Stem cell treatment has long been regarded as a risky yet potentially life-saving form of experimental medicine.  Whilst clinical trials are ongoing around the world, the limited available research indicates that stem cell therapy has the potential to reverse the effects of chronic and life threatening diseases including multiple sclerosis (MS), diabetes and heart disease.

In some cases, lifesaving stem cell treatment is not available in Australia and for some patients, their best option is to undertake treatment overseas.  Over the past few years, there has been an increase in what is now known as “medical tourism” whereby patients who are unable to receive medical treatment (experimental or otherwise) in Australia, travel overseas to receive treatment.  There are obvious risks attached to this because, in many cases, the reason these procedures are not being carried out in Australia is the lack of evidence that they are effective and safe.  That said, if other countries continue to develop and implement treatments ahead of Australia, medical tourism will continue to increase, despite its risks.

An example of stem cell treatment not widely available in Australia is HSCT1, a treatment for MS.  This treatment involves collecting adult stem cells from a person’s blood or bone marrow prior to them undergoing chemotherapy, which has the effect of essentially destroying the patient’s immune system. The stem cells are then returned to the patient in a bid to ‘reboot’ their immune system.   The treatment is considered to be experimental and the outcomes have been mixed.

Experimental treatments such as this raise conflicts between  a doctor’s duty of care to patients to act in their best interests and the perceived benefits experimental treatments can offer patients.  They also raise questions as to what duties hospitals owe patients once an experimental treatment has been approved and treatment commences.

The standard of care that a doctor must adhere to is one of reasonable care and skill in the provision of professional advice and treatment.  The peer professional opinion defence, which draws upon widely accepted standards in particular fields, needs to be reassessed as experimental treatment options continue to grow and gain support from segments of the medical profession.

Patients have rights in relation to cells taken from their body but this right does not extend to compelling a doctor or hospital to use those cells in a manner which would not be consistent with accepted competent professional practice.  Additionally, a doctor’s duty to their patient when conducting experimental medicine, raises questions about whether the doctor is acting in accordance with the appropriate standard of care.

In a recent case involving stem cell treatment for MS, a Canberra hospital’s ethics committee decided that following the removal of stem cells from the patient, the cells could not be replanted in her body.  This was because the treatment was considered too complex to be administered by the hospital.

While a hospital’s discontinuance of treatment may not itself   be a departure from the requisite standard of care, a patient may argue that a hospital is in breach of contract if it agrees to administer experimental treatment but subsequently withdraws such treatment before its completion.

A medical practitioner will not necessarily be found to have breached their duty of care merely because the form of treatment has not yet gained wide acceptance. This is illustrated by the case of Sideaway v Board of Governors of the Bethlehem Hospital2  where the Court noted that the public would be badly served if doctors never tried new techniques.

In the context of experimental medicine, a doctor’s negligence will frequently depend on whether or not they warned the patient of the experimental nature of the treatment concerned and whether there were any alternative forms of treatment.  Even then, a practitioner cannot carry out radical techniques.

It is worth noting that it is the local custom and practice that  is considered when determining whether or not a doctor has complied with their duty of care. However, overseas expert evidence may be taken into account and may be relevant to a court’s assessment of negligence.

Comment

Stem cell treatment is an area that is continually developing. It will continue to be an issue until it is either a widely accepted form of treatment, or considered too dangerous to proceed with on a regular basis.  In this time of   development, the duty of care of doctors to patients and the duty of care of hospitals will continue to be a source of tension in circumstances where patients seek treatment for life threatening diseases and doctors and/or hospitals are not willing to perform the treatment because of its experimental nature.

Medical tourism is likely to continue to develop as a means of circumventing the Australian system and challenges the conservative and cautious approach that the majority of hospitals seem to be currently taking.

Ironically, without innovative medical practitioners taking risks, we may not have had access to lifesaving treatments such as chemotherapy and organ transplants.