Submission to Clare Marx Review on gross negligent manslaughter

May 2018


Dear Dame Clare,

Gross negligence manslaughter review

I am delighted that you have agreed to lead the inquiry into gross negligence manslaughter (GNM) and medical professionals. As you have said, there is a critical need to think through the implications and uncharted consequences.

I am a journalist and broadcaster, and am president of HealthWatch which promotes evidence-based medicine, a board member of Imperial College NHS Trust as well as of Sense About Science and the UK Stem Cell Foundation, a member of the RCP committee on ethical issues in medicine, of the RCS research steering group and the National Guardians’ advisory group, and an honorary fellow of the Royal College of Physicians. In addition, as an honorary fellow and visiting professor at UCL I am chairman of the advisory board of the Jill Dando Institute of Crime Science, and have experience of the impact of criminal law on crime rates.

Fundamentally, my recommendation boil down to the following:

DO recognise you have a once in a generation opportunity to change the law on GNM and the GMC itself.

DO NOT be put off considering law reform. GNM is misconceived. It should be necessary to prove mens rea, or intent to risk a patient’s death. Given that doctors treat people who are ill and routinely die, patient safety requires vigilance and candour. But accountability should mean learning from mistakes, not retribution. There is clear evidence that a punitive response in medicine does harm but no evidence that it improves patient safety.

DO acknowledge that the GMC processes are unnecessarily legalistic, archaically adversarial, unpardonably slow and cause considerable grief to doctors including the great majority who are eventually cleared.

I append a slightly more comprehensive summary at the end of my letter, but please bear with the narrative since, as your immediate reaction will have already testified, I am asking you to stretch your terms of reference. I therefore need to justify this approach.

In fact, despite your terms of reference – to improve how existing law, procedures and processes are applied (my italics) – Charlie Massey tells me there is nothing to prevent you questioning the law itself or from challenging fundamentals. It is essential the public is not denied a higher perspective which examines trade-offs and tests ethical assumptions that go to the heart of patient safety, and, given the tight constraints imposed on the Williams Review, I do hope that at very least you will look out over the walls before framing your recommendations to consider whether legislation should be changed.

No one is asking for doctors, or anyone else, to be above the law, but it is not seditious or subversive to question whether laws are right or not. Yesterday’s norms are superseded (with some, like the right to own slaves or criminalising homosexuality, becoming a cause of regret or revulsion) and so will many of today’s. It would reflect badly on society’s response to the Bawa-Garba crisis if all those charged to consider the matter dodged the issue of legislative reform. As Terence Stephenson has said, ‘it is everyone’s right to make representations’, and he has himself discussed with government the need for ‘a safe space in healthcare and a form of legal privilege akin to the airline industry’. Thus, I hope you and your colleagues will have the confidence to go to the heart of the matter.

I fear that if you do not explore this in the round you will have no options but to try patching a system which has already been patched many times. GNM is being applied more frequently, and the threat of prosecutions hangs like a shadow over the medical professions, leading in the cause of justice, to injustice, risk and harm.

Accordingly, I ask you to bear with me while I explain why, after much reflection, I am increasingly uneasy about society’s instinct to criminalise honest mistakes.


Why we should review the law

Gross negligence manslaughter distorts criminal justice priorities to the benefit of dangerous and recidivist criminals; it is illogical and unfair; it is subject to caprice; there is no evidence it reduces medical error; it is not necessary to ensure justice; it diverts NHS resources from patient care; it undermines a critical healthcare policy of promoting candour; and it almost certainly results in many invisible injuries and death because of risky and invasive overtreatment.

Distorting criminal justice

At first blush it might seem odd that a broadcaster best known for Crimewatch which sought to catch villains, should be opposed in principle to criminal prosecutions, but there is synergy. For a start, prosecuting people who have no intention to do harm diverts precious police and criminal justice resources from investigating those who do intend harm. This is no trivial matter, and nor should it be dismissed as not relevant to your inquiry. Bringing cases like Bawa-Garba’s to a level needed to satisfy the Crown Prosecution Service, and then through the courts, is resource intensive, and abstract skills and funds from a dwindling supply. Justice has a price. The Ministry of Justice faces unparalleled budget cuts, with equally unprecedented falls of almost 20 per cent in police numbers. Tens of thousands of serious offences are not even investigated.

You may even be able to quantify this trade-off by comparing the thousands of hours spent in criminal justice on a case like Bawa-Garba’s to that devoted, say, to recorded offences of violence against the person where 88% of cases go undetected[i].

The reality is that, in order to prosecute doctors who try to help, we allow to escape people who intend to injure. Some of their victims will require treatment from the NHS.

Illogical, unfair and capricious

What is more, GNM is in principle unjust. It is based on outcomes rather than actions, which means that the same action may be no offence or a very serious offence. Not to put too fine a point on it, it is arbitrary. By the same token, prosecuting doctors like Bawa-Garba dilutes the essence of real crime by which I mean badness as defined by mens rea, a wilful breach or an intention to do wrong.

This distinction is not arcane for an inquiry like yours into medical error and patient safety. Without the need to demonstrate evil intent, doctors are subject to fashion more than reason. As a notable law lord, Lord Atkin, observed some eighty years ago, in some periods, ‘expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter; but as manners softened and the law became more humane a narrower criterion appeared.’[ii] This was particularly so when manslaughter was a capital offence and, ‘men shrank from attaching the serious consequences of a conviction for felony to results produced by mere inadvertence.’

The GMC worries that we live in a retributive age and that it has no option but to keep in step with public opinion. True, opinion polls consistently suggest half the adult population is in favour of hanging and three-quarters believe we are soft on crime, but it was ever thus. In any case these surveys solicit answers offered in the abstract. Other evidence suggests, equally consistently, that citizens are far less punitive when presented with the facts about individual cases. The more we know, the less we rely on preconceptions and the more we tend to be nuanced. Just as clinicians expect informed consent from patients, citizens also deserve to be informed. Good public policy is not based on intuitive or presumed positions.

Whatever the reason, be it public pressure or systemic momentum, the use of GNM is on an upward trajectory. So far as I can establish there have been more prosecutions for medical manslaughter in the past 14 years than there were in the preceding 120, leaving doctors, as one lawyer observed, ‘in an almost uniquely vulnerable position regarding prosecution for making a mistake’[iii].

Not justified by evidence

Whatever is propelling these prosecutions, it is certainly not robust evidence that they do good. Evidence of efficacy is the first point where criminal manslaughter collides directly with the clinical culture. Doctors who are encouraged to practice evidence-based medicine might be surprised that the criminal justice system adduces no evidence at all that GNM as applied to the medical profession plays a role in reducing harm to patients. If GNM was proposed to a peer-reviewed journal as a broad-based evidence-based treatment it would be subject to ridicule.

One theoretical justification for punishing negligence is that, where individuals owe a duty of care to others, the threat of prison acts as a deterrent to making a mistake. But in many circumstances this is logically absurd since deterrence can only work where forethought is applied. In other words, there is a big difference between how manslaughter affects the way people plan activities and the way it affects them as they carry out their day to day routine.

Thus, the threat of prosecution may discourage a strategy of cutting corners to save money; it could influence a decision to snort cocaine or drink vodka before operating machinery; or it might persuade employers to tighten safety routines. But it cannot oblige someone not to make a mistake once committed to a course of action; it cannot help a driver or a pilot deal with information overload; it cannot prevent a busy doctor from overlooking something – for the simple reason that in the midst of routine activity people do not, and cannot, make a risk-reward calculation. For sanctions to work, any behaviours they seek to influence must be planned and wilful.

As it happens we have several real-world experiments which allows us to compare fault and no-fault approaches and to test whether fear of legal sanction drives desirable behaviours, or whether liberating people from jeopardy promotes irresponsibility. We can even measure outcomes in a clinical environment. The traditional UK response to medical culpability in civil proceedings is to go to court, where the critical issue is not the outcome of the error but whether or not the defendant was liable in law. This was considered unfair in New Zealand since if no fault is proven then the plaintiff is left to bear the burden. Understandably, without recourse to the courts, complainants in New Zealand have since used other channels to voice dissatisfaction. But New Zealand has seen no rise in underlying medical mishaps. This needs to be said with caution since adverse events are not reliably recorded anywhere (as patient safety concerns and shortcomings at Mid Staffs Foundation Trust so visibly exposed in the UK). But no one has detected, or even suggested, there has been an increase in clinical irresponsibility in NZ because doctors are no longer taken to court for damages[iv].

True, we are talking about civil, not criminal, law but there is no reason to believe the effects of criminal penalties would be much different from those of civil ones. The onus must be on those who claim otherwise to produce evidence to the contrary.

Obviously, this finding does not extend to cases where people plan their actions, as in a motorist arranging to travel to a party where she expects to drink alcohol, a construction company planning to appoint subcontractors, or a clinician preparing for a surgical procedure. Here fear of the law – whether prosecution or litigation – can certainly change behaviour, as random-breathalyser laws have shown. But, even then, deterrence rarely works as one might assume, which is why prisons are bulging and millions shrug off the death penalty and still smoke cigarettes.

Not necessary to ensure justice

It is also sometimes suggested that, freed of criminal sanctions for making serious errors, doctors and nurses would be privileged and above the law. My answer to that they should not need to be a special case. All manslaughter charges, including death by careless or dangerous driving, should be restricted to cases where there is a priori evidence of wilful misbehaviour. This does not affect the so-called eggshell principle, which describes the rule by which ‘you take your victims as you find them’: when you deliberately harm someone who dies as a result or is seriously injured, you can seek no mitigation if your target was especially vulnerable. But, critically, the rule should require wilful and not just negligent behaviour.

It is also suggested that the needs of justice must trump other considerations. I hope you will join me in regarding that as facile. Every action has a trade-off. Life is a transaction between different ambitions and needs. Even if GNM always resulted in justice – and as I have said I believe it frequently leads to injustice – the important question is: when applied to medicine does it on balance to more good than harm?

