The General Medical Council v James Gilbert & Anor

Lord Justice Bean:

1. This is an appeal by the General Medical Council (“the GMC”) and the Professional Standards Authority for Health and Social Care (“the PSA”) from a decision of Calver J in the Administrative Court. The judge had allowed an appeal by the GMC and the PSA against aspects of a determination of the Medical Practitioners' Tribunal (“the MPT”), but only to an extent which the GMC and PSA argue was too limited. I adopt with gratitude the judge's summary of the factual background, the allegations against the Respondent surgeon, Mr James Gilbert, and the determinations of the MPT. The factual background

2. Between October 2008 and September 2009, Mr. Gilbert worked as a Senior Registrar at the Oxford University Hospitals NHS Foundation Trust ("the Trust"). He subsequently returned to the Trust and worked as a Consultant Surgeon between October 2010 to May 2022. It was subsequently alleged that he engaged in inappropriate conduct on various occasions between August 2009 and April 2022 towards six colleagues. The Trust investigated the allegations and dismissed Mr. Gilbert on 20 May 2022. The GMC opened an investigation into Mr. Gilbert's fitness to practise after receiving a referral from the Trust in June 2022.

3. Following his dismissal from the Trust, Mr. Gilbert completed NHS 'choose and book' outpatient appointments and surgical lists at The New Foscote Hospital, carrying out hernia repair surgery. He also undertook locum shifts as a Registrar in general surgery at the Brighton & Sussex Hospital from August 2022 until January 2023. From January 2023 to the time of the Tribunal hearing, Mr. Gilbert was appointed to the role of Chief Medical Officer at The New Foscote & Royal Buckinghamshire Hospitals Group. He continued to carry out NHS hernia waiting list clinics and surgeries, but also had a leadership and managerial role. The allegations and the Tribunal’s determinations

4. The Tribunal heard live evidence from the alleged victims, and from Mr. Gilbert and seven medical professionals called on his behalf. Its conclusions on the allegations are summarised at paragraph 400 of its Determination on the Facts. The majority of the allegations against Mr. Gilbert were found to be proven (in addition to those which had been admitted by him), and the Tribunal made the following factual findings in respect of them: Allegation Description Finding Ms A 1(a)(i)(1) On one or more occasions you behaved inappropriately towards [Ms A], in that you made inappropriate comments in that on a date between April 2019 and October 2019, during an operation you said to Ms A 'so are you a spurter? I can always tell which girls are the spurters', or words to that effect; [and] Proven 1(a)(ii) On a date between April 2019 and September 2019 you said to Ms A, 'You're a well put together girl, you must always wear matching underwear, correct? What kind are you wearing now?', or words to that effect"; [and] Proven 1(a)(iv) On a date between August 2009 and February 2010 you said to Ms A, 'oh no you need to come very quickly because they need to go and they have a really big organ, a huge organ and I know how much you love big organs', or words to that effect. Proven 1(b)(i)(1)-(2) You touched Ms A inappropriately without her consent, in that i. on one or more occasions between August 2009 and February 2010, you grabbed Ms A by the waist; [and] ii. ran your hands up and down Ms A's body from her hips to her bra line. Proven 1(b)(iii) On or around 9 February 2021 you traced your finger across Ms A's wrist, up her arm, over her shoulder and over her clavicle to her sternoclavicular notch. Proven 2(a) Your actions as set out at paragraph 1 were sexually motivated; [and] Determined and found proved in respect of paragraphs 1(a)(i)(1), 1(a)(ii), 1(a)(iv), 1(b)(i)(1) and (2) 2(b) Constituted sexual harassment as defined in Section 26(2) of the Equality Act 2010 , in that you engaged in unwanted conduct of a sexual nature which had the purpose or effect of violating the dignity of Ms A, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her; [and] Determined and found proved in respect of paragraphs 1(a)(i)(1), 1(a)(ii), 1(a)(iv), and 1(b)(i)(1) to (2) 2(c) Were an abuse of your more senior position. Determined and found proved in respect of paragraphs 1(a)(i)(1), 1(a)(ii), 1(a)(iv), 1(b)(i)(1) to (2), and 1(b)(iii) 7 On a date in or around the winter of 2019 you said to Ms A about a patient during a ward round, 'you know how Africans clean themselves once they've gone to the toilet? They just use their hands, no wonder they always get infections', or words to that effect. Proven 8 On a date in or around January 2020 you said to Ms A about a junior colleague, Mr. D, 'I know people like him, I used to know Africans as well….so I know these Africans, they are only interested in a good time, they only come out after the sun goes down', or words to that effect. Proven 9(a) Between April 2019 and April 2022, you said to Ms A 'those two women, they love a good cat fight. Typical hysterical Bollywood women,' or words to that effect; [and] Admitted 9(b) In reference to a patient of Asian origin's weight, 'eating too many chapattis', or words to that effect; Proven 9(c)(i)-(ii) In reference to a person of African origin's weight: i. 'eating too much rice', or words to that effect; [and] ii. 'Africans don't do anything unless they are really sporty' or words to that effect. Proven 10(a)-(b) Your comments as at paragraphs 7 – 9: a. constituted harassment related to race as defined in section 26(1) of the Equality Act 2010 , in that you engaged in unwanted conduct related to race, which had the purpose or effect of violating the dignity of Ms A, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her; [and] b. were racist. Proven Ms E 11(a) On one or more occasions between April 2011 and April 2013 you behaved inappropriately whilst at work towards your junior colleague Ms E in that you tickled her when you were alone with her without her consent; [and] Admitted 11(b) Grabbed and massaged her shoulders without her consent; Admitted 11(c)(i)-(iii) On one occasion in an office you: i. sat close to her, in that Ms E was trapped against the wall and window and was unable to move away; ii. stared at Ms E; [and] iii. said, 'I have been watching you and you're pretty perfect', or words to that effect whilst staring at Ms E's body and breasts; Proven 11(d) Asked her if her underwear was a matching set, or words to that effect; Proven 11(f) Squeezed her thigh between your thighs under the operating table; Proven 11(g) Said during operations when asking her to use the heparinished saline flush, 'Oh I didn't know you're a spurter?', or words to that effect; Proven 11(i) Said, after being told that Ms E may require dialysis, 'Well, when you need dialysis, I would love to do a high thigh fistula for you', or words to that effect; Proven 11(j) Telephoned Ms E outside of work when you had no reason to do so; Admitted 12(a)-(c) Your actions as set out at paragraph 11(a) – 11(i) were: a. sexually motivated; b. constituted sexual harassment as defined in Section 26(2) of the Equality Act 2010 , in that you engaged in unwanted conduct of a sexual nature which had the purpose or effect of violating the dignity of Ms E, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her; [and] c. an abuse of your more senior position. Determined and found proved in respect of paragraphs 11(a), (b), (c)(i) to (iii), (d), (f), (g) and (i) Mr. F 14(a) and (b) On one or more occasions between February 2013 and November 2019, whilst at work you: a. you imitated an Indian accent in the presence of Mr. F; [and] b. asked Mr. F, 'oh when are you leaving the country now,' or words to that effect, with reference to Brexit. Admitted Ms G 16(b)(i)-(v) Between 2 April 2014 and 18 June 2014 you behaved inappropriately whilst at work towards your junior colleague Ms G in that on 11 April 2014 you made inappropriate comments in that you: i. asked if Ms G was single; ii. said that you 'knew what [Ms G] needed in a man', or words to that effect; iii. said that she 'looked great in a pair of scrubs and didn't need to go to the gym', or words to that effect; iv. said that you were 'looking forward to getting [Ms G] on a night out', or words to that effect; [and] v. said that you 'bet [Ms G] was really wild on a night out', or words to that effect; Proved 17(c)(i)-(ii) Your actions as set out at paragraph 16 were: a. sexually motivated; b. constituted sexual harassment as defined in Section 26(2) of the Equality Act 2010 , in that you engaged in unwanted conduct of a sexual nature which had the purpose or effect of violating the dignity of Ms G, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her; [and] c. an abuse of your more senior position. Determined and found proved in respect of paragraphs 16(b)(i) to (v) and 16(c)(i) to (ii) Ms H 20(b)(i)-(iii) Between 1 April 2015 and 30 September 2018 you behaved inappropriately whilst at work towards your colleague Ms H in that: b. on a date between July 2015 and summer 2016 during a conversation with Ms H, whilst carrying out a procedure, you: i. said you could see how professional she was in squirting, or words to that effect; ii. said 'I didn't realise you were a squirter', or words to that effect; [and] iii. asked if she was like this as a woman, or words to the effect, in reference to your comments as described in paragraphs 20.b.i and/or 20.b.ii. Proven 20(c)(i)-(ii) On an occasion in Summer 2015 or 2016 you: i. touched Ms H's left knee from behind; [and] ii. said 'your legs are so sporty', or words to that effect; Proven 20(d)(i) On a date during the end of 2017 and beginning of 2018, you directly approached Ms H in a corridor and: i. put your hands underneath her jacket and touched her waist; Admitted 20(d)(ii) ii. said, oh dear it's a bit too narrow for both of us here…but it feels incredibly nice', or words to that effect; Proven 21(a)-(b) Your actions as set out at paragraph 20 were: a. sexually motivated; [and] b. constituted sexual harassment as defined in Section 26(2) of the Equality Act 2010 , in that you engaged in unwanted conduct of a sexual nature which had the purpose or effect of violating the dignity of Ms H, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Determined and found proved in respect of paragraphs 20(b)(i) to (iii), 20(c)(i) to (ii), and 20(d)(i) to (ii) Ms I 22 On or around 7 August 2020, you said to Ms I about a patient during an organ retrieval procedure, 'look at all that fat, this is what happens when you eat chapatti', or words to that effect. Proven 23(b) Your comment as set out at paragraph 22: b. was racist Proven Determination on Impairment

