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Earl Howe: My Lords, I have a little difficulty with this amendment. If one takes, for the sake of argument, a benign view of NICE's role and the way that the commission will operate, we are back to the point made by my noble friend Lord Renton the other day in another context, which was,

In other words, if one mentions one thing on the face of the Bill, one is by implication excluding other things.

I agreed with the Minister when she said in Committee that it is not only the guidance from NICE and relevant national standards that the commission will want to take account of but a broader range of issues--especially those relevant to particular circumstances.

With great respect to the noble Lord, Lord Clement-Jones, the phrase "except in exceptional circumstances" is most unsatisfactory. We are talking here about guidance, not rigid adherence to a rule book. If it is said that the commission ought to be guided by the standards set by NICE, that implies that the system will allow some discretion and latitude. If one qualifies that by citing "exceptional circumstances", the messages that go out will be rather more confused. I return to the point that we do not want and cannot have the word

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"guidance" used as a synonym for direction, yet there are overtones of just that in the amendment by virtue of the phrase "except in exceptional circumstances".

Clinical governance will only work and be acceptable to the medical profession if it is administered with a light touch and there is built-in flexibility. I am uneasy about the amendment for those reasons.

Lord Patel: My Lords, I agree with the noble Earl, Lord Howe. It would be difficult if the commission were only to take guidance from NICE and national service frameworks. As I understand it, NICE will not only advise about the appropriate use of drugs, but issue guidelines, and that is what they are--guidelines. Local hospitals and clinicians will develop appropriate protocols. Other organisations, not least the colleges, produce guidelines. It is inappropriate if the only standards to be used are those of NICE.

Baroness Hayman: My Lords, we have returned briefly to a subject that evoked strong feelings in our debates at Committee stage. I have no quarrel with the broad objectives of the noble Lord, Lord Clement-Jones, in moving this amendment. The setting of national standards will play a key part in delivering a truly national health services and ensuring that patients receive the best care. Our intention is clear. We want an NHS that offers dependable, high standards of care and treatment everywhere. The problems and distrust created by completely unacceptable variations in access to services and prescribing that have been echoed tonight are clear. The care provided should be appropriate to people's needs and effective in drawing on the best available clinical evidence and maximising health gain for the population. That is what drives our quality programme. At other points in the debates I have said that I believe that to be a comprehensive and coherent approach.

We take seriously the business of raising standards and promoting the consistent application of the best evidence. There is no difference between us as to that aim. But I share with the noble Earl, Lord Howe, concerns about the exact strength of the touch and how dirigiste we are about the way in which the commission goes about its work. I chided the noble Lord, Lord Clement-Jones, about his failure to give a definition that was not wider than NICE. He has come back with a definition of other relevant national standards. The world being as it is, he will not be surprised if I now criticise that particular definition in this amendment. Because we do not have a definition of it, it does not suggest who should make the judgment of what is relevant in this instance. I was very interested to hear the noble Lord, Lord Patel, put in a bid for Royal College standards not to be omitted from the list of possible standards to be taken into account.

If the judgment as to what is a relevant national standard is for the commission itself, it is not clear what is to be gained by putting this on the face of the Bill. As the noble Earl, Lord Howe, said, there is no indication of what the exceptional circumstances may be in which the commission is not to be guided by--that is another phrase that will be difficult to define--relevant

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standards. We are all clear about the underlying intent, but there are considerable stumbling blocks as between this and sorting out legal definitions on the face of the Bill.

In connection with the duty of quality, we discussed in Committee the difficulty in foreseeing and defining now what national guidance or standards it might be appropriate to take into account in future. In the light of this amendment, I do not believe that we are any closer now than we were then to an answer that we can safely prescribe on the face of the Bill. I suggest that the difficulty in drafting appropriate provisions on points of this kind should cause us to ask whether it is right to attempt it in the first place. If we intend the commission to be guided, may we not be better advised to stick to guidance in this area?

In practice, I believe it is inconceivable that the commission would not be guided by national service frameworks, the work of NICE or other appropriate guidance. National service frameworks and the national institute will in particular be key points of reference and will be for guidance. There is a danger in having too tight a hold on both individual local decision-making about priorities and circumstances and individual clinical decisions as between patients and clinicians.

I hope that the noble Lord will forgive my saying that I cannot accept this amendment any more than the earlier one, although I do not wish to deny the importance of the issue he raises.

11 p.m.

Lord Clement-Jones: My Lords, I thank the Minister for that reply. Several different and interesting arguments have been used against the amendment. It was intended to be a light touch guidance; but clearly it has not been taken as such. The phrase "except in exceptional circumstances" was intended to do precisely that. However, it seems to have fallen foul of both the Minister and the noble Earl.

