Medical Negligence & The Medical Innovation Bill

The Medical Innovation Bill frequently dubbed the Saatchi Bill, had potential to be the biggest change to medical negligence legislation that many could have seen, however it was met with reluctance and hesitation. The Bill reached the last phase before royal assent, however Parliament prorogued and the Bill made no additional 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 more, parliament session finished and the Bill didn’t move, but it raised the question of whether we had this Bill.

The Bill concerned itself with the evaluation of reasonableness which all physicians must adhere to under the common law test of Bolam that was later added to by Bolitho. All physicians are subject to this evaluation if faced with a medical negligence case. To surpass the evaluation, the physician must show they’ve acted in accordance with a practice accepted as proper by a ‘responsible body of medical men’. This evaluation derived from Bolam and has been heavily critiqued for permitting physicians to escape redress. Bolitho amended the medical negligence test marginally, in the sense that the physician must also now supply a logical explanation for their contested actions. These evaluations for medical negligence are often criticised as leading to an over cautious medical body of physicians, that are reluctant to try different therapies, or ‘out of the box’ remedies for patients, for fear of a claim of medical negligence, and so some shared the belief that new laws should be implemented to permit doctors to prevent medical negligence claims when acting in good faith.

The new Bill would have allowed the Secretary of State for Health to make a database of clinically innovative treatments. The database has been set to include records of successes and so in turn failings by physicians using the innovation treatments recorded.

Moreover, the Bill would permit a physician to deviate from standard practice if they could demonstrate that they had acted responsibly. The Bill in certain ways can be shown to adhere to the older ‘Bolam’ test, in the sense that it would set out a series of measures that physicians can follow to demonstrate evidence they’re not guilty of medical negligence. One of which is to acquire evidence from a ‘responsible body’ of medical opinion, that are in agreement to the physician’s actions, nor feel they were behaving ‘irresponsible’. The Bill wasn’t meant to replace the present tests for medical negligence, but instead offer an alternative means for physicians to escape liability for medical negligence when they’ve deviated from standard practices.

A frequent argument from those who oppose the Medical Remedies (Advances) Bill is they fear it would allow physicians to try experimental treatments, when there is already a successful remedy in place. This argument appears to be somewhat limited, because it’s unlikely that the physician could demonstrate that this was really ‘behaving responsibly’. There appears to be a lack of balance between each side of the medical negligence scale, those physicians who crave the ability to deviate from standard practice but are loath to for fear of a claim, and the people who fear that this Bill will result in more negligent treatment, and an unaccountable medical profession. The Medical Innovation Bills failed but it seems somewhat inevitable that this Bill will soon emanate once again.

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