5. Having set out its determinations on the facts, the Tribunal then considered whether Mr. Gilbert's fitness to practise was impaired by reason of misconduct. The Tribunal recorded (at [402]-[416]) that it had before it a body of evidence which was supportive of Mr. Gilbert, in particular, a nine-page reflective statement from him, a statement from his Responsible Officer, and 45 positive testimonials from colleagues, patients, and friends. It was not suggested that Mr. Gilbert was other than a highly competent surgeon.

6. In his reflective statement dated August 2024, Mr. Gilbert explained that the last three years had been the hardest years of his life, and had been “humbling, humiliating and deeply shameful”. He stated that he believed he was a "different person and a fundamentally changed practitioner from the doctor whose conduct led to these complaints being raised". He expressed an unreserved apology to the victims of his conduct and sought to explain how, from the time of his suspension, he had reflected on his past behaviours and explained the steps which he had taken to alter them.

7. Those steps included counselling and accountability meetings, undertaking six courses (such as professional boundaries courses) and reading numerous books and articles on sexual harassment and misconduct and racism. Mr. Gilbert also sought to explain how, when challenging inappropriate language and behaviours by junior staff members in his role as Chief Medical Officer at New Foscote Hospital, he had considered his past behaviour and its impact on others in guiding his approach and the standards of conduct to be expected of colleagues.

8. At [467], the Tribunal found that Mr. Gilbert's behaviour amounted to misconduct. Its factual findings included findings that Mr. Gilbert had made comments which were sexually motivated and constituted sexual harassment; had engaged in non-consensual touching motivated by sexual gratification (which the complainants found discomforting and troubling); and had made racist comments. The conduct concerned five junior colleagues; and Mr. Gilbert had further abused his senior position in respect of two of them. The Tribunal found that his actions accordingly violated the standards of Good Medical Practice; and, applying the tests set out by Dame Janet Smith in the Fifth Shipman Report, the Tribunal concluded that his actions amounted to misconduct which (a) undermined public confidence in the profession; and (b) did not uphold the standards of the profession.

9. Turning to the question of whether Mr. Gilbert's fitness to practise was impaired by reason of the misconduct, the Tribunal found that it was. It concluded that his conduct was capable of remediation, and indeed this had been shown by Mr. Gilbert's own actions referred to in his reflective statement. However, although he had demonstrated some insight concerning the impact of his behaviour on others, the Tribunal cast doubt on one particular aspect of his reflective statement as follows: “474. The Tribunal considered, within Mr. Gilbert's reflective statement, that he stated that:” "In 2012, the feedback from Ms E about behaviours was a watershed moment. I realised that my conduct and style of interaction had affected her sufficiently to flag this. I felt I had taken this feedback on board and had made changes that included putting a stop to shoulder massage and tickling."

475. The Tribunal noted that, after the handing down of its Facts determination, Mr. Gilbert maintained on oath before it that this was still his view. The Tribunal however, had found proved misconduct relating to non-consensual physical touching, comments made for sexual gratification purposes, and racist comments against four other colleagues after 2012. The Tribunal, in its judgement, concluded that the feedback from Ms E was not a "watershed moment" for Mr. Gilbert as he had carried on behaving inappropriately and that if there was a "watershed moment" then it was likely to have been when Mr. Gilbert was dismissed from the Trust in 2022."

10. The Tribunal considered that Mr. Gilbert's insight was " not fully developed ", and concluded that his fitness to practise was impaired by reason of misconduct: "477. The Tribunal concluded that Mr. Gilbert had demonstrated a significant degree of insight and had taken a number of steps to remediate his failings. However, Mr. Gilbert's insight was not fully developed into the full extent of his behaviour as found proved by the Tribunal. He may benefit from further time to digest and reflect on the findings against him.

478. The Tribunal determined that, without sufficient insight into the full breadth of his misconduct, it could not conclude that the behaviours complained of were highly unlikely to be repeated.

479. The Tribunal considered that limbs b and c of the test set out by Dane Janet Smith … were applicable in this case…

480. In particular, the Tribunal concluded that the need to maintain public confidence in the medical profession, and the standard of behaviour within the profession, required the finding that Mr. Gilbert's fitness to practise is currently impaired by reason of his misconduct. Members of the public would not have confidence in doctors if the Tribunal regarded such misconduct, with evidence of further reflection needed and development of insight required, as not impairing a doctor's fitness to practise.

481. In the light of all of the above, the Tribunal has therefore determined that Mr. Gilbert's fitness to practise is impaired by reason of misconduct." Determination on sanction

11. Having determined the issue of impairment, the Tribunal then finally turned to consider the question of the appropriate sanction to be imposed on Mr. Gilbert. This is the central issue with which this appeal is concerned. The Tribunal considered submissions by the GMC and Mr. Gilbert, and also had regard to the GMC's Sanctions Guidance (dated February 2024). At [513]-[515], it reminded itself of the overarching objective and the principle of proportionality, and identified various aggravating and mitigating factors in the case. It then proceeded to consider sanction.

12. When considering the appropriateness of suspending Mr. Gilbert's registration, the Tribunal referred to paragraphs 91-93 of the Sanctions Guidance, which provide as follows: "91. Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention.

92. Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession).

93. Suspension may be appropriate, for example, where there may have been acknowledgement of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated. The tribunal may wish to see evidence that the doctor has taken steps to mitigate their actions."

13. The Tribunal then took into account paragraph 97 of the Sanctions Guidance which sets out various factors which would indicate that suspension of the doctor may be appropriate. Applying these factors to the facts of this case, and considering the various aggravating and mitigating factors, the Tribunal concluded that suspension was an appropriate and proportionate sanction on the facts of this case: "530. In all the circumstances, the Tribunal determined that suspension of Mr. Gilbert's registration would be appropriate and proportionate in this case. It considered that suspension would properly mark the seriousness of Mr. Gilbert's misconduct, would protect the public interest, and would uphold and maintain professional standards in the medical profession. Further, a period of suspension would send out a clear message to the public, the medical profession, and Mr. Gilbert, that such behaviour is not acceptable."

14. The Tribunal then went on to consider the alternative (and ultimate) sanction of erasure. The Tribunal considered the terms of paragraph 109 of the Sanctions Guidance which contains factors which may indicate that erasure is the appropriate sanction in a particular case, but it concluded that erasure would not be a proportionate punishment as follows: "532. The Tribunal determined that the following sections of paragraph 109 of the SG were relevant in this case: "Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive). a. A particularly serious departure from the principles set out in Good medical practice where the behaviour is difficult to remediate. b. A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety. … d. Abuse of position/trust (see Good medical practice, paragraph 81: 'You must make sure that your conduct justifies your patients' trust in you and the public's trust in the profession'). … f. Offences of a sexual nature, including involvement in child sex abuse materials (see further guidance below at paragraphs 151–159)."

533. In terms of (a), whilst Mr. Gilbert's behaviour was a serious departure from the principles set out in GMP the Tribunal concluded that the behaviours complained of were not difficult to remediate in the light of its findings on Impairment. With regard to (b), the Tribunal did consider Mr. Gilbert's actions to amount to a reckless disregard for the principles set out in GMP given that concerns lodged by Ms E and Ms G and the continuation of the behaviour. In terms of (d), the Tribunal considered that this abuse was not in relation to patients but was in respect of colleagues and that does impact on the public's trust in the profession.

534. With regard to (f), the Tribunal noted that there were three examples on six occasions of non-consensual touching that was motivated by sexual gratification. The Tribunal concluded that, on a spectrum of serious, this was not the type of matter as discussed at paragraphs 151 to 159 of the SG. It also had regard to its comments and conclusion in its Impairment determination as to Mr. Gilbert's misconduct being remediable and, to a large extent, remediated.

535. The Tribunal determined that Mr. Gilbert's misconduct, whilst a serious breach of GMP, was not fundamentally incompatible with continued registration and that erasure of Mr. Gilbert's name from the Medical Register would be disproportionate. It remained of the view that a period of suspension was the appropriate and proportionate response."

15. The Tribunal then determined the appropriate length of the suspension. In doing so, it referred to paragraphs 99-102 of the Sanctions Guidance and reminded itself of those factors which are relevant to the determination of the length of suspension. It determined that a suspension for a period of eight months was the appropriate sanction in this case. "538. The Tribunal noted that these incidents did not give rise to concerns about risks to patient safety, and that there was evidence that Mr. Gilbert was otherwise a skilled and well-regarded doctor.

539. The factors that the Tribunal considered were relevant included the extent to which Mr. Gilbert departed from the principles of GMP, the extent to which his actions risked public confidence, the extent of his misconduct, and the seriousness of his inappropriate behaviour. The Tribunal also noted the aggravating and mitigating factors as outlined above.

540. The Tribunal had regard to the steps taken by Mr. Gilbert including his remedial action, his apologies, and the extent to which he has addressed the concerns. The Tribunal was of the view that Mr. Gilbert has embraced the need to remediate and made determined efforts to demonstrate how he has changed his practice and conduct.

541. In all the circumstances, the Tribunal determined that a period of eight months was sufficient and appropriate to mark the serious misconduct found. The Tribunal considered that this adequately reflected the balancing exercise that it has undertaken. The Tribunal also determined that this time period would be sufficient to uphold limbs b and c of the overarching objective, namely, to promote and maintain public confidence [3] in the medical profession, and to promote and maintain proper professional standards and conduct for members of the profession."

16. Finally, the Tribunal considered the need for an independent review of Mr. Gilbert before he could return to unrestricted practice at the end of his period of suspension. The Tribunal held that this was unnecessary: “542. The Tribunal had regard to the relevant paragraphs of the SG, including the following paragraphs:” "163. It is important that no doctor is allowed to resume unrestricted practice following a period of conditional registration or suspension unless the tribunal considers that they are safe to do so.

164. In some misconduct cases it may be self-evident that, following a short suspension, there will be no value in a review hearing. However, in most cases where a period of suspension is imposed, and in all cases where conditions have been imposed, the tribunal will need to be reassured that the doctor is fit to resume practice – either unrestricted or with conditions or further conditions. A review hearing is therefore likely to be necessary, so that the tribunal can consider whether the doctor has shown all of the following (by producing objective evidence): a. they fully appreciate the gravity of the offence b. they have not reoffended c. they have maintained their skills and knowledge d. patients will not be placed at risk by resumption of practice or by the imposition of conditional registration."

543. The Tribunal, with reference to paragraph 164 of the SG, determined that Mr. Gilbert appreciated the gravity of his misconduct, and there has been no repetition/reoffending since the referral to the GMC. It was clear to the Tribunal that Mr. Gilbert has a high level of medical skills and knowledge and there is no issue in respect of his clinical skills.

544. In all the circumstances, the Tribunal determined not to direct a review in Mr. Gilbert's case. The Tribunal determined that the public interest is served by the period of suspension and, given the comprehensive evidence of insight and remediation shown, it was not necessary to have a review hearing in this case. The Tribunal determined that it would be safe for Mr. Gilbert to resume unrestricted practice and that patients will not be placed at risk on resumption of practice.

17. As to the question of a review, at the hearing before the judge the parties had proceeded on the basis that this remained the case: there was to be no review. However, on the second day of the hearing Mr. Hare KC informed the court that as long ago as 30 August 2024 an Assistant Registrar employed by the GMC had in fact exercised the power under section 35 D of the Medical Act 1983 (“ the 1983 Act ”) to direct a review hearing, which was listed for 7 May 2025. Owing to what the judge understandably described as an “extraordinary oversight which plainly should not have occurred”, this decision had not been communicated either to counsel for the GMC or to Mr. Gilbert himself. The legal framework

18. Section 1 of the 1983 Act sets out the overarching objective of the GMC. Insofar as relevant, it provides: “(1A) The over-arching objective of the [GMC] in exercising their functions is the protection of the public.” (1B) The pursuit by the [GMC] of their over-arching objective involves the pursuit of the following objectives— (a) to protect, promote and maintain the health, safety and well-being of the public, (b) to promote and maintain public confidence in the medical profession, and (c) to promote and maintain proper professional standards and conduct for members of that profession.

19. It is common ground that the Tribunal was a part of the GMC and were therefore required, in the exercise of their functions, to have due regard to the overarching objective, and the objectives in sub section (1 B).

