Is there room in law for both the Medical Innovation and Assisted Dying Bills

‘Two Bills, both alike in dignity, in fair Westminster, where we lay our scene.’ In the coming months, two of the most controversial private members’ Bills in living memory will finally be subject to debate in the House of Commons.

In the blue corner, Lord Saatchi has reintroduced an unchanged Medical Innovation Bill, despite heavy criticism of its contents from the legal profession, medical practitioners, and politicians across the political spectrum.

Saatchi’s Bill was blocked from being debated by MPs in the final days of the last parliament by the Liberal Democrats, in a manoeuvre described as an ‘illiberal undemocratic move’ by the Saatchi camp.

Private member’s Bills, historically, have difficulty passing through the Commons without the backing of government. Lord Saatchi will be hoping Conservative MPs continue to show his Bill favour following health secretary Jeremy Hunt’s support in October 2014.

With a Conservative majority government in control of the political agenda, coupled with a well-oiled PR machine ready to lobby MPs and the public, the Saatchi Bill may actually have a chance of becoming law, despite many legal minds and one prominent Tory politician disparaging it as a‘quack’s charter’ or the ‘Medical Anecdote Bill’.

Speaking to SJ, the president of the Association of Personal Injury Lawyers (APIL), Jonathan Wheeler, commented: ‘Lord Saatchi is a very determined chap and it may well come back in some form. So, yes, we’re manning the barricades… “Poised” is the word.’

The first (re)reading of the Saatchi Bill took place on 8 June in the Lords, with the second reading and general debate yet to be scheduled. A motion sent by Lord Saatchi to peers read: ‘Attached is a standing Order 46 Motion for expedition. It re-sends the identical Bill back to the Commons, without the need for further time to be spent on it by our House, although the motion allows for a single short debate if peers want it.’

But considering how the Supreme Court’s recent judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11 clarified how the law of negligence affects the doctor-patient relationship, does theMedical Innovation Bill now make even less sense than it did before?

Andy Hogan of the personal injury consultancy firm, Medical Negligence Team, highlights clause 2(1) of the Medical Innovation Bill, which states, ‘…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…’.

He went on to tell SJ that Montgomery demonstrates ‘the flexibility, robustness and pragmatism of the common law to deal with clinical situations. Saatchi’s fundamental misunderstanding is to believe that the Bolam test is a rule of law’.

Nigel Poole QC has also expertly blogged on the advancement of the common law, saying: ‘I have always opposed this Bill but it is now clearer than ever that it is based on a misconception about the doctor-patient relationship and about who makes the decisions about treatment. Ironically it is the common law Lord Saatchi has condemned for maintaining the status quo that has developed. It is the Bill that is stuck in the past.’

Meanwhile, in the red corner, we find the Labour MP Rob Marris who is to introduce a Bill that would give terminally ill patients the right to die.

Drawn up in the House of Lords by the current shadow Lord Chancellor and justice secretary, Lord Falconer QC, the proposed Assisted Dying Bill ran out of time for a Commons debate during the last parliament, despite having garnered significant political and public support.

Opinion polls – assuming we are all allowed to believe them after the general election – suggest that public support is vastly in favour of a change in the law. A poll conducted by the campaign group Dignity in Dying, found that 82 per cent of those surveryed would support the proposed law.

Davina Hehir, director of legal strategy and policy at Dignity in Dying, told SJ last year that the public is in need of a compassionate law that can safeguard choice.

The issue of choice has received significant press coverage of late following the news of the Lancashire man, Jeffrey Spector, who took his own life at Swiss clinic Dignitas despite not being terminally ill, and an admission by professor Stephen Hawking that he would consider ending his life if he were in great pain or had nothing left to contribute.

Falconer’s Bill is expected to be debated by MPs on 11 September, and while the former coalition government had promised to allow MPs a free vote in 2014, the new Tory majority government has yet to provide firm committment of the same.

Yet a Bill to allow for a compasionate death could be placed in the same category as that of gay marriage; a taboo issue that when previously debated – decades ago – was subsequently dismissed. Now, with societal attitudes much changed, politicians are perhaps likely to listen to the eletorate’s progressive views.

Both Bills will certainly garner plenty of headlines – both sensationalist and otherwise – in the months to come. It is anybody’s guess as to which, if any, of them will become law. What we can say for sure is that while Saatchi’s Bill is stuck in the past, Falconer’s may well be the future.

This blog post was first published in Solicitors Journal on 17 June 2015 and is reproduced with kind permission