Diverts NHS resources

GNM wastes NHS resources in a way that no thoughtful priority-setting would consider sensible. Healthcare systems throughout the world are struggling with cost inflation, novel treatment options, mounting drug resistance, rising expectations, ageing populations, increasing rates of comorbidity and difficulties of recruiting and retaining staff. In Britain waiting times have ballooned, the physical condition of many clinics and hospitals is in embarrassingly poor because of capital budget constraints, running costs are severely curbed with control totals imposed from above, and managers and clinical directors are struggling to make savings wherever they can. When medical error is identified they need to respond quickly and thoroughly to put things right where possible, to learn from the mistake and to implement safeguards so that in future behaviours default to safe. Having valuable and competent clinicians subjected to criminal investigations, suspended and removed from service is not conducive to raising standards of patient care.

Undermines candour

Yet there is plainly a further, much more worrying, effect. GNM is inimical to candour. It is widely recognised that failure is the best way to learn and, as I hardly need point out to you, lack of frankness is especially damaging in a clinical setting where lives are at risk. Good clinical governance requires an open learning culture which designs out risk and discourages defensive medicine.

The medical profession has known for decades that a blame-free culture is the way to establish patient safety. The National Confidential Enquiry into Perioperative Deaths (NCEPOD) was established thirty years ago to find out what went wrong when surgery resulted in fatalities, and, as its name implies, it was a specifically anonymised investigation. It developed into the National Confidential Enquiry into Patient Outcome and Death which was regarded as so important to patient safety that it became a condition of registration with the GMC that doctors must participate in the work of confidential enquiries. Liberating doctors from fear of castigation saves patients’ lives. The Francis and Berwick Reports are testament to this, and to the fact that it is uncontroversial among medical safety professionals. Patients deserve an atmosphere which promotes transparency and honesty.

The GMC is equally aware of this. It has publicly acknowledged that concerns about GNM ‘could make doctors less candid about errors,’ and Professor Terence Stephenson has made the point himself that their Bawa-Garba referral has ‘set us back’ in this regard. There are no data to substantiate the chilling effects of GNM, but the logic is compelling: criminalise clinicians for making well-intentioned mistakes and doctors will be less likely to admit to their own mistakes or to speak out about the mistakes of others.

I do not seek to suggest that GNM is the only, or even principal, cause of distorted values in the health service. Sir Robert Francis correctly identified a systemic problem of hierarchies and closing ranks: ‘too often those who raise concerns about things that go wrong become unpopular with colleagues’. In response, the thrust of a great deal of recent healthcare policy has been to encourage disclosure. These include the Nolan Principles established in 1995, the (ineffectual) Public Interest Disclosure Act of 1998, and perhaps most notably the so-called Freedom to Speak Up (FTSU) guardians, whose very title tacitly acknowledges that healthworkers do not habitually feel the freedom to speak up. I can testify as someone who supervises guardians in an acute hospital trust that even staff who do disclose are often fearful, and NHS staff surveys across the country suggest such anxieties are commonplace. As you will be aware, NHS Improvement (NHSI) has been sufficiently worried about this as to launch a formal Whistleblowers’ Support Scheme.

Candour, whistleblowing, self-reflection, learning and improvement all require a culture change which goes far beyond the legislative framework. There is also the burden of civil litigation, especially in obstetrics. But GNM is the most visible symbol of scapegoating. I submit that it is simply not credible that piling on layers of different initiatives will encourage people to speak up as they should. Patient safety deserves root and branch reform.

Indeed, not only should doctors and nurses be liberated from the threat of criminal sanctions for making a mistake; they should be discouraged from giving evidence in criminal courts against colleagues who have made mistakes. It is all very well for the medical profession to criticise parliament and the courts for pillorying doctors; but no prosecution for GNM against a surgeon or physician can succeed without another doctor denouncing the defendant. The adversarial process enjoyed by British courts is in many ways antagonistic to the scientific method, swayed by theatricality, selective in what evidence is allowable, after which elements are then cherrypicked and presented with deliberate bias, leading to evaluation by inexpert assessors forced into a binary conclusion. Despite new safeguards about expert witnesses, many are still chosen to support the prosecution or defence case, are often ‘bought’ inasmuch as court fees provide a considerable source of income, and can sound authoritative even if they are out of touch. Regrettably, it is not unknown for a specialist consultant with a relatively easy life, perhaps enjoying private practice or effectively retired, to testify against a colleague who has much less specialist experience and/or faces more intense and complex pressures.

Results in injury and death

Even if fear of prosecution drove doctors to be cautious it can put lives at risk. There is anecdotal evidence that normally diligent doctors are tempted to ‘overtreat’ and there are many academic attempts to quantify the effects of defensive medicine. Your review might benefit from a review of the literature. Excessive intervention distorts rational allocation of time and resources which, in a capped system like the NHS, robs other patients of timely care. But in many cases defensive medicine is also directly against the patient’s interests. Unnecessary investigations such as x-rays and other scans, invasive tests or unwarranted drugs and procedures given ‘just in case’ probably cause hundreds of deaths and thousands of injuries each year, although these harms are hard to identify, hard to count and often far removed in time from the doctor who ordered the investigation or the treatment. This largely invisible toll, resulting from doctors’ fear of getting things wrong, will vastly outnumber the patients like Jack Adcock who suffer from underdiagnosis and undertreatment of the sort that leads to criminal prosecution. Yet the two issues are deeply interrelated.

The once-in-a-generation opportunity for change

Even should you conclude that your terms of reference prevent you from proposing legislative changes, I hope at least you will conclude that the GMC has a duty to urge debate by parliament and the public and to point out that established laws and processes have unintended consequences. These are matters over which the GMC stands responsible and, where they are reluctant to be controversial, they need you to help give them resolve.

I have mentioned that Terence Stephenson has acknowledged it is everyone’s right to fight for a change in the law and that he himself has proposed a form of legal privilege for doctors. Yet he feels conflicted. He has also told me, ‘this is a matter for government and parliament, not for a professional regulator. The GMC cannot be above the law of the land.’

Setting aside the curious notion that it is ‘above the law’ to seek law reform, there is nothing in the Medical Act or any other protocol that obliges silent acquiescence to ageing legislation. In fact, I can think of no one better placed to propose reform than a professional regulator. Simply by standing against increasing use of GNM it could do much to reassure doctors, encourage more openness and thus shelter healthcare from a law which is intrinsically detrimental to patient safety.

The Bawa-Garba case has provided a once-in-a-generation chance to reconsider a law which has grown like Topsy, distorts healthcare and diminishes patient safety. By all means mitigate the worst effects of GNM on medicine, but since the law itself has malevolent effects the sooner it is reformed the fairer, better and safer the world will be.


Mitigating the ill-effects of GNM

This brings us safely back well within the terms of your inquiry, with the task of working out how to make the most of a bad law and injurious procedures: if the GMC chooses not to challenge the status quo, how, at very least, can it protect patients from GNM’s most damaging effects?


Does the GMC have to erase doctors convicted of GNM?

First, there is the question of whether, whatever the law, the GMC has a duty to strive officiously to enforce the verdict of a crown court as it did with Bawa-Garba. Charlie Massey has said that he acted on legal advice and that not to appeal the case would be to have gone ‘behind the verdict of the jury’. I am not a lawyer but I urge you to consult others who are. There is no general legal impediment to going behind a verdict; if there was it would be contempt to question convictions and we would not allow appeals. It is true that a junior court cannot set aside the verdict of a higher court, but a Medical Practitioners’ Tribunal does not seek to set aside a verdict. It is not a judge of criminal culpability but of fitness to practice, an appraisal it is specifically appointed to conduct and one for which it is better equipped to judge than a crown court jury.

Nor do I believe it is incumbent on the GMC to seek erasure of a doctor following a jury verdict. Having studied Section 35c of the Medical Act 1983 I believe the GMC was wrongly advised.

If I am wrong, and the legal opinion was right, you might conclude that Mr Massey’s impulse should have been to seek a second opinion, or quietly ignore the matter – or at very least refer the matter to Council. After all, to follow such advice resulted in the persecution of a doctor when, as he has conceded, her competence was not at issue. You may think it worth questioning why he did not challenge the legal advice, complain that it amounted to double-jeopardy, and resist its implications for medical candour and patient safety.

Terence Stephenson says unambiguously, ‘I wholeheartedly agree that protecting and promoting patient safety must be the first priority of the GMC’. Yet you might wonder whether with Bawa-Garba, the instinct was really to protect the public or to protect the GMC.

Should the GMC be in the business of image management?

Second, I propose that the GMC should commit to a robust review of its own statutory purpose set out 35 years ago. Essentially it has four overlapping obligations: to set standards, to oversee training, to regulate which doctors are competent to practice, and to sustain the public’s confidence in doctors. I submit that it does not do all of these well. You are not concerned with the first two duties, but I recommend you consider whether a body that determines a doctor’s moral and technical competence should also be responsible for a profession’s public relations.

The Bawa-Garba case is again a good example, but the principle is perhaps best illustrated by that of Chizoro Edohasim who has fallen foul of a similar law to GNM. Dr Edohasim was involved in a car crash which killed his own daughter, injured another and crippled himself. The vehicle’s telematics showed that on approaching traffic lights he applied the accelerator instead of the brake, achieving 100% acceleration up to the point of impact with a wall. He was convicted of causing death by dangerous driving and sentenced to four years imprisonment, reduced on appeal to three. It is not your concern that this legal sanction has bewildered and ravaged his family, nor that it will do no good, nor even that the prison authorities deny him adequate medical treatment. What should be your concern is that the GMC has warned him that, in view of his conviction, they are considering erasing him from the register.