20. Section 40 of the 1983 Act provides for a right of appeal to the High Court by healthcare professionals from a decision of an MPT. A separate right of appeal by the GMC against certain types of Tribunal decisions (including a direction for suspension) is provided for under s 40 A. That section further provides for the powers of the High Court on such an appeal: "(1) This section applies to any of the following decisions by a Medical Practitioners Tribunal— (a) a decision under section 35 D giving— (i) a direction for suspension, including a direction extending a period of suspension; (2) A decision to which this section applies is referred to below as a "relevant decision". (3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public. (4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient— (a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the medical profession; and (c) to maintain proper professional standards and conduct for members of that profession. . . . (6) On an appeal under this section, the court may— (a) dismiss the appeal; (b) allow the appeal and quash the relevant decision; (c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs . . . as it thinks fit."

21. As the judge observed, the key distinction between the two provisions is as follows: (1) Section 40 provides an unfettered right of appeal to a medical practitioner who has been made the subject of sanction by the Tribunal. There is no requirement for permission to appeal. No limitations are imposed upon the ambit of the appeal. Appeals under section 40 are by way of re-hearing. (2) Section 40 A of the 1983 Act permits the GMC to appeal against a relevant decision to the relevant court on the limited basis that "they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public." Appeals under section 40 A are by way of review. (3) The appeal court will allow an appeal in both cases where the decision of the Tribunal is (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings of the Tribunal.

22. Where, as here, the GMC brings a section 40 A appeal, section 40 B(1)-(3) of the 1983 Act provide that the PSA may become a party to the appeal by giving notice to that effect to the court, and having done so, the PSA may make representations upon the appeal. By section 40 B(4), the PSA may advance its case on appeal on grounds that it might otherwise have proceeded with had the GMC not appealed. Where the PSA raises new grounds of appeal as it has done here, the GMC and the medical practitioner shall have the same opportunities to respond as if the case had been referred to this Court by the PSA. The GMC Sanctions Guidance

23. The Sanctions Guidance deals at paragraphs 107-109 with the circumstances in which the MPT should consider imposing the sanction of erasure:- “107. The tribunal may erase a doctor from the medical register in any case – except one that relates solely to the doctor's health and/or knowledge of English – where this is the only means of protecting the public.

108. Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor.

109. Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive). a. A particularly serious departure from the principles set out in Good medical practice where the behaviour is difficult to remediate. b. A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety. c. Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients (see further guidance below at paragraphs 129–132 regarding failure to provide an acceptable level of treatment or care). d. Abuse of position/trust (see Good medical practice, paragraph 81: 'You must make sure that your conduct justifies your patients' trust in you and the public's trust in the profession'). e. Violation of a patient's rights/exploiting vulnerable people (see Good medical practice, paragraph 41 on children and young people, paragraph 87 regarding expressing personal beliefs and paragraph 90 regarding information about services). f. Offences of a sexual nature, including involvement in child sex abuse materials (see further guidance below at paragraphs 151–159). g Offences involving violence. h. Dishonesty, especially where persistent and/or covered up (see guidance below at paragraphs 120–128). i. Putting their own interests before those of their patients (see Good medical practice introduction on page 7 'Patients must be able to trust medical professionals with their lives and health. To justify that trust you must make the care of patients your first concern, and meet the standards expected of you in all four domains.' and paragraphs 94–97 regarding conflicts of interest). j. Persistent lack of insight into the seriousness of their actions or the consequences.”

24. The Guidance also has a later passage concerning sexual misconduct cases:- “149. This encompasses a wide range of conduct from criminal convictions for sexual assault and sexual abuse of children (including child sex abuse materials) to sexual misconduct with patients, colleagues, patients' relatives or others.

150. Sexual misconduct seriously undermines public trust in the profession. This misconduct is particularly serious where there is an abuse of the special position of trust a doctor occupies, or where a doctor has been required to register as a sex offender. More serious action, such as erasure, is likely to be appropriate in such cases.”

25. On the issue of whether the MPT should direct that a review hearing is to follow a period of suspension, paragraph 164 provides: “164. In some misconduct cases it may be self-evident that, following a short suspension, there will be no value in a review hearing. However, in most cases where a period of suspension is imposed, and in all cases where conditions have been imposed, the tribunal will need to be reassured that the doctor is fit to resume practice – either unrestricted or with conditions or further conditions. A review hearing is therefore likely to be necessary, so that the tribunal can consider whether the doctor has shown all of the following (by producing objective evidence):” a. they fully appreciate the gravity of the offence b. they have not reoffended c. they have maintained their skills and knowledge d. patients will not be placed at risk by resumption of practice or by the imposition of conditional registration.” The grounds of appeal to the High Court

26. The GMC submitted to the judge that in failing to apply the sanction of erasure, the MPT: (a) erred in its application of the relevant legal principles; (b) failed adequately to apply the relevant guidance when reaching its decision as to sanction; and (c) failed adequately to reflect the gravity of Mr. Gilbert's conduct.

27. The PSA advanced four further grounds of appeal before the judge, arguing that the MPT: (a) failed to consider the significance of the Registrant's racist statements for patient safety and public confidence, and to take those factors into account in relation to his impairment and the appropriate sanction; (b) erred in finding that the Registrant's misconduct was "not difficult to remediate": his misconduct could well be fundamentally incompatible with his remaining on the register, and no reasonable Tribunal could conclude that it was not difficult to remediate; (c) failed to consider the significance of its decision as to sanction of clinicians' and other members of the public's confidence in the regulation and discipline of doctors, and in particular their confidence that if they report doctors' misconduct it will be adequately addressed; (d) failed to give adequate reasons for its decision: it failed to disaggregate the Registrant's sexually and racially inappropriate conduct, and identify the significance of each in relation to impairment and sanction; and it failed to explain its decision to impose an apparently lenient sanction sufficiently to uphold public confidence in the regulation and discipline of doctors. The decision of the judge

28. Calver J dealt first with some specific issues raised by the GMC before looking at the overall position, doing so under the heading of "Errors in applying relevant legal principles". The first of these was that among the (relatively few) allegations which the MPT had not found proved there were two relating to alleged racist behaviour. As can be seen from the schedule set out above, Allegation 14, which the Respondent had admitted, was that on one more occasions while at work, he had imitated an Indian accent in the presence of a colleague, Mr F; and had asked Mr F "Oh, when are you leaving the country now?" or words to that effect, with reference to Brexit. Allegation 15(b) was that each of these admitted actions constituted racist behaviour. The Tribunal found that they did not. Calver J disagreed. He said at [43] that in making that finding the Tribunal had adopted too narrow a definition of racist comments and that in doing so had erred in the application of the relevant legal principles. The comments were objectively racist. He said that "a remark can be objectively racist, even though the person to whom it is uttered may not take offence or may not perceive it to be motivated by hostility or prejudice". He noted at [46] "in fairness to the Tribunal it is important to appreciate, in relation to sanction, that in its closing submissions before the Tribunal the GMC had barely mentioned the allegations of racism and very largely focused on the sexual misconduct charges. ... The GMC's firm focus and accordingly the Tribunal's too was clearly upon the sexual misconduct allegations”, however he considered that the MPT ought to have found Allegation 15(b) proved.

29. Allegations 22 and 23(a) read as follows:- "22. On or around 7 August 2020, you said to Ms I about a patient during an organ retrieval procedure, 'look at all that fat, this is what happens when you eat chapatti', or words to that effect.

23. Your comment as set out at paragraph 22: a. constituted harassment related to race as defined in section 26(1) of the Equality Act 2010 , in that you engaged in unwanted conduct related to race, which had the purpose or effect of violating the dignity of Ms I, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her."

