Wednesday, 13 January 2016

Saatchi BIll - The Writing's on the Wall

I very much hope that this will be my last post on the Saatchi Bill - perhaps you do also!

Promises made in parliament appear to herald an end to the Bill.



The state of play is as follows: Lord Saatchi re-introduced his Medical Innovation Bill  following the general election. It remains in the House of Lords. He has proposed that it should be "fast-tracked" to the House of Commons. Subsequently, Chris Heaton-Harris, Conservative back-bencher, introduced his Access to Medical Treatments (Innovation) Bill into the House of Commons where it has now passed the Committee stage and is due to be debated at the Report stage on 29 January.

The Saatchi Bill website announced that Lord Saatchi had "handed over" the Medical Innovation Bill to Mr Heaton-Harris. Lord Saatchi has not taken any steps to progress his Bill whilst the AMTIB proceeds through the Commons.

The AMTIB is in two parts. The first provides for a data base for "innovative" treatments. The second, clauses 3 and 4, duplicates, with some changes, the Saatchi Bill.

Just as the Saatchi Bill has been the subject of widespread opposition from medical, research and patient bodies, so have clauses 3 and 4 of the AMTIB.

Unlike her predecessor, Heidi Alexander, Shadow Health Secretary, has joined the Liberal Democrats in expressing serious concerns about the Bill. So has the SNP's Dr Philippa Whitford (see the debate at Committee stage on the link to the Bill above).


At Committee Stage, Mr Heaton Harris said:

"I really want to get [clauses 3 and 4] right. If I cannot, I will happily table amendments myself to delete them.

"I would like to have another go, working with others, to try to get [clauses 3 and 4] to the place that deals with the specific problem that I have identified; that does not change the common law and gives doctors the assurance they require.... If we cannot get anywhere he has my assurance that I will table amendments to delete those parts of the bill at a later stage. I cannot be much clearer than that..."

"If I cannot get the controversial parts in clauses 3 and 4 into the right place quickly, I intend to table amendments to delete them."
 
It is surely now clear that it is not possible to "get them right" and that therefore Mr Heaton-Harris will have to deliver on his promise to withdraw sections 3 and 4. They cannot be amended to meet the concerns of the Bill's critics or to leave the common law unchanged.

A joint statement issued by a plethora of representative bodies, including  the Medical Protection Society, which represents doctors accused of negligence, the BMA, the Royal Colleges and the Patients' Association, has made this evident:

"The AMTIB is based on the false premise that medical innovation is being stifled by a fear of litigation held by doctors. There is no evidence of this from the Medical Protection Society, Medical Defence Union, the General Medical Council (GMC) or our various memberships.

and

"... we think that if enacted this Bill will actually harm good innovation by weakening patient protection, adding unnecessary bureaucracy and undermining good scientific practice."

As if that were not enough to kill off clauses 3 and 4, a host of medical and research charities have also condemned the Bill, stating that it is not only unnecessary but may "adversely impact on patients and medical research".

Lord Saatchi's view is that the common law is an obstacle to medical innovation. His Bill, and clauses 3 and 4 of AMTIB are designed to change the common law - otherwise there is no point to them. I suggested an amendment which would have included a provision that sections 3 and 4 did not change the common law as to whether a doctor was or was not negligent. The Department of Health rejected the idea of such an amendment, stating:

"We think the intended effect would be that all doctors would remain subject to the existing common law test of negligence.  As a result the purpose of clauses 3 and 4 of the Bill would be unclear. "  

In other words Mr Heaton-Harris's ambition to work on clauses 3 and 4 so that they don't change the common law is not possible to achieve: if they do not change the common law, they have no purpose.

Since those whom the Bill is intended to assist to help patients so strongly oppose the Bill, and since clauses 3 and 4 cannot be amended to leave the common law unchanged without wrecking that part of the Bill, it appears that clauses 3 and 4 will be withdrawn by Mr Heaton-Harris, presumably before the Report stage on 29 January.

Where will that leave the Saatchi Bill? Since Lord Saatchi has "handed over" his own Bill to Mr Heaton-Harris, it must be presumed that he will accept its fate. If clauses 3 and 4 of AMTIB fall, surely Lord Saatchi will withdraw his own Bill. To do otherwise would be to waste more time and money on an unwanted and unworkable Bill that had already twice failed to make it through the Commons (before the election and now under the AMTIB).

If the data base provisions of AMTIB survive then that, rather than a reckless interference with the common law of clinical negligence, will be the legacy of Lord Saatchi's Medical Innovation Bill.

None of this has yet come to pass, but it does appear that the writing is on the wall for the Saatchi Bill.








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