Doctor – Sexual & Racial Misconduct: Regulators’ bid for Erasure Fails.

The Professional Standards Authority and the General Medical Council failed in their appeal to obtain a sanction of erasure against a doctor who had been suspended for a period of eight months without a review by the Medical Practitioners Tribunal which considered an extensive list of allegations against the doctor concerning sexually motivated conduct, sexual harassment, harassment related to race, intimidation, racist conduct and abuse of his senior position: General Medical Council & Anor v Gilbert [2025] EWHC 802 (Admin)  Calver J

Between October 2008 and September 2009 the doctor worked as a Senior Registrar at an NHS Foundation Trust, subsequently returning to work there as a Consultant Surgeon between October 2010 and May 2022. The Trust investigated allegations that he engaged in inappropriate conduct between August 2009 and April 2022 towards six colleagues and dismissed him.

Practitioners may wish to consider reading the full judgment in this appeal decision and consider for themselves whether it falls in line with sanctions imposed in similar appeals, and the general thrust of Jagjivan (see below).

His Lordship said that the Sanctions Guidance was not to be read as if it were a statute. It listed certain factors which may indicate that erasure was appropriate. Nor did it mandate a particular outcome, as any decision on sanction was necessarily fact specific. Having found that the doctor’s misconduct was serious and that it impaired his fitness to practise, it was then for the Tribunal to reach an evaluative decision as to what was necessary to protect the public.

The Court stated in Jagjivan v GMC & PSA [2017] EWHC 1247 (Admin) (a case which concerned sexual misconduct) that it could assess what was 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 would nonetheless afford a necessary measure of respect to the Tribunal’s judgment.

In considering sanction, the Tribunal expressly referred to factors amounting to aggravating factors (abuse of power over a number of junior colleagues and certain allegations taking place in a clinical setting) and clearly had them well in mind.

The Tribunal had a substantial body of evidence before it as to the steps taken by the doctor to remediate his behaviour, which was contained in a reflective statement as well as a statement from his responsible officer, and a substantial body of testimonial letters. These were factors which the Tribunal was entitled to consider tended to suggest that suspension (rather than erasure) was the appropriate sanction. It was also entitled to find, as it did, that there had been no repetition of the behaviour and that the behaviours complained of were highly unlikely to be repeated and that the doctor did not pose a significant risk of repeating behaviour.

The Tribunal’s evaluative decision that a period of suspension rather than erasure was appropriate on the facts of the case was, in the Court’s  judgment, one which did not fall outside the bounds of what an adjudicative body could properly and reasonably decide, even taking into account the fact that the Tribunal ought to have found two allegations provide, but which it did not.

However, in determining a period of 8 months suspension, his Lordship considered that the Tribunal (a) wrongly failed to take into account the fact that the misconduct of the doctor, in the cases identified, (whilst not 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 the doctor’s mitigation, bearing in mind that matters of mitigation were likely to be of considerably less significance in regulatory proceedings than to a court, because the overarching concern was the protection of the public; (d) wrongly failed to take into account the fact that it ought to have found two allegations proved. One of the factors said to be relevant in the guidance to determine the length of the suspension was to ensure that the doctor had adequate time to remediate.

Quashing the Tribunal’s Determination, his Lordship substituted a suspension for the maximum period of 12 months and ordered a review hearing at the end of that period of suspension.