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Lord Walton of Detchant: My Lords, I, too, support the amendment. It is perfectly true that the General Medical Council gives advice to the medical profession about ethical principles that should be followed. Indeed, so, too, does the British Medical Association, which publishes a very weighty volume on the responsibilities of doctors. But, surely, one of the principles of medical care in the National Health Service must be that ethical principles should be foremost in the minds of every doctor and every healthcare professional in the management of disease and in their treatment of patients. I therefore warmly support the amendment.

Lord Warner: My Lords, indeed, this has been an educational Bill; I have had to brush up my accountancy and now my philosophy and ethics as well. I have a great deal of sympathy with what I think is intended in the amendment, but its practical effect continues to bother me.

As I understand it, ethical principles do not have any set meaning, but would cover issues such as patient consent to treatment and the use of novel drugs or treatments by NHS bodies. On enquiring further into this area, it seems that there are differing views as to which precise ethical principles should be used.

I agree that CHAI has a role in considering ethical matters, but that role is adequately covered already. CHAI must consider whether NHS bodies have appropriate procedures in place to ensure that proper regard is given to ethical considerations by appropriate persons when decisions are taken in individual cases; it must consider whether those procedures are being followed. That is relevant to its consideration of the availability of, and access to, healthcare and the quality and effectiveness of healthcare, which is provided for in the Bill.

CHAI's Vision document makes clear the inspectorate's intention to assess the quality of healthcare provided from the patients' perspective. In doing so, Sir Ian Kennedy, has made clear his intention to take the concerns of current healthcare inspection one step further and reflect, particularly, the rights and entitlements of a myriad of vulnerable people in its assessments and, in doing so, promote the social justice concept of "equal citizenship".

However, we do not envisage CHAI reviewing decisions made by doctors or ethics committees in individual cases. Ethical questions typically involve

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balancing the risks to individuals of particular treatments against the benefits of those treatments for them and the benefits to wider society. Traditionally, that is a matter for doctors, other health professionals and research ethics committees, acting under the guidance of bodies such as the General Medical Council.

As I previously said both in Committee and on Report, the General Medical Council is concerned with giving guidance to doctors on ethical matters. What it considers to be the "duties of a doctor" is already well documented. Furthermore, the council builds on those principles in guidance covering both general aspects of good medical practice and more specific areas, such as confidentiality and consent. In short, it has a long tradition in medical self-regulation, which should continue.

There is a real risk that giving CHAI a core task, which is what the amendment would do, of reviewing the "implementation of ethical principles" would cut right across the remit of the General Medical Council. It could lead to CHAI proposing a set of ethical principles that conflicted with guidance from the GMC. That might be inadvertent, but it could have the same consequence. It could also lead to duplication in inspection activities when we are trying to make the inspection of healthcare more efficient and less burdensome on the professions.

I sympathise with the sentiments behind the amendment, but I continue to believe that it is unnecessary and unworkable. Therefore, with the greatest respect, I ask the noble Baroness to withdraw the amendment.

Baroness Finlay of Llandaff: My Lords, I have listened carefully to the Minister and I am most grateful for the interventions from other noble Lords. The noble Baroness, Lady Barker, was very clear that government policy must not produce dilemmas or pressures which would drive against the interests of the population to be served.

The noble Baroness, Lady Masham, also outlined the pressures on the NHS, particularly from the mentally ill and drug abusers. I am grateful, too, to the noble Lord, Lord Walton, for pointing out that these principles should be at the front of every healthcare professional's mind.

I hear what the Government say about the effect of the amendment and I hear their concerns that it could cut across the remit of professional bodies. I am most persuaded by the argument that there could be a risk of duplication of inspection activities or an increased burden from inspections. As it is, healthcare professionals are already bowed down with the amount of inspections. Perhaps that is the one argument given by the Minister which is beginning to persuade me that giving the task to CHAI may not be helpful.

I am also glad to hear that CHAI will have proper regard to appropriate decisions and procedures being in place for decision making. From the patient's perspective, the quality of healthcare is of concern, as well as their rights to entitlement of healthcare. CHAI

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will have the ability to look at clinical records. With those reassurances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 102 [Transfer of functions to CHAI and CSCI]:

Baroness Barker moved Amendment No. 20:


    Page 44, line 13, after "Part" insert "insofar as they do not carry out excepted treatment"

The noble Baroness said: My Lords, on Report we had a most interesting debate about the interface between CHAI and CSCI. Noble Lords will perhaps recall the noble Baroness, Lady Howarth of Breckland, intervening in that debate. She helpfully enabled us to clarify that the point of most concern to noble Lords was the involvement of CHAI in the inspection of healthcare in settings that are primarily concerned with the provision of social care.

