Fertility 2022 - Julia Chain, Chair of the HFEA

Speech to Fertility 2022 – 8 January 2022

Introduction

I want to begin by thanking the organisers for inviting me to give this speech and like many of you, I can only wish that it was in person. In the 9 months that I have been HFEA Chair, I have visited some clinics and I have seen first-hand the real positives in the work that you are doing - helping create new families, preventing new generations from suffering severe genetic disease, and supporting ground breaking scientific research.

And I have been impressed at how you have adapted your practices during Covid. I know many of you will have suffered personally and professionally since March 2020 and you will have helped patients navigate treatment during this stressful time. As the regulator, we have also adapted and changed during the pandemic, and I hope you will continue to give us honest feedback about this.

30 years … what has changed

Let me now turn to the theme of my speech today: the need for legislative change. Many of you will know that the HFEA is the first regulator of its kind in the world, and we are recognised as the global gold standard for innovative and effective regulation.

While our 30th anniversary is a cause for celebration, it should also be a prompt for reflection. Today I want to talk to you about some of the key changes we believe are necessary if we are to remain at the forefront of regulation in the years to come.

It is quite remarkable to note just how much has changed over the last 30 years. In 1991 there were under 7,000 IVF cycles; today there are around 70,000. In total, there have been around 1.3 million IVF cycles and over 260,000 donor insemination (DI) cycles, resulting in around 390,000 babies born.

But this is not just a story of about more treatment. People are using treatment in different ways. Take gamete storage for example, where improved freezing technologies have enabled more women to make decisions about when to start a family.

The last 30 years have also seen a remarkable increase in the use of embryo testing and IVF techniques to enable families to avoid serious inherited illnesses through the use of PGT M and hopefully in time mitochondrial donation.

And I want to make it clear that am unashamedly in favour of the continued importance of a specialist regulator overseeing fertility treatment and embryo research. For me, there is nothing comparable to the work that is done in HFEA on licensed treatments, research and storage centres, and for that reason alone – creation of life – I want to ensure that our regulatory oversight remains relevant for the next 30 years We also need to remember that although the law has enabled fertility treatment and research to develop over the last 30 years, it is not without opposition from some parts of society. The HFEA takes seriously our role to provide reassurance about the regulation of fertility treatment and research to ensure public confidence in this is maintained. Moreover, that trust helps create the conditions which allows innovation to take place.

Act is out of date

But as the Chair of the HFEA my dilemma is this: given the extraordinary medical advances and changes in social attitudes to fertility treatment over the last 30 years, how is it possible to regulate effectively with a law that is largely 30 years old? The Human Fertilisation and Embryology Act was passed in 1990 and although the Act was amended in 2008, it left the basic regulatory scheme untouched. These Acts were revolutionary for their time – but time has moved on!

The detail of the Act makes for fascinating reading but I cannot see any words in it relating to patients, patient safety, or even outcomes of treatment. To me, the role of the regulator must be to keep all those three things at the front of our work.

To say that we desire change is not to say that we can’t regulate effectively with the tools we have currently at our disposal. But we need constantly to be looking ahead and always look to improve where we can.

Use the current model well

Today:

• Our inspection regime provides patients with the assurance that clinics meet high essential standards of care and many of you will have seen how we have adapted that regime during the pandemic. The feedback we have received so far about our new hybrid inspection model suggests that this is a welcome development for both clinics and indeed our inspection team. We will not be returning to the old inspection model post Covid.
• Our Code of Practice provides clinics with guidance that if followed will ensure good practice.
• Our website and Choose a Fertility Clinic tool provide patients with clear, impartial information about the performance of licensed clinics and the treatments on offer and our new Patient Forum, I’m delighted to say, will also give a direct voice to patients’ concerns.
• And we have been able to make real progress on issues where we lacked formal powers. To give just two examples. The incidence of multiple births in the UK has reduced from 25% to a national average of 6% in just 12 years. That is a remarkable achievement in public health and a testimony to co-operative action by the HFEA, the professional bodies and clinics. And on treatment add-ons, we have agreed a consensus statement with all the key professional groups about their ‘responsible’ use. Much remains to be done on add-ons I know, but this is an essential starting point.

