“In 2012, the feedback from Ms E about behaviours was a watershed moment. I realised that my conduct and style of interaction had affected her sufficiently to flag this. I felt I had taken this feedback on board and had made changes that included putting a stop to shoulder massage and tickling.” 475. The Tribunal noted that, after the handing down of its Facts determination, Mr. Gilbert maintained on oath before it that this was still his view. The Tribunal however, had found proved misconduct relating to non-consensual physical touching, comments made for sexual gratification purposes, and racist comments against four other colleagues after 2012. The Tribunal, in its judgement, concluded that the feedback from Ms E was not a “watershed moment” for Mr. Gilbert as he had carried on behaving inappropriately and that if there was a “watershed moment” then it was likely to have been when Mr. Gilbert was dismissed from the Trust in 2022.”
“477. The Tribunal concluded that Mr. Gilbert had demonstrated a significant degree of insight and had taken a number of steps to remediate his failings. However, Mr. Gilbert’s insight was not fully developed into the full extent of his behaviour as found proved by the Tribunal. He may benefit from further time to digest and reflect on the findings against him. 478. The Tribunal determined that, without sufficient insight into the full breadth of his misconduct, it could not conclude that the behaviours complained of were highly unlikely to be repeated. 479. The Tribunal considered that limbs b and c of the test set out by Dane Janet Smith … were applicable in this case… 480. In particular, the Tribunal concluded that the need to maintain public confidence in the medical profession, and the standard of behaviour within the profession, required the finding that Mr. Gilbert’s fitness to practise is currently impaired by reason of his misconduct. Members of the public would not have confidence in doctors if the Tribunal regarded such misconduct, with evidence of further reflection needed and development of insight required, as not impairing a doctor’s fitness to practise. 481. In the light of all of the above, the Tribunal has therefore determined that Mr. Gilbert’s fitness to practise is impaired by reason of misconduct.”
“91. Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention. 92. Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession). 93. Suspension may be appropriate, for example, where there may have been acknowledgement of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated. The tribunal may wish to see evidence that the doctor has taken steps to mitigate their actions.”
“530. In all the circumstances, the Tribunal determined that suspension of Mr. Gilbert’s registration would be appropriate and proportionate in this case. It considered that suspension would properly mark the seriousness of Mr. Gilbert’s misconduct, would protect the public interest, and would uphold and maintain professional standards in the medical profession. Further, a period of suspension would send out a clear message to the public, the medical profession, and Mr. Gilbert, that such behaviour is not acceptable.”
“532. The Tribunal determined that the following sections of paragraph 109 of the SG were relevant in this case: “Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive). a. A particularly serious departure from the principles set out in Good medical practice where the behaviour is difficult to remediate. b. A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety. … d. Abuse of position/trust (see Good medical practice, paragraph 81: ‘You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession’). … f. Offences of a sexual nature, including involvement in child sex abuse materials (see further guidance below at paragraphs 151–159).” 533. In terms of (a), whilst Mr. Gilbert’s behaviour was a serious departure from the principles set out in GMP the Tribunal concluded that the behaviours complained of were not difficult to remediate in the light of its findings on Impairment. With regard to (b), the Tribunal did consider Mr. Gilbert’s actions to amount to a reckless disregard for the principles set out in GMP given that concerns lodged by Ms E and Ms G and the continuation of the behaviour. In terms of (d), the Tribunal considered that this abuse was not in relation to patients but was in respect of colleagues and that does impact on the public’s trust in the profession. 534. With regard to (f), the Tribunal noted that there were three examples on six occasions of non-consensual touching that was motivated by sexual gratification. The Tribunal concluded that, on a spectrum of serious, this was not the type of matter as discussed at paragraphs 151 to 159 of the SG. It also had regard to its comments and conclusion in its Impairment determination as to Mr. Gilbert’s misconduct being remediable and, to a large extent, remediated. 535. The Tribunal determined that Mr. Gilbert’s misconduct, whilst a serious breach of GMP, was not fundamentally incompatible with continued registration and that erasure of Mr. Gilbert’s name from the Medical Register would be disproportionate. It remained of the view that a period of suspension was the appropriate and proportionate response.”