Charlie Massey tells me such actions are necessary in order to fulfil Council’s duty to sustain public confidence in doctors. Regardless of the fact that the crash was plainly not deliberate, and that Dr Edohasim has already suffered terribly, or even that taking away his livelihood is disproportionate, will harm his family, deprive the NHS and place additional burdens on public finance, I submit that the only question the GMC should be concerned with is whether or not he is competent to work safely and effectively as a physician. Its overriding concern should be the safety of the public. It should be for others, perhaps the BMA or the royal colleges, to safeguard the profession’s reputation.

The GMC still smarts from the memory of 2004 when there was public disquiet around several doctors who had harmed patients, where the system had failed and where, in Terence Stephenson’s own words, ‘the perception was that the GMC was a doctors’ club looking after its own’. I suspect this is why it is so anxious about public perception.

But elision of the two ambitions – regulating for competence and defending the profession – has unfortunate consequences. It bars competent, and even exceptional, doctors from practice (destroying careers and creating much grief in the process) and it confuses protecting patients with protecting the profession. It is, in short, conflicted. In Bawa-Garba’s case she had a creditable record and in the two years between Jack Adcock’s death and her trial she was regarded as a perfectly good doctor. As I say, Charlie Massey accepts that he had no reason to doubt her general competence, and Terence Stephenson acknowledges that her errors must have been unusual: ‘a conviction for manslaughter by reason of gross negligence is not about everyday mistakes…. The failings must be truly exceptionally bad’. As it happens, I do not accept this. Even Professor Stephenson concedes he has, ‘certainly made mistakes as a doctor’, and many doctors say they have had similar lapses, although thankfully without such disastrous repercussions. One consulted told me he thinks he might have killed a patient, and since it was the outcome, not the error, which did for Bawa-Garba, several have said, ‘There but for the grace of God go I’.

But even if we take at face value that Bawa-Garba’s failings were truly, incomparably sloppy, no one has suggested that her blunders on this occasion were anything other than an extraordinary exception. It follows that she was erased even though this was an unprecedented and singular event. This blurring of boundaries between personal proficiency and being a professional liability is not just intellectually flabby but ethically distressing too. It means the GMC is sacrificing capable doctors on the altar of untested assumptions about public opinion, or on Council’s fretful concern about challenging the legal status quo.

The dual responsibility also muddies the waters. Professor Stephenson is emphatic that, ‘retribution has no place in our work.’ Yet if it is accepted that Bawa-Garba was a generally competent physician with whom patients would be safe (and perhaps no other doctor of her rank would now be more attuned to sepsis), her removal from the register can only be retributive. Her erasure may not have felt retributive to Charlie Massey and Terence Stephenson, but they were the instrument of retribution. They pulled the trigger out of fears that the public would be vengeful. We all need to face up to this reality: the fact that she took a bullet for the profession shows retribution does have a place in their work. It is forced upon them by their role in image management.

Is the GMC inconsistent or even racist?

Third, I urge you to challenge the GMC not just on principle but on its practice. Mr Massey has claimed that not to have de-listed Bawa-Garba would have set a precedent, and Terence Stephenson insists that in every case of GNM since 2004 the GMC has sought erasure.  I suggest you examine its record. In a letter to Terence Stephenson of 14 February I cited two cases where physicians had prison sentences, one for manslaughter and one for negligence, neither of whom was struck off and at least one of whom, having served his time behind bars, returned to useful and subsequently unblemished service[v]. I have not yet heard from the GMC that my information is incorrect. Since then I have been told of doctors who have survived erasure despite clearly been cheats or even criminally dishonest, along with some convicted of sex offences (including, I believe, some still on the sex offender register). These make a tragic counterpoint to others like Hadiza Bawa-Garba who have been struck off for one-off clinical errors.

You will be aware of the racial implications in all this. The GMC acknowledges the persistent overrepresentation of complaints against ethnic minority doctors – some 10.2% of BME doctors were referred between 2010 and 2016 compared to 8.8% of white doctors. Clearly the GMC cannot be held responsible for those who refer complaints to them. Perhaps doctors trained overseas, with different cultural heritage and with English as a second language, are less likely than British-trained doctors to meet the professional expectations of British patients. In any case, fewer than 3 per cent of referrals are passed on to a tribunal. But many doctors I have spoken to fear there is systematic bias and, as you know, local Medical Committees (branches of the British Medical Association) have been so concerned as to have declared no confidence in the GMC.

The question of bias is the subject of a separate inquiry, but you will want to be sure that the GMC has a robust process for showing that it is sensitive to racial stereotyping, that its judgments are consistent and that its outcomes are clearly fair. If nothing else, the tension over this underlines that confidence in the GMC is shaky.

Should the GMC put doctors on trial?

Fourth, although not directly related to GNM, you may wish to consider the adversarial nature of the GMC’s procedures. As I have told Professor Sir Norman Williams, the GMC seems not to understand how much it is reviled. It inspires fear in those who have come up against it, has long and drawn out processes which can leave doctors in limbo for months or even years (sometimes with devastating effects on their families, their careers and their health), it expects defendants to pay their own expenses and travel as instructed, and makes no amends if a case is dropped or fails.

I hope you will take evidence by those who say their lives were ruined by the GMC even though complaints against them were rejected. According to the GMC’s 2016 report, of 9,140 referrals only 245 were sent to a Medical Practitioners’ Tribunal (MPT), and only about 70 are erased in any year. Nonetheless all 9,140 defendants lived in fear for months or years, often with diminished opportunities in their careers. It is simply unacceptable that the process takes so long. The great majority of cases should be resolved within 28 days.

In order to achieve that, its procedures need to be transformed, be much less long-winded, less defined by lawyers, and be refined to focus on actual (rather than perceived) fitness to practice. It should privilege retraining and upskilling over sanctions. Again, these are all issues where the GMC should be more audacious and more willing to set out its stall for regulatory reform.

Is the GMC used to suppress whistleblowers?

Fifth, again not directly related to GNM, it may be useful to consider whether, and if so to what extent, fear of the GMC is used cynically to suppress openness in the NHS. The report by Sir Anthony Hooper QC three years ago, called On the handling by the GMC of cases involving whistleblowers, reported that, ‘employers are using the process of making a complaint to the GMC about a doctor’s fitness to practise as an act of retaliation against whistleblowers because he or she has raised concerns’. I do not believe the GMC is complicit in this. As I say, more than 97 per cent of complaints are rejected without going to an MPT. What is more, by no means all these referrals come from management. Nonetheless Sir Anthony concluded that, ‘the GMC unwittingly becomes the instrument of the employer in its campaign against the whistleblower’. He also reported that employers are refusing to revalidate doctors who try to speak out. I have been advised of two senior doctors who withdrew retracted statements of concern when they were told that they would not be revalidated unless they did so.

I accept there is a more general problem here. For example, there are stories of medical directors who make it clear that consultants who raise concerns will not get discretionary points or gain support for national awards. But I have no doubt that, unintentionally, the GMC has a role in subverting safety by making staff feel it is unsafe to raise concerns. Above all of this GNM now hangs like the sword of Damocles.

Is the GMC the best way to regulate?

Sixth, this is a golden opportunity to rethink medical regulation in the round. The GNM controversy has put the GMC in the spotlight and the government’s review, Promoting professionalism, reforming regulation, is still under way even though the period for consultation has closed. It is surely important for you to liaise with that review, to share information and ideas, and to question whether reform might be beneficial.


Final words

I have many links with medicine. But they are all voluntary. I am not medically qualified, and I do not speak for doctors. My prime concern is patients.

Nor do I lack empathy with victims like Mrs Adcock whose son, Jack, died because of failings by Dr Bawa-Garba among others. I have myself suffered a form of sepsis which, were it not for the remarkable perceptiveness of a GP, could have proved fatal. I have had a major operation which I am now told was ill-advised – and perhaps unnecessary – as a result of which I have suffered serious and potentially life-threatening events. I have a close relative whose medical treatment was so inept that he required corrective surgery and is still disfigured. I can see plainly why some people want those who make serious medical mistakes not just to be held accountable but to be chastised.

But while anger and grief are understandable they do not bestow special wisdom; indeed, it is rare that they can be assuaged by seeing someone punished. Many ill-treated patients, and many who’ve been bereaved, have found comfort in pushing for more transparency and systematic accountability rather than personal blame. You may wish to hear from Melissa Mead who spoke so movingly two years ago at the Conservative Party conference. Like Jack Adcock, her little boy William died from undiagnosed sepsis – in his case after what the Daily Mail headlined as, ‘a staggering 15 failures in his care’. But Mrs Mead pointed out that a retributive response to failure invites the very dangers some activists for retributory justice seek to avert.

Mistakes will happen. But victimhood does not justify vindictiveness. Even so-called ‘unforgivable’ failings are only unforgivable when we are unable to see ourselves in other people’s shoes. We, as patients, must expect clinicians to use their best endeavours, but the pact we make with doctors should be reciprocal: we should also empathise with them.

Perhaps it is because I have spent so many years in live broadcasting that I understand how easy it is to have a lapse in attention, to have failed to prepare for an interviewee’s obvious evasion, to have missed something that in hindsight was clearly important. But mistakes in journalism very rarely kill. Mistakes in medicine frequently do. Estimates vary but there are probably between 1,200 and ten times that number of avoidable deaths in England each year in hospitals alone, and perhaps 1.4 million adverse events in total[vi].

If nothing else I hope you conclude that systemic challenges need systemic responses; not vexatious and hugely distracting harassment of a very few generally competent doctors who made well-meaning mistakes and who are already tormented by misjudgements when they were trying to do good.



Senior GMC officials have assured me you have authority to look beyond existing law and examine unintended consequences of gross negligence manslaughter, something the Williams Review cannot. Only through understanding the illogicality and unfairness of GNM in general is it possible to see why workarounds can never improve patient safety to a desirable extent.

