Medical Innovation Bill [HL]

Lord Avebury Excerpts

Friday 12th December 2014 Lords Chamber

In the Government’s view that is problematic. If that countersigning doctor were sued, they would not be able to rely on the Bill directly and we would not be able to give them any certainty about their legal position. As such, doctors may be reluctant to give their agreement, which may reduce the likelihood that doctors will choose to innovate under the Bill. Instead, the Bill requires the doctor to take full account of the views of at least one appropriately qualified doctor in a way in which any responsible doctor would be expected to act. That means that a doctor will not be able to ignore those views or give them only minimal weight—such as only to note them—unless there are reasonable grounds for doing so.

[Lord Avebury (LD)]

My Lords, I wonder whether a doctor who is asked by a patient about alternative therapies is obliged to tell the patient that these treatments have not been approved and that he does not recommend that the patient use them. Many patients, when they are desperate, will go for those alternative therapies even if that means paying for them themselves. I would therefore like an assurance that the doctor would dissuade the patient from taking that course of action.

[Baroness Jolly]

I am sorry; I do not have a note on that here, but I will write to the noble Lord and place a copy in the Library.

Amendment 7, in the name of the noble Lord, Lord Saatchi, adds to the steps that a doctor must take for the purposes of evidencing a responsible decision to innovate. The amendment requires doctors to record in the patient’s notes details relating to the views they have obtained from one or more appropriately qualified doctors, their decision to innovate and the proposed treatment.

As noble Lords may be aware, the NHS constitution is clear that patients have the right to access their own health records. The Government have gone further, setting the clear expectation in the first two mandates to the NHS that by 2015, everybody who wishes to get online access to their own health records, which are held by their GP, will be able to do so. Furthermore, we would fully expect doctors to have an honest and open conversation with their patients about treatment decisions. The GMC’s guidance Consent: Patients and Doctors Making Decisions Together sets out a model for a constructive dialogue between doctors and patients about treatment options.

I can now answer my noble friend’s question about complementary and alternative medicine and whether doctors who practise those forms of medicine will be able to experiment with untested procedures under the Bill. Under both the existing common law and the Bill the doctor needs to show that they have acted responsibly when deciding to offer a patient innovative treatment in order not to be negligent. Doctors are able to offer patients innovative, complementary and alternative medicine under the current law. If the innovative treatment were a medical treatment provided by a doctor, they could seek to take the steps under the Bill to evidence that they had acted responsibly in so doing. The amendments made to the Bill in Committee apply an objective test of responsibility to the doctor’s decision to innovate and would prevent a doctor who acts irresponsibly from relying on the Bill. The guidance is clear that doctors should set out in an honest and open way what is known and not known about the benefits and risks of innovative treatment and why it is being proposed.

I therefore hope that noble Lords will join me in accepting Amendment 7 from this group, which is a welcome amendment that requires doctors to record the details of innovative treatment in patients’ records.

[Lord Avebury]

My Lords, my question was whether the doctor has a positive obligation to say to the patient who asks about an alternative therapy that it is not approved by medical opinion, and that they should positively advise the patient not to go in for these alternative or complementary therapies, knowing that they are unable to help patients.

[Baroness Jolly]

Perhaps I can help my noble friend. The Bill is about the doctor making a decision about treatments for patients that are innovative and untested. If a doctor has a conversation with a patient about something that is complementary or alternative, that is a slightly different situation, and not the sort of situation that the Bill addresses.