Surgeon who sexually harassed colleagues has suspension extended to 12 months

A consultant surgeon who sexually harassed junior female colleagues has been suspended from the medical register for 12 months after a High Court judge ruled that his original eight months suspension had been too lenient.1

James Gilbert was regarded as the “golden boy” of his department at the Oxford Transplant Centre, one of the women who gave evidence against him told the medical practitioners tribunal that suspended him last August. The tribunal found that he had touched female colleagues inappropriately without consent, including squeezing one woman’s thigh between his own thighs under the operating table, and made sexually motivated and racist remarks.2

Gilbert had told the tribunal that he was a “different person and a fundamentally changed practitioner from the doctor whose conduct led to complaints being raised.”

The tribunal noted that “these incidents did not give rise to concerns about risks to patient safety and that there was evidence that Mr Gilbert was otherwise a skilled and well-regarded doctor . . . The tribunal was of the view that Mr Gilbert has embraced the need to remediate and made determined efforts to demonstrate how he has changed his practice and conduct.” It decided to suspend him for eight months without a review at the end of the period, allowing him to resume unrestricted practice then.

Both the General Medical Council and the Professional Standards Authority for Health and Social Care appealed against the tribunal’s findings, arguing that Gilbert should have been struck off the register.

Mr Justice Calver rejected that argument but found that the tribunal had wrongly failed to take several factors into account in deciding on an eight month suspension. Gilbert’s misconduct, while it had not imperilled public safety, had been capable of doing so, he said. The tribunal had wrongly failed to sufficiently take into account the harm caused to victims of his sexual misconduct, and it ought to have found proved two allegations about racist comments.

In the first case, Gilbert had imitated an Indian accent when an Indian colleague was present, jokingly asking him, “Oh, when are you leaving the country now?” or words to that effect, and referring to Brexit. The judge said the tribunal should have concluded that the behaviour was racist.

In the second case the surgeon had commented about an Asian patient to an Asian colleague during an organ retrieval procedure, “Look at all that fat. This is what happens when you eat chapatti” or words to that effect. The tribunal had found that comment racist but determined that it was not harassment because it happened on only one occasion. The judge said this was incorrect and that the comment should have been found to amount to harassment.

The judge said he agreed with the tribunal’s decision that erasure from the register would be a “disproportionate” punishment, but eight months was too short and it was wrong for the tribunal not to have directed a review hearing. He said, “A suspension of 12 months, which is the maximum period of suspension, reflects the seriousness of the misconduct of Mr Gilbert and is also necessary for the maintenance of public confidence in the medical profession. It also gives Mr Gilbert an adequate period to reflect upon and remediate his behaviour, before a review can take place to assess whether he is fit to practise once again or not.”

The GMC said it was “disappointed” that Gilbert had not been struck off the register,