers to seek to improve their lot - I did so myself ten years ago.

The more successful and powerful chambers will always be able to attract recruits from less successful sets. Commercial pressures might therefore lead those chambers to reduce the number of pupillages they offer, and to seek to maintain the inflow of members by recruiting established barristers. 

At present, as I understand it, there is no obligation on chambers to offer pupillages. Accordingly there is no barrier to a chambers adopting the business model I have described. One can even imagine a successful chambers choosing to recruit only established practitioners and not to offer any pupillages at all. It might make commercial sense for that set, but other chambers, feeling exploited, may then decide to reduce or avoid their own spending on pupillages. The end result would be a significant reduction in the number of pupillages on offer. And it seems that if the overall number of pupillages diminishes, so does the diversity of new entrants to the profession.

The system of pupillage is reliant for its successful operation not only on individual chambers and barristers giving generously of their time and money, but also on all chambers agreeing to adopt the same practice of recruitment. If only some chambers offer pupillages, then the pupillage system will fade away.

As the number of pupillages falls, those seeking to become barristers will find other ways of entering the profession, perhaps becoming solicitors first and then making a sideways move to the Bar. That route to becoming a barrister has become increasingly common in recent years. 

It is a great privilege to help someone begin their career. For the pupil, the experience is of an immersion into life at the Bar. You learn more about legal practice in your first week of pupillage than a year reading a book. The system of pupillage has been of considerable value to the Bar. It would be a shame if it were allowed to become a thing of the past.