30. The MPT found that the words recorded had indeed been said but did not amount to harassment related to race because the conduct was not repeated. The judge, after a detailed examination of the law relating to harassment set out s.26(1) of the Equality Act 2010 found that the conduct complained of did amount to harassment and that the relevant definition was clearly satisfied in the light of the Tribunal's findings of fact. He added at [60]:- “However, the fact that the conduct complained of amounted to just one remark on one occasion is again important context when it comes to assessing impairment and, in particular, the severity of the sanction imposed and the extent to which (if at all) it requires to be increased).”

31. The next part of Calver J's judgment dealt with the principal overall submission of the GMC supported by the PSA, namely that the Tribunal failed “properly to assess the overall seriousness of Mr Gilbert’s conduct”, in particular by not having regard to the fact that patient safety had been imperilled by the fact that inappropriate remarks were made in the course of performing operations.

32. He considered along with this three further grounds of appeal put forward by the PSA, namely that the Tribunal erred in finding that Mr Gilbert's misconduct was "not difficult to remediate"; that the Tribunal failed to consider the significance for its decision as to sanction of clinicians' and the public's confidence in the regulation and discipline of doctors, in particular their confidence that if they report misconduct it will be adequately addressed; and (d) they failed to give adequate reasons for the decision and to disaggregate Dr Gilbert's sexually and racially inappropriate conduct.

33. Calver J considered at [62] onwards the submission that the Tribunal failed to have regard to the fact that a significant proportion of the misconduct took place during operations or other clinical activities where a professional colleague who was the victim of sexist or racist behaviour may have been distracted from patient care. The judge noted, however, that in its closing submission to the Tribunal on the facts, the GMC had stated that “this has not been a case about patient safety, and there is no evidence that any patient has come to any harm whatsoever”. The GMC’s submissions to the MPT appear to have put the point in a rather different way, or at least with different emphasis, saying that the guidance on “maintaining personal and professional boundaries” makes it clear that it is essential for good and safe patient care that a doctor works effectively with other colleagues. The guidance states that inappropriate sexual behaviour can have devastating impacts on individual wellbeing, psychological safety, patient safety and medical professional’s careers. The GMC focused on the potential for Mr Gilbert’s behaviour to bring the profession into disrepute or to breach one of the fundamental tenets of the profession rather than putting patients at unwarranted risk of harm.

34. Calver J went on to note at [72] that in submissions to the MPT (following its finding of impairment) as to whether Mr Gilbert’s registration should be subject to immediate suspension, counsel then appearing for the GMC again acknowledged “that there is no risk to patient safety in this case”. This was what led the judge at [76] to reject the submission that by referring to the conduct having taken place in some instances in a clinical setting “the allegations themselves put the case that the misconduct posed a risk to public safety”. The judge held instead that “the fact that certain of the allegations which were found proved took place in a clinical setting bore upon the seriousness of the misconduct”. The judge said at [79] that this chimed with the GMC’s submission that it was essential for good and safe patient care that a doctor does work effectively with other colleagues. The judge went on to consider a similar submission, this time from Ms Morris KC for the PSA, referring to the racist comments which the Tribunal had found proved and arguing that “despite the fact that it was never the GMC’s case that public safety was in fact put at risk, the Tribunal should nonetheless have found there to be an issue of public safety ... because the clinical decisions of the clinician could be affected by his racist attitude.” [83]

35. The judge said at [84] that it always depends on the facts of a particular case whether or not patient safety is put at risk as a result of a clinician’s misconduct, and that there was no suggestion in this case that Mr Gilbert was other than a skilled and capable vascular surgeon or that he had ever failed to treat a patient with his usual care and skill by reason of their race.

36. The judge found at [86] that in the case of Allegation 22 (the chapatt i remark) that the making of such a racist remark even through the patient was unconscious was an affront to the patient’s dignity and brought the profession into serious dispute as well as being capable of giving rise to a patient safety issue.

37. Turning to the sexual misconduct allegations, the judge held at [87] and [88] that the misconduct was capable of distracting fellow medical professionals and thereby imperilling patient safety; and that this was an aggravating feature of the misconduct which was ought to have been but was not referred to as such by the MPT.

38. At [91] the judge turned to the broader grounds of appeal, alleging that the MPT failed adequately to apply the Sanctions Guidance or adequately to reflect the gravity of Mr Gilbert’s conduct. He said at [109]-[110]:- “109. The Sanctions Guidance is not to be read as though it were a statute. It lists certain factors which may indicate that erasure is appropriate. Nor does the guidance mandate a particular outcome, as any decision on sanction is necessarily fact specific. The Tribunal found that Mr. Gilbert's misconduct was serious and that it impaired his fitness to practice. It was then for the Tribunal to reach an evaluative decision as to what was necessary to protect the public.

110. That stated, as the Court stated in Jagjivan , in a case which concerns sexual misconduct (and, I consider, racist statements), this court can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal, albeit that the court will nonetheless afford a necessary measure of respect to the Tribunal's judgment.”

39. At [116] the judge said:- “116. As described above, the Tribunal had a substantial body of evidence before it as to the steps taken by Mr. Gilbert to remediate his behaviour, which was contained in a reflective statement as well as a statement from his responsible officer. The Tribunal also had before it a substantial body of testimonial letters throwing light on Mr. Gilbert's positive interactions with colleagues from diverse racial backgrounds, as well as hearing positive oral evidence from a number of colleagues who had worked with him over an extensive period of time. These were all factors which the Tribunal was entitled to consider tended to suggest that suspension (and not erasure) was the appropriate sanction.

117. The Tribunal noted that there had been no repetition of this behaviour by Mr. Gilbert since the material concerns had been brought to the attention of the GMC. This evidence contradicted the suggestion that Mr. Gilbert any longer demonstrated a " persistent lack of insight into the seriousness of their actions or the consequences ". Having considered all the evidence, I consider that the Tribunal was entitled to find, as it did, that the behaviours complained of were highly unlikely to be repeated and that he did not pose a " significant risk of repeating behaviour. "

118. It follows that contrary to Ms Morris KC's submission, I do not accept that the Tribunal "erred in finding that the Registrant's misconduct was " not difficult to remediate " by reason of the nature and extent of the misconduct" and that no reasonable Tribunal could conclude, on the particular facts of the case, that it was not difficult to remediate. Taking into account the nature and extent of the misconduct in this case, I consider that the Tribunal was entitled to find in the light of the substantial body of evidence before it of the steps taken by Mr. Gilbert to remediate his behaviour that (i) there was no evidence that demonstrated that remediation was unlikely to be successful and (ii) the behaviours were not difficult to remediate. Certainly, I do not consider that this court should substitute its view in this respect for that of the Tribunal who heard extensive evidence on the topic of remediation.”

40. At [125] the judge rejected the submission that the MPT failed to give adequate reasons for its decision that the appropriate sanction was suspension rather than erasure. He went on to reject the submission of Ms Morris for the PSA that a reader of the Tribunal’s decision “cannot be reassured that it gave sufficient consideration to the Registrant’s misconduct and in particular his racist statements”. The judge rejected this, saying at [127] that it was plain that the Tribunal had “turned its mind to the individual elements of the Respondent’s misconduct at each step of its reasoning, from impairment through to sanction”. At [132]-[134] the judge held:- “132. In all the circumstances, the Tribunal's evaluative decision that a period of suspension rather than erasure was appropriate on the facts of this case was, in my judgment, one which did not fall outside the bounds of what the adjudicative body could properly and reasonably decide, even taking into account the fact that the Tribunal ought to have found that Allegations 15(b) and 23(a) were proved. Indeed, I agree with the Tribunal's conclusion at [535] that erasure in this case would be a disproportionate sanction in all the circumstances. Suspension is a serious sanction which in principle sufficiently marks the gravity of Mr. Gilbert's conduct.

