Sorry: when I wrote "included" I meant "improved". Gremlins in the machine.

-------- Original Message --------

Subject:	Re: 'Bye Bye Bolitho? The Curious Case of the Medical Innovation Bill'
Date:	Mon, 3 Aug 2015 16:06:21 +0100
From:	Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
To:	Ernest Owusu-Dapaa <scholarowusudapaa@gmail.com>, "Hedley, Steve" <S.Hedley@ucc.ie>
CC:	obligations@uwo.ca <obligations@uwo.ca>

I agree the drafting of the Bill could be included. It certainly needs to beef up the rather obfuscatory reference to a duty  to "obtain any consents required by law to the carrying out of the proposed treatment", so as to make it clear that the patient or anyone entitled to consent for him must have the treatment explained properly, and be told in no uncertain terms what the risks are, and of the fact that the treatment is unorthodox. We could also do with a stricter requirement of second opinions to prevent it becoming an unorthodox doctor's Old Pals Act.

Having said that, I rather take the view that the man means well, and if his proposal succeeds it shouldn't worry us too much. In so far as this concerns the NHS, there is as I see it no necessary tie-in between free health care and full negligence liability. I can't see the objection in principle to saying that we as taxpayers provide the therapy gratis on the NHS, but no very extensive guarantee to pay out if something goes wrong with it. It's no different in principle from making a gift to someone on the basis that you will only be liable to a limited extent -- or for that matter not at all -- if it injures them. They don't have to accept it.


Andrew



On 03/08/15 13:51, Ernest Owusu-Dapaa wrote:

Thank you Steve. It is certainly of interest to me!

Ernest

On Fri, Jul 31, 2015 at 6:07 PM, Hedley, Steve <S.Hedley@ucc.ie> wrote:

In case it is of interest:

Bye Bye Bolitho? The Curious Case of the Medical Innovation Bill

José Miola

University of Leicester School of Law Research Paper No. 15-24, July 2015

http://ssrn.com/abstract=2637503

 

Abstract:    

The Medical Innovation Bill (MIB) was conceived and promoted by Lord Saatchi. In his view, the medical profession was failing to develop new treatments to combat illnesses such as the cancer that resulted in the death of his wife. The principal barrier he perceived to the development of new treatments was that to deviate from ‘standard treatment’ was to invite litigation, and thus doctors could not innovate because they feared being sued for it. Therefore he determined to remove the possibility of litigation in order to, hopefully, facilitate a cure for cancer. He assembled a team including a campaign manager and a parliamentary draughtsman to design and promote the Bill.

 

Lord Saatchi’s Bill has however caused much controversy but, despite this widespread opposition, the government has lent the Bill its support, and its passage has become a ‘PR war’.

 

The Bill passed the House of Lords in January 2015, but ran out of time in the House of Commons before the general election in May 2015. However, it is now back and returned to the House of Lords in June 2015. If it gets back to the House of Commons, it may well become law, given that it enjoys government support. The proposed legislation is deeply flawed though: its actual content is not as it has been presented, and its patient safety framework is both a significant downgrade on the current law and inadequate. Moreover it is internally inconsistent and cannot function, even on its own terms. For these reasons and more this paper argues that the MIB should not become law.

Steve Hedley
School of Law
University College Cork

9thlevel.ie
private-law-theory.org