I expect that noble Lords, like me, have received a letter from the shadow chairs of CSCI and the Commission for Healthcare Audit and Inspection, for which I am most grateful. To an extent, they have gone some considerable way towards addressing the fears expressed by noble Lords. However, I am not sure that they have managed to allay them altogether, in that they repeat many of the arguments made on previous occasions by the Minister.

My concern is not that CHAI should assume responsibility for the inspection of social care services; that is not an appropriate use of that body's experience or resources. My concern has always been that it should be involved in the inspection of the medical care given—perhaps not frequently and not to any great extent—in social care settings. The great disappointment of the letter from the shadow chairs of CSCI and CHAI is that they have failed to recognise that point. Had they admitted that, at the moment, there is a considerable problem which is not being addressed, perhaps I would feel more confident.

Only last week, yet another report was published that was almost unchanged from that produced some time ago by my honourable friend in another place, Mr Paul Burstow, about the overuse of sedation in residential homes. I do not believe that the people employed by CSCI will have the wherewithal to recognise or to deal with such issues. The letter goes on to discuss conditions such as diabetes, those which can be managed well and are unlikely to be life threatening. Indeed they are well managed, but it would be an inspection by representatives of CHAI rather than CSCI that would reveal the bad management or mismanagement of a diabetic condition, which could then become life threatening.

I take heart from and cannot ignore the undertaking given by the shadow chairs that they will seek to work together under the powers provided in Clauses 120 and 123, which places a duty on the two bodies to co-operate. However, I would be a great deal more convinced if the shadow chairs had detailed how they will go about doing that, in particular in the circumstances mentioned by noble Lords throughout our debates. There is an existing problem here.

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I accept that providers that are principally providers of healthcare not in an acute setting do not wish to be burdened unnecessarily with inappropriate inspections by CSCI, but the lack of detail is what bedevils me. I hope that, in responding to the amendments, the Minister can put to rest some of my fears. I beg to move.

Earl Howe: My Lords, I should like to support the noble Baroness in all she has said. What concerns me most about this issue is that everything rests far too much on chance. Whether a particular clinic is to be regulated by CHAI or by CSCI often has little to do with logic and much more to do with an accident of history. As the noble Baroness pointed out, the dividing line between what is healthcare and what is social care is not one that can be drawn neatly or easily. Some treatment centres will end up being regulated by CHAI, while others will be the responsibility of CSCI. In such circumstances, where the basis of regulation is haphazard, then we must make an effort to introduce some consistency.

The Government favour CSCI as the regulator for the kinds of establishment we have been discussing. The Minister was right to say in Committee that such clinics focus to a great extent on nursing and personal care, but there is also an important element of acute medical intervention by doctors and specialists. If we do not regulate appropriately the medical care element as well as the nursing care element, then the effectiveness of those treatment centres will suffer.

The question is, therefore, which body is better equipped to undertake both kinds of regulation. I do not think that there is any doubt that it is CHAI. If, as we have been told, CHAI is to be the regulator for some of these establishments, then we need to ask whether the principle of consistency is better served by a conscious decision to make CHAI the regulator of them all.

5.15 p.m.

Baroness Finlay of Llandaff: My Lords, I strongly support this group of amendments. I am concerned about the patient who finds himself in the wrong place of care. I refer in particular to the vulnerable patient who develops an acute medical condition which, if treated, is eminently reversible, but if left untreated may be life threatening or, more seriously, may leave the patient with an ongoing disability that worsens their overall condition and leaves them even more vulnerable. The difficulty here is that only a degree of expert knowledge will pick up the elements of clinical mismanagement that may be taking place, and I am not convinced by the previous arguments put forward that a socially orientated inspectorate will have either the background knowledge or the clinical acumen to spot such problems if they arise. I say that bearing in mind in particular those patients who may be languishing in the wrong type of institution because their clinical status has changed.

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We need to see very clearly defined roles and responsibilities for each of the inspectorates, along with working protocols and, I would hope, joint inspections. It is on that basis that I support the amendments.


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