Health Bill [H.L.]

HL Deb 01 March 1999 vol 597 cc1370-92

3.7 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Hayman.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 13 [Duty of quality]:

[Amendment No. 71 not moved.]

Lord Clement-Jones moved Amendment No. 72:

Page 11, line 9, after ("care") insert ("and the equity of treatment").

The noble Lord said: I am at somewhat of a disadvantage until my noble friend enters the Chamber. Amendment No. 72 deals with the equity of treatment to be considered by the commission for health improvement. This is cognate with a number of our other amendments to the remainder of the Bill, in particular the amendment about equality of opportunity that the Committee considered on Thursday last in the context of primary care groups. Clearly, we believe that it is necessary for the commission for health improvement to have a duty to consider not just the quality of clinical care but the equity of treatment. We regard this as very much part of the Government's public health agenda. It was also considered last year in the report of Sir Donald Acheson, which we very much welcomed as a way of looking at the kinds of indicators of health improvement and inequalities of health that needed to be remedied.

We believe that this is a valuable and necessary amendment. We commend it to the Committee as part of a package of improvements to the Bill. It would make it a specific duty on the bodies set up by the Bill to consider equity and equality of opportunity. I beg to move.

Lord Astor of Hever

I support Amendment No. 105. We believe strongly that age should not be used as a factor in rationing. A recent survey by Age Concern discovered that 20 per cent. of coronary care units operate age-related admission policies and 40 per cent. attach age restrictions in the giving of clot-busting drug therapy after heart attacks. Yet the Government continue to maintain that older people are not discriminated against in the NHS. As a result, doctors are forced to make rationing decisions on behalf of the Government, sometimes against the best interests of their patients. Those decisions are often made covertly and without the patient being informed that treatment is being denied because of lack of resources. I very much hope that the Minister will accept the argument that the commission should have a legal responsibility to provide healthcare to all patients on the basis of need and not age.

Baroness Carnegy of Lour

I too wish to speak to Amendment No. 105. Age Concern Scotland is also concerned. It probably will not be necessary to discuss the matter in the context of Part II if we can cover the matter now.

What the mover of the amendment and my noble friend said about the position of old people is critical. Some of the treatments will not give as much benefit to older people as to younger people because they do not have as long to live. Because of that, older people feel threatened and are extremely worried. It is a matter of great concern. It is important that it is plain in the Bill that age is not a factor. I understand that this is the National Year for Older People which makes it a funny time to do anything other than make certain that older people are included.

I am sorry that my noble friend Lord Howe was taken by surprise by the speed at which Question Time ended. The amendment tabled in his name related to resources that are to be taken into account when these matters are considered. That is a major issue. I am sure that the Minister will understand if he were to bring the matter into his comments on this amendment. The noble Baroness is quick on her feet but so is my noble friend. However, on that occasion he lost the race. I support in particular Amendment No. 105.

3.15 p.m.

Earl Howe

I am grateful to my noble friend for giving me the opportunity to speak to the amendment which I had not otherwise intended to do. The point my noble friend makes is extremely pertinent. The issue of resources is ever with us as we consider this part of the Bill. If the Committee will allow, I shall reserve my principal remarks to a later amendment where I believe that I can introduce them with somewhat more force than on this amendment.

Baroness Gardner of Parkes

I am somewhat concerned by Amendment No. 105. The principle is right but I am not sure that it should be on the face of the Bill. There will always be moments when a choice has to be made. For example, if there is one kidney, does one give it to the young woman or young man who may be bringing up a family or to the older person? One has to look at the clinical need. However, life expectancy must always be a slight factor. It must be difficult to choose to give a transplant to someone whose life would be extended by only one year when another person might live 50 years due to that same transplant.

I accept and support the principle of the amendment. There should be no cause for anxiety on the part of old people. But there will be certain resources—I do not refer only to financial resources although they are important—where difficult decisions may always have to be made by clinicians. Those decisions should be left to the clinician at that time.

Baroness Thomas of Walliswood

The noble Earl, Lord Howe. was not the only person caught on the hop by the rapid commencement of these proceedings.

High-tech care for elderly patients will always be a difficult issue. But there are other aspects of care of older people where the arguments do not sound so sensible. For example, when one is over 65 one is not automatically recalled for breast screening. Yet one is at greater risk of breast cancer when one is over 65 than at any other period in one's life.

Older people may become arthritic. However, if they go to the doctor's clinic they are quite likely to be told that it is just part of growing older and will not be offered treatment. But, if people can be kept mobile they are more likely to stay at home for longer and are less likely to go into extremely expensive nursing home care. The cost of quite serious interventions such as the special drug for Alzheimer's disease which is supposed to cost £1,000 a year may be compared with putting someone in a nursing home. That now costs a minimum of £350, and is more likely to be £450, a week. One can see the advantages of some treatments which may appear expensive but become more economic when comparing one budget with another. It is hoped that the joined-up writing between the healthcare services and social services will enable such cost comparisons to be made.

Lord Desai

I enter the debate because some important issues have been raised by the noble Baroness. It is interesting to compare the expected extra life years attained by treating a younger person or an older person. But, as the noble Baroness, Lady Thomas, said, if you do not treat that older person, what will be the ultimate cost? The older person will not conveniently die; he or she will cost quite a lot more when sick. There are delicate comparisons to be made.

If we are to have an age limit—I hope that we do not—it should be clearly and transparently stated. People should not be given the run-around with excuses that they are not being treated for some other reason. If one wants to make a rule about an age limit, then people will take out insurance, or something else. They should be told. Doctors should not hide behind specialisms or technicalities and administer a Treasury rule on medical grounds. That would be bad.

Lord Winston

Members of the Committee will forgive me for disagreeing with my noble friend Lord Desai—not for the first time! But one cannot make arbitrary age limits, especially in biology. Those have to be variable goal posts. They depend on many different factors. It would be fundamentally wrong in medicine to say that at a stated age someone was or was not fit for treatment.

Baroness O'Cathain

Does the noble Lord, Lord Winston, suggest that doctors should offer some excuse when not using a treatment because of the age of the person? That puts doctors into an invidious situation. They are sometimes rationing and are put into the position of having to tell fibs. I infer that situation from the noble Lord, Lord Desai. That is the issue.