133. I would add that I think it is going much too far to submit, as did Ms Morris KC that the fact that Allegations 15(b) and 23(a) should have been found to be proven, when the context of the misconduct in respect of those particular allegations is taken into account, adds sufficiently to the seriousness of the overall misconduct so as to tip the balance of the appropriate sanction from suspension to erasure.

134. However, in determining a period of suspension of 8 months (at [536]-[541), I consider that the Tribunal: (a) wrongly failed to take into account the fact that the misconduct of Mr. Gilbert, in those cases identified above, (whilst not in fact imperilling public safety) was capable of imperilling public safety; (b) wrongly failed to take sufficiently into account the harm which was caused to the victims of his sexual misconduct; (c) wrongly failed sufficiently to mark the seriousness of its findings, giving too much weight to Mr. Gilbert's mitigation, bearing in mind that matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court, because the overarching concern is the protection of the public; (d) wrongly failed to take into account the fact that it ought to have found Allegations 15(b) and 23(a) proved.”

41. The judge went on to accept the submission of Mr Hare KC and Ms Morris KC that the Tribunal made an error of principle in finding that a review at the end of Mr Gilbert’s period of suspension was unnecessary. He had been referred in this context to paragraph [164] of the Sanctions Guidance (see above). He held that this was “plainly not a case” where there would be no value in a review hearing and that Mr Gilbert would be required to demonstrate to the review panel that at the time when he seeks to resume practise he fully appreciates the gravity of the offence; has not re-offended, has maintained his skill and knowledge; and that patients would not be placed at risk.

42. The judge’s conclusion was therefore that the MPT’s sanction of eight months’ suspension was insufficient and should be replaced by a sanction of 12 months suspension with a review hearing at the end of that period. The September 2025 review

43. The suspension of Mr Gilbert was due to expire on 12 September 2025. Ten days before that deadline, on 2 September 2025 the MPT held the review hearing, the matter having been referred to them by an assistant registrar of the GMC. The GMC were neutral on the issue of whether Mr Gilbert’s fitness to practise continued to be impaired. The MPT considered the judgment of Calver J and found that Mr Gilbert’s fitness to practise was no longer impaired. The result was that since 12 September 2025 he has been able to resume practice. Grounds of appeal to this court

44. The GMC applied to this court for permission to appeal from the decision of Calver J not to direct the erasure of Mr Gilbert’s name from the register. The skeleton argument of Mr Hare KC identified two grounds, each of which was said to raise a point of principle. The first was simply that “the learned judge erred in not erasing Mr Gilbert from the medical register in the circumstances”. The second was that “the learned judge failed to follow the logic of his own decision in the logic of the GMC/MPTS Sanctions Guidance (February 2024)”. The document continued- “The learned Judge appeared to accept that the MPT failed to have regard to a number of the factors (any one of which) may indicate that erasure is appropriate in Sanctions Guidance: [109]. It was accepted below that the MPT referred to only four of the ten factors in Sanctions Guidance: [109]; Judgment: 17, quoting MPT Determination [532]. The learned Judge appeared to accept the GMC’s submissions that the following factors from Sanctions Guidance: [109] were also present in Mr Gilbert’s case: ” (c) “doing serious harm to others” Judgment: 105 & 112; (i) “putting their own interests before those of patients” Judgment: 113; and (j) “persistent lack of insight”.

45. The skeleton argument went on to argue that in the light of these findings it had been incumbent on the judge, as it had been on the MPT, “to explain clearly how any decision other than erasure could be justified in circumstances where seven of the ten factors (any one of) which may indicate that erasure is appropriate were made out.”

46. The GMC’s application was considered on the papers by Zacaroli LJ. He refused permission to appeal on the first ground and adjourned the second ground to an oral hearing “in particular (but not only) for the Appellant to justify why the appeal raises an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it”. Zacaroli LJ’s reasons should be quoted in full:- “The first ground of appeal is that the judge erred in not erasing Mr Gilbert from the medical register in the circumstances. As expressed, that does not identify any error of law or principle in the judge’s decision, but merely asserts the conclusion the judge ought to have reached. In its skeleton argument, the GMC contends that the allegations which were proved against Mr Gilbert before the MPT and as a result of the judge’s judgment “were of the utmost seriousness and, in the circumstances, only erasure was sufficient to protect the public.” It is not, and could not be, suggested that because there were findings of sexual misconduct (and racist statements) the only sanction that could be imposed was erasure. Even the Guidance only indicates that more serious action, such as erasure, “is likely to be appropriate in such cases”, referring back to the “particularly serious” examples of sexual misconduct where there is an abuse of the special position of trust a doctor occupies or where a doctor has been required to register as a sex offender. Once it is accepted that erasure is not a mandatory sanction and that suspension may be an appropriate sanction where sexual misconduct is present, an appeal against the judge’s evaluative decision can only succeed if there is an error of principle in carrying out the evaluation or the evaluation was wrong in that it fell outside the bounds of what the tribunal could properly and reasonably decide (see, e.g., GMC v Bawa-Garba [2019] 1 WLR 1929 ). No error of principle is identified under the first ground of appeal. The skeleton argument merely identifies the “repeated examples of sexually motivated conduct, sexual harassment [and abuse of] his senior position in respect of a number of different, junior female colleagues over a period of nine years” and expresses reasons why these were of particular gravity. There is no suggestion that these matters were not taken into account by the judge in reaching his conclusion. Although it is correct that sanction determinations relating to matters of sexual misconduct and racist statements attract only a limited amount of “deference” on appeal, that does not mean that an appeal court can interfere even though no error of principle is made out. There is accordingly nothing in the first ground of appeal or the skeleton argument in support which establishes an arguable error of principle with a real prospect of success.”

47. The oral hearing of the GMC’s application for permission to appeal on the second ground came before Andrews and Elisabeth Laing LJJ on 21 October 2025. The short judgment of the court on that occasion makes it clear that the court considered that the principle argument on Ground 2 was that the judge, having found errors by the MPT in applying the Sanctions Guidance should have remitted the issue of sanction to the Tribunal. The judgment states:- “1. We are going to grant permission to appeal on ground 2. It seems to us that the important point of principle which arises concerns the question of how an appellate court ( in this case the High Court) should approach the situation once it comes to the conclusion that there has been an error in the misapplication of the guidance; in other words, that there are identifiable factors that the specialist tribunal did not take into account.

2. It seems to us that it is at least arguable (we put it no higher than that) that, having reached that conclusion, it was not for the judge to second-guess what the tribunal would have done if it had taken those factors into account and to have come to the conclusion that they would have still suspended. The argument is that the judge should have sent the matter back to the tribunal. That really seems to us to be the nub of this case, rather than any wider policy point. That will be the real issue for the full court to determine.”

48. The PSA had not applied on its own initiative for permission to appeal to this court. But it was named as the second respondent to the GMC’s appeal and Ms Morris KC attended on the application heard by Andrews and Elisabeth Laing LJJ. The PSA then applied for permission to cross-appeal, in effect to support the GMC’s appeal but wishing to go further.

49. The two further grounds of appeal put forward by the PSA in its Respondent’s Notice were as follows: “Ground 1 -- The Judge failed to address the first part of the fundamental question for a determination of the fitness to practise of a health care professional – had the First Respondent (“the Registrant”) acted so as to “put … patients at unwarranted risk of harm”; and/or the Judge then failed correctly to answer the question in accordance with his finding that the Registrant’s misconduct was capable of posing a risk to patient safety. ” Ground 2 -- The Judge failed correctly to approach the question whether the Registrant’s misconduct was “difficult to remediate”; and the Judge then failed correctly to answer the question in accordance with his findings.

