Department of Health publishes consultation on Lord Saatchi’s Medical Innovation Bill

Department of Health publishes consultation on Lord Saatchi’s Medical Innovation Bill

The Department of Health has now published its Consultation on the draft Medical Innovation Bill (No.2) and responses are sought from doctors, patients and legal professionals by 25 April 2014.

The Bill was initiated by Lord Saatchi following the death of his wife from ovarian cancer. Supporters of the Bill consider that fear of negligence claims is preventing doctors from using innovation to treat medical conditions, in particular cancer.

What is the Bill?

The Bill is dubbed legislation to encourage medical innovation. The purpose of the Bill is to clarify what is negligent and dangerous practice by clinicians and what is careful and responsible innovation. The Bill will effectively introduce a statutory defence of innovation to medical negligence claims.

What is the current test for negligence?

The current test for negligence is laid down in the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118) (the Bolam test) and states that a doctor is not negligent if he is acting in accordance with a practice accepted by a responsible body of medical practitioners, merely because there is a body of such opinion that takes a contrary view.

This current legal position gives doctors a basis for innovating where they can satisfy the Bolam test. However, questions have been raised about how the new law would be applied in cases where there may not be a responsible body of medical opinion that supports a decision to carry out an innovative treatment.

This test was refined by Bolitho v City and Hackney Health Authority (1998) AC 232 which added that the opinion must be capable of withstanding logical analysis by the courts.

The Consultation

The Department has published its Consultation Paper and seeks views on whether

  • doctors are being held back from using innovative treatments because of the fear of being sued if something goes wrong; and
  • whether clarifying the law will encourage doctors to develop innovative treatments in a responsible way

What do you think? Do you think that the current law is sufficient or do you agree that this Bill is necessary to allow more innovative medical treatment?

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About the author:
Elizabeth has ten years of experience in personal injury litigation. She studied science and law at the University of Adelaide in Australia and practised there for several years before relocating to London. She initially practised in insurance litigation dealing with product and public liability claims and then specialised in clinical negligence. She worked at Lovells and then at US Firm Howrey. Following that she transferred to Nabarro with her team to help establish the healthcare practice. Elizabeth managed a significant case load dealing with large and small value claims and several large scale group actions. Elizabeth joined the Lexis®PSL team in January 2012.