Professional Standards Authority for Health & Social Care v General Medical Council & Anor [2025] EWHC 3442 (Admin)

Case No AC-2025-LON-03860[2025] EWHC 3442 (Admin)
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 9 December 2025
Strand
London
Before
MRS JUSTICE LANG DBE
Between
PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH & SOCIAL CAREAppellantGENERAL MEDICAL COUNCILRespondentJAMES GILBERTRespondent
MS FANELLA MORRIS KC appeared for Appellant.MR MARK SUTTON KC appeared for Second Respondent. for The First Respondent did not appear and was not represented.
JUDGMENT
Digital Transcription by Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JEWeb: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk(Official Shorthand Writers to the Court)This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
[1]MRS JUSTICE LANG: The appellant ("the Authority") seeks an interim order suspending the second respondent, Mr Gilbert, from the register until the determination of its appeal against the decision of the Medical Practitioner's Tribunal ("the Second Tribunal") of the General Medical Council ("the GMC"), made on 2 September 2025, that Mr Gilbert's fitness to practise was no longer impaired and so he was allowed to return to practice. History[2]Mr Gilbert qualified in 2000 and then completed postgraduate clinic training. He completed his membership at the Royal College of Surgeons in 2003 and his Fellowship in General and Transplant Surgery in 2009. He acquired his certificate of completion of specialist training in June 2010.[3]Between October 2008 and September 2009, Mr Gilbert worked as a senior registrar at the Oxford University Hospital's NHS Foundation Trust ("the Trust"). He returned to the Trust and worked as a consultant surgeon between October 2010 and May 2022. Whilst at the trust, it was alleged that he engaged in inappropriate conduct towards colleagues. Following an investigation, he was dismissed by the Trust on 20 May 2022.[4]After his dismissal, Mr Gilbert completed NHS "choose and book" outpatient appointments and surgical lists at the New Foscote Hospital, carrying out hernia repair surgery. He also undertook locum shifts as a Registrar in general surgery. From January 2023 to the time of the tribunal hearing, Mr Gilbert was appointed to the role of Chief Medical Officer at the new Foscote and Royal Buckinghamshire Hospitals Group.[5]On 8 August 2024, following a finding that his fitness to practise was impaired by reason of misconduct, he was suspended from the register from 13 September 2024 to 12 September 2025. He has since returned to clinical practice. The First Tribunal[6]The Trust made a referral to the GMC in June 2022, and proceedings were taken against Mr Gilbert. The Medical Practitioner's Tribunal, which I shall refer to as "the First Tribunal", sat for 19 days in 2024 and considered multiple allegations. It considered written and oral evidence from Mr Gilbert and his colleagues who made the allegations. It found the majority of the allegations proved, against six colleagues, over a period of 13 years from 2009 to 2022. In summary, the First Tribunal held that Mr Gilbert had breached fundamental tenets of the medical profession by non-consensual sexual touching, sexually motivated comments, sexual harassment, racist comments, and racial harassment, and abuse of his senior position.[7]In its determination on 8 August 2024, the First Tribunal held that Ms Gilbert's fitness to practise was impaired by reason of misconduct. Based on a considerable body of evidence, the First Tribunal considered that his conduct was capable of remediation and that he had already demonstrated a high level of remediation. He had also demonstrated a significant amount of insight, but did not yet have sufficient insight into the full breadth of his misconduct. Therefore, the First Tribunal could not conclude that the behaviours complained of were highly unlikely to be repeated.[8]Addressing the test for impairment and the statutory overriding objective (section 1(1B) Medical Act 1983 (“MA 1983”), the First Tribunal found that Mr Gilbert failed to maintain proper professional standards and his misconduct brought the medical profession into dispute. The GMC did not submit, nor did the First Tribunal find that his fitness to practise was impaired on public protection grounds.[9]The First Tribunal applied the Sanctions Guidance and concluded that suspension for a period of 8 months was an appropriate and proportionate sanction on the facts of the case. It would properly mark the seriousness of the misconduct. It would protect the public interest, and send out a clear message to the public, the medical profession, and to Mr Gilbert, that such behaviour was not acceptable. The First Tribunal determined that the factors in the Sanctions Guidance, which indicated erasure to be appropriate, were not applicable in this case. Mr Gilbert's misconduct was not fundamentally incompatible with continued registration and erasure would be disproportionate.[10]The First Tribunal decided a review was not necessary, given the comprehensive evidence of insight and remediation. The First Tribunal decided not to exercise its power to make an immediate order of suspension. Instead, the suspension would commenced28 days from the date of notification of the decision, unless Mr Gilbert lodged an appeal. Mr Gilbert did not appeal and the suspension duly took effect.