And the
winner is...
Plausibility &
Defensive medicine
Lord Saatchi has called for the law
relating to cancer treatment to be
changed. He has introduced a draft Bill,
which has sparked off a great deal of
controversy. It is intended to amend the
existing law, but he has raised issues of
principle that seem to extend beyond his
original intentions.
To what extent can the decision to use a
new and innovative medical treatment,
whose effectiveness has yet to be
proved, be left in the hands of one doctor
or a small group of doctors?
Lord Saatchi believes that the current law
is a barrier to progress in curing terminal
illnesses. According to him, if doctors
deviate from the standard procedure,
they are likely to be found under the
current law guilty of clinical negligence.
This might cost them their medical
reputations and even their jobs.
The draft Bill aims to promote innovation
in medical treatment while seeking to
eliminate reckless experimentation. This
sounds a worthy ambition and probably
many would support it. But is it necessary
and, like an untried medical treatment,
does it carry any risks?
The draft Bill supports the doctor who
wishes to carry out a proposed new
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treatment under circumstances in which
a responsible body of medical opinion
has either failed to give their approval or
it is unclear whether they would support
it or not. It would allow the doctor to
provide a new type of treatment on the
grounds that he/she believed it was
appropriate, without any externally
confirmed evidence and in the face of
one or more medical bodies.
This raises many issues that concern the
patient’s safety. There is a danger that a
vulnerable person may be left in the hands
of a doctor, who could put forward a few
plausible reasons for an experimental
treatment, but the patient would have
no way of verifying the accuracy of the
information. There may also be hidden
commercial pressures on the doctor.
Plausibility is hard to define. Does it
mean a ‘good excuse’ or a sustainable
argument? The doctors might think they
have discharged other more onerous
duties by complying only with the letter of
Saatchi’s new law if it became Statute. It
is hard to secure sufficient protection for
the patient while preserving the aims of
the draft Bill.
reasonable body of medical opinion. The
patient has to be informed and to have
given consent. What else can be done?
The draft Bill also aims to eliminate
reckless experimentation during the
course of a process in which responsible
decisions are being taken. The test would
be what a responsible body of doctors,
even if only a few and highly specialised,
considered appropriate. This is the
Bolam test, which is currently in use, and
it provides the protection that a doctor
needs when considering innovation.
Of course, as Lord Saatchi points out,
all cancer deaths are wasted lives. His
wife of over 25 years suffered from a
merciless type of cancer, a case which
must sadden us all. But it could also
be a terrible mistake, if we disregarded
previously decided case law that
provides us with a modicum of certainty
and offers safety measures for both
patients and doctors.
All staff at Mayo Wynne Baxter were
delighted to be announced winners
of the Gatwick Diamond Business
Awards earlier this year.
The award for corporate responsibility
was sponsored by environmental
management consultancy ESHcon. After
an in-depth award entry was submitted,
and the firm was selected as a finalist,
our Chairman, Dean Orgill, and
Marketing Director, Jason Edge, faced
a grilling from Anya Ledwith,