GMC v Gilbert: Court of Appeal upholds suspension for sexual misconduct and racist remarks

The Court of Appeal has dismissed appeals by the General Medical Council (GMC) and the Professional Standards Authority (PSA) against a High Court decision that suspension, rather than erasure from the medical register, was the appropriate sanction for a surgeon found guilty of sexual misconduct and making racist remarks towards colleagues.

Mr James Gilbert, a consultant vascular surgeon, was found by a Medical Practitioners' Tribunal (MPT) to have engaged in inappropriate conduct towards six colleagues between 2009 and 2022. The proven allegations included sexually motivated comments and non-consensual touching of junior female colleagues, as well as racist statements. The conduct included remarks such as asking colleagues about their underwear, inappropriate physical contact including grabbing colleagues by the waist, and racist comments relating to patients' ethnicity.

The MPT determined that whilst Mr Gilbert's fitness to practise was impaired by reason of misconduct, the appropriate sanction was eight months' suspension rather than erasure from the register. The GMC and PSA appealed to the High Court, arguing the sanction was insufficient to protect the public.

Calver J in the Administrative Court partially allowed the appeal, finding the MPT had erred in certain respects. He held the Tribunal should have found two additional allegations of racist behaviour proven and had failed adequately to consider that the misconduct was capable of imperilling patient safety when it occurred during clinical settings. The judge also found the MPT erred in determining that no review hearing would be necessary following suspension. However, he agreed that erasure would be disproportionate, instead substituting a 12-month suspension with a mandatory review hearing.

The GMC and PSA then appealed to the Court of Appeal. The GMC's principal ground was that having identified errors in the MPT's application of the Sanctions Guidance, the judge should either have remitted the matter to the Tribunal or substituted erasure as the sanction. The PSA advanced additional grounds relating to patient safety and remediation.

Lord Justice Bean, giving the leading judgement, emphasised that where both the MPT and the High Court agree on the appropriate sanction, the Court of Appeal should exercise particular caution when conducting its review. He noted that in cases involving sexual misconduct or racist statements, whilst the court can more easily assess what is needed to protect the public, it must still afford a proper measure of respect to the evaluative judgement of the specialist tribunal.

The court rejected the submission that the Sanctions Guidance should be treated as a form of score sheet. The guidance lists ten factors which may indicate erasure is appropriate, but the judgement should be based on an overall evaluation of gravity rather than mechanistically counting how many factors apply. Lord Justice Bean observed that particular incidents may be characterised in multiple ways, and that the GMC's style of pleading allegations risked encouraging an inappropriate 'tick box' approach.

On the question of patient safety, the court held there was a rational distinction between conduct which actually put patients at risk and conduct which was capable of imperilling patient safety but did not in fact do so. Whilst the misconduct occurring during clinical settings was an aggravating factor, there was no evidence that any patient had come to harm. The PSA's submission that the judge had created an artificial distinction was rejected.

The court attached particular significance to the question of remediation. The MPT had before it substantial evidence of steps Mr Gilbert had taken since his dismissal in 2022, including counselling, accountability meetings, professional courses, and reflective work. The court noted that a second MPT review hearing in September 2025 had determined that Mr Gilbert's fitness to practise was no longer impaired, finding he had made significant progress in insight and remediation with a very low risk of repetition.

Lord Justice Bean concluded there was no failure by the judge properly to apply the Sanctions Guidance, nor any error of principle. The misconduct was serious and the abuse of position over junior colleagues was a significant aggravating factor, but the decision that suspension rather than erasure was necessary fell within the bounds of what could properly and reasonably be decided.

Lady Justice Andrews agreed, emphasising that erasure was not the default position from which departure required justification. She rejected criticism of the judge's reasoning, finding he had given a more than adequate explanation of why the most punitive sanction short of erasure was appropriate. Whilst Mr Gilbert might be considered fortunate to have escaped erasure, it was not the only rational outcome. The distinction between conduct capable of imperilling patient safety and conduct which actually did so was not artificial and could rationally affect the determination of proportionate sanction.

The appeal was dismissed, with Lord Justice Lewis concurring.

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