Even given existing law I question both the legal advice given to the GMC over the Bawa-Garba case and the GMC’s motives for so quickly and actively pursuing its implications.

 I suggest such actions are inimical to a culture of candour and learning. Despite many attempts to make NHS staff feel at ease in speaking out, stubborn obstacles remain. While criminal prosecution of doctors for mistakes are relatively rare, the threat of criminal sanctions is the most visible sign of their vulnerability.

 Just as bad as fear of speaking out is the risk of defensive medicine. If GNM has a deterrent effect it will mostly be harmful. The threat of criminalisation cannot change decisions made in the heat of the moment but it can influence actions that are planned. Unnecessary or avoidable tests and treatments kill and injure thousands of patients each year, and though the toll is visible only through epidemiology, every life lost or damaged in this way is just as valuable as that of patients like Jack Adcock.

 I ask that you see the Bawa-Garba case and the effects of GNM on doctors as a once-in-a-generation opportunity to improve the GMC more generally. While my prime concern is patient safety, I urge you to examine the terrible toll exerted on doctors by the GMC’s painfully slow and legalistic processes which each year ensnare some 10,000 clinicians causing hundreds to have stalled careers despite almost all of them eventually being cleared. There is also prima facie evidence of inconsistency and racism. Whether or not this is central to your terms of reference you are uniquely well-placed to propose reforms.

Adversarial approaches in medicine should be comprehensively discouraged. This applies equally to doctors themselves, who should stop cashing in on court cases to give evidence against colleagues. Accountability should lead to improvements in patient safety not to punishment for honest mistakes, however ‘unforgivable’ genuine errors might seem.

Medicine is a powerful and therefore dangerous business. Just as doctors should be expected to empathise with patients, so patients should be expected to empathise with doctors.


I wish you well with your deliberations.

Nick Ross


[i] Crime outcomes in England and Wales, year to December 2017: data tables (Table 3.2)

[ii] [1937] AC 576, pp581-2.

[iii] Hannah Quirk, School of Law, University of Manchester, Crim. L.R. 2013, 11, 871-888



[vi] Dept of Health & Social Care, 14 December 2017, NHS becomes first healthcare system in the world to publish numbers of avoidable deaths  (; Public Administration Select Committee report, 27 March 2015, Investigating clinical incidents in the NHS (ttps://

Impact of mass breast cancer screening has been overrated

It has not been shown to affect women’s life expectancy overall, but does increase invasive interventions, say Susan Bewley, Nick Ross and Margaret McCartney of HealthWatch

The announcement that thousands missed out on mammography tests caused distress to many women and their families (Report, 4 May). The implication was that they now risked premature death from cancer. In fact, as many experts have been pointing out, mass screening for breast cancer has not been shown to have any impact on women’s life expectancy overall – but it does increase invasive interventions like mastectomy. This is why Prof Mike Baum, one of the first proponents of mass breast-cancer screening, now opposes it, as does the growing consensus among epidemiologists.

If Public Health England thinks otherwise, it should publish its modelled estimates so scientists and statisticians can check them. In the absence of good evidence it was disgraceful to suggest women died needlessly.

Jeremy Hunt has commissioned a professor of oncology and a cancer charity chief executive to undertake a rapid review but has confined them to narrow terms of reference that keep ministers and their advisers out of trouble. HealthWatch, the charity promoting evidence-based medicine, has long voiced concerns about both the breast screening programme and the associated age-extension trial. Women and their families deserve to have answers about who advised governments on screening policy, what evidence successive ministers were given (and not given), what political pressures were involved, and what monitoring and governance was put in place.

This is not just a question of IT failure but failures of the political system to adapt to new evidence. Mass breast-cancer screening might have seemed a good idea to many at the time but now owes more to politics and fashion than to science.
Prof Susan Bewley Professor of women’s health, King’s College London, and chair of trustees, HealthWatch, Nick Ross President, HealthWatch, Dr Margaret McCartney GP and patron, HealthWatch

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The response The Guardian declined to publish

This was in reply to an extraordinary article in The Guardian on 19th February but rejected by Sarah Johnson, Commissioning editor, Healthcare Network.

It is refreshing to hear a junior doctor strike out against the consensus, especially on a case which seems to have riled the whole medical profession.

Hadiza Bawa-Garba (above) is the trainee paediatrician who misdiagnosed sepsis leading to a six-year old boy’s death, and in an unsigned article a fellow-trainee said she deserved to be convicted of negligent manslaughter and struck off the medical register. It is a courageous view from someone who is equally vulnerable to having the wolves set loose should he or she make a similar mistake.

But the argument was disappointing – as was the decision of this brave warrior for his profession to hide behind anonymity. In fact the anonymity itself rather defeated the logic, which was that doctors must openly bear the consequences of their actions. The secrecy suggests that junior doctors now, as ever, feel a constant pressure to cover up and protect their backs.

In fact the whole thesis was comprehensively muddled. Our shadowy critic of Bawa-Garba says she deserved everything she got because the high court concluded her mistakes “were not simply honest errors”. The writer, while admitting to being ignorant of the details, has, “come to respect the decision of the court – so should my colleagues.” Yet that reasoning is immediately undermined, if not inverted, with the following confession: “I am not sure whether the criminal court is the best place to hold a medical professional to account, and I welcome Hunt’s belated review into medical manslaughter.”

As it happens I agree – I have followed criminal courts for decades and retain a healthy scepticism about their capacity to grasp expert evidence – but your correspondent can’t seriously expect us to respect the verdict of a court which he or she concedes is not the best place to consider such issues in the first place.

It gets worse. The writer goes on, and I quote this in full and in context: “Medical professionals who do their utmost for patients should not live in fear of legal action for honest mistakes. Bawa-Garba was let down by the system that she worked in. I, like many of my colleagues, do not believe she should have been convicted of manslaughter.”

Ah, I see. Or do I? Now, it seems, the author does not respect the decision of the court.

Then it gets more confusing still. We are told that, even though Bawa-Garba should not have been convicted, the GMC was right to strike her off because she was convicted. What matters is public confidence in the profession. So, even if she did not deserve a bullet, she should get one.

Actually this is also the GMC’s bewildering position. Charlie Massey, its chief executive, has conceded to me that Bawa-Garba’s is a competent doctor. Her colleagues speak well of her and she worked uneventfully for four years between the child’s death, which occasioned all this, and the CPS finally concluding she should be arraigned for trial. So your writer, like the GMC, acknowledges Bawa-Garba is a fall guy, a sacrificial lamb for the profession. Are we expected to regard this as justice?

It may be rough justice, I suppose, but, if so, our unsigned pundit believes that such cases will become more and more common: “I can safely say, without evidence but with confidence, that every doctor with sufficient experience has made multiple errors… (and that) as demand for services rises and budgets fall, maintaining standards in the health service will become increasingly challenging and the risk of errors will inevitably increase.”

I agree, but most of us who are concerned for patient safety draw precisely the opposite conclusion. The GMC cannot maintain public confidence by striking off more and more doctors. Indeed maintaining public confidence should not be its role at all, and with the government’s current review into healthcare regulation I hope this will be addressed. It is for the royal colleges or the BMA to do PR. The GMC’s job should be to ensure that all physicians and surgeons are properly qualified and competent.

The writer worries that, “members of the public would not allow a doctor convicted of manslaughter to treat their children”, but other doctors have returned to work after suffering such verdicts and have unblemished records since. The public seems to be happy to be treated by them; why not by Hadiza Bawa-Garba? In fact I can think of no doctor less likely to repeat the error that Bawa-Garba made than Bawa-Garba. It is not just wrong in principle to criminalise someone who was trying to save someone else’s life; it is bad in practice. We, the public, need to become more tolerant of genuine mistakes made by other people who are overworked, understaffed and under pressure. We need to understand that medical mistakes occur hundreds of times each day, sometimes with terrible consequences, and that if we want better protection we need a culture of openness, not one of punitiveness, cover-up and fear.

So, all in all, I don’t believe your contributor has a logical case to make, nor one that would contribute to public safety or public confidence.

I leave you with yet another extraordinary inconsistency in the article – one I find simply inexplicable. Having congratulated the GMC for erasing Bawa-Garba from the medical directory, the writer says: “As a fellow junior doctor, I appreciate how easily errors are made and I will be the first to rise to Bawa-Garba’s defence.”

No you’re not, and you can’t have it both ways. Thousands of doctors, and lay people like me, rose to her defence, while you have simply risen to make a confusing counter-attack. Normally I admire people who are prepared to speak out against a prevailing fashion, but you make yourself sound like part of the problem, not the solution.

Schorstein Lecture

‘We’ve had enough of experts’: the enduring charm of quackery.

Delivered to Barts and the London School of Medicine William Harvey Day, 18 October 2017

Thank you for such a glowing build-up. I’m afraid I shall now considerably lower the tone.

You may or might know not that the Schorstein Lecture was proposed in the letters pages of the BMJ in 1907 to perpetuate the memory of the late Dr Schorstein, and was to be an “advanced course of lectures in clinical medicine” given by “a physician”.

Recent Schorstein Lectures have included: Syphilis and Aneurysm; and Abscess of the Brain in Association with Pulmonary Disease. There was one on Expectoration, and another on the Fate of the bulbus cordis in the human heart.

Prepare to be disappointed. It’s true I am a doctor – indeed a Fellow of the Royal College of Physicians. But alas, not a real one. Since I’m going to be talking to you about quackery, make no mistake. I am an honorary Fellow, a visiting professor. In short, I fail the Schorstein criteria on two counts out of two.

Actually, I warmly recommend sham qualifications like mine. They sound impressive but save you from having to know anything. But since I’m going to be talking to you about quackery, it’s important you know what my qualifications for talking to you are. None.

I doubt Dr Schorstein wd have approved; much less his friends and colleagues who put up the endowment for this lecture.

