Third Standing Committee
on Delegated Legislation
Wednesday 10 March 1999
[Mr. Jim Cunningham in the Chair]
National Institute for Clinical Excellence (Establishment and Constitution) Order 1999
4.30 pm
Mr. Philip Hammond (Runnymede and Weybridge): I beg to move,
The the Committee has considered the National Institute for Clinical Excellence (Establishment and Constitution) Order 1999.
The Chairman: With this it will be convenient to discuss the National Institute for Clinical Excellence Regulations 1999.
Mr. Hammond: It is a pleasure to serve under your chairmanship, Mr. Cunningham. The Opposition sought this debate because the National Institute for Clinical Excellence will become a significant part of the national health service infrastructure, and the guidance that it issues will directly affect the lives and well-being of millions of people.
Many people in the United Kingdom will have assumed that, as NICE is a key part of the Government's health programme, the provisions to establish it would be found in the Government's keynote Health Bill. Not so. By creating NICE as a special health authority, the Government are sneaking it into being through the back door without proper scrutiny of its real function and the place that it will have in the so-called new NHS.
Fortunately for democracy, the Opposition in another place used their ingenuity—and, perhaps, the somewhat laxer rules that apply there—to enable some debate on the institute to take place on Second Reading and during consideration in Committee of the Health Bill, but we believe that important matters need to be aired, hence our request for the debate.
The Government, to give them their due, are skilful manipulators of language. Yesterday, we heard from the Chancellor of the Exchequer about the new economy. We have become used to hearing from the Secretaries of State for Education and for Health about investment—no longer are they spending; they now invest. We also learned recently that nurses' pay has been modernised. I am now waiting for my children to apply for a modernisation of their pocket money.
What could sound nicer than NICE? What could be more uncontroversial than a body entitled the National Institute for Clinical Excellence? Everyone is in favour of excellence. It sounds as though the institute should take a place alongside the national institute for motherhood and apple pie. However, language can deceive: new Labour, new speak. This NICE will be nasty. Although the Secretary of State for Health continues to deny that there is rationing in the NHS, and despite all the evidence—and the overwhelming body of qualified opinion—that rationing exists, he is introducing a body that will institutionalise and formalise that rationing while seeking to distance himself from rationing decisions and masking them in a cloak of clinical legitimacy.
It is clear that NICE will be charged with examining the clinical effectiveness of treatments. That makes perfect sense as it will bring together activity that is presently spread throughout different bodies. However, the institute will also take account of the cost effectiveness of such treatments. I do not recoil from the need to consider cost as well as clinical effectiveness, but nor do I recoil from the R word. We all know that rationing exists in the NHS. The Minister of State knows it, but he will not admit it.
We will not, without comment from the Conservative party, allow the Government to introduce a major rationing tool without their acknowledging it for what it is or even that rationing exists and that it is, indeed, a key function of NICE. Let us make no mistake, NICE will be the national institute for control of expenditure. It will bring together coherently and consistently many informal systems of rationing in the NHS. It will rule out treatments and drugs on a national basis when previously that was done only piecemeal on a local basis.
The claim that that may be a better way of rationing than the present system cannot be made by a Government who deny that rationing exists and who apparently live in a world where all patients receive all treatments that are of clinical benefit to them. Wherever that fantasy world is, it is not the United Kingdom in 1999.
At the heart of the work of NICE will be evaluating new drugs and treatments, and some established ones, to arrive at a cost-benefit analysis of their delivery via the NHS. Ministers would not describe the position as such because using such brutal economic language does not suit them, but that is what NICE will be doing. Having carried out that analysis, NICE will have to say which treatments in a rescource-constrained NHS should be delivered and, thus, by extension which treatments should not be available and which patients should be left untreated. I have spelt out my worries because I live in hope that the Minister will acknowledge that a large part of NICE's job is to do the dirty work, make difficult assessments and arrive at the tough decisions.
It is not necessarily wrong that there should be an entity that takes such decisions rigorously and consistently, but it is wrong that the Government, out of political cowardice, refuse to acknowledge that central role of NICE. They hide behind its misleadingly comforting title when, in reality, its primary role relates to cost effectiveness, not clinical excellence.