But we are at the limits of what is possible with those regulatory tools and the way in which the fertility sector is developing means that we now urgently need to think about the future.

Changes since Warnock

There have been many big changes since Mary Warnock first considered these issues in the 1980s. Changes in the types of treatment offered and the technologies used. The rise to dominance of commercially operated fertility clinics. The range and types of family relationships that assisted reproduction can now reflect or even make possible. And the ground-breaking advances that UK scientists have been able to make with potential for healthcare and family formation in the future. These changes could not have been foreseen by those who first understood, rightly, that the fertility sector needed its own regulation.

We have to regulate a sector that is also unique in the UK health care system for its inconsistent funding model. In England, more than 65% of patients are now self-funding and NHS funding is very patchy, with the availability of even partial NHS funding largely dependent on where a patient lives – the so-called postcode lottery. The UK has over 100 licensed clinics and most of them are successful, well-run businesses, providing high quality services. But we will always need to ensure that the regulator has the powers it needs to ensure that commercial interests do not outweigh robust scientific evidence and good medicine; this is very hard to do under a 30-year-old Act which feels as though it primarily envisaged provision of fertility care by the NHS.

So, what I want to do today is set out the areas of the Act that I think need to change. But I want to preface this with two statements. First, that much of the Act remains fit for purpose, what is needed is a selective modernisation of the Warnock settlement as reflected in the Act not its wholesale rejection. Secondly, and I’m sure quite obviously, any changes to the Act will be a matter for Parliament –– but we need to make our own case clear.

Three areas of focus

I want to focus on three areas of the Act:

Patient protection…

The Act has much of importance to say about the embryo but is silent on the patient and does not reflect patient centred care as being a cornerstone of good treatment. We know that patients want to feel involved in their care and have a real say in what happens to them. I know that most clinics, most of the time, have their patients’ needs at heart, regardless of what the law says. But where care falls short, we all expect regulators to be able to respond as effectively as possible to support patients as best they can. In an increasingly commercialised area of medicine, this lack of focus on the needs and protection of the patient is out of step with modern healthcare.

The HFEA also wants to ensure patient centred care is at the cornerstone of our legislation. For example, whilst the majority of clinics are now well below the 10% multiple birth rate target, we have no legal powers to ensure all clinics operate at this level. Other aspects of patient safety such as OHSS is also only within our guidance.

We also expect regulators to be empowered to head off foreseeable problems before they arise or escalate, or to take proportionate action quickly. However, the Act makes it very difficult to use enforcement mechanisms to drive improvement when addressing poor performance. The sanctions in the Act range from the mild and often ineffective; a sort ‘slap on the wrist’ if you will, to the severe and potentially disproportionate – for example the removal or suspension of a licence with potentially negative consequences for patients in treatment. The way our legislation works is that the highest bar of regulatory action has to be reached before, for example, a licence can have conditions attached to it. This lack of flexibility limits our ability to take proportionate action.

I do not think the enforcement powers we currently have – reducing, restricting or removing a licence are appropriate in the modern world.

What is striking is the absence a graduated ladder of enforcement, including powers to use economic sanctions such as fines to encourage compliance. In a commercialised sector such powers could drive improvement quite effectively. Moreover, our existing powers are anything but agile – in a world where feedback on clinics, individual doctors and comparisons between clinics takes place all the time, the powers we have make it difficult to move quickly when we spot something of concern.

Some of you will have seen this reported in the press last month with a rather provocative headline ‘regulator wants to fine clinics offering add-ons’. This is not actually what I said – but I do think that where clinics miss-sell products or services including, but not exclusively treatment add-ons, we do think that economic sanctions such as fines would be an effective means to hold those clinics to account.