But since whoever invited me clearly knows I can’t enlighten you much on Syphilis and Aneurysm, I’ve been asked to address the question of how the scientific community relates to the broader context of society.

And that’s something I know a bit about. In fact it’s fascinated me for years.

My interest today, and I hope yours, is the boundary between easy thinking – fast, intuitive, barely conscious and which leads to quackery, prejudice, populism – and the stuff you have to work at: slow, calculating, conscious, which leads to science, maths, evidence and, above all, accepting contra-evidence (the stuff that challenges or undermines a truth you’ve long regarded as fundamental). It’s what Daniel Kahneman popularised in his book Thinking Fast and Thinking Slow.

If you recall, he refers to the 2 types of thinking as System 1 and System 2.

Type 1 thinking is quick. It’s rule of thumb, it’s accepting; it’s faith, it’s believing in a narrative: perhaps the literal truth of ancient scriptures – or for that matter, what you read in today’s newspaper. It’s a quick fix. It fits snugly with your world-view of life. It avoids cognitive dissonance. It’s been neatly summed up in America by Donald Trumps’ rejection of disagreeable information as ‘fake news’. Or in the UK by Michael Gove’s infamous outburst: ‘We’ve had enough of experts’.

System 1 thinking leads me to think Michael Gove is a buffoon. Would he have had enough of experts if he needed surgery, or someone to do the maintenance on the next aircraft he’s to fly on?

System 2 thinking leads me to doubt that someone of Michael Gove’s intelligence would really think such a thing. And it turns out he doesn’t.

In fact it turns out the phrase itself is a classic illustration of what one might call System 1 reporting: it was taken out of context. We all remember the juicy bits, not the other stuff.

What he actually said was in response to a comment that the leaders of the IFS, CBI, NHS and TUC all disagreed with him about Brexit.. His reply was, people have, ‘had enough of experts from organisations with acronyms saying that they know what is best and getting it consistently wrong’.

This, of course, has a very different meaning. He’s right: economic forecasters have often got things wrong. It was just unfortunate phrasing … because it invited a collective frenzy of Type 1 thinking.

And what is so fascinating, is how it caught on with the public. Brexit, of course, is a matter of faith. No one has done randomised trials of Britain in the EU and Britain outside it. No one has tested a hypothesis. It’s driven by ideology about national identity, not spreadsheets of economic formulae. Overnight Mr Gove became a champion of those who were pro-Brexit but didn’t bother with the details. Arguments about who’ll do pharmaceutical regulation, engineering standards, the future of financial services, the risks of inflation, the lack of any other trade deals… all these could be consigned to the box marked “Fake news”, or “Had enough of experts”.

Of course the dedicated Remainers also resorted to Type 1 and concluded Michael Gove was beneath contempt.

So, what has this to do with medicine?

I think a lot. I think it explains the enduring power of quackery in so-called alternative medicine: the mumbo-jumbo like homeopathy, the snake-oil salesmen like Vitabiotics who peddle pills without any credible evidence that their supplements do any good for the health of the people who buy them; or the outright fraudsters who claim to cure cancer with crystals or stem cells. It’s even better if you brand whatever you’re selling as reassuringly scientific. (The strapline for Vitabiotics is Science for Healthy Living.)

The gravitational pull of intuitive thinking is comforting and reassuring. You can cherry-pick your evidence, gloss over inconvenient facts. It’s the shortest route; it avoids a troublesome detour. It explains why many qualified doctors believe in this stuff. It explains the strange world of psychobabble psychotherapy, and I’m afraid it explains quite a bit of counselling too for which there is precious little evidence-base that it does more good than harm.

But it also explains why rotten and misguided ideas hang round the neck of conventional medicine for so long.

Even after Dr Schorstein’s death – well into the C20th – patients in Britain were still being bled, as they had been in the dark ages. Textbooks were recommending bloodletting right up to the 1923 edition Sir Wm Ostler’s The Principles and Practice of Medicine.

In fact medicine has a pretty disgraceful record of Type 1 thinking. Voltaire (or whoever it was) wasn’t entirely joking when he described the art of the great physician as keeping the patient amused until he either got better or died. For 2,000 years doctors either stuck pins into sick people, or purged and bled them – and that’s if they were lucky. They tried trepanning, sulphuric acid, and any number of appalling bits of flimflam because they couldn’t shake off almost religious dogma about how the body worked.

In the east, of course, it was all about energy flows. If you were ill it was because your vitalism was disturbed as it flowed through a network of invisible channels called meridians. Here in the west it was your temperaments that were disturbed: the 4 humours that had to be rebalanced.

These theories weren’t entirely barking. Sometimes they were based on anatomical studies. And sometimes they just got the arrow of causation the wrong way round. For example, it seemed obvious that the heart was the seat of emotion. If you were frightened or excited, your heartbeat went up. According to Galen the heart was the organ most closely associated with the soul. We still say you’re close to my heart.

It was clear by the C17th that Galen may have got it wrong. In 1628 Wm Harvey, whom we celebrate today, published his now legendary treatise, On the Circulation of the Blood. The rest of Galenic medicine looked increasingly shaky too.

Famously, around the 1640s, the Flemish scientist van Helmont challenged the medical establishment to take:

“200 or 500 poor people with fevers, pleurisy etc. and divide them in two: let us cast lots so that one half of them fall to me and the other half to you. I shall cure them without blood-letting, you will do so according to your knowledge, and we shall see how many funerals each of us will have. The outcome of the contest shall be the reward of 300 florins.”

15 years later the Anglo-American chemist George Starkey made the same challenge in London: that he could cure more patients:

“without blood-letting, promiscuous purge or vomiting… without desiccation or cautery, without clyster (meaning enema) or suppository.”

He too wanted what we’d now call a randomised trial.

So how come it took 300 years for medicine to become scientific? How come a medical journal this year (the JRSM 3 months ago) could note, with some legitimacy, that:

“medicine’s conservatism, its reverence of authority and its still incomplete attachment to empirical observation and experiment lives on.”

I can vouch for that on a personal basis. I am president of Healthwatch (not the govt-quango but a small charity dedicated to evidence-based medicine). For the past 16yrs we’ve held a competition for medical students and trainee nurses inviting them to uncover obvious flaws in statements or in experimental protocols. There’s 500 quid if they get it right (thanks to Cambridge University Press) – and I handed out this year’s prizes last night. As it happens, this year was exceptional, but over the years the outcome has been lamentable. Of those who try their hand at it (presumably those who think they know about experimental methods) roughly 60% get it wrong. Many young doctors and nurses – often the 1st port of call for patients – can’t tell science from pseudoscience, even in their final year of training.

My guess is that they’ll carry their naivety into the surgery and through the entirety of their professional career. Which means that medicine’s conservatism, its reverence of authority and its still incomplete attachment to science will carry through to another generation. And since so much of medicine is about the rigour of science, and cautious management of uncertainty, I find that worrying.

What’s more, if we still have professional clinicians who can’t tell good evidence from bad, it’s little wonder that so many of their patients believe in quackery and woo.

Does it matter? Should we care that some doctors can’t make proper judgements from what they read in scientific journals? Is it important if at the fringes of medicine some clinicians dabble in a bit of flimflam? Does it matter that some parts of the NHS still pay for homeopathy, based on the idea that water has a memory – when we know it’s physically impossible for water to have a memory because its molecules are constantly bumping into one another – that’s what makes it a fluid! Does it matter that Victorian charlatanism is now a multibillion dollar global industry, pushing pills like Vitabiotics onto the worried well? (You can tell I’m a fan of Vitabiotics – their science, at least their science of persuasion, helps them pocket £100m a year from gullible consumers). Does it matter that two-thirds of the UK population believes in treatments for which systematic reviews conclude there is no condition for which they are convincingly effective?

I think it does.

Firstly, because this stuff is not just being peddled to the worried well, but to the worried sick.

Second, because it’s dishonest to lie to patients, dressing unproven remedies as cures. I’d say that’s even true when you hope for a placebo effect. The only exceptions can be in ethically approved trials to which participants have given informed consent. If you propose surgery – an appendectomy, for example – you should explain the potential complications and failure rate. Surely it’s the same with, say, acupuncture. Informed consent means the patient has a right to know not just that there’s a slight chance of infection – but more importantly that mostly it doesn’t work. Even in chronic pain, where there is some evidence of efficacy, even there the largest studies involving 18,000 patients have shown its effects are modest. What’s more the effects are the same even if the needles aren’t placed on the so-called meridians. So even if you’re seeking a placebo effect, it is surely ethically questionable not to tell patients the truth.

Third because pseudoscience imposes pressures to provide cake and circuses rather than better clinical outcomes. The NHS is already trapped in the headlights of populism. The last thing rational priority-setting needs is succumbing to the 30% of the public who say reflexology (ie treating the body through the feet) should be free on the NHS. (These figures are from a recent YouGov poll.) Money spent on quackery is money siphoned off treatments that work.

Fourth because quackery is intrinsically damaging to rationality. Type 1 thinking is knee-jerk thinking. It requires little information and is prey to misinformation. It nourishes primitive thinking and prejudice. It is the enemy of informed democracy, let alone informed consent.

Of course I know that what I’m saying is doomed to failure. I know perfectly well that I’m tilting at windmills. I know that a love of quackery is woven deep into the human psyche. Type 1 thinking is the basic way we think, the default decision-making process, the short-cut, by far the most cost-effective cognitive strategy, and – often – the only practical one.

If I hit my head on a wall it will hurt – for practical purposes the wall is solid. If you ask most people how radio signals get through the wall – and I’ve tried – you’re likely to provoke blank faces. Life’s too short to consider a wall as a vast empty canvass of nothingness populated by trillions of infinitesimally small atoms.

