Threat of litigation does not put doctors off innovating, says BMA

Out-Law News | 30 Jul 2014 | 5:16 pm | 2 min. read

The threat of potential legal action from patients does not put doctors off prescribing innovative new treatments, according to the British Medical Association (BMA).

The BMA was one of several medical bodies identified by the government as having outlined no experience or evidence suggesting that the possibility of litigation sometimes deters doctors from innovation.

NHS England, the Academy of Medical Royal Colleges and the Royal Colleges of Pathologists, of Physicians, of Physicians and Surgeons of Glasgow, of Radiologists, and of Surgeons of Edinburgh also said there was no such evidence, the government said in outlining a summary of the responses it received to a consultation on the proposed Medical Innovation Bill (32-page / 671KB PDF).

The Medical Innovation Bill has been proposed by Lord Saatchi as a means by which to encourage doctors to responsibly innovate when prescribing medical treatments without a fear of being held liable for negligence should those treatments fail.

According to the government's consultation response summary paper, surgical oncologists membership body BASO said that the threat of innovation may influence decision making "in clinical practice", whilst the Health Research Authority and some patients also said there was evidence that a threat of possible litigation interferes with doctors' innovation at present.

More than 18,000 have signed a petition backing Lord Saatchi's proposed new Bill but the Department for Health said it had received responses to its consultation which outlined objections to the Bill being introduced.

Commonly cited reasons for not supporting the Bill included that it is not deemed necessary, it said.

"[The Bill] is based on a misunderstanding of how the current law already permits innovation while protecting the interests of both patients and doctors," the DoH said in summarising the views of some of the respondents.

Some respondents also challenged whether the Bill would benefit doctors or patients.

Doctors would "need to understand new legislation, the meaning of which is not clear" and "they might come under increased pressure from patients desperate to 'try anything'", they said, according to the DoH's summary. Patients would not benefit because the Bill "removes safeguards that protect them from quacks and entitle them to compensation if they suffer from actions that would currently be classed as negligent", it said.

In addition, some respondents claimed that the Bill could hamper medical research by encouraging doctors and patients to "take short cuts, rather than to participate in clinical trials".

The DoH said that it would work with Lord Saatchi to seek amendments to the Bill, with the particular aim of ensuring there are "extra safeguards for patients to ensure that doctors must be acting responsibly under the Bill"; "that the Bill does nothing to deter good and responsible innovation under the current law"; and that the Bill does not expose the NHS to any "undue bureaucratic burden" nor "expose doctors to a risk of additional liabilities".

"There is a fine balance to be struck between ensuring patient safety and putting in bureaucracy that could actually stifle innovation, which is clearly not the goal of Lord Saatchi," the DoH said. "The government hopes that Lord Saatchi will be open to amending the Bill in a way that achieves this. The next step is for parliament to scrutinise the Bill in detail."

Earlier this summer the government confirmed that specialist doctors would be given a role in scrutinising other practitioners' proposed departures from traditional treatments for medical conditions.