The Medical Innovation Bill applies to all areas of medicine.

However as defined in the Bill a doctor cannot give any treatment without patient consent and the Bill does not change the law on what treatments may and may not be given to patients without consent.

So if a patient were detained under section 2 or 3 of the Mental Health Act, and thus being detained and treated without consent a doctor would not be able to give innovative treatment without consent.

The Bill does not change the law about what treatment can or should be given to persons suffering from mental illness (in particular, the issue of “appropriate” medical treatment under section 3(4) of the MHA 1983).

So the Bill could apply to determine whether a decision to exercise a discretion to depart from standard practice in the treatment of mental illness was negligent: but it does not determine whether the doctor has a discretion in the first place, in terms of the law applying to mental illness.

The Bill also expressly does not change the law as to the need for consents, as to which there are of course particular considerations in relation to mental illness.

The Bill expressly limits itself to treatment that in the opinion of the doctor, having consulted appropriately qualified colleagues, is in the best interests of the patient himself or herself: so there is no question of the Bill being relied upon to use patients suffering from mental illness as opportunities to experiment for the purpose of scientific research.

 The provision of treatment will have to be justified, exactly as in the case of non-innovative treatment, both in terms of the risk-benefit analysis for the patient and in terms of the laws addressing the provision of treatment to those suffering from mental illness.