We are concerned that NICE has been set up but there is no real nexus with CHIMP as regards the legislation. We are worried that CHIMP is set up under the Bill but without standards to which it can refer. I am reassured by the noble Baroness's statement that it is inconceivable that CHIMP would not take on board the standards advocated by NICE and the national service frameworks. That may well be so. I hope that it is true. But time will tell.

We shall ponder on the points the Minister made in her response and perhaps return to the issue at another time. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

Schedule 2 [The Commission for Health Improvement]:

Baroness Hayman moved Amendment No. 28:

Page 49, line 29, leave out ("he") and insert ("it").

On Question, amendment agreed to.

Baroness Hayman moved Amendment No. 29:

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Page 49, line 35, leave out ("(2)") and insert ("(3)").

On Question, amendment agreed to.

Baroness Hayman moved Amendment No. 30:

Page 49, line 37, leave out ("(3)") and insert ("(2)").

On Question, amendment agreed to.

Clause 15 [Functions of the Commission]:

[Amendment No. 31 not moved.]

Baroness Sharp of Guildford moved Amendment No. 32:

Page 12, line 10, leave out from beginning to ("and") in line 12.

The noble Baroness said: My Lords, the purpose of this amendment which we tabled at Committee stage as a probing amendment is to prevent the commission for health improvement from charging for its services. In the lengthy discussion at Committee stage, the Minister used the analogy of the work undertaken by the Audit Commission, including its value for money services, when NHS trusts pay individually for the work undertaken even when that work is part of a nationally commissioned study rather than being individually commissioned.

Our concern--as we made clear at Committee stage--is that such costs will inevitably come from hospital budgets and mean less money for patient care. The Minister made it clear that costs would come from that part of the budget allocated to administrative costs and that there need be no cost on patient care. But as we heard earlier, administrative costs in the NHS are not themselves excessive. We are not convinced by any of those arguments.

As I made clear in an earlier amendment, we see CHIMP as analogous not to the Audit Commission but to Ofsted: that it will be a regular inspection force concerned to maintain standards. As with Ofsted and unlike the Audit Commission's value for money studies, it will be part of a continuing series of inspections required by the Secretary of State as part of a programme of quality improvement. The trusts will not invite the CHIMP inspectors in; rather the inspection will be imposed upon the trusts. As with school inspections, there will be substantial costs incurred in preparing the necessary paper work for inspection which will fall on the administrative budget of the trust. That it should also then have to bear the commission's costs seems quite outrageous. It could not possibly be done without a special allocation that year to the administrative budget, which in effect means taking that year from the patient care budget. Unless there are allocations to the NHS budget from the Secretary of State to meet the costs of CHIMP, there is no way that its costs can be met without taking money out of the patient care budget.

In this case we take the view that the costs should be met from central funds and not from trust funds, which is the purpose of the amendment. The Minister replied that, if this were the case, the costs would be top-sliced from the sums already allocated to trusts. So be it, but this would have the advantage of making open and

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transparent how much CHIMP is costing and, in so far as it hit trust allocations, that it was marginally at the cost of patient care.

The costs and benefits need to be weighed up at the national level by the Secretary of State, because he is the person who is imposing the inspection. It would be quite different if, as my noble friend Lord Clement-Jones suggested at Committee stage, it were a matter of management consultancy, where the trust called the commission in to advise it. In such a case it is quite fair that the costs be met by the local trust, for it is up to the trust to weigh the costs and benefits of the exercise and to judge whether it is worth while; but this, as I have made clear, is not what is being proposed.

What we have here is a regular inspection required by the Secretary of State. As such, we believe that this should be seen as a mechanism used by the Secretary of State to improve and maintain standards in the provision of healthcare, just as Ofsted is there to improve and maintain standards in education, and that its direct costs--like Ofsted's direct costs--should be met from the central health service's budget, preferably by an allocation of new money.

If successful, then over time its costs would be recouped by the extra efficiency it engenders within the service as a whole. If this is the case, then it should be viewed by the Secretary of State, and indeed by the Chancellor of the Exchequer, as an investment. The initial costs which would have to be borne now would over time be offset by a stream of benefits. But the cost benefit analysis must be for the Secretary of State, not for the local primary care or hospital trust. If Ofsted is the appropriate model, any inspection will impose enough costs in terms of preparation and paperwork. It adds insult to injury to suggest that the local trust should also pay for the direct costs of the inspection team.

I beg to move.

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