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Earl Howe moved Amendment No. 293:



( ) the implementation of any guidance issued by a Special Health Authority set up to provide guidance on health technologies and the clinical management of specific conditions"

The noble Earl said: My Lords, we had a useful although somewhat inconclusive debate in Committee about CHAI's responsibilities for ensuring that guidance issued by the National Institute for Clinical Excellence is being implemented throughout the health service. I say that the debate was "inconclusive", because unfortunately I cannot say that I found the Minister's eloquence on that occasion wholly persuasive. I shall not repeat at any length my concerns about these issues, but they centre on what are commonly referred to as "postcode prescribing" and the postcode lottery of services, not only in relation to medicines but also as regards the availability of medical technologies in different parts of the country, and the geographical disparities in the management of clinical conditions. I cited the examples of statins and atypical antipsychotics. I also mentioned certain kinds of cardiac and orthopaedic treatments. My firm view is that, if ever a body should be tasked with monitoring and reporting on these matters, the body should be CHAI.

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The Minister's answer was reassuring, but only up to a point. He sought to persuade us that the amendment was unnecessary by arguing that NICE guidance would assuredly be built into the national standards which CHAI would have to take into account when conducting its reviews. Further, CHAI will need to monitor the way in which NHS bodies comply with their statutory obligations, one of which is that they must implement NICE guidance within three months of it being issued.

However, my difficulty with those arguments is that CHAI's duty to monitor the implementation of NICE guidance will remain implicit rather than explicit. In certain circumstances, that could lead to insufficient emphasis being placed on the importance of NICE pronouncements. If the Minister's statements in Committee are correct, and I am sure that they are, NICE guidance will be only one of many ingredients contained in the standards by which NHS bodies will be expected to operate. While, under the terms of Clause 45, the national standards will carry some degree of statutory force in that NHS bodies will have to take account of them in fulfilling their duty of quality, that is not the same as giving CHAI the legal duty to ensure that NICE guidance is being implemented.

There may well be, for example, a time lag between the issuing of guidance by NICE and the updating of a particular standard. That might provide an excuse for NHS bodies—not many, but some—but they should not be able to deploy such an excuse. I hope that the Minister will feel able to take these concerns on board and perhaps review his position on what is, in our eyes, a critical issue for patient care. I beg to move.

Baroness Finlay of Llandaff: My Lords, I wish to support Amendment No. 293 and speak to my Amendment No. 300 which is grouped with it. These amendments go to the heart of the principle of evidence-based healthcare. Welcome and desperately important moves have been made under this Government to ensure that more and more of what is done is based on robust evidence. NICE guidance has received much publicity around its pharmaceutical recommendations, and a little on some concerning technical and medical devices, but it also issues guidance on service configurations.

The range of technical advice that has been subject to very careful scrutiny of all the research evidence is extremely wide. While I do not wish to detain the House, I shall cite two examples of completed reviews. The first relates to tension-free vaginal tape for stress incontinence and the recommendation that the procedure should be performed only by those with specialist training and who have ongoing practice. The second concerns the use of 2-D imaging ultrasound guidance for central venous catheter insertion into the jugular vein in adults and children in elective situations and, wherever possible, in the emergency situation. A strong recommendation goes with it that audio-guided Doppler ultrasound guidance is not recommended for

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CVC insertion. These are highly technical pieces of guidance, but they are extremely important because of the strong evidence behind them.

I am concerned that guidance is now also coming out as regards service configuration in my own field—here I declare an interest, having been involved in the consultations on it—on supportive and palliative care. That includes detailed guidance on care delivery processes.

If CHAI is not specifically charged with ensuring that evidence-based guidance is being implemented and is further not charged with ensuring that old and unsound practices are abandoned, then I ask the Minister this: who is charged with making sure that these very important review and evidence-based recommendations and standard-settings are being rolled out across the NHS for the benefit of patients everywhere?

6.15 p.m.

Lord Clement-Jones: My Lords, I rise briefly to support both the noble Earl, Lord Howe, in his amendment and the noble Baroness, Lady Finlay, in her Amendment No. 300, to which I have added my name. The Minister gave an interesting response to similar amendments tabled in Committee. I understood clearly his remarks to the effect that NICE guidance would be included in the work on standards. However, what was less clear—and on this I seek chapter and verse from him—was the reminder he gave to the Committee that NHS bodies are also under an obligation to provide funding for treatments and drugs recommended by NICE within three months of its guidance being issued. The Minister also reminded us that that is a statutory obligation.

However, as I understand it, a duty is imposed on PCTs by the Secretary of State to fund such developments, but I should be most interested to learn where the statutory duty comes from. Of course, if there is a statutory duty then much of what we are talking about would fall away, but there is a very big difference between an injunction from the Secretary of State and a statutory duty. One of the points of having been in this job for six years is that I can well remember the Secretary of State announcing that, in the future, he would require NICE guidance to be implemented within three months.

