National Assembly for Wales

Llywydd, I move amendment 1 in my name, which seeks to ensure that, in widening eligibility for medical membership of the Mental Health Review Tribunal for Wales to those without a licence to practise, we do not inadvertently widen it to those whose General Medical Council registration is subject to formal restrictions, suspension, interim suspension conditions or undertakings under the Medical Act 1983. Just in layman's terms, what does that mean? The GMC can restrict a doctor's registration where there are patient safety or professional conduct concerns. Sometimes, that means suspension, they can't practise at all, or interim suspension while matters are investigated, sometimes conditions—they can practise only within limits—and sometimes undertakings, binding commitments about what they will or won't do in practice. These are serious regulatory tools, and they exist to protect patients and maintain confidence in the profession.

The reason we bring this amendment, Llywydd, is that the appointment system already appears to be operating to this standard. The Judicial Appointments Commission's own documentation for medical member roles, including the first-tier mental health tribunal in England, states in terms that medical members must have unconditional registration with the General Medical Council, and recruitment material for the mental health tribunal for Wales has used exactly the same language,

'open to registered medical practitioners with unconditional registration with the GMC'.

Crucially, this is not just my interpretation of JAC paperwork; the Counsel General herself told the Senedd yesterday that medical members will have unconditional GMC registration alongside other requirements and training. Now, if that is the assurance the Government is relying upon, then placing the same safeguard on the face of the Bill should be consistent, in our view, with the Government's own position.

What is particularly striking is that, in at least one JAC selection report, they explicitly distinguish between the statutory eligibility test and the non-statutory appointments filter. The statutory test is fully registered, whether or not licensed—the very wording currently this Bill adopts—but the non-statutory eligibility criterion then adds the further safeguard that registration must be unconditional. In other words, the appointment system is already telling candidates and the public, 'Yes, the statute sets a floor, but we apply a higher standard in practice.'

So, the question today before us is simple: if that is the practical safeguard the system is already applying, why not reflect it on the face of this Act, where the definition we insert will sit on the statute book long after this immediate emergency has passed? There's also, I think, Llywydd, an operational and governance point. We've heard references to ongoing checks, and in other tribunal contexts it's been stated that GMC registration is checked at least annually through appraisal processes and that members are expected to notify the GMC of any change. If that is the intended approach here, it's all the more sensible to make the statutory eligibility test explicit so that those checks are anchored to a clear legal threshold and do not rely on administrative practice.

There is a wider public confidence point here. This is a tribunal making decisions that go directly to liberty. In that setting, the public are entitled to know that in removing a licence to practise requirement, we are not lowering standards. Indeed, we are giving greater regard to the absence of formal restrictions imposed by the regulator on a doctor's registration.

So, I ask the Counsel General—I'm grateful for the conversation we were able to have about an hour ago—is she willing to accept this amendment at this stage, which aligns the statute with what the JAC appears already to be saying in its documentation, unconditional registration in practice, while keeping the pool open to fully registered retired clinicians who do not hold a licence? And if she is not able to accept it at this stage, can she explain why the standard is set out in recruitment materials, but why it should remain non-statutory rather than placed in law when we are, in effect, rewriting the eligibility test in the statute today? In our view, if the Government's assurance is that medical members already meet that higher bar, then this amendment should make no practical difference to capacity, except to strengthen legal certainty and, crucially, public confidence.

Diolch, Llywydd. My thanks to the Member and his staff for working with the incredibly tight timetable for this Bill, and I'm really grateful, Adam, for the conversation we just had. I also can't remember quite how long ago it was; it seems like two minutes ago.

Whilst, as you know, we agree with much of the intention behind the amendment, as I explained to you, we don't support the amendment as currently drafted. The risk in particular is that we don't know whether the amendment might actually, to some extent, negate the purpose of the Bill.

So, let me start with the easier question, which is suspension. Here, I think the effect of the amendment is to entirely duplicate the existing law. The Medical Act 1983 already provides that if your GMC registration is suspended, you are no longer GMC registered as a matter of law. This means that, once suspended, the person may no longer sit as a medical member on the tribunal. So, the first part of the amendment is unnecessary.

In respect of the conditions or undertakings placed on a person's registration, matters are a little more complicated. Conditions or undertakings could feasibly relate to a wide variety of matters that potentially have nothing to do with a person's ability to sit on the tribunal. What condition to apply or what undertaking to accept will have been given detailed thought on a case-by-case, individual-by-individual level and might have occurred after appointment. So, they might have been unconditional at the point of appointment and then had some condition afterwards. Some of the conditions are positive—they aren't things the individual has done wrong; they are things the individual needs to do to improve an area of clinical law or to bring a foreign qualification up to a particular standard, for example, as we discussed earlier.

We don't know right now whether any existing medical members have conditions or undertakings attached to the registration. On an operational level, we are going to do our absolute best to ascertain that information today, but I don't know whether we will be able to or not. We are going to do our best to do that this afternoon, as I explained earlier. So, the amendment could, in theory, further reduce the operational capacity of the tribunal, which would go against the whole purpose of the Bill.