“(1) This section applies to any of the following decisions by a Medical Practitioners Tribunal— (a) a decision under section 35D giving— (i) a direction for suspension, including a direction extending a period of suspension; (2) A decision to which this section applies is referred to below as a “relevant decision”. (3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public. (4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient— (a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the medical profession; and (c) to maintain proper professional standards and conduct for members of that profession. . . . (6) On an appeal under this section, the court may— (a) dismiss the appeal; (b) allow the appeal and quash the relevant decision; (c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs . . . as it thinks fit.” (a) a decision under section 35D giving— (i) a direction for suspension, including a direction extending a period of suspension; (a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the medical profession; and (c) to maintain proper professional standards and conduct for members of that profession. (a) dismiss the appeal; (b) allow the appeal and quash the relevant decision; (c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs . . . as it thinks fit.”
“39. As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council[2006] EWCA Civ 1390 ;[2007] QB 462 ; Fatnani and Raschid v General Medical Council[2007] EWCA Civ 46 ;[2007] 1 WLR 1460 ; and Southall v General Medical Council[2010] EWCA Civ 407 ;[2010] 2 FLR 1550 ) as appropriately modified, can be applied to section 40A appeals. 40. In summary: i) Proceedings under section 40A of the 1983 Act are appeals and are governed byCPR Part 52 . A court will allow an appeal underCPR Part 52.21 (3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'. ii) It is not appropriate to add any qualification to the test inCPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128. iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note)[2002] EWCA Civ 1642 ;[2003] 1 WLR 577 , at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd[2007] UKHL 23 ,[2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47). iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: seeCPR Part 52.11 (4). v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council[2016] UKSC 64 ;[2017] 1 WLR 169 , at paragraph 36. vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is 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 …": see Council for the Regulation of Healthcare Professionals v GMC and Southall[2005] EWHC 579 (Admin) ; [2005] Lloyd's Rep. Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC[2001] UKPC 29 ;[2001] 1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances". vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public. viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56).”
“34. “Racist Comments” – are comments perceived by the complainant or any other person to be motivated by hostility or prejudice based on a person’s race or perceived race.” 35. The issue is whether the actions of Mr. Gilbert come within this definition as a matter of fact.”
“72. Where a regulated individual makes a comment which, objectively construed, is obviously racist, it will rarely count much in his favour that he did not intend it to be racist. The lack of understanding that or why it was racist may, indeed, give rise to a separate concern. Antisemitism may sometimes be more difficult to spot than other forms of racism, in part because of the circumlocutions used to disguise it. But in my judgment, comment (d) fell into the obviously racist category. The word "Zionist" was a euphemism for "Jew": otherwise, it made no sense. The comment was an instance of two well-worn, racist conspiracy theories: that Jews control the government and that they use that control to commit acts of murder.”
“22. On or around7 August 2020 , you said to Ms I about a patient during an organ retrieval procedure, ‘look at all that fat, this is what happens when you eat chapatti’, or words to that effect. 23. Your comment as set out at paragraph 22: a. constituted harassment related to race as defined insection 26(1) of the Equality Act 2010 , in that you engaged in unwanted conduct related to race, which had the purpose or effect of violating the dignity of Ms I, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.”
“382. The Tribunal had regard to Ms I’s statement to the Trust dated6 September 2021 : “I remember there was one particular retrieval on a Thursday when Mr. Gilbert was on call. It was in the evening and there was a Registrar with us. The case started and he decided to stay on the lead surgeon’s side, which is the right side. The Registrar was on his opposite side as his first assistant and I was in the second assist position. Then he said “I will start the case then [the Registrar] will do a little and then you can do your bit”
“I detail an incident where Mr. Gilbert made comments about a patient during an organ donation. I am unable to recall when this happened exactly. I joined the department in June 2020 so this incident could have been perhaps in August or September. I was going out on a retrieval and Mr. Gilbert was supervising me. I think it was Thursday if remember correctly. When the case started, the registrar (who was junior to me) stood opposite Mr. Gilbert and I was his second assistant. The patient’s weight/BMI was on the high side. We also knew that the patient was Asian as we get that information when we get the information of donation. Mr. Gilbert said that he would start the case, he would have the registrar do some initial steps and then I could do the rest. He started the case, and as the patient was quite large, there was a thickness of the skin to go through. As Mr. Gilbert was going through the skin he said, ‘this is what happens if you eat chapatti’. I was offended when Mr. Gilbert said the comments about chapatti, not because I am Asian but because he was saying this about the patient who was also an organ donor (and deserves all the respect for that), but also because the comment was made in front of a team of doctors and nursing and other theatre staff from another (host) hospital which was highly disrespectful. I decided to ignore it at this point as I was under stress of being scrutinized but I mentioned it to the head of the department at the next meeting.”
