A law to cure cancer

    31 May 2014

    All cancer deaths are wasted lives. The deceased do not advance scientific knowledge one iota. Yet as matters stand, those with terminal cancer receive only the standard procedure — the endless repetition of a failed experiment.

    Current law obliges the doctor to keep to the status quo — even though he or she knows it leads only to poor life quality followed by death. Any deviation by a doctor from standard procedure is likely to result in a verdict of guilt for medical negligence. This is because current law defines medical negligence as deviation from standard procedure. But as innovation is deviation, non-deviation is non-innovation. Thus the entire process of scientific discovery is stopped — by law. This, I believe, is why there is still no cure for cancer.

    All cancer patients — along with their lovers, parents, siblings and offspring — have seen at first hand how scientific progress comes to a dead halt at the bedside of the invalid. Put the case of the hospital doctor standing beside the patient. Put the case that the doctor is considering an innovation. At that moment, a red light appears between the doctor and the patient. It is the law.

    The doctor must now ask himself: do I want to go ahead along this road of innovation? If I do, I will deviate from 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 stick to the well-worn path on which no liability can arise?

    Doctors can be forgiven for that decision in the light of the latest official figures on claims against the NHS. Last year, it paid out £1.2 billion in medical negligence cases. The Treasury estimates the total liability to future claims at £23 billion. In this culture of litigation, science cannot advance.

    Why is there no cure for cancer? Scholars have long sought general rules about the disease as robust as the laws of physics — to verify statements, propositions and putative facts by the results of empirical studies. Unfortunately, it has not worked out quite like that. Instead, we find the stubborn fact that, after 2,000 years of human progress, cancer is still outside humanity’s control.

    If you drop this copy of Spectator Heath, it will fall to the ground. Tomorrow the sun will rise. But in cancer, the record seems to show that once we express opinions or beliefs, or attempt to offer explanations or descriptions or predictions — then error, doubt and uncertainty come to the fore.

    We all believe in evidence-based medicine. But cancer is apparently the least evidence-based disease of all. Either there is no evidence, or if there is, it is not clear what it means. You hear it said: ‘every case is different.’ And: ‘there is always hope.’ Such well-meaning sentiments are not science. There is no hope that if you drop this magazine, it will not fall. These statements are meant to bring cheer to the desperate. Instead they bring despair: the dread revelation that cancer is a realm in which science has yet to achieve sovereignty.

    In the end, all attempts to place cancer medicine within the canons of scientific objectivity have failed. There remains an irremediable tentativeness about the logically perplexing question of what is the cause or cure for cancer. Cancer science has not yet found its Newton.

    The present pre-eminence in law of the standard procedure provides no inducement to scientific progress. In Clark vs McLennan (1983), the significance of departing from an approved mode of practice was treated by the trial judge as having the effect of reversing the burden of proof so that once the plaintiff established a deviation, the defendant had to disprove an inference of negligence. In other words: ‘The practitioner who treads the well-worn path will usually be safer, as far as concerns legal liability, than the one who adopts a newly discovered method of treatment’ (Crawford vs Board of Governors of Charing Cross Hospital, 1953). The legal profession itself has acknowledged from time to time the dangers of the Bolam test (the current one used to assess medical negligence) and in particular its tendency to inhibit medical progress.

    The point was made by Lady Butler-Sloss in her capacity as President of the Family Division of the High Court in the case of Simms vs Simms (2002) when she said: ‘The Bolam test ought not be allowed to inhibit medical progress. And it is clear that if one waited for the Bolam test to be complied with to its fullest extent, no innovative work such as the use of penicillin or performing heart transplant surgery would ever be attempted.’

    The fear of litigation creates an inherent bias against innovation. This is why the government has been running consultations on the Medical Innovation Bill. The secretary of state’s aim is a culture-change towards innovation.

    The present law leaves much uncertainty about what is best practice in innovation. It makes the status quo the only safe option. The Bill provides a clear legal framework to determine how decisions to innovate should be taken — a path to lawful innovation. We don’t want patients to be treated like mice, with reckless experimentation that puts lives at risk. But we do want to encourage innovation.

    The government’s Medical Innovation Bill achieves both aims. It codifies into law what constitutes best practice in relation to responsible medical innovation; contrasts that with reckless experimentation and provides certainty to the courts, doctors, insurers and commissioning bodies about the difference between the two.

    Are the intellectual problems of cancer insoluble? I do not think so. What is more inspiring than the quest by scientists to explain the world; to find satisfactory explanatory theories — simple theories — and to test them? One of them will cure cancer. Cancer is the number one cause of the untimely death of British citizens. This is because the law is the problem. 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 erect statues in their honour. Or build bridges in their name. Or parks! Or avenues! Or airports! Let us encourage, not frighten, them.

    If you want more innovation in cancer, please support my Bill.