Attacking critics is no way to fix the Saatchi bill

Lord Saatchi seems to dislike the medical profession. He has likened doctors to hanging judges who, after cutting and drilling their patients, leave them for dead. Now, in a startling Comment is Free article, he calls them complacent and self-satisfied, likening them to Downton Abbey aristocracy. Why then, if he holds them in such contempt, does he seek to make them invulnerable?

Backed by a PR campaign more suited to the days of tobacco advertising, he has been pushing his Medical Innovation Bill, which he says will remove the barriers to finding a cure for cancer. Critics have noted incorrect or misleading claims made throughout the campaign, as has the Department of Health, whose report on its official consultation said “Some of the statements made by supporters of the Bill during the consultation period were misleading but received much publicity.”

One such claim which Lord Saatchi still repeats is that doctors are bound by law to give only “the standard treatment” and fear being sued if they try anything different. In truth, innovation is not prevented by the law and it happens all the time, across the whole spectrum of medicine. The Saatchi campaign has repeatedly called for access to unlicensed medicines. But doctors can and do use these medicines now on a regular basis. The majority of paediatric prescribing, for example, is “off-label” for medicines that are not licensed for children. There is no fear here.

Lord Saatchi disparagingly quotes the percentage of cancer patients who currently receive “innovative treatments”, as if innovation is an end in itself, a benchmark to be achieved rather than a means to improve where treatment is currently lacking. But what really matters is whether the treatment works and improves outcomes, not whether it is new. The evidence is that his particular area of interest – cancer treatment – is improving all the time.

So what is wrong with a bill encouraging innovation? Nothing – we all want better, safer treatments. But Saatchi’s bill does not actually encourage innovation. All that it does is provide blanket immunity from negligence for doctors who “innovate” having followed his process. It doesn’t provide more funding for off-label drugs, or access to them, or in fact allow a doctor to do a single thing that he or she can’t do currently. To emphasise: all the bill does is to prevent doctors who have injured patients through genuine negligence from being sued.

Contrary to the claims of the Saatchi campaign, the wording of the bill allows a doctor to ignore the advice of all colleagues and give a treatment that nobody else agrees is a good idea. It’s even stated in the accompanying notes for Lord Saatchi’s recent amendments: “a doctor cannot ignore views, or give them minimal weight, unless there are reasonable grounds for doing so.” Who decides if the grounds are reasonable? The doctor. Having made a decision to treat, all they have to do is ensure they follow procedure, and there will be no ability to review the treatment itself.

The Saatchi bill campaign claims that the bill brings forward the “Bolam” test for responsible treatment, allowing a doctor to make sure their treatment is responsible before embarking on it. This is nonsense. What actually results is the replacement of Bolam – a test of whether the treatment was carried out responsibly – with a completely different one, a test of whether procedures were followed when deciding to treat. Examination of whether the treatment was a good idea is replaced by a box-ticking exercise. Professor of medical law at Leicester University, José Miola, and Nigel Poole QC have highlighted the flaws with this approach, along with Sir Robert Francis QC, who chaired two inquiries into the Mid Staffordshire hospital scandal.

The scope of the bill is breathtaking. It is not just a bill for terminal cancer patients with no available treatment. It applies to “innovative” treatment for any condition, serious or trivial, even when there is an existing effective treatment available. It would even apply to cosmetic surgery.

Lord Saatchi claims his bill is supported by a spectrum of people, from the government, through “Britain’s top judges”, and “20,000 respondents to the government’s public consultation on the bill.” It is opposed, he says, only by the 100 pitiful doctors who wrote to the Times in opposition to his bill. But, on looking closer, his claims start to unravel.

First, the opposition. Far from being just the “Times 100”, as he terms them, the bill is opposed by a huge weight of professional medical, patient and legal bodies. These include the British Medical Association, the Academy of Royal Medical Colleges, the The Royal College of Physicians, the Academy of Medical Sciences, the Medical Research Council and Wellcome Trust, the Royal College of Radiologists, Action Against Medical Accidents, the Patients Association, the Medical Defence Union, the NHS Litigation Authority, the Motor Neurone Disease Association, the British Heart Foundation, Parkinsons UK, Leukemia and Lymphoma Research, Arthritis Research UK and many more. These organisations represent many tens of thousands of doctors, patients, researchers and legal experts. Cancer Research UK, trumpeted by the Saatchi campaign as having been won over by the campaign, has since issued a statement clarifying that its “concerns lead us to conclude that there is no pressing need for this legislation”.

Now the claimed support. There are 12 current members of the Supreme Court, the country’s top judges, none of whom have expressed a view on the bill. Then there’s the “20,000 respondents to the government’s public consultation.” Actually, there were 170 respondents to the government’s consultation, including the major organisations already mentioned, who opposed it. Only after the consultation was launched did the Saatchi campaign add a petition and comments from their own website. Neither of these appeared on the consultation document’s list of approved methods to respond, and the people who responded to the petition were given no opportunity on the petition page to read the bill. What they saw was pretty much a call to sign a petition to help find new treatments for cancer. Who wouldn’t sign that? This is PR in action.

Regrettably, Lord Saatchi didn’t wait for the consultation results to be published before steamrollering the bill through its first few stages in the House of Lords and, despite claiming to have listened and incorporated the views of all interested parties, he has failed at every opportunity to take effective action on the feedback he has received.

He has had many opportunities to listen. After he visited the Academy of Medical Royal Colleges in February, Dr Archie Prentice, president of the Royal College of Pathologists, wrote that the meeting “was remarkable for the colleagues’ unanimous, professional rebuttal of Lord Saatchi’s assertions.” It had no effect on Lord Saatchi. Nor did his visit to the Royal College of Surgeons, where Lord Saatchi gave a talk, but didn’t wait to hear Professor Michael Baum’s lecture on innovation in surgical oncology which followed immediately afterwards. Significantly, of 25 amendments to the bill proposed in the House of Lords by Lord Saatchi’s noble colleagues, he has accepted only one of them, the removal of a single redundant phrase.

This stubborn refusal to listen has prompted Dr Clive Peedell and more than 100 oncologists to write a joint letter of opposition, echoing views from across the board. In response, Saatchi calls them complacent. Faced with clear and unequivocal opposition, he resorts to ad hominem attacks on their motives and their profession, and a surreal comparison with Downton Abbey. If Lord Saatchi thinks that medics expect everybody else to defer to their whims, how does armour-plating their decisions make things any better?

Are there genuine barriers to the development of new treatments? Yes, absolutely. Are there areas of research or regulation that urgently need improvement? Definitely. Is the medical profession complacent, believing they have reached the pinnacle of achievement, and there is nowhere to go to improve? Certainly not.

The fact is that the medical profession needs our help. They want our help. Research needs funding, it needs trial volunteers, it needs improvements to research structures and a better framework for sharing results, both positive and negative. Patients – our friends, our family, our loved ones – deserve nothing less. But the Saatchi bill solves none of these problems. It gives nothing to the patient and nothing to the responsible doctor. As the Motor Neurone Disease Association says, more succinctly than I have, “the bill would be bad law.”

It is long past time to call a halt.

David Hills is a member of the Stop the Saatchi Bill campaign. He tweets as @wanderinteacake