Finally, I absolutely recognise the point that Adam Price has just made. The Judicial Appointments Commission asks when candidates apply for the post in the tribunal that they have an unconditional licence to practise. That goes over and above the legal requirement, as you have just said, and, as a non-statutory requirement, could be subject to discretion on the part of the Judicial Appointments Commission in appropriate circumstances. It also does not guarantee that the licence will remain unconditional throughout the term of office on the tribunal, as I've just said. This, in turn, raises questions about how we can have certainty that the tribunal is notified of any conditions placed on the licence, and that is something else we will be exploring this afternoon following our earlier conversation. So, in light of all of that, I'm asking Adam Price not to press the amendment to a vote today, and we can continue the debate at Stage 3. Diolch.

I am grateful to the Counsel General for that response. I think, based on what she has shared, the essence of the question is the contradiction, seemingly, between the requirement for unconditional registration—so, not just full registration, which is the current words in the text, but unconditional registration—which is an eligibility requirement at appointment, but it is not an eligibility requirement for continued membership of the panel. I think that there is an obvious contradiction there, and the fact that we do not know whether current members have conditions that have been subsequently applied, I think, makes the point, doesn't it, that actually there is value in having that as a statutory eligibility requirement because then that would necessitate an up-to-date record of whether conditions have been applied. The GMC will have this information because, obviously, they apply the conditions. We don't currently have it, and this is a means for us to ensure that we can achieve the requirement, really, for public confidence by putting it on the face of the Bill.

We have engaged with stakeholders. The initial responses that we've had so far have been positive in relation to this amendment, but we're continuing to engage with them. For the reasons that the Counsel General has set out, with the leave of the Senedd, I will withdraw at this stage. It was designed as a probing amendment in order to elucidate some of the finer detail of the questions, but we do intend to return to this matter at Stage 3. So, we'd like to withdraw at this stage.

Adam Price is withdrawing the amendment at this stage and, unless anybody wishes to object to that in the committee, then amendment 1 will be withdrawn.

I move amendment 2. Obviously, at the heart of the Bill is the decision to amend the eligibility for medical membership of the Mental Health Review Tribunal for Wales, to remove the need for a current licence to practise, provided those medical members are fully registered with the GMC. And we understand why the Government wants to amend the Act, for the reasons of restoring capacity and protecting patients' rights to timely hearings. But if that is the policy, then we have to be equally clear in our view about the safeguard that must sit alongside it that hearings remain not only timely and fair, but informed by up-to-date clinical expertise.

The Counsel General rightly referred to training and guidance arrangements in her remarks yesterday, but the statutory duty on the president of Welsh Tribunals is a general one—training and guidance across the tribunal system. What this amendment seeks to focus on is the need to ensure currency in terms of medical knowledge of those members particularly who do not hold a licence to practise. That matters, Llywydd, because while a licence to practise is not a perfect proxy for competence, it is closely associated with a doctor being in an ongoing framework of professional updating. Once we remove that requirement, it becomes even more important that the tribunal's training arrangements include specific provision for medical members who are not in current licensed practice so that clinical knowledge doesn't drift and confidence in decisions doesn't erode. That's exactly the concern raised by stakeholders. Mind Cymru has asked what safeguards exist to ensure that those usually retired medical members who no longer hold a licence to practise are sufficiently informed of modern practice as it develops, and Adferiad has put the point clearly as well that patients and families need reassurance that hearings will remain timely, fair and informed by up-to-date clinical expertise. So, these are not abstract concerns; they go to legitimacy and trust in a tribunal that makes decisions about liberty.

Now, I want to be clear about what we're not saying. This is not a criticism of retired clinicians—many bring deep experience—and it's not a suggestion that legal or procedural training, which is the focus of the current training that's provided, is unimportant—of course it is. But the training that we often point to in tribunal contexts does tend to skew heavily towards law, procedure and process. What this amendment is aimed at is something slightly different: making sure that, where we rely on non-licensed medical members, there is an explicit expectation of clinical currency—updates in clinical standards, guidance and contemporary mental health practice—that will be relevant to tribunal decisions.

So, the amendment is deliberately modest. It does not create a new bureaucracy. It does not cut across the emergency purpose of the Bill. It simply makes explicit that the training and guidance arrangements must include provision appropriate for medical members who do not hold a licence to practise. Now, if the Government's position is that arrangements already exist and are robust, then accepting this amendment should be straightforward. It shouldn't reduce capacity, but it would strengthen legal certainty and public confidence. And it's on that basis that we present it to the Senedd.

Diolch, Llywydd. Once again, I agree with the intention behind this amendment, but respectfully suggest the amendment isn't necessary, stroke doesn't quite say what's intended in its wording. So, section 60 of the Wales Act 2017 already provides that the president of Welsh Tribunals is responsible for

'the maintenance of appropriate arrangements for the training, guidance and welfare of members of the Welsh tribunals within the resources made available by the Welsh Ministers'.