The reason why I am so particularly concerned about this—here I declare an interest as a trustee of CancerBACUP—is that ever since the NICE guidance was put into effect on a variety of different cancer drugs—as I recall, one of the first NICE guidances to be issued related to tamoxifen—CancerBACUP has undertaken surveys of how far "postcode prescribing" was still continuing—the problem that NICE was supposed to do away with.

The most recent CancerBACUP survey, whose results were released at the end of October, elicited an impressive reaction from the Secretary of State at the time. He pledged action via the cancer tsar and so forth. However, that seems rather peculiar in these circumstances. Why should it be for a charity such as

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CancerBACUP to undertake the monitoring at every stage? The charity has monitored the take-up of nearly all the cancer drugs for various conditions in respect of which NICE guidance has been issued. However, these amendments sensibly put that duty on to CHAI, which is the body that should carry out such reviews.

Let us consider the situation. The Secretary of State, on a one-off basis and probably as the result of a major cancer conference held a day or so previously, rushes to announce that he has decided to make various pledges and so forth. That is not to deny that the Secretary of State has taken swift action and it is not to deny that we have an extremely effective cancer tsar who is well aware of many of these issues. However, the process would be far more coherent if CHAI was the body which actually checked on whether NICE guidance is taking effect and whether PCTs are taking notice of it. We would then know about the situation and take action in a proper and methodical fashion. For me, that sums it up: we do not seek an extraordinary and draconian power for CHAI, we are trying to ensure a better health service.

Lord Warner: My Lords, I was really enjoying the oration of the noble Lord, Lord Clement-Jones, since he was becoming quite wound up. However, my response is going to be rather flat on this issue. The statutory basis here is the obligation on PCTs to comply with NICE guidance provided for in Section 17 of the National Health Service Act 1977, where it states that the Secretary of State may issue directions to PCTs and other NHS bodies. NICE guidance directions are made under that section. I am glad that the noble Lord did not know that, otherwise I would have missed his speech.

As regards the points made by the noble Baroness, Lady Finlay, I can reassure her that we are not in any way trying to resile on our commitment to evidence-based practice. I shall say a little more about why we are not convinced of the need for the amendments.

Amendment No. 293 seeks to place a duty on CHAI to pay particular concern to the implementation of guidance issued by a special health authority with respect to health technologies and the clinical management of specific conditions. That is what it does. The noble Earl made much of the fact that he was particularly concerned about the implementation of NICE guidance. In effect, that is what Amendment No. 300, tabled by the noble Baroness, provides for.

I appreciate the sentiments behind the amendments but they are too specific. In fact, you could argue that they elevate the output of a special health authority such as NICE to a point over and above guidance issued by other eminent sources such as, for example, the Medical Royal Colleges and the UK chief medical officers, and also outputs from the Government's national service frameworks. This could lead to confusion in the minds of many in the health service as to what should be given priority in terms of implementation.

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As I previously outlined, NICE's formal remit is,


    "the promotion of clinical excellence and the effective use of available resources in the health service as the Secretary of State may direct".

It is therefore central to our plans to modernise the NHS, and drive up standards.

As the Minister with key responsibility for NICE, I want to do nothing whatever to undermine its position. I wish to place on record the fact that it currently has the largest programme of clinical guidance and technology appraisals in simultaneous preparation in any country. I hope it gives some comfort to the noble Baroness that we are committed to continuing along a path of evaluating practice and ensuring that evidence of best practice is disseminated.

It is worth bearing in mind that the Explanatory Notes to the Bill make clear that it is envisaged that any statement of standards issued and published by the Secretary of State under Clause 45 is likely to be informed not only by NICE guidance but also by other relevant sources such as, for example, the national service frameworks.

I shall not go over the grounds of Clause 45 and the standards provision but, together with the duty of quality under Clause 44, it makes it clear that NHS bodies are to put and keep in place arrangements to monitor and improve the quality of care they provide or commission on behalf of the patients they serve. To make this crystal clear, Clauses 49, 50 and 51 state that CHAI must take account of those standards when exercising its reviews and investigations functions under those clauses. I am sure that it will want to take account of them when exercising its other functions.

As I said, NHS bodies are already under a statutory obligation to provide funding for treatments and drugs recommended by NICE within three months of guidance being issued. That takes account of the fact that there is still provision under exceptional circumstances—as has been done on one or two occasions—to vary that recommendation where there are capability issues within the NHS about its ability to fulfil the three-month deadline. I am confident that CHAI will take into account statutory obligations on NHS bodies when carrying out its reviews.

Let me gently say to the noble Lord, Lord Clement-Jones, that the Secretary of State did not overreact in relation to cancer. He did not run around; he merely asked the cancer tsar to carry out a review. It was a perfectly sensible response to a set of concerns expressed by the public.

In the light of these reassurances, I hope that the noble Earl will feel able to withdraw his amendment.


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