“Having considered the evidence and the circumstances, the Tribunal concluded that it was more likely than not that Mr. Gilbert said to Ms I about a patient during an organ retrieval procedure, ‘look at all that fat, this is what happens when you eat chapatti’, or words to that effect. Accordingly, the Tribunal found this paragraph of the Allegation [22] proved.”
“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.”
“Inappropriate sexual behaviours may be carried out by medical professionals… they can have devastating impacts on individual well-being, psychological safety, patient safety and medical professionals’ careers.”
“When Dame Janet Smith, in the Fifth Shipman Report, set out the questions that a tribunal was to ask when you’re considering the questions about protecting patients and upholding public confidence in the profession, she set out as follows: has the doctor in the past acted, or is liable in the future to act, so as to put a patient or patients at unwarranted risk of harm; has the doctor in the past, or is liable in the future, to bring the medical profession into disrepute? In my submission, racism and sexual misconduct, as found proved, does bring the profession into disrepute and, despite the warnings, the doctor did not learn over the extensive period of time over which these incidents occurred, he continued to act in the same way. The third question: has the doctor in the past, or is he liable in the future, to breach one of the fundamental tenets of the medical profession? Mr. Gilbert, in my submission, had a responsibility to recognise the imbalance of power which existed in the relationship that he had as a senior consultant and the junior colleagues, who were there trying to learn, who were there trying to be educated, to maintain clear boundaries in the relationship that he had with them. He failed in that regard over a significant period of time. Sexual misconduct, that these women have been a victim to, is very serious. The doctor has abused his professional position, pursuing this conduct, this sexually motivated conduct. His racist comments are completely unacceptable, and other doctors and members of public would find them to be so.”
“Whilst I acknowledge that there is no risk to patient safety in this case, the findings that you have made are of serious misconduct… it is necessary for the maintenance and promotion of public confidence in the medical profession for their (sic) to be an interim order of suspension in the circumstances of this case.”
“[The GMC] submitted that, whilst acknowledging that there was no risk to patient safety in this case, the findings that the Tribunal have made are of serious misconduct. [It] invited the Tribunal to impose an immediate order given the concerns that have been expressed about Mr. Gilbert’s behaviour and the public confidence in the profession upon balancing that with Dr Gilbert’s own interests.”
“5. Professional and respectful working relationships between colleagues are central to positive working cultures. It is essential that individuals feel safe and respected in their workplaces …”
“The Sanctions Guidance contains very useful guidance to help provide consistency in approach and outcome in MPTs and should always be consulted by them but, at the end of the day, it is no more than that, non-statutory guidance, the relevance and application of which will always depend on the precise circumstances of the particular case…”
“91. Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention. 92. Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession Emphasis added . A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession). 93. Suspension may be appropriate, for example, where there may have been acknowledgement of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated. The tribunal may wish to see evidence that the doctor has taken steps to mitigate their actions... 97. Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate. a. A serious departure from Good medical practice, but where the misconduct is not so difficult to remediate that complete removal from the register is in the public interest. However, the departure is serious enough that a sanction lower than a suspension would not be sufficient to protect the public. b. In cases involving deficient performance where there is a risk to patient safety if the doctor’s registration is not suspended and where the doctor demonstrates potential for remediation or retraining. c. In cases that relate to the doctor’s health, where the doctor’s judgement may be impaired and where there is a risk to patient safety if the doctor were allowed to continue to practise even under conditions, or the doctor has failed to comply with restrictions or requirements. d. In cases that relate to knowledge of English, where the doctor’s language skills affect their ability to practise and there is a risk to patient safety if the doctor were allowed to continue to practise even under conditions. e. No evidence that demonstrates remediation is unlikely to be successful, eg because of previous unsuccessful attempts or a doctor’s unwillingness to engage. f. No evidence of repetition of similar behaviour since incident. g. The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour.” a. A serious departure from Good medical practice, but where the misconduct is not so difficult to remediate that complete removal from the register is in the public interest. However, the departure is serious enough that a sanction lower than a suspension would not be sufficient to protect the public. b. In cases involving deficient performance where there is a risk to patient safety if the doctor’s registration is not suspended and where the doctor demonstrates potential for remediation or retraining. c. In cases that relate to the doctor’s health, where the doctor’s judgement may be impaired and where there is a risk to patient safety if the doctor were allowed to continue to practise even under conditions, or the doctor has failed to comply with restrictions or requirements. d. In cases that relate to knowledge of English, where the doctor’s language skills affect their ability to practise and there is a risk to patient safety if the doctor were allowed to continue to practise even under conditions. e. No evidence that demonstrates remediation is unlikely to be successful, eg because of previous unsuccessful attempts or a doctor’s unwillingness to engage. f. No evidence of repetition of similar behaviour since incident. g. The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour.”
