Maurice Saatchi: Vital progress in the battle against cancer is held back by legal barriers

Is it the money? Is it that NHS Commissioning Bodies take the view that they will only pay for treatment if it is known to be effective – so that innovation is not attractive to funders, whose aim is to drive down the cost of care?

In this way, are funding decisions anti-innovative? And clinicians’ desire to innovate frustrated?

Perhaps. But so many billions have already been spent on cancer that it is hard to conclude that money is the root of all progress.

If it is not lack of money, then is it lack of brains?

Is it that cancer is so complex that it is beyond the ability of the human mind to comprehend all the variables; that our judgement, our understanding, are not adequate?

That has a certain plausibility. But if it is true, it is not through lack of trying. Aren’t we all in awe of the intellectual power of the great scientists and what they have achieved?

So if it is not the money, and not the brains, what else could it be?

There is a powerful deterrent to innovation at the heart of the current system. Current law is a barrier to progress in curing cancer.

Under present law, any deviation by a doctor from standard procedure is likely to result in a verdict of guilt for medical negligence. Current law defines medical negligence as deviation from standard procedure. But as innovation is deviation, non-deviation is non-innovation.

In this way, the entire process of scientific discovery is cut in half. The first half, the doctor with the patient, has been stopped completely – by law. The other half has been outsourced to the Randomised Controlled Trial. The doctor has been removed.

You will ask how can an Act of Parliament cure cancer?

The striving for knowledge and the search for truth are the strongest motives of scientific discovery.

The boldness of our questions, and the integrity of our tests. That is what makes the man of science – subjecting our ever tentative answers to ever more rigorous tests. This entire, magnificent scientific process comes to what we may perhaps call a “dead halt” at the bedside of the cancer victim.

Put the case that the doctor is considering an innovation.

The doctor must now ask himself: do I want to go ahead along this road of innovation? If I do, I will deviate from the standard procedure. If I do, and anything goes wrong, there will be a trial. Expert witnesses will testify. I am likely to be found guilty of medical negligence.

Should I put my livelihood, my family and my reputation at risk? Or should I stick to the well-worn path on which no liability can arise?

In this way, the current law obliges the doctor to keep to the status quo, even though he/she knows it leads only to poor life quality, followed by death.

This is how scientific discovery is blocked by law. And why all cancer deaths are wasted. Their deaths did not advance scientific knowledge by one centimetre. Why? Because they were the subject of an endless repetition of the same failed experiment.

The present pre-eminence in law of the standard procedure provides no inducement to progress. It outlaws initiative. The self-interest of medical practitioners, as defined, for example, in doctors’ insurance policies, means that innovation is a form of self-harm.

Present law makes the status quo the only safe option, and gives clinicians no confidence about how to pursue responsible innovation. It exposes patients to harmful inaction, as well as to irresponsible innovation, in the absence of a clear legal framework to determine how decisions to innovate should be taken. We don’t want patients to be treated like mice. But on the other hand we do want to encourage bold, scientific innovation.

The Medical Innovation Bill, now making its way through the House of Lords, achieves both aims.

The Bill will codify into law what constitutes best practice in relation to responsible medical innovation; contrast that with reckless experimentation which puts patients’ lives at risk; and provide certainty to the courts, doctors, insurers and commissioning bodies about the difference between the two.

This Bill will not cure cancer. But it will encourage the man or woman who will.

For the first time, the Bill will give statutory expression to what the range of medical consultees have described as proper practice and process for taking decisions to innovate.

The result will be that a doctor who takes care to innovate responsibly and in accordance with best professional practice will have statutory support on which to rely in justifying his or her decision to insurers, to the General Medical Council and other regulatory bodies and, if necessary, to the courts.

In other words, the good doctor will be safer. And the bad doctor will be more easily exposed.

The advance of science depends upon the free competition of thought, and thus upon freedom, and that must come to an end if freedom is destroyed.

We should rise to our feet to applaud the great cancer doctors and scientists who are striving by their own best lights to serve the community. Let us encourage them, not frighten them.

Only a change in the law can solve this problem. Because the law is the problem.