Eight month suspension for surgeon who sexually harassed colleagues “emboldens perpetrators,” say victims; this should be appealed to the High Court
Dear Editor
It is understandable why the victims are aggrieved by this seemingly lenient sanction [1][2]. Of course, the GMC and/or Professional Standards Authority have a right of appeal under s40A, Medical Act 1983. Both the GMC and Medical Practitioners Tribunal (‘MPT’) have accepted, there is no risk to patient safety [1]. Thus, upon appeal, the main issue would be whether the sanction (8-month suspension) on Dr Gilbert would be proportionate to maintain the public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of the profession.
The High Court is used to dealing with appeals against the leniency of sanction. In a case involving sexual misconduct, MPT held that no action should be taken, but the GMC’s appeal was allowed by the High Court; this case involved sending unwanted sexually explicit messages and pictures to a member of staff [3]. In an appeal against a 12-month suspension for sex without consent with a partner, the GMC’s appeal was dismissed by the High Court [4]. Another case where the GMC appealed against a 2-month suspension in view of sexually motivated actions involving Facebook and WhatsApp, the High Court similarly dismissed the appeal [5}.
The above cases demonstrate the approach taken by the High Court in appeals against the proportionality of sanction. In this case, at para.235, MPT confirmed, it “considered the definition of sexual harassment and concluded, on the facts found proved, that Mr Gilbert’s actions constituted sexual harassment as his course of conduct, on more than one occasion, created an intimidating, hostile, degrading, humiliating or offensive environment for Ms E”[1], and similarly at para.316 [1]. Further the passage from the victims’ letter “without consent, he inappropriately touched trainees’ shoulders, thighs and other body parts…” [2], powerfully sums up the gravity of Dr Glibert’s conduct. But in relation to one allegation of touching, the MPT found, it “was unable to find that the GMC had discharged the burden of proof as to the inappropriate nature of the touching on the evidence before it” (para.264) [1]. Nevertheless, the egregious findings of MPT at para.235 & 316 amount to breach of s26, Equality Act 2010 (‘EqA’).
As for harassment related to race (para.245-251), MPT concluded, the proven facts did not constitute racial harassment [1]; it appears, the MPT has failed to give sufficient, logically sustainable reasons to support such conclusion. Dr Gilbert’s overt remarks include references to “Africans”, “Bollywood women” & “chapattis” --which are related to race—for purposes of s26, EqA; see para.7-9 and 22[1]. What was claimed in mitigation, there was “no intention”, it was “banter” and “comic and foolish” [1] could absolve an alleged perpetrator of racial harassment, seems at best, controversial. Of course, that’s the MPT’s evaluative decision. It is fair to say, allegations of racial discrimination and harassment are best dealt with by employment tribunals which have the appropriate expertise and jurisdiction to properly judge such matters.
As for evaluative decisions, para.67 in Bawa-Garba, the Court of Appeal held, “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 other 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” [6].
Looking at the MPT’s decision in the round, it appears, there are reasonably arguable grounds to launch an appeal. Both the public and medical profession would expect sufficient reasons for some of MPT’s negative conclusions and a more balanced, well-informed opinion from the High Court as to the proportionality of the sanction.
Rapid Response:
Eight month suspension for surgeon who sexually harassed colleagues “emboldens perpetrators,” say victims; this should be appealed to the High Court
Dear Editor
It is understandable why the victims are aggrieved by this seemingly lenient sanction [1][2]. Of course, the GMC and/or Professional Standards Authority have a right of appeal under s40A, Medical Act 1983. Both the GMC and Medical Practitioners Tribunal (‘MPT’) have accepted, there is no risk to patient safety [1]. Thus, upon appeal, the main issue would be whether the sanction (8-month suspension) on Dr Gilbert would be proportionate to maintain the public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of the profession.
The High Court is used to dealing with appeals against the leniency of sanction. In a case involving sexual misconduct, MPT held that no action should be taken, but the GMC’s appeal was allowed by the High Court; this case involved sending unwanted sexually explicit messages and pictures to a member of staff [3]. In an appeal against a 12-month suspension for sex without consent with a partner, the GMC’s appeal was dismissed by the High Court [4]. Another case where the GMC appealed against a 2-month suspension in view of sexually motivated actions involving Facebook and WhatsApp, the High Court similarly dismissed the appeal [5}.
The above cases demonstrate the approach taken by the High Court in appeals against the proportionality of sanction. In this case, at para.235, MPT confirmed, it “considered the definition of sexual harassment and concluded, on the facts found proved, that Mr Gilbert’s actions constituted sexual harassment as his course of conduct, on more than one occasion, created an intimidating, hostile, degrading, humiliating or offensive environment for Ms E”[1], and similarly at para.316 [1]. Further the passage from the victims’ letter “without consent, he inappropriately touched trainees’ shoulders, thighs and other body parts…” [2], powerfully sums up the gravity of Dr Glibert’s conduct. But in relation to one allegation of touching, the MPT found, it “was unable to find that the GMC had discharged the burden of proof as to the inappropriate nature of the touching on the evidence before it” (para.264) [1]. Nevertheless, the egregious findings of MPT at para.235 & 316 amount to breach of s26, Equality Act 2010 (‘EqA’).
As for harassment related to race (para.245-251), MPT concluded, the proven facts did not constitute racial harassment [1]; it appears, the MPT has failed to give sufficient, logically sustainable reasons to support such conclusion. Dr Gilbert’s overt remarks include references to “Africans”, “Bollywood women” & “chapattis” --which are related to race—for purposes of s26, EqA; see para.7-9 and 22[1]. What was claimed in mitigation, there was “no intention”, it was “banter” and “comic and foolish” [1] could absolve an alleged perpetrator of racial harassment, seems at best, controversial. Of course, that’s the MPT’s evaluative decision. It is fair to say, allegations of racial discrimination and harassment are best dealt with by employment tribunals which have the appropriate expertise and jurisdiction to properly judge such matters.
As for evaluative decisions, para.67 in Bawa-Garba, the Court of Appeal held, “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 other 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” [6].
Looking at the MPT’s decision in the round, it appears, there are reasonably arguable grounds to launch an appeal. Both the public and medical profession would expect sufficient reasons for some of MPT’s negative conclusions and a more balanced, well-informed opinion from the High Court as to the proportionality of the sanction.
References
[1] https://www.mpts-uk.org/-/media/mpts-rod-files/dr-james-gilbert-08-aug-2...
[2] https://www.bmj.com/content/386/bmj.q1881
[3] https://www.bailii.org/ew/cases/EWHC/Admin/2023/3228.html
[4] https://www.bailii.org/ew/cases/EWHC/Admin/2022/1651.html
[5] https://www.bailii.org/ew/cases/EWHC/Admin/2022/403.html
[6] https://www.bailii.org/ew/cases/EWCA/Civ/2018/1879.html
Competing interests: No competing interests