It's about the money, stupid

It's about the money, stupid!

The Telegraph has published a story about Leigh Day's involvement in the Al-Sweady Inquiry, where it was concluded that most of the claims were deliberate lies. It mentioned that Leigh Day are one of the major opponents to the Saatchi Bill. 

Some bill opponents have proclaimed that this is unfair, as the Al-Sweady Inquiry is a different matter altogether. I disagree. The point being is that lawyers get paid for litigation. In some cases, as the Al-Sweady Inquiry demonstrates, solicitors seem to fail to do some basic vetting. They ought to be acting as officers of the court, the champions of the wronged that they claim to be. Sometimes they fall well short. 

The claims of medical negligence lawyers that only costly litigation is capable of deciding what is good medical practice is self-serving. It also contradicts their claims to only sue "bad doctors". What the Saatchi Bill will do is stop speculative law suits, so it will hit medical negligence lawyers in their pockets. It is all about money. Something which Leigh Day and others make in spades, with no sign of this activity improving patient care one iota.

Nigel Poole QC illustrates the need for the Saatchi Bill quite neatly

Nigel Poole QC illustrates the need for the Saatchi Bill quite neatly

I have made the point previously that the medical negligence lawyers who disagree with the Saatchi Bill often also strongly believe that they and their colleagues only litigate against doctors that have harmed their patients, that there is no such thing as "defensive medicine", and that nothing needs to change in the medico-legal milieu in the UK. Everything is hunky-dory, doctors have to be kept in check by the lawyers, and any changes will lead to disaster for patients.

Many doctors will find this quite incredible, and one of the leading opponents of the Saatchi Bill, Nigel Poole QC, illustrates the reality of medical negligence quite neatly. In doing so, he destroys many of his arguments against the Saatch Bill. If even standard clinical practice is litigated by medical negligence lawyers, then it defies all logic that innovations will not be the subject of legal action. 

The case of Davies v UHNS is a striking demonstration of how medical negligence lawyers can and do pursue legal action even when there is no reasonable question that the clinical management given at the time was entirely appropriate. The application of the Bolitho test was straightforward, yet the trust and doctors were dragged through the courts. Despite the protestations of the medical negligence lawyers, they don't just sue the "bad doctors". They litigate because that is how they earn their money. Hence they argue that only the courts should be deciding what is good medical practice and what isn't. Even though they then argue that lawyers don't decide what good medical practice is, but doctors. Nigel Poole QC is no exception, and this makes my point. Thank you, Nigel.

Genes and behaviour - exciting new science or neurobollocks?

Genes and behaviour - exciting new science or neurobollocks?

More research has been published on MAOA and another gene HTR2B and their link to violence in Finnish prison inmates.  http://www.economist.com/news/science-and-technology/21629223-more-evidence-certain-versions-some-genes-can-encourage-violence-next?fsrc=scn/tw/te/pe/nextcanidate

MAOA was originally linked to violence through a Dutch family with several members incarcerated for violent crime who had essentially a non-active variant. The effect of the common variants of MAOA is much less dramatic, and the heritability of criminal behaviour generally is low. This should not be unexpected.

Do these revelations herald a new approach to the violent criminal? After all, it is common knowledge that some people are more volatile than others - indeed this variation is recognized by the common law, only to be dismissed as a basis for altering the threshold for provocation. Potentially genetic testing could be used as the basis for altering the test for loss of control (the statutory replacement for provocation) from objective to subjective.

The most likely outcome is that these tests might be used in sentencing hearings. Even there the potential is that this could be a double-edged sword. Judges might considered that these individuals either need more deterrence, or need to be kept out of society. Lawyers should tread carefully.