[11]Despite the First Tribunal's ruling, an Assistant Registrar at the GMC decided, on 30 August 2024, that a review was necessary, applying GMC internal guidance to the effect that a review should take place following a suspension of 6 months or more, and also the finding in this case that remediation was not complete. Unfortunately due to an error by the GMC, Mr Gilbert was not informed of this until the hearing of the appeal in March 2025. Appeal to the High Court - Calver J[12]The GMC and the Authority appealed against the First Tribunal's decision on 3 April 2025. Calver J. allowed the appeal in part only. He agreed with the First Tribunal, that erasure would be a disproportionate sanction and that suspension sufficiently marked the gravity of Mr Gilbert's conduct, even taking into account the additional allegations 15(b) and 23(a) which should have been found proved (see paragraph 13(4) below).[13]However, Calver J. identified errors in the First Tribunal's approach as follows:(1) It wrongly failed to take into account that the misconduct of Mr Gilbert, whilst not in fact imperilling public safety, was capable of imperilling public safety.(2) It wrongly failed to take sufficiently into account the harm which was caused to the victims of his sexual misconduct.(3) It wrongly failed sufficiently to mark the seriousness of its finding, giving too much weight to Mr Gilbert's mitigation.(4) It wrongly failed to take into account the fact that it ought to have found allegations 15(b) and 23(a) proved.[14]Calver J also found that the First Tribunal erred in deciding that a review was unnecessary, applying the Sanctions Guidance at paragraph 164. A review hearing was necessary to consider whether Mr Gilbert fully appreciated the gravity of the offences, had not re-offended, had maintained skills and knowledge, and that patients would not be placed at risk by resumption of practice.[15]For these reasons, the First Tribunal's determination was quashed and the appeal allowed.[16]Calver J considered that, given the nature of the misconduct, he could assess an appropriate sanction. He concluded that an 8 month suspension period was not a sufficient penalty for the maintenance of public confidence in the profession and proper professional standards. Instead, he imposed a 12 month suspension period, with a review hearing at the end, which would ensure that Mr Gilbert had adequate time to remediate and for his fitness to practise to be assessed. Imposing the maximum period of suspension reflected the seriousness of his misconduct and was necessary for the maintenance of confidence in the profession. The appeal to the Court of Appeal against the judgment of Calver J[17]The GMC appealed against Calver J.'s judgment to the Court of Appeal on 30 April 2024. The second appeal test under CPR 52.7(2) applies, which requires a real prospect of success, and an important point of principle or practice or some other compelling reason to hear the appeal.[18]Under ground 1, the GMC submitted that, as a point of principle, the Judge erred in not erasing Mr Gilbert from the register.[19]Under ground 2, the GMC submitted, as a point of principle, the Judge failed to follow the logic of his own decision. The First Tribunal referred to only 4 of the 10 factors which may indicate erasure is appropriate, in paragraph 109 of the Sanctions Guidance. The GMC submitted that the logic of Calver J's judgment was that factors “(c) doing serious harm to others”; “(i) “putting their own interests before those of patients”; and “(j) persistent lack of insight” were also applicable. The GMC also submitted, the Judge failed to apply the first limb of the test in paragraph 67 of Bawa-Garba v GMC [2018] EWCA Civ 1879, which permits the appellate court to interfere with an evaluative decision if there was an error of principle in carrying out the evaluation.[20]Zacaroli LJ refused permission on ground 1 on the papers on 22 July 2025. He emphasised that findings of sexual and misconduct and racist statements do not necessarily result in erasure. He referred ground 2 for an oral permission hearing.[21]On 30 October 2025, at an oral permission hearing, Andrews LJ and Elizabeth Laing LJ granted permission on ground 2. Andrews LJ identified as the sole point of principle. whether the High Court having identified an error in the First Tribunal's approach, should have remitted the matter for reconsideration, rather than re-making the decision on sanction. They directed a hearing should take place as soon as practicable and it has now been listed for 15 January 2026.[22]The Authority appeared at the permission hearing on 30 October 2025. Shortly afterwards, it applied for permission to appeal on two grounds. Ground 1 was that Calver J. failed to address whether Mr Gilbert had acted so as to put patients unwarranted risk of harm and then failed to answer the question correctly, in accordance with his finding that Mr Gilbert's misconduct was capable of posing a risk to patient safety. Ground 2 was that Calver J. failed correctly to approach the question whether Mr Gilbert's conduct was difficult to remediate.[23]On 5 December 2025, Andrews LJ and Elisabeth Laing LJ made an order on the papers granting the Authority permission to cross appeal on these two grounds, holding that they had a real prospect of success and raised matters of principle. They ordered that they should be considered at the expedited hearing on 15 January 2026. The review decision by the Second Tribunal[24]Mr Gilbert's 12 month suspension from the register expired on 12 September 2025. On 2 September 2025, the Second Tribunal held a review hearing. The GMC presented the matter fully. It took a neutral stance on impairment and did not seek any extension of the suspension. The Second Tribunal heard oral evidence from Mr Gilbert and considered extensive documentary evidence. It summarised Mr Gilbert's oral evidence at paragraph 7 of its determination:
“7. Mr Gilbert gave oral evidence at the hearing. In summary, he said: • He discussed his previous finding of misconduct and acknowledged in response to tribunal cross-examination that a problem existed in relation to concerns of inappropriate behaviour and sexually inappropriate behaviour towards younger female colleagues in the medical profession. • He accepted that by virtue of the finding against him he had contributed to these concerns and further accepted that wider change in culture was needed. • He also discussed his decision to work as a locum registrar instead of a consultant to gain further experience about the workplace power dynamics and the abuse of power within the medical profession. • He also apologised to his victims and stated that he wanted to be an ‘ambassador for change’ in challenging power imbalances between senior and junior colleagues. • He further set out how he would have coping strategies in the future which would help him in the future particularly with his interactions with colleagues in high pressure situations. • Mr Gilbert explained the reasons why it was necessary for him to go through a journey to develop his insight in respect to sexist, misogynistic, racist comments, and the conduct that the Tribunal heard about and commented that he previously been “blinded with a complete lack of understanding about things like the power dynamic and professional boundaries.”
He said he had taken steps to address this and to remediate his conduct and that he had been through a painful process.”[25]The Second Tribunal had regard to the overarching objective as set out in section 1 MA 1983. It summarised the relevant legal principles at paragraphs 12 to 14 of its determination. The Second Tribunal concluded that Mr Gilbert's fitness to practise was no longer impaired for the following reasons at paragraphs 15 to 28:
“15. The Tribunal considered Mr Gilbert’s previous misconduct and saw that it was serious and ultimately led to a finding of impairment 12-month suspension and a review hearing. 16. The Tribunal had regard to the findings and conclusions of the 2024 Tribunal and also the findings of Mr Justice Calver, the submissions and the documentary evidence from both parties at this hearing. Further the Tribunal noted that the 2024 Tribunal considered Mr Gilbert’s misconduct was remediable and went to consider if Mr Gilbert’s fitness to practise remained impaired. 17. The Tribunal agreed that the public protection limb of the overarching objective was not engaged and went on to consider if Mr Gilbert’s fitness to practise was impaired with regard to the second and third limb of the overarching objective namely public confidence in the medical profession and maintaining proper standards in the medical profession. 18. The Tribunal considered Mr Gilbert’s current insight into his previous misconduct and was reassured by the lack of evidence of any repetition, as well as Mr Gilbert’s range of written reflections together with his oral evidence at this hearing into his insight which showed progress. The Tribunal was satisfied by Mr Gilbert’s reflective oral responses at this hearing particularly regarding his misconduct toward female colleagues and agreed that although Mr Gilbert faced serious sexual and racial allegations, he put in significant [missing word] into his insight and made progress. 19. The Tribunal was of the view that Mr Gilbert had made effort into his remediation and could not see any other significant avenue for him to explore to gain further insight or remediate. 20. The Tribunal also had regard to the range of positive written testimonial evidence from his colleagues, some of which discuss Mr Gilbert’s past misconduct and his current behaviour in a clinical environment. It noted that Mr Gilbert’s (sic) had sought professional support as well as the support of colleagues and a number of formalised mentorships to ensure that he continues to gain insight into his behaviour and support in dealing relationships with colleagues. 21. The Tribunal also considered the extent and quality of his Mr Gilbert’s CPD and further learning and saw that the courses he has completed were wide-ranging and relevant to the allegations which were found proved against Mr Gilbert. This included a bespoke coaching and enlightenment active remediation programme involving one-to-one sessions. The Tribunal noted that Mr Gilbert was able to provide in depth evidence detailing his continuing development activities and further training courses including those about keeping his medical skills up to date. 22. The Tribunal was satisfied that Mr Gilbert was remorseful, noting that in his oral evidence he commented that he now committed [word missing] be an ambassador for change against inappropriate workplace behaviour particularly against female colleagues. 