Lord Winston

The noble Baroness, Lady Gardner, made clear that there must be a variation according to clinical circumstances. Doctors are inevitably in the unfortunate position of having sometimes to take such decision. It is to be hoped that they do so with wisdom and with a degree of collective responsibility rather than in isolation and in an authoritarian way.

Lord Clement-Jones

The debate has been extremely interesting. The Government have not been unconscious of the needs of older people. Indeed, they commissioned the national service framework for older people and there is in the offing a charter for the long term care of the elderly. In addition, they commissioned the Royal Commission, about which we will have a Statement later today. The key issue is whether such actions are sufficient to place on clinicians the duty to be conscious of the needs of older people.

The care of older people is a crucial issue. Indeed, my honourable friend in another place considered it to be so crucial that he recently put forward a Ten-Minute Rule Bill concerning discrimination and older people and outlined some extremely telling facts. The noble Lord, Lord Astor, mentioned some of them. For instance, women over 65 are not screened for breast cancer, despite evidence that they would benefit from early detection and treatment. Although the Government are conscious of the issue, their document Our Healthier Nation contained no targets for older people. It is easy to forget their needs, but, as we emphasised earlier in Committee, older people are key consumers in the NHS.

If the duty is not statutory, what is it to be? It must be a powerful duty to keep people on their toes. I am sure that the noble Lord, Lord Winston, is correct in saying that there must be flexibility in clinical behaviour, but the one thing we cannot have is discrimination.

Since tabling Amendment No. 105, I have been stunned by the number of people who have written to me or approached me telling me that it is a real problem because they have relatives who were not cared for in a proper fashion or who were ignored. We in this House have debated the standard of nursing of older people and some cases have been shocking. The standard may depend on the way in which boards are managed, but it also depends on attitudes towards older people. On the day on which we are to debate a Statement on the long-term care of the elderly, we must be careful before dismissing a statutory duty of this kind.

Baroness Gardner of Parkes

I wish to take up the point about breast cancer screening. The hospital of which I was chairman researched cases of breast cancer among elderly women and found the statistics misleading. As there is no universal screening, the women who attend for screening suspect that they have cause to do so. Therefore, the percentage appears to be higher among women above the age of 65, but when compared with the population as a whole it is not higher. We must not be side-tracked on that argument.

The general practice at which I am a patient recently sent all its patients, irrespective of age, for breast cancer screening. In a new project, it decided that that should be done. I understand that some practices are introducing a screening policy in a more general way, but it has always been the case that anyone who has any cause for anxiety can ask for breast screening at any time. That was the policy of the previous government and I am sure that this Government will continue it.

Baroness Hayman

Echoing the words of the noble Lord, Lord Clement-Jones, we have had a useful short debate on these important amendments dealing with issues of race and age in terms of the quality of care and the annual report of the commission for health improvement. We have also discussed the monitoring arrangement in NHS trusts and PCTs.

The noble Baroness, Lady Gardner of Parkes, referred to breast cancer screening and she is correct in saying that we should not give the wrong impressing. Any woman over 65 is entitled to have breast screening if she wishes. There is not at present a national programme of the screening of over 65s because the national screening committee advised that resources should be concentrated, in the first instance, on young women. However, we are considering extending the age limit in pilot schemes. It will not be a matter of taking an arbitrary age limit; the effectiveness of screening will be examined just as one would examine the effectiveness of a vaccination programme for younger people. The policy will in no sense suggest that facilities should be cut off at a certain age; it will in no sense suggest that it is not worth directing attention to the elderly.

Amendment No. 72 would extend the duty of quality to cover monitoring and improving the equity of treatment as well as the quality of care. Amendment No. 75 would introduce a requirement for NHS trusts and PCTs to include in their monitoring arrangements for quality, monitoring by ethnic origin of individuals receiving health care". Amendment No. 90 would require the commission's annual report to include material on its performance in respect of equal opportunities. Amendments Nos. 105 and 106 extend the principle of equal treatment, not on the basis of age, to the commission's exercise of its functions. In general, that follows our discussion earlier in Committee in the context of primary care trusts and the way in which we apply the important principles of equity of access to NHS services. That access should be fair and on the basis of clinical need. We made commitments to those ends in Our Healthier Nation Green Paper and The new NHS White Paper and through a range of other measures to improve fair access to services.

In the foreword to A First Class Service, the Secretary of State for Health stated that fair and prompt access to modern and dependable treatment should be the goal. We have a strategy to improve quality across the board. Earlier in Committee when discussing the national institute for clinical excellence we spoke of reducing geographical variations which result from the disputes of evidence base and which can affect people whatever their age and ethnicity. However, if we are interested in equitable access to service we must tackle those issues as well as the issues of ethnicity and age. National service frameworks are a very important way of taking that forward because they aim to reduce unacceptable variations in care and treatment using the best evidence of clinical and cost effectiveness. They will be a key tool in tackling inequalities.

The purpose of the duty of quality is to ensure that all NHS provider organisations have a clear duty to put and keep in place arrangements to monitor and improve the quality of the healthcare they provide to all patients. The principles of clinical governance, which include care based on best available evidence, are applied to NHS organisations to all their patients. That in itself will have the effect of improving the equity of treatment on offer.

The explicit addition of "equity" to the definition of the duty of quality could create problems of definition. That concept is even more difficult to pin down and to assess than that of quality and could mean a range of different things; for example, equal access to treatment or fair treatment, taking account of both individual and collective need.

As regards Amendment No. 75, I am in full agreement that it is important that NHS trusts, primary care trusts and health authorities make effective use of the information they collect on the ethnic origin of the people receiving healthcare to help ensure that people from ethnic minorities are accessing the healthcare they need. However, I do not accept that an amendment to the duty of quality is the best way of taking that forward.

I hope that earlier in Committee I demonstrated the whole range of measures which we intend to take to reduce inequalities. The guidance we issued on health improvement programmes in October last year clearly sets out our expectations that we should identify and monitor targets and milestones for measurable improvements in health and healthcare and reducing inequalities. The guidance makes specific mention of mapping health inequalities and inequalities in access to services. Mapping of that kind will be informed by the type of information to which reference has already been made. The commission for health improvement will look at the quality of healthcare, and I stress again that that means the quality of healthcare for all people.

