Doctor: GMC’s Unsuccessful Appeal against Sanction

The General Medical Council unsuccessfully appealed a decision of the Medical Practitioners Tribunal to suspend a thoracic surgeon from medical practice for 12 months with a review at the end of that period, having contended that the appropriate sanction was erasure: General Medical Council v Shah [2025] EWHC 899 (Admin) Kerr J

The doctor had been summarily dismissed from his position at a hospital in 2022 following various allegations of impropriety. He was questioned by the police but no criminal proceedings were brought.

The allegations covered the period 2005 to 2021. Certain allegations were found proved by the MPT and in relation to some the Tribunal found that the conduct was unwanted and sexually motivated and was sexual harassment within section 26 of the Equality  Act 2010.

The first ground of appeal was that the Tribunal was in error in concluding that conduct towards Colleague A and language used to describe other female colleagues was not serious misconduct.

His Lordship observed that the Tribunal’s directions to itself set out section 26 of the Equality Act 2010 and the approach to sexual motivation in the regulatory context. Sexual motivation required a specific intent and was not the same as carelessness, recklessness or negligence. Its findings were nuanced, careful and detailed.

Where a Tribunal sat for 13 days, considered hundreds of pages of documents, heard detailed oral evidence, heard erudite submissions and made no error either when directing itself on the law or in finding the facts, it was doing its job rightly so far. That did not of course exclude errors of principle or approach or the drawing of unreasonable inferences or failure to draw inferences, but it was a good start.

The Court could find no reason to accept the GMC’s submission that the Tribunal was bound to find that reasonable colleagues or members of the wider public would find the doctor’s proven conduct towards Colleague A deplorable. The question was one of those described by Lord Burnett CJ in (Bawa-Garba v. General Medical Council [2019] 1 WLR 1929 as a “kind of jury question” about which people may reasonably disagree.

His Lordship agreed with Stephen Brassington, for the doctor, that not every breach of the Equality Act 2010 necessarily required a disciplinary process. The Tribunal’s reasoning as set out demonstrated that it took into account the matters the GMC relied on in the appeal: the significant power imbalance, the fact that the use of language was harassment related to sex (albeit not sexually motivated) and the importance of eliminating sexual harassment from the workplace.

The second and fourth grounds of appeal alleged error in analysis and assessment of risk, insight and remediation at impairment stage; inadequate consideration of insight, remediation and risk of repetition at the sanction stage.  Mr Brassington defended the Tribunal’s decision and reasoning vigorously and in detail in written and oral argument, his main points being that the Tribunal was far better placed than the Court to assess the issues of insight and remediation. The Tribunal’s analysis was detailed and careful. Its decisions were multifactorial, there was no error of law and it could not possible be said that the decisions and reasoning lay outside reasonable bounds. Additionally, the Tribunal was aware of the Sawati v. General Medical Council [2022] EWHC 283 (Admin) line of authority.

The Tribunal stated it was of the view that the conduct was potentially remediable, and that it had evidence that the doctor had commenced the remediation. His Lordship could not see any flaw in that reasoning and did not see why the Tribunal was not entitled to reach that view and act on it. The evaluation of risk, remediation and insight was a matter for the Tribunal, not the GMC, not the doctor and not the Court unless there was an error in the Tribunal’s treatment of the issue.

The third ground of appeal concerned errors in considering and applying paragraph 109 of the Sanctions Guidance. The GMC submitted that the version of the Sanctions Guidance from which the Tribunal quoted did not apply to hearings starting on or after 5 February 2024 and that it was highly likely to have impacted upon the Tribunal’s reasoning and its consideration of the appropriate sanction.

The Tribunal analysed the doctor’s conduct carefully and in detail in its decision. His Lordship accepted Mr Brassington’s submission that the omission would not have made any difference to the analysis or the conclusion and did not vitiate the decision to suspend and not erase.

The decision was, in the Court’s judgment, not wrong or marred by any procedural or other irregularity. The Tribunal examined the facts and evidence in detail over 13 days. It directed itself correctly on the law. It heard and assessed the arguments properly. It asked itself the right questions and its answers were well within the bounds of reasonableness. The GMC’s criticisms were without force.