A number of brain damaged children may be on a Tory peer’s conscience if his proposals to encourage medical innovation become law, Professor Robert Winston has said.

Lord Saatchi’s Medical Innovation Bill aims to give legal protection to doctors who try out different procedures or treatments when they have exhausted other options.

The Tory peer has been campaigning for law changes to enable more innovation in treatment since his wife, novelist Josephine Hart, died from a form of ovarian cancer in 2011.

Under the proposals, a doctor must obtain the views of one or more appropriately qualified doctors and consider their opinions.

But Lord Winston said it was not always possible for a doctor to do this in emergency situations, as he moved an amendment allowing medical professionals to take action if the time or place does not allow the required consultation.

The Labour peer said: “So, for example, if he’s at a bus stop or he’s in the outer islands of the Hebrides – or it’s a number of different places – this act of Parliament, if it becomes an act, would be extremely muddling to a doctor and I think will increase difficulties in trying to understand what is the appropriate thing to do in those circumstances.”

Turning to child birth, Lord Winston said: “In the case of a neonate, there is the real issue of course from time to time you have fractions of a minute of which to deal with an emergency.

“I would argue to Lord Saatchi that if this Bill goes through he may have a number of brain damaged children, which could possibly be on his conscience – because of course the need to give oxygen to a child, and in emergency circumstances using unusual procedures perhaps to deliver it.

“Each of you in this House have undertaken the most dangerous journey that all humans take – that’s the four-and-a-half inches down the birth canal.

“That results in a large number of children still to this today being damaged and indeed the commonest problem of babies dying or being damaged in this country is brain damage after birth.

“It is also, by the way, and I might mention this to the Government, a grave source of litigation.

“Indeed it costs the National Health Service a large sum of money, and if there is doubt about how to handle this in an emergency when a doctor is used there is a very grave risk that this could interfere with his better judgment.”

Lord Winston also raised an amendment asking for a definition of treatment which is innovative.

Conservative Lord Colwyn said: “To not state clearly on the face of the Bill where its provisions do not extend would make innovative practice much more complicated for doctors and, I believe, be a risk to patient safety.

“Surely if this House is to give its approval to a Bill where both the title and stated aim is to encourage more of something that is already being done on the front line of the medical profession … then there needs to be maximum clarity about where and when the Bill actually applies.”

Labour peer Lord Turnberg, a former president of the Association of Physicians, said: “These amendments go some way to helping on the safety issues, even if they don’t make it a necessary Bill.”

Former Lord Chief Justice Lord Woolf said: “The safeguards put into the Bill already at the behest of critics … are ones which make it clear it could only apply in circumstances which were not an emergency.

“If the House thought it was better to say that explicitly in the Bill, I would have no difficulty with that.”

Responding for Labour, Baroness Wheeler reiterated the Opposition’s support in principle for the legislation.

She said: “We have sought to work constructively with Lord Saatchi to improve the Bill and make it safe for patients.

“The Bill has strong support but we know key stakeholders still have major concerns and there needs to be strong commitment from Lord Saatchi and the Government to work to address these issues and ensure there is full consultation on the regulations, guidance and codes which will enforce its implementation.”Speaking for the Government, Baroness Jolly said: “The Government does not view this as necessary … the Bill already makes clear there is no requirement to innovate under the Bill.

“If a doctor chooses to innovate it is for the innovating doctor to decide if they would like to rely on the protection of the Bill and therefore to take the steps set out in the Bill.

“A decision to innovate under the Bill does not prevent a doctor from also relying on the existing common law defence.

“Over the course of the debate on this Bill a number of suggestions have been brought forward on how to approach (defining innovation). Drafting a positive definition is a difficult task … it is crucial the definition of innovation under the Bill is future proof and clear for both doctors and patients.”

Lord Saatchi said he had been strongly advised his Bill allowed doctors to rely on the existing Bolam test, which is used to determine the standard of care provided to patients in cases where medical negligence is claimed, if they were unable to follow the procedures in his plans.

Turning to Lord Winston’s call to define innovation, he said he agreed with Tory peer Lord Mackay of Clashfern’s view that more harm than good could be done by giving it a statutory definition.

Lord Saatchi told peers: “In particular, I would express the fear to Lord Winston that a number of the building blocks of the definition attempted in his amendment do indeed raise more questions than they answer.”

Lord Saatchi later agreed to meet Lord Winston to discuss the Labour peer’s amendments, which were withdrawn, and issues raised.

The remaining amendments to the Bill were withdrawn, ensuring the proposals completed report stage.

A third reading debate is likely to be scheduled in January, after which, if agreed, the Bill will be sent to MPs to consider.
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A lack of Parliamentary time makes it likely the Bill will fail before the election.