The Medical Innovation Bill

by Paul Sloane

The Medical Innovation BillWe are living in an increasingly litigious age. The number of lawsuits brought against the British National Health Service has doubled in the last four years. The fear of litigation and the real possibility of been found guilty of medical malpractice are inhibiting hospitals and doctors from trying promising new ideas in the treatment of deadly illnesses.

Lord Saatchi has introduced into Parliament a Medical Innovation Bill which aims to encourage responsible scientific experimentation in medicine. As he points out, currently the law prevents the process of scientific discovery. Thousands of people die each year from cancers but each sufferer must be given the standard treatment even when it is well known that the standard treatment is largely ineffective. Any doctor who deviates from the standard code of practice is likely to suffer a verdict of medical negligence because the present law defines medical negligence as deviation from the standard procedure. But innovation always involves deviation from the norm. By prohibiting deviation, the law is prohibiting innovation with the long term result that cures for cancers are delayed. Doctors know that the current methods lead to little benefit yet they cannot try new approaches for fear of litigation.

The legal judgment in Crawford vs Board of Governors of Charing Cross Hospital (1953) states ‘the practitioner who treads the well-worn path will usually be safer, as far as legal liability, than the one who adopts a newly discovered method of treatment.’ As Saatchi puts it, ‘Doctors deciding how to treat a particular case start with the knowledge that as soon as they move away from existing standards within the profession, there is an automatic and serious risk that they will be found guilty of negligence if the treatment is less successful than hoped.’

Lord Saatchi’s proposed Bill will differentiate in law between reckless experimentation and responsible scientific innovation. Any proposed innovative approach has to gain prior approval from the hospital’s multi-disciplinary team. It will free doctors to make informed decisions that deviate from standard practice and therefore it should significantly increase the chances of finding a cure for cancer.

In medicine, as in business, applying standard practice means applying yesterday’s solutions. Innovation means trying to find tomorrow’s solutions. It involves risk and failure but if we stick rigidly to the current methods we will never reach the innovations we need.

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Paul SloanePaul Sloane writes, speaks and leads workshops on creativity, innovation and leadership. He is the author of The Innovative Leader and editor of A Guide to Open Innovation and Crowdsourcing, both published by Kogan-Page.

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  1. The case you quote pre-dates the case of Bolam (1957) which has been applied in court for the last 50 odd years. As a clinical negligence barrister for over 20 years I have never heard the case of Crawford ever mentioned in court. If you read the guest blog of Professor Michael Baum, a cancer specialist, on my blog site https://nigelpooleqc.blogspot.co.uk/ you will see that he says that in over 40 years of innovative research he has never once experienced any obstacle that could even indirectly be linked to the fear of litigation. The Bill applies to all treatment, whether innovative or not, and would create a defence for doctors who provide treatment which harms patients, even if no other doctor would support the treatment given. Is that the best path to responsible innovation? I don’t think so.

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