Therapeutic Negligence and The Medical Innovation Bill

The Medical Innovation Bill often dubbed the Saatchi Bill, had potential to be the biggest change to medical negligence law that many would have seen, yet it was met with reluctance and hesitation. The Bill reached the final stage before royal assent, however Parliament prorogued and the Bill made no further progress. Then we saw it rebranded by Chris Heaton-Harris as The Access to Medical Treatments (Innovation) Bill who sought to take it through the House of Lords as a private member’s Bill. Once again, parliament session ended and the Bill did not proceed, but it raised the question of if we needed this Bill.

The Bill concerned itself with the test of reasonableness which all doctors must currently adhere to under the common law test of Bolam which was later added to by Bolitho. All doctors are subject to this test if faced with a medical negligence claim. To surpass the test, the doctor must show that they have acted in accordance with a practice accepted as proper by a ‘responsible body of medical men’. This test derived from Bolam and was heavily critiqued for allowing doctors to escape redress. Bolitho amended the medical negligence test slightly, in the sense that the doctor must also now provide a logical explanation for their disputed actions. These tests for medical negligence are often criticised as leading to an over cautious medical body of doctors, who are reluctant to try alternative treatments, or ‘out of the box’ treatments for patients, for fear of a claim of medical negligence, and so some shared the belief that new legislation should be implemented to allow doctors to avoid medical negligence claims when acting in good faith.

The new Bill would have enabled the Secretary of State for Health to create a database of medically innovative treatments. The database was set to contain records of successes and so in turn failings by doctors who use the innovation treatments listed.

Furthermore, the Bill would allow a doctor to deviate from standard practice if they could show that they had acted responsibly. The Bill in some ways can be shown to adhere to the old ‘Bolam’ test, in the sense that it would set out a series of steps that doctors can follow to show evidence that they are not guilty of medical negligence. One of which is to gain evidence from a ‘responsible body’ of medical opinion, who are in agreement to the doctor’s actions, and do not think that they were acting ‘irresponsible’. The Bill was not meant to replace the current tests for medical negligence, but rather provide an alternative means for doctors to escape liability for medical negligence when they have deviated from standard practices.

A common argument from those who oppose the Medical Treatments (Innovation) Bill is that they fear it would allow doctors to try experimental treatments, when there is already an effective treatment in place. This argument seems somewhat limited, as it is unlikely that the doctor could prove that this was indeed ‘acting responsibly’. There seems to be a lack of balance between both sides of the medical negligence scale, those doctors who crave the ability to deviate from standard practice but are reluctant to for fear of a claim, and the public who fear that this Bill will lead to more negligent treatment, and an unaccountable medical profession. Both the Medical Innovation Bills failed but it seems somewhat inevitable that this Bill will soon emanate once more.