We debated earlier the needs of the elderly. I understand the reason for that; their needs have not been particularly well addressed in the past. We are trying to make progress in that area, and when my right honourable friend sent out the HAS 2000 report on dignity on the wards and care for the elderly he made clear his intention that it should be responded to by all parts of the NHS. Equally, the national service framework that we are setting out for service standards for older people will be an extremely important way of taking forward improvements in care for the elderly.

I referred earlier to screening, and we would certainly reject any crude, age-related cut-off point that did not allow people to have individual care and the care that they needed. But I suggest to the Committee that we run into danger when we look at age specific issues alone or issues related to ethnicity on their own. We discussed the Acheson Report, Inequalities in Health, earlier in Committee. It can be argued that poverty is one of the main inequalities, both in good health and in access to healthcare. These provisions, which deal with ethnicity and age, do not deal with poverty. They do not deal with access to services for people of different gender, and there have been some interesting issues raised, particularly in relation to coronary care, about differential access for men and women.

We run the risk of putting on the face of the Bill certain categories of people who might be disadvantaged but not others. The noble Lord, Lord Rix, is not well today and is therefore not with us, but I am sure that he would be saying that we should not neglect the needs of those with learning difficulties when we are looking at specific needs. I hope I can reassure the Committee that we recognise both the specific needs of older people—the NHS framework will be important in that respect—and the need for monitoring policies in terms of the access given to people of different ethnic origin. Again, we must go wider than that and understand what services are appropriate for specific ethnic groups. We must make sure not only that we have an equal playing field, for example, in terms of services for sickle cell disease but also that we have appropriate sickle cell services where the communities need them.

I urge the Committee to focus on our commitment to ensuring the duty of quality in the work of the commission. It must be devoted to ensuring that all patients have access to the services they need. That will encompass specific groups, without drawing a false distinction between them, and other patient groups that may be disadvantaged in the provision of healthcare.

3.30 p.m.

Baroness Thomas of Walliswood

We thank the Minister for her comprehensive response to this debate. I wish only to make the point that issues of age, poverty and race are often associated; they seem to hang together. But I do not feel the need to carry the discussion further.

Lord Clement-Jones

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter

Perhaps I can interrupt with a short business statement concerning the Committee. It has been agreed between the usual channels that this evening we shall stop after Clause 46. Amendments Nos. 194 and following will be taken as first business on Thursday. The previously agreed dates for Report and Third Reading are not affected.

[Amendment No.73 not moved.]

Lord Astor of Hever moved Amendment No. 74:

Page 11, line 9, at end insert ("and for ensuring the publication of this information.").

The noble Lord said: In moving Amendment No. 74, I shall speak also to Amendment No. 76. The first amendment will ensure that information monitored for the duty of quality is published. The primary objective of the clause is the duty of quality imposed on PCTs and NHS trusts. It appears that health authorities are exempt from that duty, which is odd given that in many cases they are the bodies that are best placed to monitor the standards of healthcare in their area.

A requirement to publish should make comparison easier across different PCTs and NHS trusts. Good and poor practice would be more easily identified, thus driving up standards. It is also the case that the so-called abolition of the internal market will mean that the tracking of costs within the health service will become much more difficult. That is despite the Government's evident retention of the purchaser-provider split. That will result in a situation where it is difficult to determine whether a PCT or NHS trust is making the best use of the funds allocated to them. Such a situation cannot mean that patient care is effectively delivered.

It is the duty of the Government to make any information on the quality of healthcare available to patients. If mechanisms are to be put in place to monitor that information, it would be unfair for it not to be available to the public to enable people to make informed choices in relation to their healthcare. This is a matter of widespread concern to the public, as I am sure the Government will be aware from their focus groups.

Amendment No. 76 aims to ensure that the reports of health bodies on the duty of quality explicitly take into account the views of the NHS, patients and their carers. Quality in the NHS should be firmly rooted in the experiences of patients and carers. To date, the Government's proposals for quality focus almost exclusively on the needs of professionals and managers. For instance, the consultation document, A First Class Service, briefly mentions the importance of taking account of the views of patients and carers in defining quality. In debating a Bill about the structures for the new NHS it is easy to overlook the fact that the most important objective is improved quality and delivery for patients and carers. That aim should be set out on the face of the Bill. I beg to move.

Baroness Sharp of Guildford

I rise to support Amendments Nos. 74 and 76. We echo the noble Lord's words entirely. It is right, where there is a duty of quality, that there should be some tracking and that publication in this case is appropriate.

Again, it is clear that we on these Benches support the noble Lord, Lord Astor, in relation to these amendments.

Baroness Pitkeathley

I am very supportive of the aim of reflecting the views of users and carers. However, perhaps I may enter a word of caution about the fact that that can be done by publishing reports. Eliciting feedback, finding out exactly how the service is working from the point of view of the user and carer, and about their actual experience, will be more important than publishing a report on what has been done.

Baroness Gardner of Parkes

I feel that there can be too many reports, but we need enough for people to be able to find out what is happening and what the situation is. My memory of health service returns, which seem to be made constantly, is of an interminable quantity of paper going into the Department of Health. Such returns took an enormous number of hours to complete and no one quite knew what happened to them after that. I would make a plea for producing really useful statistics which can be used in a practical form.

Lord Winston

I fully support the sentiments with which the noble Lord, Lord Astor, moved this amendment. However, I fear that it is flawed. I am certain that this would be quite the wrong route to take. We already have a paradigm in the health service for such reports and it is deeply flawed. I am thinking of the figures given out by the Human Fertilisation and Embryology Authority which, although seemingly a comparison between units, have been shown to be statistically invalid by a publication in the British Medical Journal. And this is a very narrow area of clinical activity.

Such reports could deeply mislead the public. They would be not only potentially misleading but also very expensive for individual authorities and trusts to produce. There is every risk that unless there is extremely careful confirmation of exactly how the reports will he made, this would be an impossible exercise.

Different areas of cities, with different levels of poverty and environmental conditions, will treat different kinds of condition. All those factors could affect the outcome of clinical treatment. Under the circumstances, I do not believe that this would be a useful amendment.