23. The Tribunal considered if a risk of repetition existed and agreed with regard to the evidence of current fitness to practise both documentary and oral, Mr Gilbert has done as much as he could do to minimise the risk of repetition. It concluded that the risk of repetition was very low. 24. The Tribunal considered Mr Gilbert’s impairment with regard to the public interest and noted that the object of these proceedings was not to punish Mr Gilbert but meet the engaged overarching objective and ensure that Mr Gilbert was fit to return to unrestricted practise. It took the view that the objective, reasonable and fully informed member of the public would agree that Mr Gilbert has undertaken [word missing] comprehensive journey of insight and remediation and made significant progress. 25. The Tribunal considered if Mr Gilbert has maintained his skills and knowledge and decided that he provided sufficient evidence to demonstrate ongoing maintenance of his medical skills and indicated that he has secured clinical mentorship relationships to support him re-skilling should he decide (word missing) return to practise as surgeon. It also noted that Mr Gilbert is aware that he will need support to return to full practising surgeon and agreed that patient safety, in this regard. 26. The Tribunal determined that Mr Gilbert appreciates the gravity of the 2024 Tribunal’s findings and has demonstrated that he has fully reflected upon them and taken positive action to ensure that his misconduct is not repeated. His reflections address specific sections of the 2024 Tribunal’s decision and the decision of the High Court. 27. It was clear to the Tribunal that Mr Gilbert has taken a great deal of time and effort to reflect upon those findings of the 2024 Tribunal and the High Court decision and the impact upon the victims, public, and the profession. 28. This Tribunal has therefore determined that Mr Gilbert’s fitness to practise is not impaired by reason of misconduct.”
Authority’s appeal to the High Court[26]The Authority appealed to the High Court against the Second Tribunal's decision on 4 November 2025. It submits that the Second Tribunal's decision was insufficient for the protection of the public. Its grounds are summarised as follows: "(1) The second Tribunal wrongly found that Mr Gilbert had sufficient insight, remorse and remediation in relation to his sex related misconduct, so that his fitness to practise was no longer impaired. Mr Gilbert minimised his misconduct by situating it within the culture of the profession, even though he'd been warned about his misconduct 10 years before he was suspended and then dismissed by his employer for it. (2) The tribunal failed to address adequately the issue of whether Mr Gilbert's insight, remorse and remediation as to his race related misconduct was sufficient when determining that his fitness to practise was no longer impaired. (3) The second tribunal was led into error by the previous decisions of the first tribunal and Calver J, the subject of an appeal to the Court of Appeal, that(i) Mr Gilbert's misconduct was "not difficult to remediate" and(ii) Mr Gilbert's fitness to practise was not impaired on the ground of public protection.[27]The Authority asks the Court to quash the Second Tribunal’s decision and remit the matter to a differently constituted tribunal. The Authority has also applied for an interim order to suspend Mr Gilbert from the register pending the determination of this appeal. The grounds are that his misconduct was so serious, and his remediation so inadequate, that any sanction less than erasure is insufficient to protect the public. An interim order is necessary for the protection of the public and in the public interest. The appeal has good prospects of success. It rests upon legal propositions which are common ground and clear on the documents. It is not clinical in character and therefore less deference should be accorded to the Second Tribunal’s decision. The detriment to Mr Gilbert will be limited since the GMC's appeal is to be expedited. During his suspension he has worked in the healthcare sector and might return to such a role pending determination of the appeal. The detriment to him has to be weighed against the grave detriment to the public interest.[28]Mr Sutton KC on behalf of Mr Gilbert opposed the application and took issue with the Authority’s grounds. He submitted that there was no serious issue to be tried and no real prospect of success in the appeal. Damages would not be an adequate remedy, and the balance of convenience was against the granting of an injunction.[29]Mr Sutton KC raised a preliminary jurisdictional matter, namely that the Court has no power to make the order sought under the statutory scheme.[30]The Authority is a body corporate established pursuant to section 25(1) of the National Health Service and Healthcare Professions Act 2002 ("the 2002 Act”). The overarching object of the Authority in exercising its functions is the protection of the public.