50. This was considered by Andrews and Elisabeth Laing LJJ on the papers. They granted permission to cross-appeal, but directed that Mr Gilbert would in no circumstances be liable to pay the PSA’s costs. They stated that “the points of principle which the Authority wishes to raise have potentially wider implications for courts or tribunals when imposing sanctions on healthcare professionals and are plainly suitable for consideration by the Court of Appeal”. Discussion

51. Where an applicant for permission to appeal to this court has been refused permission to appeal on a particular ground, the refusal is final and cannot be revisited by the full court. The GMC is accordingly bound by the fact that Zacaroli LJ refused permission on the general ground that the judge erred in not erasing Mr Gilbert from the register in all the circumstances. It would be anomalous and wholly unfair if the PSA were to be in a better position and Ms Morris KC rightly accepted that it is not. Measure of respect for the decision of a professional tribunal

52. The approach to be taken by the High Court on appeal from a professional tribunal was considered by the Divisional Court (Sharp LJ and Dingemans J) in Jagjivan v GMC & PSA [2017] EWHC 1247 (Admin): "40. iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing………. iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4). v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence…….. vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal”……. As Lord Millett observed in Ghosh v GMC ; [2001] UKPC 29 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances". [2001] 1 WLR 1915 vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public. viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust."

53. Jagjivan must be read in the light of Bawa-Garba v GMC [2018] EWCA Civ 1879 , in which this court (Lord Burnett of Maldon CJ, Sir Terence Etherton MR and Rafferty LJ) held: “61. The decision of the Tribunal that suspension rather than erasure was an appropriate sanction for the failings of Dr Bawa-Garba, which led to her conviction for gross negligence manslaughter, was an evaluative decision based on many factors, a type of decision sometimes referred to as "a multi-factorial decision". This type of decision, a mixture of fact and law, has been described as "a kind of jury question" about which reasonable people may reasonably disagree … . It has been repeatedly stated in cases at the highest level that there is limited scope for an appellate court to overturn such a decision.

54. The court cited the observation of Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1 that “Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation”. They continued: “67. That general caution applies with particular force in the case of a specialist adjudicative body, such as the Tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts………An appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation, or (2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide… …

94. As we said earlier in this judgment, the Tribunal was, in relation to all those matters and the carrying out of an evaluative judgement as to the appropriate sanction for maintaining public confidence in the profession, an expert panel, familiar with this type of adjudication and comprising a medical practitioner and two lay members, one of whom was legally qualified, all of whom were assisted by a legal assessor.

55. An issue before us is the measure of respect to be accorded to a decision of the MPT in a case involving sexual misconduct or racist behaviour. Mr Hare and Ms Morris cited Sastry v GMC; Okpara v GMC [2021] EWCA Civ 623 ; [2021] 1 WLR 5029 (“ Sastry ”) in which this court said at [113] that:- “We agree that in matters such as dishonesty or sexual misconduct the court is well placed to assess what is needed to protect the public or maintain the reputation of the profession and is less dependent on the expertise of the tribunal. It follows that we find that the approach of the judge to the sanction imposed on Dr. Okpara was wrong in that he did not assess whether the sanction was necessary or appropriate in the public interest or was excessive or disproportionate. Consequently we go on to determine that the sanction in each case was “wrong”, that is, was the sanction appropriate and necessary in the public interest, or, as asserted by the appellants, excessive and/or disproportionate.”

56. However, it is important to note that the two cases before the court in Sastry were both appeals by practitioners under s 40 of the 1983 Act , where the High Court’s jurisdiction is by way of rehearing (see the Civil Procedure Rules Practice Direction 52D, paragraph 19.1(1)(c)). This is on contrast with appeals by the GMC under s 40 A, where the court is conducting a review rather than a rehearing, and, as Nicola Davies LJ said in Sastry , the GMC is given only a limited right of appeal on the ground of “sufficiency”. The court in Sastry at [108] endorsed the approach in Bawa-Garba as appropriate to the review jurisdiction in s 40 A appeals.

57. As the judge rightly said in the present case at [110], in a case which concerns sexual misconduct or racist statements the court can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and can attach less weight to the expertise of the Tribunal. Nevertheless, in determining sanction in such cases the Tribunal is making an evaluative judgment to which the court should give a proper measure of respect, in particular when exercising the review jurisdiction under s 40 A.

58. In this case, on the critical issue of whether erasure rather than suspension was necessary in the public interest, the MPT decided that it was not; and on appeal the judge agreed with them. Each of these decisions was an evaluative judgment as to what the public interest required. Where the MPT and the High Court are in agreement, the review jurisdiction should be exercised with particular caution. GMC appeal: failure by the judge to apply the Sanctions Guidance

59. The Sanctions Guidance sets out at paragraph 109 (a)-(j) ten factors which the MPT should consider when deciding whether to impose the ultimate sanction of erasure. It does so after the introductory words “any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive)”.

60. As the judge rightly said, the Sanctions Guidance is not to be read as though it were a statute. Lindblom LJ observed in Professional Standards Authority v Health and Care Professions Council and Doree [2017] EWCA Civ 319 that the explicit purpose of the Guidance (as the name suggests) is not to dictate to panels how they must proceed, but to assist them in making fair, consistent and transparent decisions.

61. The issue of principle on which the GMC obtained permission for a second appeal to this court was, as noted above, the argument that, having found errors by the MPT and allowed their appeal the judge should have remitted the case to the Tribunal for reconsideration rather than substituting his own decision. This submission about disposal barely resurfaced before us except as a fallback. The emphasis of Mr Hare’s submissions was rather that the logic of the judge’s findings was that seven rather than only four of the paragraph 109 factors applied, and that accordingly the judge should have substituted the sanction of erasure.

62. In a case where several allegations have been found proved and the Tribunal is deciding whether the ultimate sanction of erasure is necessary the judgment should be based on an evaluation of the overall gravity of the matter. This is a question of substance rather than of counting how many factors out of ten were present and on how many occasions, as though paragraph 109 was a form of score sheet against which the Tribunal should place ticks or crosses and then count up the number of ticks. This is especially so because a particular incident may be described in a number of ways. The GMC’s somewhat repetitive style of pleading allegations runs the risk of encouraging a score sheet approach.

63. An important feature of Mr Gilbert’s misconduct was what the MPT described at [514] as “the abuse of his position over a number of junior colleagues over a protracted period of time”. The judge observed that the MPT had this aggravating factor well in mind (but found, as he was entitled to do, that the Tribunal should have attached more weight to the harm done to the victims). Whether as well as being an aggravating factor, this was also “abuse of position/trust” within the meaning of paragraph 109(d) of the Guidance is merely a question of labelling, not of substance. I should note that it was not suggested that Mr Gilbert’s sexual misconduct was a case of what paragraph 150 of the Guidance describes as “an abuse of the special position of trust a doctor occupies”, which is directed at misconduct towards patients. Plainly it is a serious matter in any profession or occupation when a senior person abuses his position of power or influence over junior colleagues, especially trainees, in this way.