Baroness Hayman

There has been universal agreement on the aim behind these amendments; namely, to ensure transparency and accountability by requiring NHS trusts and primary care trusts to publish information on the arrangements they put in place under this duty of quality. That is a concern that the Government share. However, we do not believe that it is necessary to specify this requirement on the face of the Bill.

The publication of annual reports (beginning in the year 2000) is a key part of the clinical governance arrangements we proposed in The new NHS and A First Class Service. Clinical governance will provide a framework for quality improvements locally, comprising both clear lines of responsibility and accountability and a comprehensive programme of quality improvement activities, as well as clear policies aimed at managing risk, including for the identification and remedy of poor performance.

We shall make it clear in guidance that we expect NHS organisations to publish annual reports on what they are doing to improve and assure quality through clinical governance arrangements. I do not believe that a statutory requirement for publication will be necessary to ensure that the bodies in question comply with this guidance.

Just as I believe it is unnecessary to specify a requirement to publish information on the face of the Bill, I also believe it is unnecessary to specify here what the contents of these reports should be. Other issues aside, there is always a danger that by specifying detailed content on the face of the Bill we will be seen to be excluding other important issues we do not mention and denying ourselves the opportunity to adapt to future changes.

However, I absolutely agree that the areas highlighted by noble Lords should feature in the information which bodies publish. The guidance which we shall publish shortly on the implementation of clinical governance will set out what we expect to be the core content of organisations' clinical governance reports. That will specifically include evidence of user and carer involvement in clinical governance arrangements—the point to which the noble Lord, Lord Astor, referred—and how the organisation has taken account of national service frameworks and NICE guidelines.

I hope that noble Lords will feel, in the very clear understanding of what we shall be putting in the guidance about clinical governance and the clear intention as regards the publication of annual reports, that we will cover these areas but that we shall not exclude any others by putting these, and only these, on the face of the Bill.

Perhaps I may say a word about the issue raised by the noble Baroness, Lady Gardner of Parkes, and my noble friend Lord Winston. We are committed to publishing information on the clinical performance of NHS trusts, not just locally but nationally, as a means of driving up quality in the service. Clinical indicators will be published later this spring as part of the new performance assessment framework for the NHS.

I believe that all three of us have worked in the service and therefore we all understand that it is important, first, to collect only that information which is necessary and useful; and, secondly, that we have to be very certain that the information is valid and robust and not able to be misinterpreted in terms of the quality of care actually being delivered. That is why we are working very hard to get clinical indicators that will command confidence both in the professional and public arenas. With those assurances, I hope that the noble Lord will perhaps feel able to withdraw the amendment.

3.45 p.m.

Lord Astor of Hever

I thank the Minister for her detailed reply. This has been a useful debate. Of course, I am sorry that the noble Lord, Lord Winston, believes this to be a flawed amendment. I shall read Hansard carefully as regards both amendments. However, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos.75 and 76 not moved.]

Earl Howe moved Amendment No. 77:

Page 11, line 14, at end insert— ("( ) In monitoring and improving the quality of health care which it provides to individuals, it shall be the duty of each NHS Trust to ensure that it takes account of the need to meet or exceed any relevant national standards.").

The noble Earl said: If there is one issue addressed in the Bill which engages the average member of the public, it is surely the quality of NHS healthcare.

We are debating the Bill at a time when standards of care and the levels of professional skill are high in the public consciousness, for a variety of reasons—not all of them happy. It is therefore absolutely appropriate that a Bill of this importance should contain provisions which acknowledge the public's justifiably high expectations of the health service.

It is slightly disappointing that only one clause is given over to the issue of monitoring standards and improving the quality of care. I am very sorry about that. Although I understand all the arguments about cluttering up the face of the Bill, the contrast between Clause 13 and the detail with which the commission for health improvement is described, for example, could not be more marked.

The so-called "quality agenda" is substantial. One of the main planks of that agenda is the implementation of clinical governance arrangements. As we know from last year's White Paper, those arrangements are multi-faceted and complex. The way in which they are implemented is of absolutely critical importance to their success. Part of that depends upon adequate resources but part also depends on the actual mechanisms by which PCTs and NHS trusts monitor care. There will have to be, for example, a continuous process of audit by which standards of care are measured, and the results of that audit will need to be published. Alongside that process of monitoring, there should be a means of collating outcome data on a national basis so that individual trusts can compare their work with that of others.

We are all well aware that NICE will produce guidelines on clinical care. However, in particular areas of clinical care, guidelines already exist, prepared by the Royal Colleges, specialist societies and other organisations. Those national standards of clinical treatment are formulated by consensus between the relevant stakeholders. Some of those guidelines are pan-European. There are good examples of national standards in relation to the treatment of hypertension and diabetes and with regard to renal services.

I feel strongly that some provision in the Bill ought to acknowledge the need of the NHS to comply with national standards, from whatever source. I shall be most interested to hear the Minister's response. I beg to move.

Baroness Sharp of Guildford

I rise to support the noble Earl, Lord Howe, in this amendment. I take on board the points made in the previous debate on Amendments Nos. 74 and 76, that there is a danger of over-monitoring and of having to produce too many reports on one thing or another. However, it is essential that this clause has some teeth. That is why we believe that the three amendments are worth supporting and that is why we support Amendment No. 77 in particular.

Baroness Carnegy of Lour

Perhaps I may support the amendment briefly. It seems so much better to talk about, the need to meet or exceed any relevant national standards", than to refer to "equality of treatment". There is no such thing as "equality of treatment" because needs are never absolutely equal. However, treatments should measure up to the national standard. This seems an excellent amendment and the Government should certainly consider including such provisions in the Bill.

Baroness Young

In considering what seems a very important amendment, will the Minister compare these provisions with what has happened in the world of education? When league tables and other standard measurements were introduced, there was considerable criticism and it was said that they were not a good idea. In fact, the Government have now accepted them and it has been recognised that, once there is a nationally accepted standard of measurement, standards are levered up. I am in no sense criticising the National Health Service, hut it must be the intention of everybody to apply the standards of the best to all. One way of doing that is to have national measurements. That is what lies behind my noble friend's amendment and it deserves serious consideration.