[31]On my interpretation of the scheme, the decision of the Second Tribunal was a "relevant decision" for the purposes of section 29(1)(c) and 29(2)(a) of the 2002 Act. Under section 35D MA 1983, where a registrant has been suspended from the register by reason of impairment of fitness to practise, subsections (4) and (5) make provision for a review by a tribunal, prior to the expiry of the suspension. On review, the tribunal has power, among other options, to extend the period of suspension. On my reading of the 2002 Act, the decision by the Second Tribunal not to extend the suspension was a decision not to take a disciplinary measure under Section 35D(5) MA 1983. It therefore falls within the scope of section 29(1)(c) and 29(2)(a) of the 2002 Act. Although the decision of the First Tribunal was the primary disciplinary measure, the review decision was a direct consequence of the First Tribunal's decision (incorporated in Calver J.'s order). It was part of the overall fitness to practise scheme in section 35(d) MA 1983.[32]I note that in the case of Jagivan v GMC [2009] EWHC 1923 (Admin.) the court held, at [32], that it would be anomalous if the GMCs right of appeal under section 40A MA 1983 did not extend to failures to act. The same point applies in respect to the powers under section 29 of the 2002 Act.[33]The Authority may refer a relevant decision to the High Court where it considers that the decision is not sufficient, whether as to a finding or penalty, or both, for the protection of the public (section 29(4) of the 2002 Act). Where a case is referred to the High Court, it is to be treated as an appeal (section 29(7) of the 2002 Act).[34]By section 29(8) of the 2002 Act, the High Court may dismiss or allow the appeal; substitute for the relevant decision any other decision which could have been made by the committee; or remit the case to the committee to dispose of, in accordance with the directions of the court. In my view, all these powers relate to a final order by the Court, following determination of the appeal. The power to substitute another decision is clearly only intended to be exercised if and when an appeal has been allowed. There is no provision to make interim orders pending the determination of the appeal. In my view, if Parliament intended to confer a power to make interim orders, it would have said so and made provision for the circumstances in which orders could be made.[35]The Authority relies upon the power of a tribunal to make an interim order under section 41A MA 1983, including suspension of registration for up to 18 months at any stage of the proceedings. However, the Second Tribunal was sitting as a review tribunal under section 35(d)(4) and (5) MA 1983. It was not determining an application for an interim order, nor exercising the powers under section 41A MA 1983. Furthermore, the powers in section 41A 1983 are vested in a tribunal at first instance, not the High Court. There is a provision in section 41A(6) to (7) MA 1983 to apply to the High Court for an extension of an interim order, but that provision is not engaged here.[36]Although there is no power under the statutory scheme for the High Court to make an interim order, I consider that the high court has a wide jurisdiction to grant injunctions and other interim relief: see section 19 of the Senior Courts Act 1981 (general jurisdiction of the High Court); section 37 Senior Courts Act 1981 (power to grant an injunction where it appears just and convenient to do so); and CPR r.25.1.[37]The principles governing the grant of interim relief in public law proceedings are those contained in American Cyanamid Company v Ethicon Limited [1975] AC 396, modified as appropriate to the public law context. First, the claimant must demonstrate that there is a serious question to be tried. In public law claims this involves considering whether there is a real, not a fanciful, prospect of the claim succeeding at the substantive hearing: See R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin) per Cranston J at [6] and The Administrative Court Judicial Review Guide 2025. The Authority is seeking a mandatory order requiring the GMC to suspend Mr Gilbert from its register and therefore a strong prima facie case needs to be shown.[38]Secondly, the Court should consider whether the balance of convenience lies in favour of granting or refusing the interim relief that is sought. This involves balancing the harm to the claimant that would be caused if interim relief is not granted and the claim later succeeds, against the harm that would be caused to the defendant, any third party and the public interest if interim relief is granted and the claim subsequently fails.[39]As Mr Sutton KC correctly submitted "success" in this case must comprehend the Authority's appeal finally succeeding in both the following respects:a. the Court finding that the decision of the Second Tribunal involved an error of principle, or was one that no reasonable tribunal could have arrived at, andb. the Court directing that the Second Tribunal's decision be quashed and substituting its own decision that suspension be extended or Mr Gilbert be erased (something that the Authority did not seek in its grounds of appeal as it proposed remitting the matter for reconsideration by a different panel).[40]I have had regard to the relatively high threshold for an appeal court when conducting a review to interfere with the specialist tribunal's judgment.[41]In Bawa-Garba, the Court of Appeal emphasised the decision on sanction was an evaluative decision based upon many factors, sometimes referred to as a "multifactorial decision constituting a mix of fact and law and as a kind of jury question about which reasonable people may reasonably disagree” (at [61]) and that:
"An appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation or (2) for any reason the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide” (at [67])."
