A solicitor has questioned Lord Saatchi's Medical Innovation Bill, calling for concrete evidence that doctors are being sued for trying innovative procedures.
The Bill would give legal protection to doctors seeking to try alternative procedures or treatments for cancer.
In an exchange of letters with Lord Woolf, Dr Anthony Barton, a solicitor and a qualified medical practitioner, warns, "In my professional experience as a clinical negligence practitioner, doctors depart from generally-accepted medical standards because of poor practice, not innovative practice."
He refers to Lord Woolf's article of 24 April in The Telegraph, in which the former Lord Chief Justice says he saw doctors sued for negligence because they innovated during his time as a judge. Dr Barton calls for any suggestions that medical innovation is being prevented by exposure to medical negligence liability to be "based on informed debate", and asks Lord Woolf to identify the cases in question.
Dr Barton told NLJ: "The existing common law is sufficiently flexible and robust to deal with medical innovation; this Bill is unnecessary. It does nothing to promote medical innovation and is a threat to patient safety. At present, doctors can and do innovate anyway. According to the saying—if it is not necessary to legislate, it is necessary not to legislate!
"Policy and legislation must be based on evidence and informed debate. What is the evidence that doctors are deterred from innovating?
"What are the cases where doctors are sued for negligence because they have innovated in the treatment they offer? We need answers before bad law is passed which could affect us all adversely.
"The law of negligence is of general application—why should there be an exceptional and cumbersome statutory defence for doctors? Any such proposed defence could be tested in court anyway—it would not pre-empt legal action."
The Bill is due to enter its Report and Third Reading stage in the House of Lords on 12 December.
The Association of Personal Injury Lawyers (Apil) expressed concerns about the Bill in October, warning it could drive vulnerable patients into the hands of "maverick" or "over-ambitious" doctors. John Spencer, Apil president, said the Bill would not just apply to "dying people who are willing to give anything a chance".
"Lord Saatchi's amendments to the Bill do not address concerns about patient safety raised by doctors, patient groups, and medical research organisations. Under the Bill, a doctor needs to only 'obtain the views' of an 'appropriately qualified doctor' before undertaking an innovative treatment.
"Crucially, he would not have to act on those views, and we still don't know what an 'appropriately qualified doctor' is."
Spencer said he had heard of no cases of a doctor being sued for using an innovative treatment, and that if some doctors were holding back from certain treatments due to a misunderstanding of the law then that could be could by "an effort to educate, not legislate".