In sum, our regulatory powers are limited, they do not cover any economic sanctions, are blunt and do not work flexibly in the modern regulatory environment. I am not saying this because the HFEA want more powers, but because we want a greater range of powers that are more appropriate to the sector today.

The Act also fails to reflect the fact that fertility treatment in the UK is an increasingly commercial market and unlike most aspects of healthcare the majority of treatment is provided by the private sector. That is not to say that private healthcare is inferior or less trustworthy than that provided by the NHS. Let me be clear: there is great care being offered in both the public and private sector. But the reality is that in fertility treatment, as in all other areas of healthcare, the financial imperative of commercial provision, presents different regulatory challenges. I think we must be honest about the challenges this presents in the way the current law is written.

• First, the Act currently assumes an ownership model where the clinician is in charge, and if it’s in the private sector, is the owner of the business. This is increasingly not the case. Many private clinics are moving to a structure grouping several clinics often under one brand, with a range of shareholders and often with private equity funding. Currently, the HFEA’s regulatory levers apply to the ‘person responsible’ not the financial owners.
• Second, fertility patients find themselves in a position where they are having to make complex and expensive purchases at a very stressful time in their lives. And this is made more difficult by the increasing offering of so-called treatment add-ons, where some clinicians disagree about the effectiveness of certain tests or treatments, with the result that patients may be confused and even vulnerable to exploitation. The very welcome work from the Competition and Markets Authority and Advertising Standards Authority will help here. But we need to ask whether it would make more sense for the regulation of all aspects of fertility treatment to be in one place, rather than split between different regulators. Improving our own regulatory powers could help patients better navigate this area of healthcare and greater transparency will help ensure prices are kept fair and competitive. I reiterate my earlier remarks that this is to enable clinics to be held accountable where great practice is rewarded. For me an end – to – end fertility regulator would make much more sense than the present situation where other regulators have to support our work. Again, I don’t say this because I am unappreciative of the support from other other regulators, but because it no longer feels appropriate to say that our role starts at the clinic door but stops at the clinic website. Information is given to patients and prospective patients in many ways and we all have a responsibility to ensure that this is timely and accurate.
• Third, the Act is overly prescriptive about the methods of compliance and enforcement – for example it requires the HFEA to inspect the licensed premises “at an interval not exceeding two years”. The lack of discretion in the Act means that the HFEA cannot, for example, ‘reward’ high performing clinics with fewer inspections, as is the case with many other regulators.

In thinking about the regulatory framework set out in the Act, there will also be opportunities to address some of the other concerns that the sector has expressed to us over the years, including the idea, for example, of deputy PRs to spread the regulatory burden. This is not the time for a conversation on the fine detail, but we will want to find the time over the coming months to resolve such issues.

Scientific developments…

So moving to the second area which is scientific development. We need an Act that enables research to be carried out in the spirit of the Warnock principles while understanding that some of those principles have been overtaken by modern medicine and new scientific discoveries. This leaves some areas of the Act simply out of date. The International Society for Stem Cell Research has already called for a debate on the so-called 14-day rule. Let me be very clear, I am not calling for a change to this rule now. But if there is a change to our legislation in the coming years, it must have some element of future proofing to accommodate future scientific developments.

Also the Act is overly prescriptive in terms of process which limits its flexibility for future proofing. The Regulations, for example, that allow mitochondrial donation set out two allowable techniques. Should a third unspecified technique be invented that would not be allowable under current legislation, even if it were clinically more effective and it would require a change in the law before it could be used. Legislative change should not be required every time science develops.

The Act has few controls over new treatments or tests and lacks any means to encourage innovation through conditional or trial approvals – and while the Act allows the HFEA to approve novel treatments, it is limited in its scope and lacks a mechanism, where the regulator could approve a treatment for a specified period of time before assessing real world evidence. This acts as a potential brake on innovation and a ‘regulatory sandbox’ type power that some regulators have used would potentially help here.