Should anyone think that I am merely fantasising, the chairman-designate of the National Institute for Clinical Excellence, Professor Sir Michael Rawlins, stated that affordability has to be taken into account. He said:
``It's no good us recommending a therapy if there isn't any money available''.
If the Department of Health advises NICE that a treatment could not be afforded, NICE would, said Professor Rawlins,
``say that it is clinically effective, but that we are unable to recommend it as there are insufficient resources to make it available to the patients''.
What price clinical excellence? To my simple mind, that is as clear a definition of rationing health care as one could seek.
All the Minister has to do is say, ``Rationing exists.''
4.38 pm
Sitting suspended for a Division in the House.
4.53 pm
On resuming—
Mr. Hammond: All that the Minister has to do is say, ``Rationing exists. It is piecemeal at the moment, and we believe that there is a better way to do it.'' The real debate could then begin. So long as Ministers deny the central function of NICE, any debate will inevitably take place in a surreal atmosphere.
Doctors at all levels—primary and secondary—are facing unprecedented interference in their freedom to prescribe. NICE, coupled with the computer-based Prodigy system and cash-limited drugs budgets, will lead to a massive increase in centralisation and bureaucracy in clinical judgment. Doctos will be put under extreme pressure professionally, through the Commission for Health Improvement, financially, through the cash-limited drug budgets, and because of the liability to follow NICE guidance and Prodigy recommendations.
The medical profession is becoming increasingly aware of what is going on. Hence the Government's reluctance to include NICE in the Health Bill, thereby avoiding the risk of facing detailed criticism of the institute's intended function. Indeed, Dr. Andrew Dearden of the British Medical Association's general practitioners' committee has said that although he accepts the need for cost-effectiveness, he increasingly fears that NICE is about cost first and effectiveness second.
The order does not, of course, define the role of NICE. To have done so would have let the rationing cat out of the Government's bag. It simply says that NICE will
``perform such functions in connection with the promotion of clinical excellence in the health service as the Secretary of State may direct.''
Although we are becoming used to massive use of secondary legislation by the Government, that appears to raise the technique to a new art form. The order is, essentially, an empty piece of secondary legislation, with the meat to be put on it by directions from the Secretary of State that will not be subject to any form of parliamentary scrutiny.
We know what the Secretary of State has in mind for NICE, because he has told us. We know what its function will be in his scheme of things. I am not a lawyer, but I wonder whether the role cast for the institute can be fitted into the definition in article 3, which states:
``the Institute shall perform such functions in connection with the promotion of clinical excellence in the health service as the Secretary of State may direct.''
Given what we know about the Government's intentions for NICE, and what the chairman-designate has already admitted about its functions, I wonder whether at some stage suitably disaffected patients or professionals might challenge the validity of directions to NICE currently intended by the Secretary of State.
Although the regulations form the longer document, I have little to say about them except that the army of draftsmen that the Department has at its disposal might have been expected to get the year right in the definition of ``the Act''. If I am not mistaken, the National Health Service Act referred to is 1977, not 1997. I cannot say what effect that has on the validity of the regulations, but undoubtedly it needs to be corrected.
The order and regulations establish an important body whose function is deliberately concealed through the use of language. Clinical excellence should be uncontroversial, as should an institute bearing that title. The Government's almost Orwellian preversion of language has made it controversial. The rationing debate, including the debate about the mechanics of rationing, needs to be held in the open. That requires a Government acknowledgement that rationing exists. In my humble opinion, the Government should separate clinical excellence from rationing control by limiting the function of NICE to examining clinical issues, so that it can enjoy universal support, while creating an explicitly political body to make rationing decisions for which politicians should rightly take responsibility in a democratic society, instead of sheltering behind a linguistic and institutional smokescreen. If the Government would openly acknowledge the problem of unlimited demand and finite resources in our health services, stop pretending that all patients receive all treatment from which they could benefit clinically, and engage in a mature debate about the future resourcing of the health service—I believe that, sticking my neck out, I speak on behalf of both Opposition parties—we could engage constructively in such a debate.
For those hoping for an outbreak of frankness on the part of the Government, the National Institute for Clinical Excellence is not an encouraging sign. Unless radical changes are made to its proposed function, or the Government acknowledge that rationing exists and needs to be rationalised, its prime purpose will be seen as providing a fig leaf for Government in rationing health care, while continuing to deny that such rationing exists.
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