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Time for fertility clinics to improve on compliance and procedures

30 April 2012
By Annabel Christie
Solicitor specialising in fertility and embryo storage law and compliance
Appeared in BioNews 654
Following the investigation of abortion clinics, fertility clinics should now improve their compliance and procedures so that there are no unwanted surprises if they are similarly inspected.

Earlier this month, the Care Quality Commission (CQC) found that one in five abortion clinics may be in breach of regulations and law. Of particular concern were issues with compliance such as doctors not filling out forms correctly or not taking the time to provide appropriate counselling and advice. Focus was also on findings that doctors are not taking time to follow procedures.

There are a number of areas in which fertility clinics can also sail close to the regulatory and legal wind in terms of compliance and procedure. For example, a recently reported alleged failure of procedure in IVF led to a mix-up leaving a couple with two children of different ethnic origins (1).

A more common failure of proper procedure and compliance is the denial by many fertility clinics of treatment to women who belong to population groups deemed to have little chance of motherhood. This practice is appealing to clinics as it allows them to keep their conception success rates high. So smokers, those over the age of 35 and overweight people often find that fertility clinics are refusing to treat them. But would this practice withstand legal scrutiny?

Even the women who are not sent away can be discouraged in other ways. The services provided by many fertility clinics are far from user-friendly and women can find themselves waiting for months to receive treatment. This is potentially in breach of a number of regulations, but to date there has been little investigation into or inspection of such procedures. As the number of women who are seeking fertility treatment is increasing, it is likely that that waiting times will also lengthen. This may then lead to complaints which in turn may spark review of practices adopted by fertility clinics.

Furthermore the attitude of the CQC to compliance and standards may change as a result of the criticism it has received for its previously lax inspections. This could mean that the regulator will be tougher in the future and the policies of fertility clinics may attract censure. Or worse: the abortion clinics that have not followed the law are now at risk of being shut down and the doctors who erred may face criminal investigation.

Clearly women seeking the help of abortion clinics were not getting the help and level of service that they are legally entitled to. As for fertility clinics, whether a woman has access to high quality services depends, more often than not, on the postcode in which she happens to live. And in many cases women are not provided with fertility treatment to which they are legally entitled because of what can be described as little more than excuses.

Even though increased age, obesity and smoking clearly do not improve the chances of pregnancy there are many women who conceive naturally who meet any or all of those criteria. Therefore refusing treatment to someone who is a bit older, a smoker or overweight may be questionable practice.

The women affected by such policies may yet claim that fertility clinics have failed them in their duty of care. Most worrying for fertility clinics is that classifying some women as old and refusing treatment on the grounds of age could be in breach of anti-discrimination legislation.

Were fertility clinics subjected to the same level of scrutiny that abortion clinics have recently endured then many practices currently accepted by practitioners as routine, but which are of questionable legality, may come to light. This possibility should ring alarm bells in clinics. They would be best advised to use the time available to them to improve their procedures and administration, and ensure they are in full compliance with all relevant regulations.

SOURCES & REFERENCES
1) Gay couple had two children from 'different racial backgrounds in mix-up at IVF clinic'
Mail Online |  29 April 2012
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