General Medical Council & Anor v James Gilbert

The High Court allowed the appellants' challenge in part to a Medical Practitioners Tribunal’s sanction decision. The Tribunal had found multiple instances of sexual misconduct, sexual harassment and racist comments by the respondent and determined that his fitness to practise was impaired. It imposed an eight-month suspension and directed no review. The court held that the Tribunal had erred in law in two respects: applying too narrow a test for whether remarks were racist and treating harassment as requiring repetition; and it had failed adequately to take into account the seriousness of the misconduct (including the capacity of some incidents to distract clinicians during clinical procedures and the harm to victims) when fixing sanction and in deciding there should be no review.

Applying the statutory framework in the Medical Act 1983 (notably sections 1, 40A and 40B), relevant caselaw and the GMC Sanctions Guidance, the court concluded that the Tribunal’s evaluative decision on sanction fell outside the range of reasonable outcomes. The court substituted a longer sanction: suspension for 12 months with a review hearing at the end of that period to determine whether the respondent may resume unrestricted practice.

This is an appeal under section 40A of the Medical Act 1983 by the General Medical Council (with the Professional Standards Authority joining under section 40B) against a Medical Practitioners Tribunal’s sanction decision in relation to findings of sexual misconduct, sexual harassment, racist remarks and abuse of senior position by Dr James Gilbert. The Tribunal had held most allegations proved, found that the respondent’s fitness to practise was impaired, imposed an eight-month suspension and directed that no review be held before he could resume unrestricted practice.

Nature of the application and relief sought:

• The GMC sought to appeal the Tribunal’s sanction under section 40A on the basis that the sanction was insufficient to protect the public and maintain public confidence.
• The PSA supported the GMC and advanced additional grounds under section 40B(2)-(5) including that the Tribunal failed to treat racist conduct appropriately, misapplied the Sanctions Guidance, underestimated difficulty of remediation and gave inadequate reasons.

Issues framed by the court included:

• Whether the Tribunal erred in law in its approach to determining whether particular comments were racist and whether conduct amounted to harassment under section 26 of the Equality Act 2010.
• Whether the Tribunal adequately assessed the seriousness of the misconduct (including the potential to imperil patient safety and the harm to victims) and applied the Sanctions Guidance correctly when deciding between suspension and erasure, and in choosing length of suspension.
• Whether the Tribunal was entitled to decline to direct a review hearing following suspension.

Court’s reasoning and conclusions (concise):

• The court applied established appellate principles in regulatory appeals (including the need for deference to factual findings but scope for the court to assess evaluative decisions on sanction, particularly in sexual and racial misconduct cases).
• The court held that the Tribunal adopted too narrow a definition of "racist comments" by requiring that the hearer perceived the remark to be motivated by hostility or prejudice; the correct approach is an objective assessment of meaning. On that basis the Tribunal ought to have found one additional racist allegation proven (15(b)).
• The Tribunal also erred in law by treating harassment as requiring a course of conduct analogous to the Protection from Harassment Act 1997: harassment under section 26(1) of the Equality Act 2010 can, and in law does, arise from a single instance if it has the stated effect. The Tribunal should have found harassment related to race proved in respect of the chapatti comment (allegation 23(a)).
• The Tribunal failed sufficiently to reflect in sanction the aggravating features that some misconduct occurred in clinical settings and was capable of distracting staff and thereby imperilling patient safety, and the harm caused to victims; it also gave too much weight to mitigation in the form of testimonials and remediation steps, notwithstanding limited remaining insight. The Tribunal was inconsistent in its reasoning as to whether a review was needed, contrary to the Sanctions Guidance.
• Although erasure would have been disproportionate on the facts, the decision to impose an eight-month suspension and to direct no review was outside the reasonable range. The court substituted a suspension of 12 months with a review hearing at the end of that period.

Procedural note: the judgment records that an Assistant Registrar had in fact directed a review under section 35D on 30 August 2024 (listed for 7 May 2025) but that decision had not been communicated to counsel or the respondent; the court observed that was an extraordinary oversight.

Appeal allowed in part. The court held that the Tribunal had erred in law by applying an unduly narrow test for whether remarks were racist and by treating harassment as requiring repetition. The Tribunal also gave insufficient weight to aggravating features (including conduct occurring in clinical settings and harm to victims), and wrongly concluded that no review was needed. The court substituted a longer sanction: suspension for 12 months with a review hearing at the end of that period, concluding that erasure would be disproportionate on the facts but that the original eight-month suspension with no review was insufficient to protect the public and maintain confidence in the profession.

Medical Practitioners Tribunal decision (Facts, Impairment and Sanction): 8 August 2024 (19-day hearing) — imposed eight months' suspension and directed no review. Appeal to the High Court under section 40A MA: [2025] EWHC 802 (Admin). The PSA joined under section 40B. The judgment notes an Assistant Registrar's decision under section 35D (dated 30 August 2024) directing a review hearing listed for 7 May 2025 which was not communicated to parties prior to the hearing below.