It has been mooted that ‘current law is a barrier to progress in curing cancer’. I disagree. Lord Saatchi feels that ‘fear of litigation for medical negligence is a deterrent to innovation in cancer treatment’.
At the first reading of Lord Saatchi’s bill, it was mooted that if medical practitioners were not worried about being sued for negligence they may try new options in cancer treatment. It was felt that what is ‘best practice’ in medical terms for treating patients should be regulated by statute, so that doctors would then have the certainty between responsible innovation and reckless experimentation.
As a practising medical negligence solicitor, I do not feel that we can be held responsible for holding back the development of cancer treatments and cures. From my experience, those practitioners dealing in this area are deeply committed, and if they feel a new treatment should be tried or something slightly more unusual is warranted, then they quite rightly seek a second and third medical opinion and the client’s consent – and they proceed accordingly. If the treatment proves unsuccessful this certainly would not give rise to a medical negligence claim.
Lady Butler-Sloss who was also at the meeting asked for clarification as to whether there was evidence of this (doctors not performing due to threat of a claim against them) and it was agreed there was no evidence of such; however, it would stop such a worry in the future.
I accept that statutory regulation of what is considered standard practice in various medical procedures may assist and ensure the standardisation of treatment occurs throughout the country; this can only be a good thing. However, I would be concerned that some of the more senior practitioners would feel constrained by having their actions regulated in this way. At present, we have ‘best practice’ guides which many trusts strive towards; this is to be applauded. If they are not followed this does not open the floodgates to lawyers.
I would also worry that to try and regulate by statute would be extremely difficult because so many different situations and presentations would have to be covered. One could be entering a minefield of regulation. In my practice, when a patient/client first contacts me we go into detail as to what occurred or did not occur and assess the practitioner’s actions or decisions, based on the presentation of facts before them at the relevant time. The tests involved are extremely high.
No two patients are the same and I firmly believe the medical experts we rely on need to be able to treat the individual patient in the way that best suits that patient. However, where we as lawyers do have a role is when there is a blatant disregard of the patient’s concerns, or a reckless performance or non-performance of a procedure. When this happens the consequences can be devastating.
In summary, I genuinely believe the intention of Lord Saatchi’s bill is good, but would suggest that the headline wording is misleading. This could alienate the legal profession whose support to such a proposal would be valuable. There are many reasons why breakthroughs in cancer treatments are slow but these need to be addressed through research, funding and training. I personally believe the threat of being sued for medical negligence is not a major factor.
Robert Illidge, Ralli, West Riverside, Manchester