64. I do not consider that there was any failure by the judge properly to apply the Sanctions Guidance, nor any error of principle, nor that the logic of his decision to reverse the Tribunal’s decisions in certain fairly limited respects meant that erasure was inevitable. Patient safety

65. It is obvious, as the judge found, that if a surgeon conducting an operation with the assistance of colleagues is guilty of sexual misbehaviour or making racist or sexist remarks directed at one of those colleagues, there is a risk that the colleague may be distracted with possible consequences for the safety of the patient depending on the facts. The MPT did not use the word “distraction” or equivalent language. They rejected the submission that Mr Gilbert’s conduct had placed patients at what Dame Janet Smith, in the Shipman Report, had described as “unwarranted risk of harm”. They said instead that they took account of the fact that the conduct occurred in an operation setting as an aggravating factor. Calver J, at [89] (impairment) and [134] (sanction), used the wording “capable of imperilling public safety”.

66. The PSA submit that no reasonable MPT could have failed to conclude that Mr Gilbert had put patients at unwarranted risk of harm; and that the judge created an artificial distinction between conduct capable of imperilling patient safety and conduct which actually imperils patient safety. I disagree. “Unwarranted risk of harm” is not a statutory test. There was no evidence that in fact any patient had come to harm. If any patient had come to harm, the case would obviously be still more serious. It was, no doubt, the lack of evidence of actual harm to the safety of any patient which led counsel for the GMC to describe the case to the MPT as not being a patient safety case. In my view, Calver J’s analysis of the point is more accurate than that of the Tribunal, but I do not consider that there was any error of principle in his approach. Remediation

67. The MPT had before it a substantial body of evidence on the subject of remediation: what steps Mr Gilbert had taken since his dismissal in 2022 and whether it was likely that he would re-offend if permitted to practise in future. Remediation is very much a matter for the evaluative judgment of the professional Tribunal. If the MPT had decided against Mr Gilbert on this issue and held that his misconduct (in particular, the sexual misconduct) was incapable of remediation it would have been difficult for Mr Gilbert to mount a successful appeal. The judge differed from the MPT in holding that it had been premature for them to decide that no review at the end of the period of suspension would be required. But I do not accept that there is any flaw in the MPT’s decision, upheld in this respect by the judge, that Mr Gilbert’s misconduct was not irremediable.

68. Moreover, it would be particularly inappropriate for this court to intervene when the second MPT which held the review hearing in September 2025 determined that Mr Gilbert’s fitness to practise was no longer impaired. That Tribunal, which heard oral evidence, said: “18. The Tribunal considered Mr Gilbert’s current insight into his previous misconduct and was reassured by the lack of evidence of any repetition, as well as Mr Gilbert’s range of written reflections together with his oral evidence at this hearing into his insight which showed progress. The Tribunal was satisfied by Mr Gilbert’s reflective oral responses at this hearing particularly regarding his misconduct toward female colleagues and agreed that although Mr Gilbert faced serious sexual and racial allegations, he put in significant into his insight and made progress.

19. The Tribunal was of the view that Mr Gilbert had made effort into his remediation and could not see any other significant avenue for him to explore to gain further insight or remediate. ...

23. The Tribunal considered if a risk of repetition existed and agreed with regard to the evidence of current fitness to practise both documentary and oral, Mr Gilbert has done as much as he could do to minimise the risk of repetition. It concluded that the risk of repetition was very low.

24. The Tribunal considered Mr Gilbert’s impairment with regard to the public interest and noted that the object of these proceedings was not to punish Mr Gilbert but meet the engaged overarching objective and ensure that Mr Gilbert was fit to return to unrestricted practise. It took the view that the objective, reasonable and fully informed member of the public would agree that Mr Gilbert has undertaken comprehensive journey of insight and remediation and made significant progress. ...

27. It was clear to the Tribunal that Mr Gilbert has taken a great deal of time and effort to reflect upon those findings of the 2024 Tribunal and the High Court decision and the impact upon the victims, public, and the profession.

28. This Tribunal has therefore determined that Mr Gilbert’s fitness to practise is not impaired by reason of misconduct.”

69. The PSA appealed against that decision and also applied to the High Court for an interim injunction suspending Mr Gilbert from the register until the determination of its appeal. The injunction application came before Lang J at an oral hearing on 9 December 2025. She refused an interim injunction, saying that “the findings of the Second Tribunal were a careful evaluation of the evidence of Mr Gilbert’s insight, remorse and remediation and of course they had the benefit of hearing him give evidence”. The decision of the original Tribunal that the misconduct was capable of remediation has been borne out by subsequent events. Conclusion

70. I would dismiss this appeal. Lady Justice Andrews

71. I agree. Mr Hare contended that where, as here, erasure was a real possibility, and on hearing an appeal by the GMC a judge has identified that there were factors which the MPT wrongly left out of account when they decided that suspension was a sufficient sanction, it was incumbent upon him to explain why those factors did not move the appropriate sanction across the threshold from suspension to erasure. However, that is to look at matters from the wrong perspective. Erasure was not the default position from which any departure had to be justified. I wholeheartedly endorse the view that a mechanistic “tick box” or score sheet approach to the Guidance is to be deprecated. What matters far more than any labels is the substance of what the registrant actually did, which might well be characterised in more than one of the ways identified in the Guidance.

72. All the judge was required to do was to explain why he was substituting the sanction that he did for the sanction imposed by the MPT, having weighed up all the relevant factors including those which he found they had wrongly omitted to consider. In his careful and cogent analysis, Calver J gave a more than adequate explanation of why, in his evaluative judgment, the behaviour of Mr Gilbert justified imposing a sanction which was, in fact, the most punitive that could have been imposed on him short of erasure. He made it clear at paragraphs 132 and 133 of his judgment that he agreed with the MPT that erasure would be a disproportionate sanction in all the circumstances. Although at one point Mr Hare sought to suggest there was a deficiency in his reasoning, I reject that criticism.

73. I can understand why both appellants might consider Mr Gilbert to be fortunate to have escaped erasure. This was, on any view, a serious case, particularly because he had not seen the error of his ways in 2012, as he claimed to have done. However, erasure was not the only rational outcome of the disciplinary process, as Zacaroli LJ explained when he refused the GMC permission to appeal on Ground 1. On examination, the submissions of the PSA turned out to be little more than variants on that ground of appeal. Ms Morris complained that Calver J had not addressed the question whether the behaviour which amounted to misconduct was of a nature that was easy or difficult to remediate, and that this was a necessary precursor to determining whether there was a sufficient likelihood of remediation. However this was just a roundabout way of submitting that, where conduct of this type is concerned, to use the vernacular, a leopard cannot change its spots, and any rational evaluation would have led to the conclusion that remediation was impossible (and thus that suspension was inappropriate). The judge rejected that submission at [118] for unimpeachable reasons.

74. Ms Morris also submitted that acting to put a patient at risk is what matters in the context of discipline, and that a finding that a doctor’s behaviour was capable of doing so was enough to warrant a conclusion that patients were put at “unwarranted risk of harm”, without the necessity to demonstrate that patients were actually put at risk. However, as the Vice President has pointed out at [66], there is a distinction between conduct which actually puts a patient at risk, and conduct which is capable of imperilling patient safety, but in fact does not. Contrary to Ms Morris’s submission, that distinction is not an artificial one, and could rationally make a difference when deciding what sanction is necessary and proportionate for the protection of the public and maintenance of professional standards.

75. I am satisfied that the conclusion reached by the judge was one which was open to him, and one with which there is no basis for this Court to interfere. There is no substance in the criticism that he failed to properly apply the Guidance or that his reasoning was deficient. I too would dismiss the appeal on all grounds. Lord Justice Lewis

76. I agree with both judgments.