More egregious claims from Saatchi bill opponents

More egregious claims from Saatchi bill opponents

For all the claims by Saatchi Bill opponents about PR and spin, they seem very happy to engage in it themselves. Lawyers re-Tweeting claims that are legal nonsense seems rather unethical, but they seem content to implicitly endorse the claim by Dr David Nicholl that the Saatchi Bill would leave medics open to charges of "wilful neglect" for failing to provide any untried, even wacky, treatments their patients demand. https://www.opendemocracy.net/ournhs/david-nicholl/saatchi%27s-%27medical-innovation-bill%27-will-benefit-lawyers-and-charlatans-not-pat#.VEevO8uIwrI.twitter

His point about the dangers of untried treatments also applies to research trials. There have been several disastrous trials of medicines which have resulted in serious illness - take for example the testing of TGH1412. 

The Saatchi Bill is nothing to do with the requirement for good clinical research after all - that has been made very clear. Dr Nicholl also claims clinical trials were expedited for situations like the Ebola epidemic. He ignores the compassionate use of untested medicine ZMapp for some victims of Ebola, which illustrates the need for the use of innovative treatments. 

Stating that the infrastructure for clinical trials needs to be improved is rather missing the point. There are many rare disorders (which are common collectively) where the administration of clinical trials with sufficient numbers is extremely difficult. Where there are no or very few treatment options available, innovation rather than waiting for the ponderous machine of the PRCT to grind into action is still the ethical way to proceed. Putting the faceless interests of "science" before concern for patients is not really good ethics. 

The Saatchi Bill is about encouraging responsible innovation. The inference that it is a quack's charter cannot be sustained upon examination of the bill, which emphasizes the qualifier "responsible" or "responsibly" several times.

1 Responsible innovation

(1) The purpose of this Act is to encourage responsible innovation in medical

treatment (and accordingly to deter irresponsible innovation).

(2) It is not negligent for a doctor to depart from the existing range of accepted

medical treatments for a condition if the decision to do so is taken responsibly.

(3) For the purposes of taking a responsible decision to depart from the existing

range of accepted medical treatments for a condition, the doctor must in

particular—

(a) obtain the views of one or more appropriately qualified doctors in

relation to the proposed treatment,

(b) take full account of the views obtained under paragraph (a) (and do so

in a way in which any responsible doctor would be expected to take

account of such views),

(c) obtain any consents required by law to the carrying out of the proposed

treatment,

(d) consider—

(i) any opinions or requests expressed by or in relation to the

patient,

(ii) the risks and benefits that are, or can reasonably be expected to

be, associated with the proposed treatment, the treatments that

fall within the existing range of accepted medical treatments for

the condition, and not carrying out any of those treatments, and

(iii) any other matter that it is necessary for the doctor to consider in

order to reach a clinical judgement, and

(e) take such other steps as are necessary to secure that the decision is

made in a way which is accountable and transparent.

For the purposes of subsection (3)(a), a doctor is appropriately qualified if he

or she has appropriate expertise and experience in dealing with patients with

the condition in question.

(5) Nothing in this section permits a doctor to carry out treatment for the purposes

of research or for any purpose other than the best interests of the patient.

(6) In this Act—

(a) “doctor” means a registered medical practitioner;

(b) a reference to treatment of a condition includes a reference to its

management (and a reference to treatment includes inaction).

2 Effect on existing law

(1) Nothing in section 1 affects any rule of the common law to the effect that a

departure from the existing range of accepted medical treatments for a

condition is not negligent if supported by a responsible body of medical

opinion.

(2) Accordingly—

(a) where a doctor departs from the existing range of accepted medical

treatments for a condition, it is for the doctor to decide whether to do

so in accordance with section 1 or in reliance on any rule of the common

law referred to in subsection (1);

(b) a departure from the existing range of accepted medical treatments for

a condition is not negligent merely because the decision to depart from

that range of treatments was taken otherwise than in accordance with

section 1.

The anti-Saatchi bill campaign should explain why this bill is apparently a "quack's charter" rather than keep repeating their empty claims. This issue is too important to be submerged under a tide of unhelpful rhetoric. 

Polemic from anti-Saatchi Bill campaigners

Polemic from anti-Saatchi Bill campaigners

Interesting to see the polemic from some anti-Saatchi bill campaigners, which is getting ever more strident as the bill gets nearer and nearer to becoming law. Some of it is quite worrying, if easily dismissed.