[42]In PSA v The Health and Care Professions Council & Doree [2017] EWCA Civ 319. The Court of Appeal held, per Lindblom LJ at [38]:
"38… Whether a registrant has shown insight into his misconduct, and how much insight he has shown, are classically matters of fact and judgment for the professional disciplinary committee in the light of the evidence before it. Some of the evidence may be matters of fact, some of it merely subjective. In assessing a registrant's insight, a professional disciplinary committee will need to weigh all the relevant evidence, both oral and written, which provides a picture of it. This may include evidence given by other witnesses about the registrant's conduct as an employee, or as a professional colleague, and, where this is also relevant, the quality of his work with patients, as well as any objective evidence, such as specific work he has done in an effort to address his failings."
[43]In Abrahaem v GMC [2008] EWHC 183, Blake J said at [20]:
"From a perusal of these and related authorities, there is no doubt that while the appellate court has a judgment of its own to exercise where the panel has properly directed itself to the relevant issues on evidence and made findings of fact that it was entitled to make, this is a distinctly secondary one. Particular weight should be accorded to the assessments of the panel: both because it has the infinite advantage of making its assessment having seen the witness give evidence, and also because it is the expert body better placed than the court as to what standards should be expected of a professional practitioner, and what conditions will be useful and appropriate to ensure that an errant practitioner meets or maintains those standards in the future."
[44]In my judgment, the Second Tribunal correctly directed itself as to its functions in law. Its approach was consistent with the Sanctions Guidance relating to review hearings (see the Chair's advice at internal page 42). Both counsel for the GMC and for Mr Gilbert refer the Second Tribunal to relevant guidance.[45]In my view, it was clearly right for the Second Tribunal to proceed upon the basis of the First Tribunal's findings and decision, read in the light of the judgment of Calver J., as the High Court's analysis stands, unless or until it is overturned in the Court of Appeal. The GMC informed the tribunal that it had applied to appeal Calver J.'s decision but rightly stated that had no bearing on the decision the Second Tribunal had to make.[46]The Second Tribunal correctly set out its task at paragraphs 12 to 14 of its determination, as follows:
“12. The Tribunal reminded itself that the decision of impairment is a matter for the Tribunal’s judgment alone. This Tribunal is aware that it is for the doctor to satisfy it that he would be safe to return to unrestricted practise. 13. This Tribunal must determine whether Mr Gilbert’s fitness to practise is impaired today, taking into account Mr Gilbert’s past misconduct at the time of the events and any relevant factors since then such as whether the matters are remediable, have been remedied and any likelihood of repetition. 14. The Tribunal looked for evidence that Mr Gilbert has developed insight into the full breadth of his misconduct, any further remediation, that he has not repeated his conduct, that he has maintained his skills and knowledge and that patients will not be placed at risk by resumption of practice.”
[47]Under Ground 1 of the Grounds of Appeal, the Authority submitted that the Second Tribunal erred in finding that Mr Gilbert had sufficient insight, remorse and remediation in respect of his sex-related misconduct so that his fitness to practise was no longer impaired. In my view, the Authority's submission under Ground 1 that Mr Gilbert minimised his misconduct by situating it within the culture of the profession is not supported by the evidence. The Authority's account of the evidence is selective and ignores the context in which Mr Gilbert's comments about cultural factors were made, in reply to a generic question from a tribunal member as to the power difference between consultants and male and female resident doctors.[48]In my view, the Authority has not fairly taken into account Mr Gilbert's reflective statement, fully supported by the testimony of his Responsible Officer, professional counsellor and mentor and a range of other witnesses both professional and personal, which bear on the extent and genuineness of his reflection, self-challenge and insight into his past misconduct and his progress in achieving remediation. These documents were all before the Second Tribunal and formed part of its considerations.[49]The Authority relied upon the observations of the First Tribunal which referred at paragraphs 474 and 475 to Mr Gilbert's reflective statement where he stated that the feedback from Ms E in 2012 about his behaviour was a “watershed moment" prompting him to make changes to his behaviour. The First Tribunal found that, as there were findings of sexual misconduct after that date, it was not a watershed moment. However, in his reflective statement to the second tribunal, Mr Gilbert said at paragraphs 2.3 and 2.4:
"2.3 I failed in many areas, but perhaps a key area has been that of being blind to the impact of my actions even when they've been highlighted to me. As I described in my reflective statement for the second stage of the MPTS tribunal in July 2024, I undertook a three day professional boundaries course in which I began to develop real insights into "power dynamics", "boundaries" and "blind spots"