Consent, data sharing and anonymity…

Consent is the cornerstone of the Act and is central to modern medicine generally. However various aspects of the current rules around consent are overly complicated, for example, the taking of consent is more costly than it needs to be for clinics and increases the risk of errors for patients, some of which have had a significant impact on parental rights, requiring court action.

Enacted at a time when the whole idea of fertility treatment was considered controversial and often stigmatised, the Act assumes a degree of fertility treatment-specific data confidentiality which is increasingly out of date. Thirty years ago there was a different attitude to fertility treatment, it wasn’t mainstream medicine and patients may not have been as open as they are now about having treatment.

The consent to disclosure process is restrictive and burdensome and there is a clear argument that the extra level of confidentiality over other areas in medicine is simply not needed now. The legislation around confidentiality makes it it very difficult to share data which can be problematic when the patient transfers, for example, from the IVF unit to maternity care and when communicating with GPs. This is something that many of you have raised with us over the years. It is increasingly an aim of modern medicine that a patient’s data can move with them around the system and although the correct consents can deal with this, it is time to modernise some of the restrictions on data sharing in the HFE Act.

The HFEA Register has to meet higher standards of confidentiality than is typical in other healthcare records, at considerable cost. This can create barriers to sharing the data that we hold on treatments for important purposes such as research. We hold the largest database of fertility treatment in the world and we want to make sure it is used. As the use of ‘big data’ is discussed across the health sector and artificial intelligence is becoming more common-place, we will need up to date regulatory tools to ensure we can engage with this.

New thinking is required to understand what data confidentiality is essential to support patient care without either prejudicing that care or putting up an unnecessary barrier to much needed research.

The absolute anonymity of donors in the original HFE Act reflected concerns at the time but is no longer how we look at this. Regulations modernised this position to an extent in 2005 to allow a managed identifying information release to donor conceived adults in future (and we welcome the first cohort of these young adults in 2023). However, the reality is that donor anonymity as we knew it has gone. It has long been overtaken by shifts in social attitudes about fertility treatment and donation and the growth in affordable direct to consumer DNA tests, which allow individuals to ‘match’ and establish their genetic relationships with an increasing degree of accuracy, much of which can be provided with, or provide inference of, named individuals. New thinking is required to both understand exactly what data confidentiality makes sense in the current environment and the role of the regulator in supporting individuals who find out they are donor conceived.

I know some have said that donors should be able to remove their anonymity at the point of use. Questions like this need to be discussed and the implications considered in light of the consumer appetite for DNA testing and finding out information as quickly and in a child’s case, often as early, as possible.

Next steps

There is much to explore in the areas I have just outlined, and I have only touched upon the headline ideas today.

30 years in, now is a good time to reflect and update the Act arising from Mary Warnock’s legacy. We need a modernised law and during my tenure as Chair, this will be one of my main priorities. I recognise that this will take time and it will require detailed discussions with all of you. But I would hope we are able to make relatively quick progress. After all we are not starting with a blank sheet of paper and much of the Act remains fit for purpose. My aim is to reach an outline agreement with the Department for Health and Social Care by the end of this year on what needs to change.

And we want to take stakeholders with us, clinics and, crucially, patients. Rest assured, we will not pull out a surprise set of recommendations at the end of this year. We want to develop these ideas with the professional bodies, with PRs and with you, so, when we call you to ask for your views – please make time to help us move this forward.

I know from talking to clinic staff and HFEA colleagues that the regulator and the regulated have generally worked well together on a range of issues in recent years .I am certain that that spirit of collaboration will continue to enable us - together – to work towards some of the most important changes in the regulation of the sector in a generation.

I am not embarrassed about being impatient for change – we want to remain at the forefront of regulation, but we need to change to be able to provide that end-to-end regulation to continue to act in the best interests of patients in another 30 years from now.