Lord Walton of Detchant

When the Minister replies, will she take note of the fact that, in the medical profession in particular, there has been a tremendous move towards the regular audit of clinical procedures during the past few years, guided by the advice of the medical Royal colleges and facilities? Only two weeks ago, the General Medical Council agreed that in the future all doctors would be subject to a revalidation of their performance and of their clinical skills and competence. Although I have every sympathy with the amendment and, indeed, support its underlying objectives, will the Minister accept that there has already been a tremendous move towards fulfilling those underlying objectives?

Baroness Fookes

I warmly welcome the amendment, especially in relation to national standards. In his amendment, I hope that my noble friend is considering also the prevention of ill health. That is a very important matter to which, in the past, we have given insufficient attention. I should like to see the prevention of illness included in the national standards. It may well be, but I seek the Minister's views on that.

Baroness Hayman

Like the noble Lord, Lord Walton, I agree with Members of the Committee who have spoken about the importance of national standards with regard to our overall aim of increasing the quality of treatment given to patients and the quality of the healthcare that is provided. That was why I said, when speaking to an earlier amendment, that the guidance that we shall publish shortly on the implementation of clinical governance will set out the core content of clinical governance reports from all NHS bodies.

I am sure that it is inadvertent that the amendment applies only to NHS trusts. I am sure that we would all want primary care trusts equally to fall within the spirit of the provisions. As well as evidence of user and carer involvement, those reports will have to state the progress made on implementing the national service frameworks and the guidelines from the national institute for clinical excellence. Trusts must take full account of authoritative national standards and guidelines where they exist, and, in particular, what we hope will be the "gold standard" guidelines from the national institute for clinical excellence.

The noble Earl said that some national guidelines already exist and that we do not have to wait for them to be introduced. He is absolutely correct, but those many national guidelines are not necessarily the authoritative national guidelines. Sometimes, there are conflicting national guidelines on the same subject. Simply seeking to include national guidelines on the face of the Bill could cause problems. We must be certain about them. One of the main reasons for establishing the national institute for clinical excellence is that we want to have appropriate national standards.

Equally, it is important to emphasise that decisions about an individual's healthcare must continue to be taken by clinicians and the patient, based on clinical need. However much standards and guidelines are issued, doctors will still be responsible for clinical decision-making, and doctors and patients together will still make the final decisions on individual cases. Ultimately, guidance from NICE will do exactly what that word implies: it will offer advice. It will not be compulsory.

Perhaps I may remind Members of the Committee of our earlier discussion on the care of the elderly. The elderly are recognised as a patient group among whom there is very seldom one single condition about which a national guideline could be issued as the sole guidance on the care of such patients. We are trying to move to a more holistic approach and to look at the needs of the elderly overall. Indeed, the interaction of an individual's other particular health requirements might militate against the idea of strict and rigid adherence to any particular national standard.

As I have said, we accept the thrust of the amendment. We shall issue guidance to ensure that NHS trusts and primary care trusts report on their progress. Pursuit of a consistent standard of high quality treatment and care across the NHS is our aim. I hope, however, that I have been able to explain to the Committee why I do not think it necessary or appropriate to take the path set out in the amendment.

Earl Howe

This has been a useful short debate. I am grateful to the Minister for her helpful comments. Perhaps I should have tabled another amendment containing a subsection defining the phrase "national standards".

I believe that those Members of the Committee who have spoken have been in general agreement with the thrust of the point that I was trying to make and I am grateful to the Minister for echoing that agreement. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Thomas of Walliswood moved Amendment No. 78:

Page 11, line 17, at end insert ("including, without prejudice to the generality of this section, general clinical care as well as medical treatment and the equity of treatment provided").

The noble Baroness said: I rise to move Amendment No. 78, which stands in the names of my noble friends Lord Clement-Jones and Lady Sharp. This brief clause is being subjected, if that is the right word, to a good many suggestions for amendment. That shows the interest which the clause has aroused and the feeling that it does not go quite as far as some of us would like.

The point of this amendment is to add to the definition of "health care" in subsection (4), by adding the provision that it should include, general clinical care as well as medical treatment and the equity of treatment provided". We have just had a long discussion about equity, which I shall not repeat. The Minister might find that this is a more acceptable point at which to introduce the concept of flexible equity alongside the concept of quality, and I will leave it at that.

The mention of general clinical care is important because it includes a wide range of care, including that given by nurses and particularly the non-medical aspects of care, for example a concern for cleanliness, privacy, dignity of the patient and proper information and support for patients. Much of that is involved with nursing care, both in hospital and in the community. Such elements of care can significantly affect health outcomes, so they are important not only from the point of view of human relationships but because of their effect on the success of the treatment. This introduces the element of clinical governance, which involves the cultures, systems and processes within which and by means of which care is delivered, as well as medical treatment. The amendment supports the Minister's assertion that clinical governance is the key to the success of the new duty of quality and to the Government's overall policy agenda. Clinical governance is an umbrella term which encompasses the culture, systems and processes that are necessary to maintain and improve standards of patient care. I hope that the Minister will find this to be an acceptable amendment to this very short but, nevertheless, important clause. I beg to move.

4 p.m.

Baroness Carnegy of Lour

The issue of general clinical care was very nicely spelt out by the Royal College of Nursing, and I think that the noble Baroness who moved the amendment was speaking partly of consultations with the Royal College. I was very impressed by what it said about general clinical care improving the well-being of the patient in addition to medical treatment.

I have stated my views about the term "equity of treatment". I think that it is an unsuitable phrase. We all know what the noble Baroness means, and of course we all want to see fairness in the health service, but everyone's case should be considered on its merits.

Baroness McFarlane of Llandaff

I support Amendment No. 78. There is no doubt that whether or not a patient feels cared for depends very much on the quality of nursing care and not just medical care. It depends upon basic essentials, including hygiene, cleanliness, nutrition, privacy, dignity, incontinence care and the information and support given to patients. It is essential that we support the amendment, which will widen the duty of quality from medical care, including prevention, diagnosis and treatment of illness, to include these general aspects of care.

I am sure we were all very impressed by the research produced by Help the Aged on the quality of care that elderly patients have received in hospital wards, and we wish to prevent that kind of situation generally.

Baroness Hayman

I am completely in agreement that the duty of quality should not be narrowly defined as simply the quality of medical intervention.

