General Medical Council & Anor v James Gilbert

On an appeal under section 40A of the Medical Act 1983, the High Court may interfere with a Medical Practitioners’ Tribunal’s evaluative sanction decision where it contains an error of principle or falls outside the range of decisions reasonably open to the Tribunal.

Whether conduct is racist is assessed objectively and does not depend on the speaker’s intention or the recipient’s perception. Harassment under section 26 of the Equality Act 2010 may arise from a single occasion. The context of misconduct in a clinical setting may aggravate its seriousness because it is capable of distracting colleagues and imperilling patient safety, although actual risk must be established on the evidence. Sexual and racist misconduct remains fact-sensitive for sanction. A review will ordinarily be required before unrestricted practice resumes where the practitioner’s insight is incomplete.

The GMC appealed under section 40A of the Medical Act 1983 against an eight-month suspension imposed on a consultant surgeon following findings of sexual misconduct, racist comments, harassment and abuse of seniority involving colleagues. The Professional Standards Authority joined the appeal and advanced additional grounds.

The Tribunal had found impairment, imposed eight months’ suspension and directed no review before unrestricted practice resumed. The appeals challenged the Tribunal’s application of the law concerning racist conduct and racial harassment, its assessment of patient safety and public confidence, the adequacy of its reasons, the proportionality of suspension rather than erasure, and its decision not to direct a review.

1. Outcome. The appeals were allowed. The Tribunal’s eight-month suspension without review was quashed and replaced with 12 months’ suspension, followed by a review hearing.
2. Section 40A appeals are by way of review. The court may correct material errors of fact or law and intervene where an evaluative decision is wrong or falls outside the bounds of what the Tribunal could properly and reasonably decide. Greater weight may nevertheless be given to the specialist Tribunal, subject to reduced deference in cases involving sexual or racist misconduct.
3. Whether a remark is racist is an objective question and does not depend on the speaker’s intention or whether the hearer was offended or perceived racial hostility. The Tribunal therefore erred in finding that the admitted remarks to Mr F were not racist. The Tribunal also erred in treating a single remark as incapable of constituting racial harassment under section 26(1) of the Equality Act 2010. The allegation was framed under that provision, which does not require repeated conduct.
4. The recipient’s reaction and the surrounding circumstances remain relevant to impairment and sanction. Racist remarks and sexual misconduct made during clinical procedures were capable of distracting colleagues and imperilling patient safety, and this was an aggravating feature which the Tribunal failed adequately to reflect. Actual patient-safety risk remained fact-sensitive and was not established on the evidence.
5. The Tribunal was entitled to conclude that the misconduct was remediable and that suspension, rather than erasure, was proportionate. Sexual misconduct cases are serious, but sanction cannot be determined by generalisation and depends on the facts, including the gravity of the conduct, remediation, insight, repetition, harm, public confidence and professional standards.
6. The Tribunal’s finding that insight was incomplete was inconsistent with its conclusion that no review was required. In a case of this kind, a review was not self-evidently valueless. Whether the practitioner fully appreciates the gravity of the misconduct, has not reoffended, has maintained skills and knowledge, and can resume practice safely must be assessed at the review stage.
7. The additional findings that the remarks to Mr F and Ms I were proved, the clinical context, the harm to victims, the insufficient weight given to seriousness and the excessive weight given to mitigation made eight months’ suspension insufficient. Twelve months’ suspension was necessary to maintain public confidence and proper professional standards and to allow adequate time for remediation.

Medical Practitioners’ Tribunal — imposed eight months’ suspension for misconduct and directed no review before unrestricted practice resumed.

High Court (Administrative Court) — allowed the appeals, quashed the sanction decision and substituted 12 months’ suspension with a review hearing.