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Would You Be First In Line For Experimental Treatment On The NHS?

02/06/2014 11:24 BST | Updated 30/07/2014 10:59 BST

Mrs Baker is a 31-year old mother from County Durham. After suffering from extreme back pain for a couple of years, made worse by the birth of her daughter, she opted to consult a surgeon privately for advice.

The surgeon, Mr Tai Friesem, advised her that without a new form of treatment called Dynamic Stabilisation surgery it was likely that her condition would worsen to such an extent that she wouldn't be able to pick up her daughter by the time she was two years old. With the surgery she was told she could expect significant improvement in her condition that would last up to 10 years.

However, at the last minute, Mrs Baker's insurers refused to cover the costs of the operation that they classed as 'experimental' and she was passed over to an NHS waiting list.

Mrs Baker was delighted that within a year she was given a date for her operation by the North Tees and Hartlepool NHS Foundation Trust.

Such use of 'experimental' treatment will be made easier should a proposed Medical Innovation Bill pass into law. The Bill (also known as the Saatchi Bill as it is being promoted by Lord Saatchi) promises to encourage innovation in treatment to the benefit of patients.

In other words, rather than be constrained by normal, accepted practice, medical professionals can use their judgment to dismiss the normal treatment pathways and opt for a less common or new form of treatment that they believe will benefit the patient more.

It is claimed that the Bill would help to speed up medical advances, by lessening the threat of legal action.

Under the current rules, if doctors stray from normal practice and patients suffer harm as a result they are more likely to have a successful medical negligence award made against them.

However, should the Medical Innovation Bill pass into law, it is argued, such experimentation will be made part of acceptable practice and therefore lawyers will have a harder task proving that any resulting injury stemmed from negligence. As a result more doctors will feel free to try new approaches to speed up advances in medical science.

The Bill is receiving the full promotional treatment you would expect from one being backed by one of the country's most celebrated advertising gurus. The PR and social media push is in full effect.

However, one issue that is missing from this promotional effort is that of 'informed consent'.

Put simply, if patients are being offered experimental treatment that by its very nature carries increased risk, how can they realistically weigh up the pros and cons to ensure that they give consent to take on these increased chances of failure?

Also, even if the full facts are laid before them, how would a patient living in pain or with the threat of a life limiting illness, be able to take a balanced view when trusted medical professionals are laying the option of a potential 'miracle cure' before them.

The thinking behind the Medical Innovation Bill assumes a high degree of skilled judgment from medical professionals, asking them to know exactly when it is right to deviate from standard practice and pick out exactly the right new treatment for a patient, as well as guide the patient through all the detailed pros and cons.

However, each month at Fletchers Solicitors, we see plenty of examples where the judgment of such medical professionals is proved to have been flawed.

Let's return to Mrs Baker's case as an example.

After waking from her 'experimental' treatment to solve her chronic back problem, Mrs Baker was in tremendous pain. She was unable to lift or even hold her baby for several weeks. She suffered pains in her back and right leg and fell down stairs several times because her legs were so weak as a result of nerve damage.

On further investigation Mrs Baker found out that her treatment didn't match up to what she had been promised. Firstly she found out, from examining her medical records, Mr Tai Friesem hadn't carried out the surgery as she had expected, but that it had been performed by another surgeon called Mr Reddy.

She also found out that her treatment had included the use of DIAM spacers, something that was never mentioned prior to her treatment. She was later informed that such spacers have a life span of two years, not the 10 years mentioned in her consultation.

Finally, it was discovered that the DIAM spacers were not in contact with Mrs Baker's spine and in fact were causing extra damage.

As a result, Mrs Baker required a second operation to remove the DIAM spacers and underwent a double spinal fusion. She also successfully sued for damages for medical negligence. The court ruled that the use of the experimental operation was wrong and should only have been used as a last resort when other treatment options had been tried first.

The Medical Innovation Bill has now passed its consultation phase and the 'Bill Team' is preparing a report on how it meets the concerns expressed by medical, legal and patient groups. No doubt its report will be suitably slick.

It will be interesting to see how it would propose ensuring people like Mrs Baker are fully informed about the details of treatment so that they can give true consent. Also, should things go wrong with treatment, will it still ensure that patients like Mrs Baker can use the law to reveal the truth about what happened to them, highlight professionals that fail in their duty of care and obtain damages to help fund their future treatment and care?