This responsibility extends to all members of the Welsh Tribunals, including medical members of the Mental Health Review Tribunal for Wales.

Llywydd, I'll just rehearse again what I set out yesterday about just how well qualified these individuals are in practice. Each medical member has been appointed by the Judicial Appointments Commission, following a rigorous process. They have registration with the General Medical Council as a fully registered medical practitioner. They will, at the time of their appointment, have held a full-time or part-time appointment as a consultant psychiatrist for at least three years, one of which in the last five years, and they will have membership of the Royal College of Psychiatrists, so they are qualified to do the work.

I understand from Adam, and I'm grateful for the conversation earlier, that the amendment is targeted at the theoretical risk about specific individuals not necessarily keeping up to date with the latest developments in practice. There's also a limit to how far that is actually required. [Interruption.] Yes, of course.

Thank you very much. What I haven't heard during this discussion is any mention of the Mental Health (Wales) Measure 2010, which is a devolved piece of legislation, as we all know, that was passed by this Senedd 16 years ago, and what your assessment as Counsel General would be of the integrity of the Welsh mental health Measure, given the amendments that we're discussing here this afternoon, and whether that piece of legislation that was passed in 2010 needs a review to keep on track with non-devolved legislation, such as the amendments to the Mental Health Act 1983 that we are discussing now.

Thank you. I'm not aware that it has any effect at all, but I will definitely look again at that before Stage 3, and if it does have an effect, I will mention it then.

What the Measure does essentially focus on is the delivery of mental health services, which is obviously what we're discussing today, with the qualifications of the GMC practice and people who are qualified to work on those conditions. So, on that aspect of the delivery of mental health services, I think it could be prudent on the Government and yourself as Counsel General to look into those aspects to see how that can marry up with the devolved pieces of legislation that, indeed, we're looking at in a more global sense here this afternoon.

Yes, thank you for that. As I said, I don't think it has any effect on it at all, because we're talking here about the qualifications of people sitting on tribunals and not the qualifications of people in clinical practice in Wales, but I will check again, just to be absolutely certain. At this point in time, I'm as certain as I can be without that one additional check that it has no effect at all.

As I was saying, there is a limit to how far keeping up to date with the latest developments in practice is actually required. If the extent of requirements for people to sit on the tribunal were to be as extensive as the requirements to retain a licence, that would again, to some degree, negate the purpose of the Bill, as those people may simply stop sitting because they're obviously retired and they don't want to keep their licence up.

As we discussed earlier, my officials and I are working to discuss the practical implications and risks of this amendment with various people, such as the president of Welsh Tribunals, this afternoon, on whom the statutory responsibility would sit. And in respect to that office, I ask the Member not to press to the vote at this stage, while we consider with the president of the tribunals what it might mean. And if it is something the president of the tribunal wants to do, then I think there would be a small tweak necessary to the wording in any event, as we discussed earlier. So, I'm more than happy to return to it at Stage 3. Diolch. 

I thank again for the Counsel General's response. I think the issues, it strikes me, are these: there is a general requirement, the Counsel General is absolutely right, of course, on the president of the Welsh tribunal system as a whole, to provide training across the tribunal system. That general training generally relates to law and procedure, yes? The problem or the issue that we're trying to solve here is a very specific one—in removing the need for a licence to practice, as stakeholders have raised with us, how are we able to make sure, as time goes on, that medical members, who don't have a current licence, are keeping up to date as clinical practice and knowledge moves on, in as much as it’s relevant to the decisions of the tribunal?

I think that the point in relation to the eligibility requirements at appointment—. Again, they make the point for me, really, because there are these higher requirements at appointment, including, as the Counsel General says, having been a consultant, either full time or part time, within a certain previous period, or membership of the Royal College of Psychiatrists. Both of those, in some ways, give some assurance in terms of current knowledge. The problem is, well, what if you, then, are on the tribunal for 20 years? In a different context, we did discuss—. Indeed, the president of this tribunal was the president for over 25 years. So, there needs to be a mechanism to make sure that we check that current knowledge for medical members who are not currently licensed to practice, not just at the point of appointment, but consistently over the period of their membership of the panel. And I think it would be possible. That's why we don’t go into the detail of what the standard should be. It just places a requirement. I don't think that needs to be onerous. I don't think it’s the same as clinicians having to maintain the very same standard that they would in order to maintain their licence to practice. But there needs to be something, and I don't think that we can subcontract this to the JAC, either, because I don't think that this is going to be high up the order of priority, if I can put it in those terms. We need to make it our priority, because, obviously, the robustness of our arrangements, in terms of our medical health review tribunal, are important. But on the basis that the Counsel General has set out, as we continue to engage with stakeholders, I'd be happy to continue to engage with the Government, withdraw at this stage, and return to this matter at Stage 3.

Adam Price is proposing to withdraw the amendment, and unless anybody disagrees with that in committee, then that can happen. The amendment is withdrawn.