Similarly, with our perceptual processes. We seek meaningful images in random Rorschach ink-blot tests. We love optical illusions – in fact we rely on an optical illusion of motion when we go to the movies and watch a series of still-frame photographs that we call a film. We even try to believe the sometimes puerile story lines.

We go through life approximating. And mostly it works. True there are problems of bias. In 2006 a friend of mine, the forensic psychologist Itiel Dror, sent fingerprints to 5 experts to eliminate them from a serious crime, and all 5 experts obliged. Some months later he sent them the same prints, this time seeking confirmation they came from the prime suspect. This time 4 of the 5 experts found a match. Even in science our preconceptions pose a fundamental danger.

The biggest risk comes once we’ve reached a decision. We’re reluctant to undo it, to accept we’re wrong. We all know we’re subject to confirmation bias – but even so we’re all still biased to believe we’re right. You can call it faith if you admire it, dogma if you doubt it, superstition if you disagree with it, or prejudice if you oppose it. But essentially it’s all the same way of thinking. It’s prejudice if you’re against Catholicism, it’s dogma if you think Catholicism’s stupid, it’s faith if you are a Catholic.

And if you instil a belief when someone’s young, that bias is likely – for good or ill – to persist for life. As someone (probably Aristotle) said, give me the child at 7 and I’ll give you the man. It works equally for prejudice and faith. A Protestant boy brought up on the Shankill Road in Belfast is likely to grow up to be a Protestant. And, if his parents are bigots, he’s also likely to be anti-Catholic. As the book of Jeremiah puts it: “The fathers have eaten sour grapes and the children’s teeth are set on edge.” Similarly a Brahmin girl in Calcutta will almost certainly grow up believing herself to be superior to other castes, and shunning the Untouchables.

We like to think we have all chosen our outlook on life. Often our outlook on life has chosen us.

This is uncomfortable, even outrageous, to anyone who does have faith – the idea that belief, devotion, prayer, is a defence-mechanism, type 1 thinking taken to extreme, and tantamount to a superstition. But as Alan Sokol, the particle physicist, puts it ‘Faith is the pseudo justification that people trot out when they want to make claims without the necessary evidence.’ To believe in an undefined god (or gods) is one thing. That requires no evidence. To believe in scriptures as the literal word of god is quite different; for where is the proof of authenticity; where, except in circular argument, is the evidence they represent the word of god? Similarly, to believe in an ill-defined god is one thing. But to bestow logical or testable powers to god is another. For example, to believe that god is all-powerful is simply illogical since it is mutually contradictory; even god can’t create something which is too big for him to lift – or if he can, he can’t lift it.

I know I am now venturing where many say you shouldn’t. It’s convenient to say that science and religion occupy different realms; that they are not remotely comparable. But of course they are. Science goes to great lengths to avoid the very pitfalls that religion encourages. As Karl Popper pointed out, bias is the enemy of science and we must always be aware that unconsciously, intuitively, we prefer confirmation to falsification. We have a profound tendency to gather and process information selectively; to confirm a hypothesis or preconception by looking for evidence that would validate our expectations; and to reject or ignore evidence that could contradict our beliefs.

Since intuitive thinking leads to selective information, contextual bias and even tunnel vision, it’s a paradox that many scientists celebrate faith as though it was intrinsically something noble.

Science is where you put your treasured idea on a pedestal and try to knock it over. If you can’t, then you invite your friends and rivals to knock it down. Faith and prejudice are where you put your treasured idea on a pedestal and bow down before it. You disparage people who try to knock it over, you call them unbelievers or infidels, and in centuries past – and in some cultures today – you put them to death. 500 years ago, for saying what I’m saying today, I’d have been burned at the stake. In some parts of the world I still would be.

Why am I saying all this? Why am I trespassing on hallowed ground, risking the displeasure of many in this room? It’s not to be controversial. On the contrary. It’s to help keep my own feet on the ground.

I’d like to think we could one day have a new Age of Reason where everyone is dispassionate and open-minded; where we’re all eternally open to new evidence. and where no-one takes intellectual short-cuts. But, as I say, I’d be tilting at windmills.

There is good reason for Type 1 thinking. There’s too much going on in the world for us to analyse it all. We simply have to take many things on faith. We buy newspapers that reinforce our existing stereotypes and throw slippers at the TV if it says something offensive to our views. We buy brands that we trust rather than look up the evidence every time we make a purchase. And talking of trust, maybe that is the key that unlocks the reason for all this – the reason that faith – and prejudice – are so hard-wired; why they’re so valuable to humankind.

In his remarkable book Sapiens, a biography of our branch of our species, Yuval Noah Harari proposes that it is our Type 1 thinking – our prejudices – that make us so successful; that creates for us a unique evolutionary advantage. Provided we share our prejudices – or faith (it doesn’t matter which) we form a bond. We’re all Sunni Muslim, or all Romans, or doctors, or socialists, or scientists, or racists; or we all believe that a US $ has intrinsic value – even though it’s just a piece of paper. This shared vision – creates a kinship. Whereas other apes are restricted to bands of a few dozen, we’ve learned to share visions and create trust with people we’ve never met before. We’re in the same team. Of course when that shared trust breaks down it can be nasty. That’s why civil wars tend to be the ugliest.

But is Harari right? Does our hard-wiring mean homo sapiens will always default to prejudice and faith; that science will always have an uphill struggle. Does it mean that prejudice and faith in society – and quackery in healthcare – are unassailable? Plainly they are not. And Harari himself is optimistic.

In his lifetime, and in mine, prejudice against women, homosexuals, Jews and black people has declined hugely. Incidentally, or maybe it’s coincidentally, so has faith in organised religion. More than half of Britons now say that for all intents and purposes they don’t believe in god.

Maybe we will progress to a time when even Prince Charles will see that homeopathy is nonsense. At least one person thinks we’re nearly there. In a new 30-part series for the BBC featuring religious artefacts from the British Museum, the museum’s former director, Neil McGregor, will argue that Britain is the first society in history to operate without shared religious beliefs and rituals at its heart. Maybe he’s right. Maybe the reasoning of science really will displace the pseudo-thinking that leads to quackery. Maybe we can help the process by not teaching children science as a set of disciplines like chemistry and physics but as a robust way of checking evidence which is equally applicable to history or, one of my own pet subjects, security and crime prevention.

But I won’t hold my breath. Immanuel Kant was overly-pessimistic, but not entirely wrong, when he said: “Out of the crooked timber of humanity, no straight thing was ever made.” Indeed, let’s go back to where we started, to Trump in America and Brexit with Michael Gove. In politics, at least, there are signs that as old allegiances fail, new ones take their place. But I don’t think they’ll last.

Personally I’m sanguine. If you take the long view, the very long view, then I don’t think this is a zero-sum game. Steven Pinker is convincing in his bestseller, The Better Angels of Our Nature, that over centuries and millennia humans have become less violent, more thoughtful, more tolerant of cognitive dissonance.

But at best it’s 2-steps forward, 1 step back.

I wish I could close by saying, don’t have nightmares do sleep well. But in medicine, as in every other aspect of human existence, reason will always have to struggle with unreason. As soon as you think you’re evidence-based you’ve succumbed to wishful thinking. The power of the intellectual short-cut is too beguiling.

In conventional medicine as in alternative treatments, you can’t escape the risk of bullshit. Being human we will never be entirely free of the enduring charm of quackery.

26 June 2016: the UK votes to leave the EU


Not since 1933 has a European democracy engaged in such self-indulgent and dangerous democratic vandalism.

This is an emotion-loaded moment and this is an emotionally-laden reaction. A more measured one will follow. Of course Brexit itself was driven by emotion, chiefly resentment, much more than it was inspired by hope or a vision for the future. The nation which was least shackled of all EU members convinced itself it was enslaved. The areas most dependent on EU handouts felt most ingratitude. Facts were trampled as though they had no more value than opinions.

But the market reaction speaks for itself, wiping 10% off people’s pensions and stripping the UK of its golden credit rating (and that alone will cost us far more than any savings from EU membership). We have betrayed our friends in Europe, we’re about to break up the United Kingdom and we will be lucky to win a single dispensation in our negotiations, all because the old and those who contribute least to our economy – including a majority of those who are a drain on it – betrayed the young and those who build our prosperity.


As Lord Ashcroft’s remarkable poll makes crystal clear, the retired and elderly, the fearful, mean-minded and unproductive have trumped the young, optimistic, open-minded and economically active. These are generalisations, of course, with many young and successful people expressing their dislike of immigration and many conservative country folk voting for Remain. But if anyone hoped the referendum would heal divisions it has aroused bitterness and created discord. Half the country has found itself on the wrong side of the referendum, and I guess that a good proportion of those who voted for Brexit now have regrets (or at any rate second thoughts).


Ironically the more prosperous and better educated are feather-bedded compared to the relatively disadvantaged. Those who found Brexit most appealing are the ones who will get most hurt.

The stock market has crashed, big businesses are reeling and foreign investors are frozen in their tracks, financial and manufacturing industries based here are already looking to relocate, and we will haemorrhage jobs as we are ejected from European institutions – including UK-centric institutions like the European Medicines Agency. And then there are all the unconsidered consequences such as a slump in tourism, one of our biggest exports, as we are expelled from the Europe-wide visa clearance scheme. The tumbling exchange rate will help exporters (so that’s why Dyson and Bamford wanted Brexit: to damage sterling) but from now on we have lost our seat at all the standard-setting institutions and Europe’s powerful bodies that make the rules for global trade. Worse still, hardly anyone in Whitehall has experience of negotiating bi-lateral trade treaties with other nations.


In any case – and this is no small matter – we have betrayed our partners, snubbed our closest allies, stimulated nationalists and far right extremists across the continent and done the work of Islamist fanatics by damaging the world’s economy and undermining Europe.

