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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,

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

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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.

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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

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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.

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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.

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