My only concern about the amendment is whether it is necessary in view of the definitions before us. The duty, we believe, is broad enough to cover not only medical interventions but certainly nursing care. The noble Baroness is absolutely right to remind us of how crucial these matters are in ensuring dignity and privacy for patients and respect for them. The report on the care of the elderly drew that aspect to our attention and the Secretary of State has made it very clear that he expects it to be implemented in terms of NHS care in hospitals.

We also need to look at support functions, for example, pathology services, which are crucial to the quality of screening and diagnosis. It is our belief that the Bill already takes those into account. The definition of healthcare in the duty is drawn widely as, services for or in connection with the prevention, diagnosis or treatment of illness", within the ambit of healthcare and the duty of quality.

The 1977 Act defines illness as including mental disorder within the meaning of the Mental Health Act 1983 and any injury or disability requiring medical or dental treatment or nursing. It is therefore already implicit in the Bill—although some noble Lords think it is by a circuitous route by reference to other legislation—that the definition of health care is not confined to medical treatment. It is broad enough to address the concerns raised by noble Lords. There is absolute agreement that we should not exclude general clinical care from the duty of quality. I quarrel with the amendment in that I believe that the Bill already includes those issues which noble Lords have addressed.

Baroness Thomas of Walliswood

I hear what the Minister says and I will read the report carefully tomorrow. I was not entirely convinced, but for the present I withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 79 and 80 not moved.]

Clause 13 agreed to.

Clause 14 [The Commission for Health Improvement]:

Lord Clement-Jones moved Amendment No. 81:

Page 11, line 20, at end insert— ("( ) The bodies to whom directions are given under section 17(1) of the 1977 Act shall act upon the recommendations of the Commission for Health Improvement. ( ) The Commission for Health Improvement shall, except in exceptional circumstances, be guided by the standards set by the National Institute for Clinical Excellence as regards best practice in clinical care and treatment.").

The noble Lord said: This amendment should have been grouped with Amendment No. 77, but I shall have a second bite of the cherry on the issue of enforceability of the guidance.

The noble Baroness was very clear in what she said, which was consistent with the consultation paper A First Class Service which was issued last July. That document stated that the commission for health improvement would monitor compliance by NHS trusts and purchasers of NICE guidance. However, there was no commitment in the White Paper, nor is there in the Bill, to enforcing compliance with the guidance.

In the view of many voluntary organisations connected with sufferers of MS, Alzheimer's, haemophilia, AIDS and HIV, that leads to great danger in terms of the continuation of what has increasingly come to be known as post-code prescribing. It means that bodies within the NHS will still be able to disregard even strong guidance from NICE, and the commission for health improvement will not necessarily be able to enforce that guidance.

The original A First Class Service paper stated: The introduction of clinical governance will mean that variations from expected good practice, as recommended by NICE, will increasingly be challenged locally. We will expect guidance produced by NICE to be implemented consistently across the NHS. How well this happens in practice, to ensure that unacceptable variations in care for patients are not allowed to persist, will determine whether and how NICE's and the Commission for Health Improvement's powers will be strengthened in future". That gives us an indication that, if the Government notice that post-code prescribing is still continuing, it is possible that the Bill will need to be amended at some time in the future. However, the Government already have the experience of post code prescribing. They will already know that national guidance on treatments is disregarded by NHS trusts.

In 1995, the NHS Executive issued a circular to all health authorities urging them to fund beta interferon. But a number of health authorities refused to comply with that guidance in 1996 and 1997. Indeed, in 1997 the North Derbyshire health authority lost a judicial review case because it refused to fund the drug. In addition, the health authority even rejected the assumptions which had underpinned the Government's guidance by its insistence that the drug was not clinically effective. In fact, only 16 per cent. of English health authorities are funding beta interferon for fewer than five MS patients. An MS Society survey found that only 3 per cent. of MS patients were being prescribed beta interferon. So there are major variations involved.

We have a large number of amendments to deal with today, so I shall not recite in detail every instance of clear post-code prescribing, but it clearly affects such drugs as aricept in connection with conditions such as Alzheimer's disease, haemophilia and AIDS/HIV. It is a continuing issue and one which needs to be addressed. The leaders of nine medical charities wrote to the Health Secretary, Mr. Dobson, in the aftermath of the publication of the White Paper. Those charities include the ones that I have mentioned and also the Motor Neurone Disease Association, the National Asthma Campaign, the National Kidney Research Foundation, the Terence Higgins Trust and the Multiple Sclerosis Society. They made it quite clear that, unless CHIMP has to enforce those NICE standards, there will continue to be major variations.

There has obviously been discussion under Amendment No. 77 of the whole system of NHS frameworks. Clearly there needs to be flexibility. It is not as if NICE in its own standard-setting will be utterly prescriptive down to the last catheter inserted; indeed, it will be broad and there will be standards across the board. We have seen some of the NHS frameworks in draft, such as the mental health NHS framework, which are perfectly acceptable. Nevertheless, they should be enforced by CHIMP and that should be part of its remit under the Bill. I beg to move.

4.15 p.m.

Earl Howe

I am very glad that the noble Lord, Lord Clement-Jones, has had a second bite of the cherry. This amendment seems to me to get to the heart of what is meant by the term "clinical governance". The latter appears to be a two-sided coin. On the one hand, it provides the key to improving the quality of patient care. I do not dissent from that and I take on board and agree with everything that the noble Lord said about post-code prescribing. However, on the other hand, it carries a potential threat to patient care. I say that because, if there is an easy answer to those who search for a definition of "clinical governance", it is the opposite of clinical freedom. That is the fundamental difficulty inherent in NICE and the commission for health improvement.

If those two bodies exercise their functions with a light touch, if they recognise the importance of a doctor's judgment and if their pronouncements are to have the status of guidance, and no more than guidance, that is one thing. But if the whole flavour of NICE and CHIMP is of a prescriptive, rule-bound approach to clinical decision-making, the consequences will not only be damaging to the way in which doctors exercise their clinical judgment but, I suggest, the system will also be unworkable. Unfortunately, the tenor of the Bill, despite the Minister's reassuring comments a few minutes ago, suggests strongly that prescriptiveness and not flexibility will characterise the implementation of clinical governance.

However, this is not just an issue of principle; it is also an issue of practicalities. To judge the performance of a surgeon or a specialist, you need bench-marks. To create bench-marks, you must have data on outcomes. Except in a few disciplines, such as cardio thoracic surgery, information on outcomes simply does not exist. Therefore, for most specialist treatments no standards of comparison are available; nor is there any incentive at all for hospitals or consultants to collect such data because, quite simply, people do not want to publicise their mistakes.

Even if one could get over the latter difficulty, many surgeons do not know the eventual outcome of a case because the patient goes away and does not come back. There is a massive job to be done in terms of data collection before the commission can even begin to do its work. How is that to be achieved and over what timescale? Further, can the Minister tell the Committee how it will be possible to compile bench-marks for disciplines such as psychiatry or physiotherapy? These are extremely difficult issues and a proper database cannot be compiled on the cheap. It needs meaningful results, based on data that is not just obtained from centres of excellence but also from centres of mediocrity. If you try to do all this on the cheap, no one will have any confidence in the results. Indeed, you would do much better not to have begun.

At the end of the day there will always remain some conditions for which guidance from NICE is non-existent. What is a GP supposed to do? He can hardly say to a patient, "There is no protocol, so there's nothing I can do for you". The fact of the matter is that for at least one quarter of the time a GP flies by the seat of his pants: he trusts his experience and his judgment. That is what he is there for. However, none of that will feature on the radar screens of those in the commission who will treat the NICE rule book as their bible.

The Minister will doubtless tell me that I have taken the whole thing too literally and that there is no question of a rule-bound approach to clinical governance. I hope that that is true, but that does not get over the sheer difficulty of enabling CHIMP to function in the first instance. I do not know how, realistically, it will reach that point. In the final analysis the question to be asked is: will CHIMP prevent another Bristol Royal Infirmary? If the answer is no, as I fear it is, then much of the work of the commission will have been a waste of time.

Baroness Knight of Collingtree

I am a great believer in plain English. On those grounds, I have an objection to the name which has been given to the commission—namely, the commission for health improvement. Ought it not to be the commission for health treatment improvement, or the commission for healthcare improvement? Surely we are all in favour of health improvement, but I beg leave to doubt whether that will be achieved by setting up this commission. We are not very clear in what we are saying here.

When one reads the functions referred to in the amendment, it is very difficult to understand precisely what this commission will do and move it, so to speak, from the general to the particular. I have one brief question for the Minister. Does she envisage that what I believe to be the "great evil" of mixed wards in hospitals will be ended when this commission gets going? I ask that question because in some places they have been stopped, while in others they have not. It is impossible to overestimate the distress caused to some elderly patients—and, indeed, to others who are younger—by being placed in a bed next to one occupied by a man, if it is a lady, or in a bed next to one occupied by a lady, if it is a man. It is an issue which hospitals have not always understood. I believe that it is very wrong to impose on sick people something which could be avoided. Indeed, it ought to be recognised as a wrong way to treat people. Let us be clear in this respect. As regards this amendment and this part of the Bill, we are surely talking about healthcare and not just the rather vague concept of "health".

Lord Haskel

I did not recognise what the noble Earl referred to when he spoke about governance. I do not see governance as being laying down a rule book. It certainly lays down some basic rules, but the whole purpose of governance is to try to inform people what is best practice and try to persuade people to adopt it. It seeks to improve the mediocre, not simply tell people what to do by virtue of a rule book.

Baroness Hayman

I welcome the wide debate we have had on a specific amendment. I say to the noble Baroness who spoke about the name of the commission that if we refer back to the discussion we had earlier about the ambit of healthcare including prevention—which does, of course, concern health—we can see one of the problems of being specific and looking only at healthcare or services being provided. The whole intention of the Government's policy is not to adopt an artificial distinction between those things which encourage good health and those things which treat failing health, but to take a more holistic approach to both of them. Therefore I defend the name of the commission, but that is by the by.

In the debate on Amendment No. 81 the noble Lord, Lord Clement-Jones, suggested that we needed—if I can characterise it as the noble Earl, Lord Howe, described it—more of a rule book approach and an insistence that bodies act upon recommendations guided by the national institute for clinical excellence, whereas the noble Earl was worried about that. Clinical governance is certainly not the opposite of clinical freedom. I think I made clear earlier that one of the reasons one cannot be too prescriptive is because the individual treatment of an individual patient who may have complex needs must be individually decided as between the clinician and the patient. If he had said that the issue was the opposite of clinical licence and the licence to ignore authoritative evidence about proper treatment, we might be nearer to a working definition, but that again is by the by.

The noble Lord, Lord Clement-Jones, said—I think a little unfairly—that we had experience already of the problems and therefore we ought to move immediately to being prescriptive about enforcing the guidance set out by NICE, for example, and not allow it simply to be guidance. We have experience of the problems but we do not have experience of a rounded set of provisions aimed at improving quality, and of a kite-marked, gold standard, basic framework either provided by a national service framework or by national institute for clinical excellence guidelines. Then we have the duty of quality and of clinical governance and monitoring by the commission for health improvement, feeding back in turn, if necessary, to NICE and the guidelines. Therefore we do not have experience of how the whole system would work. However, I think that we have the balance right here.

Following a review or investigation what the commission recommends will be reported back to the organisation concerned, highlighting where there is need for change. The organisation itself will then be responsible for drawing up an effective action plan which will be shared with the commission, the regional office or the health authority, depending on whether it is an NHS trust or a PCT. Then the regional office or the health authority will supervise implementation of the action plan. Certainly the commission's recommendations will give added direction and impetus to that organisation in meeting its performance objectives checked annually through the NHS executive performance assessment mechanisms. Therefore I believe that the implementation of the commission's recommendations will need to be looked at in the light of wider objectives set, not just for the particular NHS body but, importantly, in the context of national priorities set for the NHS as well as wider local circumstances; for example, in working with other organisations to implement the local health improvement programme. Therefore despite the intention which lies behind these amendments—which I recognise—they may serve to be too restrictive.

We recognise the intention that organisations should move forward with recommendations made to improve the quality of services. Perhaps the noble Lord, Lord Clement-Jones, will be reassured to know that where there is unacceptable delay in making progress, the Secretary of State has a power under the Bill to give directions to the body under Section 17 of the 1977 Act, as amended by Clause 7 of this Bill, requiring it to take action to implement the commission's recommendations. Therefore there is no question of it being completely toothless. As I say, I think it important that the commission is guided not only by NICE but that it considers best practice in clinical care and treatment, and particularly national service frameworks. I do not wish to specify only NICE guidance as that which the commission should take on board and which it should ensure is being implemented. There will be a range of issues that the commission will wish to monitor and report back on and there will be a range of ways in which we ensure that institutions seek to implement improvements.

The commission will, of course, examine the take-up of NICE guidance as part of its work to assess the implementation of good practice across the NHS. However, I refer to the issue that the noble Earl raised. I say again that NICE guidance is not mandatory. It will provide guidance on which treatments are clinically and cost effective. It will offer doctors, nurses and other healthcare professionals advice and support in making complex decisions about individual patient care. However, final decisions on treatment will continue to be made locally in the light of individual circumstances.

The commission will have regard to a wide range of guidance in exercising its functions, including that made available through the national service frameworks and NICE. We expect the NHS to take account of this guidance in improving the clinical and cost effectiveness of its services to patients. Progress will be monitored by the commission. In those circumstances I believe it is unnecessary and indeed inappropriate to put specific provision as to NICE guidance on the face of the Bill.

Lord Walton of Detchant

I apologise to the Minister and to the Committee for joining this discussion a little late as I was momentarily distracted by some questions from another noble Lord. I assume that NICE will examine different areas of medicine and will then make recommendations upon their management. It is a matter of great concern, for example, that 3 per cent. of patients with multiple sclerosis in this country are receiving beta-interferon compared to 11 per cent. in Germany and 18 per cent. in Australia. CHIMP has been welcomed in principle by the major medical organisations in this country as being likely to make a major contribution to the improvement of health and the better management of disease. If it recommends certain measures based upon what NICE has proposed, am I right in understanding from what the noble Baroness said that should a particular body, a health authority or trust, fail to take account of that recommendation, the Secretary of State would have authority as a last resort to impose those conditions upon that body?

Baroness Hayman

Yes, the noble Lord is correct. When there is unacceptable delay in making progress on a recommendation by the commission which could well be based on the implementation of guidance, although it could be a specific local issue and not related to national guidance, the Secretary of State has a general power of direction which he could and, I believe, would use to take action to ensure that the commission's recommendations were implemented.

4.30 p.m.

Lord Clement-Jones

Before the Minister sits down, and before I respond, perhaps I may ask a question. Other health Ministers have indicated that if the experience of health authorities and NHS trusts in complying with CHIMP's recommendations in terms of the NICE standards was not a happy one, consideration would be given to tightening up on the enforceability of the NICE standards. Is that the Minister's understanding?

Baroness Hayman

I said in my earlier remarks about the circle of quality improvement that it is important that we have feedback from the commission to NICE or to the national service frameworks about the difficulties of implementing a particular piece of guidance—because it is conceivable that NICE might not get it absolutely right and might need to understand and learn from the experience of people trying to implement the guidance—and therefore it might be sensible that it gets feedback so that it can adjust the guidance. But, in the same way, if the guidance were being ignored across the board, that too would need to be fed back into the process. Of course, Ministers would have to consider that—that was the allusion to the reference in the White Paper. I am trying to say that we are a long way from any of that at present.

Baroness Gardner of Parkes

My concern is that NICE will be levelling down rather than levelling up. Throughout the document on NICE we are told that cost effectiveness will be considered. Surely that means that, for example, the multiple sclerosis cases will not be encouraged by that and that treatment will not be universally available. Can the Minister reassure me on that point?

Lord Walton of Detchant

Before the Minister answers that question, is she aware that the chairman of NICE has made a public statement to the effect that the recommendations of that body will be based upon what is best for the patients and what is most cost effective but will otherwise not be ruled by issues of finance and cost?

Baroness Hayman

Yes, I can perhaps reassure the noble Baroness. Cost effectiveness is not the same as something being expensive. It may he that something is expensive but very cost effective and clinically effective, and therefore ought to be introduced. We have tried to stress in the work of the national institute that it should be a mechanism not for levelling down but for ensuring that when there are new developments—when new technology and new drugs become available—which are clinically effective and cost effective, they should be available to the broadest range of patients as soon as possible. We have to recognise too that we must look into areas—and NICE may well want to look into areas—where practice is steeped in the mists of time but may not necessarily be particularly effective. We have to look at both sides. I certainly would not want to think that it was a levelling down. In some of the instances that have been referred to, we would hope that the existence of NICE ensures that more people have access to new and effective treatments more quickly.

Lord Clement-Jones

I thank the Minister for that full reply and for her replies to the supplementaries, which have clarified matters considerably. There is a slight philosophical issue here of whether one thinks that the glass if half full or half empty. I suspect the Minister thinks that the glass is half full; I think it is half empty. I have some concerns about the future.

I have seen how national service frameworks in embryonic form, in terms of the Calman Hine framework, have operated. That has operated very flexibly but, on the other hand, some authorities and trusts have not put it into effect in anything like the most effective form. It is possible to retain that kind of flexibility.

I accept the Minister's point that we do not yet have experience of what she called a rounded set of provisions. The bodies that I have spoken to and about have had experience of a rather narrower set of circumstances where a specific circular requiring trusts to act in regard to beta interferon has not been obeyed. That is why they are full of foreboding. We all know that NICE is a terrific acronym to try and gain the good will of the medical profession—what "nicer" name could one have, so to speak—and I appreciate the requirement to have effective action plans and the fall-back powers of the Secretary of State. I cannot say at this point that we are convinced. I do not believe that the philosophy behind the amendment is over-prescriptive in the way that it operates; it is simply designed to get action and to make sure that trusts and health authorities put into operation those best practice standards that NICE will bring forward. It may be a slow process—there may not always be a best practice standard in existence—but, nevertheless, those which are in existence should be complied with. We shall consider what the noble Baroness has said and we shall probably come back to this point--perhaps in a form which looks at the Secretary of State's power to give directions—at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 82 not moved.]

Clause 14 agreed to.

Lord Hunt of Kings Heath

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.