“• the abuse of his position over a number of junior colleagues over a protracted period of time; • there were two opportunities where concerns about Mr. Gilbert’s behaviour were brought to his attention, i.e. in 2012 and 2014, but he did not change his behaviour. The Tribunal considered that the opportunities to change were not taken up and so these failures amounted to an aggravating factor.”
“a. A serious breach of Good medical practice, but where the doctor’s misconduct is not fundamentally incompatible with their continued registration, therefore complete removal from the medical register would not be in the public interest. However, the breach is serious enough that any sanction lower than a suspension would not be sufficient to protect the public or maintain confidence in doctors. e. No evidence that demonstrates remediation is unlikely to be successful, eg because of previous unsuccessful attempts or a doctor’s unwillingness to engage. f. No evidence of repetition of similar behaviour since incident. g. The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour.”
“With regard to [Sanctions Guidance paragraph] (f), the Tribunal noted that there were three examples on six occasions of non-consensual touching that was motivated by sexual gratification. The Tribunal concluded that, on a spectrum of serious, this was not the type of matter as discussed at paragraphs 151 to 159 of the SG. It also had regard to its comments and conclusion in its Impairment determination as to Mr. Gilbert’s misconduct being remediable and, to a large extent, remediated.”
“A reader of the Tribunal’s decision cannot be reassured that it gave sufficient consideration to every aspect of the Registrant’s misconduct, and in particular his racist statements.”
“non-consensual touching of three colleagues on six occasions, sexually motivated comments and sexual harassment of four colleagues, racist comments to two colleagues, abuse of his senior position to three colleagues, and one colleague subject to racial harassment.”
“465. In respect of the racist comments, the Tribunal had described these within the Facts determination as low-level racist comments in terms of their seriousness, without seeking to undermine that they were nonetheless racist comments. The Tribunal was clear that this conduct nonetheless represented misconduct that was serious and were within a professional context. The ones in respect of Ms A were also found to have amounted to harassment related to race.”
“The Tribunal has found that Mr. Gilbert’s actions amounted to non-consensual touching of three colleagues on six occasions, sexually motivated comments, and sexual harassment of four colleagues, racist comments to two colleagues, abuse of his senior position to three colleagues, and one colleague subject to racial harassment.”
“The Tribunal concluded that Mr. Gilbert had demonstrated a significant degree of insight and had taken a number of steps to remediate his failings. However, Mr. Gilbert’s insight was not fully developed into the full extent of his behaviour as found proved by the Tribunal. He may benefit from further time to digest and reflect on the findings against him.”
“the Tribunal determined not to direct a review in Mr. Gilbert’s case. The Tribunal determined that the public interest is served by the period of suspension and, given the comprehensive evidence of insight and remediation shown, it was not necessary to have a review hearing in this case. The Tribunal determined that it would be safe for Mr. Gilbert to resume unrestricted practice and that patients will not be placed at risk on resumption of practice.”
“In some misconduct cases it may be self-evident that, following a short suspension, there will be no value in a review hearing. However, in most cases where a period of suspension is imposed, and in all cases where conditions have been imposed, the tribunal will need to be reassured that the doctor is fit to resume practice – either unrestricted or with conditions or further conditions. A review hearing is therefore likely to be necessary, so that the tribunal can consider whether the doctor has shown all of the following (by producing objective evidence): a. they fully appreciate the gravity of the offence b. they have not reoffended c. they have maintained their skills and knowledge d. patients will not be placed at risk by resumption of practice or by the imposition of conditional registration.” a. they fully appreciate the gravity of the offence b. they have not reoffended c. they have maintained their skills and knowledge d. patients will not be placed at risk by resumption of practice or by the imposition of conditional registration.”
“it was open to the Tribunal to suspend Mr. Gilbert’s registration for up to 12 months and this would have a deterrent effect and send out a message that this kind of misconduct would not be tolerated.”