. It became increasingly apparent to me that I had been blind to my behaviour and its impact. “2.4 The MPTS tribunal observed with justification that my "watershed moment" was not "the advice and feedback of the trainee Ms E in 2012" as I had thought, but rather, was instead "likely to have been when I was dismissed from the Oxford University Hospital Trust in 2022". It was, upon reflection, this loss of employment, reputation, earning and sense of self-worth that was the wake up call and marked the beginning of my journey towards gaining insight into my conduct, and how I could seek to remediate the same. I embarked on a journey of reflection, attending courses, counselling, and psychotherapy to confront who I was and the mistakes I had made."[50]In my view, the findings of the Second Tribunal were a careful evaluation of the evidence of Mr Gilbert's insight, remorse and remediation and of course they had the benefit of hearing him give evidence.[51]For all these reasons, in my judgment, there is no real prospect of success or a strong prima facie case on Ground 1.[52]The Authority’s submission under Ground 2, that the Second Tribunal did not adequately address the race-related misconduct is, in my view, not supported by the evidence. Mr Gilbert's reflective statement included extensive reflections on the racial comments he had made, as well as reading and CPD he had undertaken relevant to the area. In addition, the questions from the Second Tribunal included questions directed to Mr Gilbert's insight and reflections in relation to these allegations. Mr Gilbert's response to this question was specifically referred to by the second tribunal in its determination at paragraph 7. At paragraph 18 there was further reference to his significant insight and progress in respect to the serious sexual and racial allegations. For these reasons, I am not persuaded that there is a real prospect of success nor a strong prima facie case on Ground 2.[53]Under Ground 3, the Authority challenges the finding of the First Tribunal that Mr Gilbert's misconduct was not difficult to remediate. However, Calver J. found that First Tribunal was entitled to make that finding. Calver J. said at [118]:
"I do not accept that the Tribunal "erred in finding that the registrant's misconduct was "not difficult to remediate” by reason of the nature and extent of the misconduct”, and that no reasonable Tribunal could conclude on the particular facts of the case, that it was not difficult to remediate. Taking into account the nature and extent and the misconduct in this case. I consider that the Tribunal was entitled to find in the light of the substantial body of evidence before it of the steps taken by Mr Gilbert to remediate his behaviour that (i) there was no evidence that demonstrated that remediation was unlikely to be successful and (ii) the behaviours were not difficult to remediate. Certainly I do not consider that this court should substitute its view in this respect for that of the Tribunal who heard extensive evidence on the topic of remediation."
[54]Under Ground 3, the Authority also submit that the First Tribunal and Calver J. erred in finding that Mr Gilbert's fitness to practise was not impaired on the grounds of public protection, that is to say, patient safety. Calver J dealt with this issue with care in his judgment. He said, at [62]:
"62. Mr Hare KC submits that the Tribunal failed to have regard to the fact that a significant amount of Mr Gilbert's misconduct took place during the course of operations or other clinical activities, where the victim may have been distracted from patient care by the conduct / comment. This is, he argued, an aggravating feature of the misconduct."
Calver J. then inserted a footnote which read: “Mr Hare KC added that when considering impairment, the Tribunal should also have taken into account that colleagues are members of the public too. Hence the first part of the overarching objective in section 1 of the 1983 Act was also engaged. I considered that that submission goes too far: section 1(a) which refers to the health, safety and wellbeing of the public is to be contrasted with section 1(c), which refers to proper professional standards and conduct for members of the medical profession. However, I do not consider that this adds anything in terms of the relevant sanction. On any view there was serious misconduct in this case leading to impairment." Continuing with Calver J.’s judgment at [62]: "62 In particular, the misconduct took place during clinical procedures or on a ward round as follows: 1. Allegation 1(a)(i): during an operation (sexual misconduct); 2. Allegation 7: during a ward round (racism); 3. Allegation 11: under the operating table during an operation (sexual misconduct); 4. Allegation 20b: during a surgical procedure (sexual misconduct); 5. Allegation 22: during an organ harvesting operation (racism). 63. In the GMC’s closing submissions to the Tribunal on the facts, on two occasions they highlighted the fact that sexual comments were made by Mr. Gilbert during an operation (at D17/2 and D17/3). However, they also stated as follows: “Because although, of course, this has not been a case about patient safety – and there is no evidence that any patient has come to any harm whatsoever; in fact, the evidence produced by the doctor is that he is a good and capable surgeon – as this guidance makes clear it is essential for good and safe patient care that a doctor does work effectively with other colleagues. That did not happen in this case.” ….. 