I’ve heard medical negligence lawyers argue that the law already protects patients.

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They are right – but they have entirely missed the point of the Bill.

Currently, the situation is this: if a doctor tried something new and it didn’t work and the patient decided to sue, the doctor could invoke what is known as the Bolam test.

In short, this allows a doctor to bring a group of specialists into court to argue that the new treatment the doctor tried was acceptable.

However, this means that the doctor trying something new will be aware that if it goes wrong she or he could be sued and face a long investigation ending in a court case, with all the fear and stress that entails – even if s/he eventually wins.

The Bill brings this process forward. It requires that the doctor consult with qualified medical experts before undertaking the treatment.

If the doctor can’t, then the treatment is not covered by the Bill and should never be tried.

If the doctor consults with a panel of experts and obtains  a consensus of option from them and then in turn obtains the patient’s consent,  in accordance with the requirements of the Bill, then the doctor can carry on confidently without the threat of legal action.

A doctor who cannot demonstrate a consensus of opinion will not be able to rely on the protection of the Bill.

The clear requirement to consult is a legal definition and has a meaning within the legal sphere that differs from its common linguistic use. It is a definition derived from case law (see below example[i]).

→READ: What is the legal meaning of consultation?

Effectively, nothing changes, other than the Bolam test is brought forward to the clinical setting prior to treatment. It means the doctor can be safe and confident from the start.

In addition the Bill does not remove the Bolam test and if a doctor wishes to rely on that instead then they may.

Doctors aren’t lawyers. Our research has demonstrated that doctors are confused as to what they can and can’t do. So this Bill offers a clear, robust, transparent process for doctors to follow.

The Bill gives doctors clarity


 

Lord Woolf
Lord Woolf

“It is nonsense to suggest that the culture of litigation that now exists does not have a dampening effect on doctors.

“The doctors with whom I spoke when I conducted my inquiry made that clear, and doctors whom I have met in the course of my social life have equally made that clear.

“It is something that hangs over them. At the moment, the problem with the Bolam test is that it may provide them with protection when they get to court, but that is little comfort to doctors who have litigation going from stage to stage through the process to the courts, and whose lives are cast into the shadows by what is happening to them.

“It will be a great benefit that comes from this Bill, if that is removed by the open and transparent steps that it recommends.

Lord Woolf, Former Lord Chief Justice, former Master of the Rolls speaking at the second reading of the Medical Innovation Bill in the House of Lords, 27th June 2014.

He was the first Lord Chief Justice to be President of the Courts of England and Wales.


 

[i] See, for example: R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168 ; R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, [108].” (R. (on the application of Compton) v Wiltshire Primary Care Trust [2009] EWHC 1824 (Admin) at para.104.); Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms [1972] 1 W.L.R. 190 per Donaldson J.).


 

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