Here at home we will soon be plunged into constitutional crises. The SNP has already signalled a new call for breakaway, and heaven knows if the Brexit vote will reignite conflict in Northern Ireland. Across the kingdom people are more divided then before, not less, with many plunging into a state of disbelief and depression. I, for one, find myself feeling like a foreigner in my own country, bewildered at how the rural middle-classes could be so myopic, saddened at how working-class voters, once the model of progressiveness, could be drawn to the anti-immigrant rhetoric of UKIP. The very constituencies once thought Labour’s heartland, in the shipbuilding north-east and the coalmining valleys of Wales voted angrily with the toffs of Norfolk and the shires.


Perhaps we shouldn’t be surprised. We have seen the surge of right-wing and neo-fascist groups in France and even Germany and watched in amazement as the anti-intellectual demagoguery of Donald Trump propelled a loudmouth and inflammatory bigot towards the White House. Too many citizens feel powerless as the world changes around them in rising cadence. It is not that people don’t like change – far from it, we crave stimulation and dislike boredom – but when change happens we like to feel in control. We often don’t use our vote when we have it (for example, look at the elections for police and crime commissioners where almost none of us bothered) but even when we do few of us feel we have much influence. The constituencies for local councillors are now as big as they were 150 years ago for MPs. So never mind that the ‘unelected’ European Commission is said to be self-serving or out of control – it is appointed by elected government leaders and all its important decisions are subject to the European Parliament and to national vetoes – the sense of alienation transcends the technical realities.


Yet the return of sovereignty is a naïve illusion, a mirage in an increasingly interdependent and global world.

Worse, it is not as though the victors in this campaign have a clue about how to put globalisation back in its box. When the new leadership sweeps in it has no published plan and will have no answers to any of the problems it set out to solve, from immigration through fishing rights to the NHS, and it will face a battleground of crises of its own making.


We don’t have a parallel world so we cannot compare what actually happens with what would have happened, but we don’t need to be clairvoyants to recognise that our economy has taken a body blow and that the next few years will be bloody. Instead of increasing our authority and fighting our corner on assuming the Presidency of the European Council next year (due on July 1st) we will be pariahs.


However, we are where we are and we need to salvage what we can from the wreckage. One of the initiatives I’ve been funding is to promote evidence-based policy in government. We made progress under Cameron who personally indicated support and put me in touch with Cabinet Office people through whom we have some departments of State ready to sign up. We must fight to encourage the development of evidence-based public policy rather as doctors have increasingly embraced evidence-based medicine. It doesn’t inhibit politics, it doesn’t fight ideology; it simply asks that if civil servants (and by implication ministers) put up an idea, or quash one, they show their workings. We have a parallel movement in the US, led by Michael Bloomberg and I hope we will partner them here. We have just published a report [] by Sir Stephen Sedley, a former judge in the Court of Appeal, into the need for more rigour and transparency in government research.


If only an evidence basis had been the bedrock of the Brexit debate.

Yet the risk is that the new government will have new SPADS (‘special’ political advisors chosen because they are believers) and a new and more ideological outlook – one which thus far indicates it is more interested in bombast than evidence.

I can honestly say that I have never, not even when living in the turmoil of a quasi-civil war in Belfast, been so depressed about politics and human stupidity. Yes, the turmoil will in time die down. There will be a phoney war when it seems it might not be so bad after all. But history will regard June 2016 as an exercise in self-inflicted harm and the beginning of one of the most difficult periods of peacetime British history.

AirAsia QZ8501: how could it happen?

AirAsia QZ8501: how could it happen?
4 January 2014
(see also Air France Flight 447: ‘Damn it, we’re going to crash’ )

Yet again a jetliner has crashed into the sea, this time with the loss of 162 passengers and crew. How can this happen; and – since flying is supposed to be so safe – how big is the risk?


The easy part to answer is the risk. It is almost infinitesimal. Commercial jets have been getting safer and safer for fifty years (although there was a blip in the 1980s due to terrorism). Nowadays the odds of being killed on a flight with reputable airlines is about one in twenty million. Even with the worst performing carriers you could expect to take a million and a half flights before being involved in any event in which somebody was killed. The global fatality rate about 1,000 a year, compared to over 1,000,000 deaths on the road, so mile for mile or minute for minute flying is much safer than driving. But the aviation industry can’t rest on its laurels. Every crash makes headlines so with passenger numbers rising five per cent each year the safety factor has to grow by five per cent simply to keep pace.

Hence the AirAsia disaster is not just a terrible tragedy for those involved, but a huge worry for the industry in general.

The safety authorities – like Britain’s Air Accident Investigation Branch – are usually tight-lipped at times like these. Hasty inquiries can miss key facts and jump to unjustified conclusions, apart from which official verdicts can ruin careers and prompt multi-million dollar law suits. Accordingly they try to stick to facts and avoid public speculation, usually taking months and sometimes years before they issue their reports.

That doesn’t stop the media, of course, which respond to public anxiety and to the human impulse to make sense of uncertainty. This can lead to wild conjecture in the early days but usually reporting converges over time so that there are few surprises by the time the official reports are published.

Initial radar tracks indicate the plane gained altitude at an alarming rate. If this is borne out by data from the flight recorder it might explain the crash, perhaps through jammed control surfaces, with such ascent creating catastrophic damage to the airframe, or simply causing loss of forward speed.

And yet that doesn’t necessarily mean that the aircrew climbed too steeply to avoid the storm. The theory sounds credible because it was just such pilot error that caused the loss of AF447, the Air France Airbus that disappeared into the Atlantic in 2009. One pilot’s relentless anxiety to climb slowed the plane so much that it stalled and fell out of the sky. There is, in my view, an intrinsic risk in the Airbus design that contributed to the A447 tragedy – a design that makes it harder for one pilot to see what the other one is doing so the error wasn’t spotted by the flying officer’s colleagues until it was too late – but the Air France crash was so seminal that every airline beefed up training and every commercial pilot in the world would be allergic to the danger. It would be both astonishing and scandalous if AirAsia’s crew remained somehow unenlightened.

What seems more plausible is that the storm itself caused the aircraft to malfunction. Thunderstorms can generate enormous updraft, although it’s hard to imagine a  current so sustained that could lift a 70-tonne fully-laden airliner for more than a few seconds.

Big jets like an Airbus are remarkably robust. They can be hit by lightening, buffeted by turbulence, baked by sun on the tarmac and frozen at high altitude. Their engines are so reliable they almost never fail. They can cope with huge variations in air temperature, rain, snow and with rare exceptions even ingesting foreign object such as after bird strikes.

At least one weather event has proved dangerous – one that is hard to predict and largely invisible to radar.

When moist air rises rapidly above tropical sea, supercooled droplets of water can freeze when they encounter the cold surfaces of a high-flying airframe. This is rarely a problem because small ice particles melt on impact with the heated windscreen and vaporise in the engines. But sometimes convection storms can cause moisture to freeze so rapidly it forms crystals, and these so-called convective crystals have been known to cause damage to planes and temporary power loss.

Each engine on an A320-200 Airbus like AirAsia’s QZ8501 sucks in around a ton of air each second. A very heavy concentration of ice crystals could conceivably overcome the enormous momentum of the turbines and kill off forward thrust. The pilots would than have to glide the aircraft while they fought to revive the engines. They would have ample time to do so. A wide-bodied jet can glide about eight miles for every 1,000 feet of altitude. Famously, in 1982 a British Airways jumbo flew for 13 minutes without power after flying through volcanic ash. It was still at 13,000 feet when first one and then the other engines came back on line. If convective crystals had done for QZ8501 what volcanic ash had done for BA09 two decades earlier then, depending on the weather, the Airbus should have had a range of at least 50 or 60 miles.

If the engines couldn’t be re-started then Captain Iriyanto would have had no option but to try landing in the sea. That would be hard enough in tranquil conditions on flat-calm water, like the ditching of US Airways flight 1549 in the Hudson six years ago. But QZ8501 would have come down in tumultuous turbulence into mountainous waves. At more than 70 tonnes and 37-metres long it would not have stood a chance.

The idea of a pancake landing in heavy seas would account for the fact that large pieces of the fuselage appear to be intact at that bodies have been found floating on the surface. Had the aircraft fallen vertically, as some reports suggest, it would impacted the water as though hitting a concrete wall.

flight path

On the other hand an attempted landing assumes that the pilots had control. Why in that case was there no Mayday call? Why was the crash site so close to where the last radio contact was made, suggesting the Airbus really had dropped rapidly? This brings us back to those reports that the plane rose more like a fighter plane that a commercial airliner, perhaps caught in freak updrafts and downdrafts which threw it around the sky and then hurled it into the Java Sea.

We will know the answers soon. Unlike Air Malaysia’s MH370, still missing in the southern Indian Ocean, the AirAsia wreckage is in water shallow enough even for recreational divers. Only foul weather, with 4 metre waves, strong currents and poor visibility, has been frustrating efforts to locate and recover the flight recorders located near the tail. Horrifying though the crash has been, it will soon yield its secrets and, though of little consolation to those who have been bereaved, it will contribute to make flying even safer than it is already.

The rape of Richard Dawkins

The ‘rape’ of Richard Dawkins

Richard Dawkins, the biologist and proselytising humanist, used the sensitive subject of rape to illustrate a logical point: that “to judge something bad and something else very bad is not an endorsement of the lesser of two evils. Both are bad.” This proved too much for some, who prefer to think in absolutes, and others for whom sexual crimes must be subject to absolutist condemnation.

Professor Dawkins’s Tweets included, “Date rape is bad. Stranger rape at knifepoint is worse. If you think that’s an endorsement of date rape, go away and learn how to think,” and, “Mild pedophilia is bad. Violent pedophilia is worse. If you think that’s an endorsement of mild pedophilia, go away and learn how to think.”

Few of his critics appear to have read his explanation for choosing sex crimes to illustrate his point: just because they are so often taboo. “Rationalists like us should be free to follow moral philosophic questions without emotion swooping in to cut off all discussion, however hypothetical.”