66. When the GMC summed up its case on impairment to the Tribunal (at [D17/7]), it referred to the approach of Dame Janet Smith in the Fifth Shipman Report, as referred to in CHRE v NMC & Grant [2011] EWHC 927 (Admin) in which she stated: “Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession…." 67. The GMC did not suggest that there was a patient safety issue in this case (limb (a)); rather its case was that limbs (b) and (c) of Dame Janet’s analysis were engaged….. 68. The Tribunal accordingly recorded that this was the GMC’s case at paragraphs [430] – [432] of its Determination on Impairment and it adopted the Dame Janet Smith test of impairment at [458]. 69. In the light of the way in which the case was put, the Tribunal concluded tat [479] – [480] in its finding on Impairment that limbs (b) and (c) (but not a)) of Dame Janet’s Smith’s test were applicable ….” 55. Calver J rejected the submission that the fact that some of the misconduct occurred in clinical settings posed a risk to public safety. It was however relevant to the seriousness of the misconduct: see judgment at [75] to [79]). 56. Calver J also held that it did not follow from the fact that racist comments were made to colleagues in a clinical context that Mr Gilbert was racist in his attitudes towards his patients. There was no evidence to support that: see judgment at [83] to [84]. However, Calver J went on to say, at [85]: “ ... in the case of the racist remarks, which formed the subject matter of allegations 9(b) and 22 would at least have been capable of distracting those who heard them in a clinical context, which potentially posed a risk to patient safety. I accept that this capability was an aggravating feature of Mr Gilbert's racist conduct, which ought to have been but was not referred to as such by the tribunal."[57]Calver J made a similar finding, at [87] of his judgment, stating that the sexual misconduct was capable of distracting Mr Gilbert's colleagues, thereby imperilling patient safety. However, there was no evidence that it had in fact done so. Calver J held that issues of risk were fact dependent and it was not appropriate to speculate or generalise: see judgment at [87] to [90].[58]For the reasons I have already explained, the Second Tribunal was bound to follow Calver J.'s ruling on these issues, unless or until it was overturned on appeal.[59]Obviously, the Second Tribunal had to assess for itself whether it was now safe for Mr Gilbert to return to practise, which included the matters set out at paragraphs 12 to 14 of its determination. In particular, this required an assessment of the evidence since the date of the first tribunal's hearing and the appeal before Calver J. In my view, the Second Tribunal carried out this exercise conscientiously: see paragraphs 18 to 24, and 26 to 28 of its determination.[60]It will be apparent from what I have already said that I do not consider that the Second Tribunal erred in its approach. However, I am conscious that the Court of Appeal has considered these two grounds in the context of the GMC appeal, and has concluded that there is a real prospect of success. In those circumstances, I do not consider that I can properly do anything other than find that there is a real prospect of success on Ground 3 of the Authority’s appeal.[61]I turn to address the balance of convenience. The authority has submitted that the Court should hold the ring and avoid injustice. But the status quo is that, since his suspension ended, Mr Gilbert has engaged in clinical practise and is treating patients in accordance with the determination of his professional regulator. There is a public interest in an experienced and competent doctor delivering much-needed patient care.[62]The grant of interim relief would effectively reverse the Second Tribunal's determination without according Mr Gilbert a full hearing on the appeal, and without remitting the matter for reconsideration by a specialist tribunal. A year's suspension from clinical work has inevitably resulted in loss of work and income for Mr Gilbert. To be suspended again, pending the appeal will be very challenging for Mr Gilbert and his family. There is no evidence of actual harm to any patients. The Authority relies upon a potential risk to patient safety which may arise if Mr Gilbert distracts his colleagues in the manner described by the First Tribunal, and the judgment of Calver J..[63]At the hearing on 15 January 2026, which is only one month away and interrupted by the festive holidays, the Court of Appeal will consider the issues in Mr Gilbert's case, which are being pursued by the Authority and the GMC. These include the issues of remediation and patient safety that the Authority relies upon in ground three of this appeal.[64]As the hearing has been expedited, it is likely that an authoritative judgment will be handed down promptly by the Court of Appeal, resolving these issues one way or the other. If the Court of Appeal accepts that erasure is the only appropriate sanction, then that will necessarily determine Mr Gilbert's registration. If it remits his case for reconsideration by a tribunal, I consider it is more appropriate for any decision to be made on Mr Gilbert's registration to be considered with the benefit of the Court of Appeal’s judgment, not before. If the Authority and the GMC are unsuccessful in the appeal, then there would be no basis, in my view, for making an order against Mr Gilbert.[65]For all these reasons I consider that the balance of convenience is against the grant of interim relief and the application for interim relief is refused.

Order

Application refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk