The regulation of innovation
This thesis has proposed a fourth model of contact between patient and doctor, that of innovation. The law fails to recognise this and therefore uses principles established in the context of a normal therapeutic doctor patient relationship to determine negligence in cases of innovation. Innovation in turn can take two forms, experimental or personal. The law treats experimentation as if it were normal therapy and is thus too benevolent towards experimenters. The courts currently accept the use of experimental treatment merely no the grounds that a responsible body of medical opinion supports its use. However, it has been argued that the law should change to require the experimenters to justify their actions. On the other hand, with respect to personal innovation and learning new techniques, the law of negligence is too harsh, taking no account of the need for doctors to learn and develop their skills, which is in the interests of future patients. Some suggestions have been proposed to overcome this. In summary, the benefit of recognising that innovation is a separate model of contact between doctor and patient is that it will be fairer to both parties. Two important issues have been raised. Firstly, the context in which the innovative treatment of either variety is administered needs to be taken into consideration by the courts. Standard laws of negligence, based on principles established when considering the normal doctor-patient relationship, do not take this into account. Secondly, the question of what information is disclosed to the patient regarding this innovation also needs to be considered. The doctor should inform the patient, either that the treatment proposed was experimental, or that he or she was inexperienced in the particular technique proposed. Primarily this should lead to better protection from risk for patients and allow them the choice of whether to proceed. However, it is also fairer to the doctor and provides better protection, as the patient cannot then claim that he or she was not fully informed and the realities of medical practice are respected.