Medical Innovation Bill [HL]

Lord Davies of Stamford Excerpts

Friday 27th June 2014 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, in my days in the City, there were a number, and I hope that they are no longer there at all, of fund managers and their client trustees who invested the funds of rather unsophisticated beneficiaries—I am thinking particularly of beneficiaries of small family trusts set up by some bequest or, very often, the funds of small charities, of which there are an amazing number in this country—entirely in the gilt market. Anyone who knows the first thing about finance knows that throughout the second half of the 20th century, if you invested in gilts over the long term then that was a sure-fire way of ensuring that the value of the fund would be eroded over time; indeed, after a decade or so, the erosion would be substantial. Why did they do it? Were they stupid? No. They did it because if they had invested that money in equities, there would have been a risk that they would get the timing wrong. If they had got the timing wrong when they went into equities, they could have been sued for having taken that decision. They therefore stayed in gilts because there was always a protection there; you could say that it was the practice of the market to invest, say, widows’ and orphans’ funds in the gilt market.

So I have been familiar for quite a long time with the context in which the law of tort and the system of civil justice and civil damages that we have in this country, which is designed to protect individuals, particularly vulnerable and unsophisticated ones, and indeed does so, can sometimes turn against the interests of precisely those whom it is trying to protect. It seems to me that in the area of medical negligence and malpractice the law has had exactly that perverse effect on innovation described by the noble Lord, Lord Saatchi, this morning. Therefore, in principle I am very much in favour of this essential and permissive legislation.

I shall deal briefly with the three main objections that have been made this morning. The first was made by my noble friend Lord Turnberg, whom I always listen to with great attention and respect on these matters, as I did today. Essentially, his point was that the changes, if they are required, can be achieved by guidance rather than by changes in the law. I think that in principle that is always wrong. If there is something inadequate about the law, if the law is unclear or perverse, or if there is a mismatch between the apparent meaning of statute as ordinarily interpreted and the practice of jurisprudence over the decades after it has been passed, that can be remedied only by a change in the law, and it is the responsibility of Parliament to see whether such perversities or anomalies are emerging and to deal with them. No guidance by any professional organisation is a substitute for that.

The second line of objection that we have heard this morning is that in many cases many doctors and medical units around the country feel that the present regime does not in any way inhibit the degree of innovation they think appropriate in their field. I do not think that is a logical objection to this Bill because such people can carry on. Indeed, their way of proceeding is not in any way threatened by the provisions in the Bill. That matter should be set aside.

The third objection was very powerfully made by the noble Lord, Lord Winston. Essentially, it amounted to saying that innovation can be very risky and in the case of medical innovation can lead to people’s deaths. We have to be adult and accept that, in the whole of human existence, there is always a positive relationship between risk and reward. If you take no risk, there is no reward, there is no return. If there are no risks, there will be no innovation. There must be innovation, and there must therefore be risks. If I found myself with a terminal condition, I should be very inclined indeed to say to my doctors that I would like them to take some risk because I am about to die anyway under the normal prognosis based on the standard treatments and if there is a chance of trying something else, if it does not work, at least my last act in this world would have been to have made a small contribution to the progress of medical science, which would be some consolation.

However, I would do that only if I felt the protections were adequate. This is where I want to make a suggestion for looking again at one aspect of the Bill. It is about patients’ rights. Clause 1(3)(c) requires that the process include:

“consideration of any opinions or requests expressed by or on behalf of the patient”.

The word “consideration” seems extremely weak. We have heard a very authoritative account this morning from the noble and learned Lord, Lord Mackay, who seems to be satisfied with the protections. I take his views very seriously on this, as on every occasion. I can well imagine that, taken together with paragraph (d) of that clause,

“obtaining any consents required by law”,

the consideration of any opinions expressed by the patient plus the statutory need to obtain the patient’s consent, which, of course, can be obtained only where there has been disclosure, may be considered to be an adequate protection in law. However, I can see no disadvantage and can see great advantage, if only presentationally, in reassuring patients—who, as in the example I just gave, might include me one day—that they have the clear, absolute authority to decide what will happen to them and the right to have absolute, exhaustive disclosure of the potential risks and rewards and the potential advantages and difficulties of any therapy or treatment that is being proposed. That word “consideration” could be changed so that it is absolutely clear that the patient is sovereign. There must be a legal obligation exhaustively to explain completely and in detail the reason for the proposed new treatment, its possible merits and risks and that the decision of the patient is final and sovereign. If that could be expressed by an amendment that might take place in another place—I certainly do not propose to hold up the Bill by proposing an amendment on my own—it might be very reassuring to many people who still have doubts on the merits of this extremely valuable Bill.