Is a medical member still permitted to sit on the Tribunal if they are on the GMC register but not licensed to practice medicine in the UK?
Yes they are. They do not need a licence.
It would appear they are. See the Royal College guidance:
They are in England: see SI 2008/2692, r.1(2). But not in Wales.
Am I wrong in my assumption that this was the same for england and Wales and that Drs have to be on the GMC register but not required to have a licence to practice
This is what is says on RCPsych website
What are the Judicial Appointment Commission (JAC) requirements to apply to become a Tribunal Doctor?
- be a registered medical practitioner (but are not required to have a Licence to Practise)
SI 2008/2692 applies to the First-tier Tribunal (Mental Health) and to the Upper Tribunal. As far as I am aware, a similar provision has not been enacted for the MHRT for Wales.
Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008 which Richard referred to states:
1.— … (2) In this Order “registered medical practitioner” means a fully registered person within the meaning of the Medical Act 1983 whether or not they hold a licence to practise under that Act.
MHA 1983 sch 2 deals with the Welsh tribunal and states:
The Mental Health Review Tribunal for Wales shall consist of— …
(b) a number of persons (referred to in this Schedule as “the medical members”) being registered medical practitioners appointed by the Lord Chancellor; …
Interpretation Act 1978 s5 states:
In any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to this Act are to be construed according to that Schedule.
Interpretation Act 1978 Sch 1 states:
“Registered medical practitioner” means a fully registered person within the meaning of the Medical Act 1983 who holds a licence to practise under that Act.
The difference between the English and Welsh positions was pointed out by me to the Welsh Tribunal many years ago, but no action was taken. This does raise the question of whether a proportion of tribunal hearings in Wales over the last decade or so have been properly constituted.
The same question could be asked about English and Welsh MHRTs before 3/11/08.
Looking through old pages on the website I noticed Mental Health Tribunal for Scotland (Appointment of Medical Members) Amendment Regulations 2009. There are some background notes about changes to the GMC classification system.
That led me to look at the Interpretation Act again. Its definition mentioning a licence to practise was inserted by Medical Act 1983 (Amendment) Order 2002 (on 17/12/02, according to Legislation.gov.uk).
I’m still not entirely clear about the whole thing, but it looks like there was a problem in England for about 6 years and has been a problem in Wales for about 19 years. I wonder what the consequences could be, if any.
For Wales: A legal representative who is concerned about a decision of the MHRT not to discharge the patient should check whether the medical member has a license to practice. This is easily done on the website of the GMC. If it transpires that the medical member does not have a license to practice, the MHRT was not properly constituted and an application for the judicial review of the decision could be made.