Poor Richard Dawkins. The reaction to his comments on rape quickly turned to angry and sometimes gleeful vilification. The Twittersphere and blogs revelled in sneering condemnation and people will be reluctant to come to his defence because they themselves will be courting trouble and be caricatured as defenders of the indefensible.

The vituperation would have taken aback a lesser man than Dawkins, as it did me when I was rounded on a year ago, plummeting instantly as one writer described it from national treasure to public enemy number one. In my case the Mail on Sunday, having serialised my book on Crime, confected a story which made me out to be a rape-condoning misogynist, and quoted an especially wounding comment from Jo Wood, a highly respected rape crisis campaigner. The media pounced on me as they have on Dawkins. Actually having read my book Jo Wood told me she felt she had been set up, that my words, far from being misogynistic had been twisted into sound bites and that when read in context, they “actually strengthen the arguments for sexual violence crimes to be treated with the empathy and respect that victims demand.” She went on: “I would seriously suggest anyone who still supports the furore that has broken out – takes time out to READ THE BOOK.”

The Mail On Sunday offered a right of reply – which it promptly buried under a repeat of the allegations against me, and no other newspaper bothered to rebalance its portrayal.

This time even the redoubtable and usually thoughtful Shami Chakrabarti allowed herself to be dragged in to the fray. What is disconcerting is that someone of her perceptiveness, sensitivity and intelligence should appear ready to join a chorus of angry abuse. It was a reaction that brooks no argument, and she, of all people, should not seek to close down a debate.

Let’s be clear what Professor Dawkins has been saying: that some crimes can be worse than others and that some victims’ experiences of a crime can be more terrible than others. He is urging us to shun absolutism. Had he illustrated his argument by citing homicide he might have won general assent. Even the law, which sometimes require us to see the world as binary, acknowledges differences between culpable murder, manslaughter and infanticide. But it is dangerous to voice anything outside the new orthodoxy when it comes to rape.

Dawkins used the word “mild” to describe the least intrusive spectrum of paedophilia – perhaps meaning those who yearn but do not touch. Never mind that in the cool logic of a philosophy tutorial his choice of adjective might have been reasonable. In the world of social media, where reflexes are often framed by sound bites, it was tantamount to incitement. It was widely, and wrongly, assumed that he’d used the word to describe penetrative rape. The resulting furore was an ironic illustration of precisely what he was trying to convey: that there are gradations in almost every human behaviour and experience but that such nuances are too often elbowed out.

There are reasons to be especially sensitive in discussing any sexual crimes. For many years victims were discouraged from complaining and if they persisted they were frequently debased by the police and humiliated by the courts. The growth in recorded sexual offences is testament to greater confidence in the system but trial by jury remains as much a trial for the principal witness in rape cases as it is for the defendant. In some cultures victims dare not speak out at all. It is entirely reasonable to be critical of anyone who belittles the crime of rape.

But that does not mean that all rapes are the same. Only those who think in slogans can say otherwise and it is not helpful to anyone to insist on a one-size-fits-all platitude. Abusing Dawkins down does not help us to frame more appropriate ways to tackle what is in reality a multitude of problems. But it is also deeply patronising to many victims with diverse experiences.

In fact it is not just those whom Shami Chakrabarti calls “clunky” men of a certain age who think rape isn’t always of the same severity. Several female commentators have also provoked outrage with similar observations. But above all, listen to the victims. I have met and worked with victims over many years and they do not accord to a simplistic model and did not all experience the same degree of trauma, revulsion, self-blame, or any other standardised emotion that campaigners sometimes seem to want to attribute to them. Nor is the evidence just anecdotal. A large scale survey revealed that around half of women who had penetrative sex against their will did not consider themselves to have been raped. They are wrong, of course, on any definition, but are we to drown out their experiences because they do not comply with the way we think they should think? Are we to accuse them of foolishness, or of letting the side down, or – worse – of not being victim enough?

Some countries take a more sophisticated view, with a graduated judicial approach which recognises differences between sexual assault and, say, aggravated assault with a weapon. We should go further and finally accept that conventional adversarial trials are not always the appropriate way to tackle intimate violence.

For more on this see the thoughtful response in The Times by Carol Sarler, who has been a victim both of date rape and serious sexual assault by a stranger, and who points out that, “they are so obviously different”.

Sexual harassment and predation will not be tackled through shouting down people like Richard Dawkins. If ever there was a subject that should recoil from insults and deserves rational reflection this is it.


Medical Innovation Bill

From The Daily Telegraph 2 June 2014

The ‘Saatchi Bill’: can a PR guru cure cancer?

Lord Saatchi’s medican innovations Bill won’t encourage good research – and, in its original form, could have opened the door for dangerous quackery

By Nick Ross

Lord Saatchi has promoted a private Bill whose supporters have implied it might help to cure cancer. Unsurprisingly his idea has drawn a lot of approval from the public, and even from the Telegraph. After all, who could be against innovation in medicine?

Sadly the Bill is misnamed and misguided. It will not promote invention, it will not help cure cancer or any other disease and it could be harmful. Thankfully it is being substantially revised, but even so it could well set the clock back.

How is that possible?

The answer is that Lord Saatchi, though a grieving widower and a PR genius, is not a medical researcher, or even a scientist. He believes that doctors are held back from prescribing innovative treatments out of fear of litigation. Many have told him there is an “invisible red light” which holds them back. But it is a fantasy, and if some doctors misunderstand the facts they need to be better advised. Neither he nor his supporters can cite a single instance where legitimate research has been hampered in this way. Medical research faces too much red tape but it is not besieged by hyena lawyers. The NHS Litigation Authority says such claims are vanishingly rare. In fact clinical research accounts for only 0.01 per cent of NHSLA payments, and these were cases where recklessness was alleged. The biggest defence group in the world which defends doctors against litigation is the Medical Protection Society and it too opposes the Bill. It says bluntly it has “seen no evidence that a fear of clinical negligence claims is holding back medical innovation”.

It wouldn’t be so bad if the Bill was simply unnecessary, but as first drafted it was positively dangerous. It proposed to give clinicians legal immunity if they try new things out. But breakthroughs in medical research are made systematically, one step at a time involving scrupulous trials with ethical oversight and peer review. It would be reckless to return to the age freelance have-a-go heroes who experiment on their patients. This would undermine evidence-based medicine.

ntil this week the Bill required that there must be “plausible reasons why the proposed treatment might be effective”. But it did not require scientifically plausible reasons. To quacks, faith healers, fools and conmen (and sadly even some qualified physicians) almost anything is plausible, including meridians, spirits, water memory and laying on of hands.

In any case, plausible theories can be, and have often proved to be, spectacularly and fatally misleading. Laying babies to sleep on their stomachs (so they don’t ingest vomit) was a plausible idea that resulted in thousands of cot deaths. Dozens of other half-baked ideas – giving oxygen to premature babies or steroids for brain injury – have taught how persuasively dangerous credible notions can be.

Maurice Saatchi invited me to discuss my concerns with him three months ago and graciously accepted that the Bill should be amended (a) to avoid opening the flood gates to quackery or to buccaneering experimentation on vulnerable patients; and (b) to provide for the essential importance of disseminating results.

Meanwhile, the magnificence of the Saatchi marketing machine has overshadowed the fact that bulk of the medical research community has since come out against the Bill including the NHS Health Research Authority, the Academy of Medical Royal Colleges, medical research charities such as Cancer Research UK, the General Medical Council, the Medical Protection Society the British Pharmacological Society and senior lawyers like Robert Francis QC. [You can see a selection of the opponents here.]

To his great credit Maurice Saatchi has been listening. His new version is to be published on Thursday and it will embody fundamental changes. For a start it will specifically exclude research – the very thing it was touted to be liberating. And, thank heavens, it will now require consultation with appropriately qualified colleagues, including any relevant multidisciplinary team. Of course if appropriately qualified doctors and multi-disciplinary teams are all outside the scientific consensus, as is the case in dubious clinics in Switzerland and Mexico for example, even downright quackery would be covered by this clause. But above all the revised Bill is likely to retreat from its founding principle, which was to insulate doctors from common law. It will now specifically acknowledge that nothing in the Bill is intended to stop patients suing doctors for negligence.

In essence then, the revised Bill will simply allow doctors to do what they can do already, which is to try out last-ditch remedies. But there will be an advance. Although it is not yet in the one-and-a-half-page draft to be published this week, his staff have made me a “copper-bottomed” promise that Lord Saatchi will make further amendments to seek to collect results of all these desperate measures and will disseminate results.

Since more work is to be done maybe the Bill could yet be turned to much greater advantage. I have proposed to Lord Saatchi that he could rebalance the Bill to tackle the real problem of healthcare litigation. This is the 99.99 per cent of claims that have nothing to do with innovation but drain the health service of £2.25 billion a year, are of serious concern to clinicians, create a burden on legal aid and cause a great deal of personal distress. Claims against surgeons and physicians range from the spurious, sometimes whipped up to a froth by greedy lawyers, to the tragic, which damaged patients sometimes find hard to pursue; but all of them are hugely expensive and a big distraction. The legal costs can dwarf the actual damages awards and they very frequently deter health authorities from challenging questionable claims.

Claims should first go to mediation or arbitration with some right of appeal to an ombudsman. The ombudsman’s decision would be binding but in turn he or she could, if a case was thought to be particularly serious or of public importance, refer the matter to the courts.

There are good precedents for legally binding arbitration, and the ombudsman system is well-established and highly regarded. But in any case the principles of reconciliation and escalation would be a big advance on the damaging adversarial process we now have. And it could save the NHS a ten figure sum each year.

Meanwhile a Bill which promises to free us from unnecessary restraint, and is riding the surf of a brilliant publicity campaign, misses the big picture to solve a problem which is largely just one of perception.


Saatchi debate March 2015