The breakthrough announced in the treatment of spinal injuries was trumpeted as evidence that the Saatchi Bill is not needed. Let's have a think about that - the groundwork for this advance was done in the UK, yet the innovative treatment occurred in Poland? This is the same for several other tissue engineering advances. First tissue engineered trachea produced in Bristol. Implanted where? Spain.

The same applies for advances made wholly in other jurisdictions - what bearing can they possible have on the need for the Saatchi Bill in this jurisdiction? 

Another argument is that there's no evidence that fear of litigation inhibits innovation - yet in the next breath we're told fear of the current legal regime is vital to prevent quackery? So does litigation influence behaviour or not? 

There is plenty of evidence from doctors that they are inhibited from innovating. This demand for evidence is however symptomatic of a positivistic philosophy which doesn't fit with normative issues. It is true that if doctors perceive that there is an issue with the law, then there is an issue. The solution that is required is another matter, of course. 
Worse of all, many of the anti-Saatchi Bill campaigners have taken to arguing ad hominem. Best to stick to the issues. There's actually nothing intrinsically wrong with trying to persuade people. The fact that Lord Saatchi is extremely good at it should maybe motivate the critics to be try harder at persuading, not cry foul.

Is it 'ableism' to allow a plea of diminished responsibility by Tania Clarence?

Is it 'ableism' to allow a plea of diminished responsibility by Tania Clarence?

I was quite perturbed to find that some people on Twitter considered that it was "ableism" that a plea of diminished responsibility was accepted in the trial of Tania Clarence, the mother who killed her three disabled children who all had spinal muscular atrophy, a progressive and terminal condition. Here are some of the comments:

 

Maria Mc‏@mariamcgoretti

@NeurolawGuy @SFdirewolf I disagree. The prosecution statement implied that disability is unbearable, and hastening death is somehow logical

 

Maria Mc‏@mariamcgoretti

@NeurolawGuy @SFdirewolf Looking at emotional exhaustion, despair, sleep deprivation, parallels w/ infanticide may have been appropriate 1/2

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Maria Mc‏@mariamcgoretti

@NeurolawGuy @SFdirewolf Deciding that in the face of a child's suffering, killing may be an act of mercy- that's lawmaking. Not CPS job

I have not been able to find anything in the press reporting that amounts to this, and it would be highly surprising if there was. "Mercy killing" has been the subject of CPS guidelines relating to situations where an adult has expressed a settled wish to die. Otherwise, "mercy killing" is not a defence to murder, although in situations like those of Tania Clarence where there is an abnormality of mind which has affected the responsibility of the defendant, there is a partial defence. This is an excuse, which has nothing to do with the nature of the act or even the victim, but the mental condition of the defendant. To label this verdict as "ableism" is crude exploitation of a tragic episode to make a political point.

"Patient Safety" Gravy Train

"Patient Safety" Gravy Train

We hear so much about "whistleblowers" losing so much during the process of trying to bring their concerns forward, but closer examination shows that many prominent "whistleblowers" have actually done quite well out of their activities. Julie Bailey set up a limited company, and tours the country giving talks. She particularly frequents trusts with a history of problems - and those who pay her for an appearance seem immune to her brand of vitriol. Many also buy multiple copies of her dreadful book for their staff to read. Gary Walker and Jenny Fecitt both have companies. Another whistleblower was offered a post with the Department of Health created specifically for her - doing what we don't know. I imagine many nurses reflecting on their lack of a pay raise will be surprised that there is enough to create these lucrative posts on a whim. 

Bill Cash paid someone a round £4,000 for a "report" on Mid Staffs. Who received this money? We don't know (despite this being paid out of parlimentary expenses). Nice work if you can get it. Julie Bailey and Deb Hazeldine certainly produced a report for Bill Cash. Were they the recipient of this £4,000? Cure the NHS have been silent on where their funding has come from.