Christopher Geering
Editor
Foreword
Welcome to the 2 Hare Court Professional Discipline Newsletter.
I look at a couple of recent GMC cases. GMC v Gilbert concerns the proper application of sanctions guidance, and the respect due to a tribunal’s assessment of remediation. Eskander v GMC analyses when an appeal has been “brought”, and when it will be out of time. Ben Rich examines NMC v Ibrahim and where a court is entitled to overturn factual findings but neither substitute its own findings nor remit the case for a re-hearing. Vivienne Tanchel considers the standard for adequate reasons, and the principles underpinning hearsay in Green v NMC. Chris Gillespie reflects on the distinction between challenging a primary and secondary finding of fact in PSA v NMC and Budzichowska. Finally, Ella Ripper reviews the interesting case of PSA v NMC and Ntow, where the NMC’s failure to call witnesses to give evidence resulted in an under-prosecution.
At his initial MPT hearing, the Tribunal found Mr Gilbert had made sexually motivated comments which constituted sexual harassment. He had engaged in non-consensual and sexually motivated touching. He had also made racist comments. The conduct in question concerned five junior colleagues, and he had abused his senior position in respect of two of them.
Mr Gllbert had initially denied most of the allegations at the facts stage. Only after they had been found proved did he change his position. When the case resumed to consider impairment he was able to show significant remediation and insight (albeit not full insight). The Tribunal imposed an eight-month suspension without a review. Perhaps unsurprisingly, the GMC appealed.
The High Court refused to erase Mr Gilbert, although it did increase his suspension to twelve months with review. The GMC and PSA appealed this decision to the Court of Appeal. The appeal focused on the question of Mr Gilbert’s remediation, and the Tribunal’s application of the sanctions guidance.
In rejecting the appeal, the court stressed the limits of a supervisory jurisdiction under s.40A Medical Act 1983 – even where the underlying misconduct was sexual misconduct…
Has an appeal been “brought” in time if the appellant’s notice is received by the court in time, but the proper fee is not paid until after the 28-day limit has expired? It is not a very exciting question, but an appellant’s right to appeal may rest on it.
Following her suspension by the MPT, Dr Eskander attempted to appeal to the High Court. She sent an Appellant’s Notice by e-mail to the Administrative Court Office in London on the last day of her appeal period. She did not, however, pay the necessary fee. She did so in due course when the omission was pointed out to her.
The General Medical Council (“the GMC”) applied to strike out her appeal on the basis it was out of time. The High Court duly did so. Dr Eskander applied for permission to appeal to the Court of Appeal. Initially, there was no dispute that the appeal had been brought out of time. Gupta v GMC [2020] EWHC 38 (Admin) stated “an Appellant’s Notice requires a fee, or an application for remission of the fee“. Without that, the appeal had not been properly brought. This was repeated in Rakoczy v GMC [2022] EWHC 890 (Admin). The issue was whether Dr Eskander could bring herself within the High Court’s very limited power to extend time.
Then, on 4 March 2026, the Court of Appeal handed down judgment in Siniakovich v Hassan-Soudey [2026] EWCA Civ 215. The court held that, for the purposes of the Limitation Act 1980, an action had been brought in time when the claim form had been delivered to the court office before the expiry of the limitation period, even though the full fee had not been paid. Dr Eskander’s counsel applied successfully to amend the grounds of appeal accordingly…
Challenges to the facts on appeal are difficult at the best of times, and even if they are successful, the Registrant may face a rerun of the entire hearing. However, the court does not need to order remit, or indeed even make substitute findings of its own.
The facts can be set out briefly. The Registrant was accused of confining a vulnerable and distressed patient to her room by holding the door closed, thereby causing her unnecessary suffering. The Registrant agreed that he had refused to let the patient out of her room. His argument was that the patient had been stepped down from 2:1 care to 1:1 care contrary to a DOLS that had recently been put in place, and without any proper assessment of whether that was appropriate. He felt that she continued to need 2:1 care as she was volatile and had tried to abscond (successfully on two occasions), even when being watched by two staff. The Registrant further said that, during the incident itself, he was afraid the patient was about to attack him.
The original panel found the main charges proved, and imposed a 12-month Conditions of Practice Order, and an interim order covering the appeal period in the same terms. The main problem with the panel’s approach was that its reasons did not engage at all with the arguments made by the Registrant. No mention was made of the DOLS, a statutory document, which had assessed the patient as needing 2:1 care. Nor was there any analysis of how or why the nurse-in-charge at the unit had decided to step that down to 1:1. The High Court quashed the factual and other findings and decided that the case should not be remitted…
Mr Green is a registered nurse who was working at a local hospital and a care home, as well as looking after a patient suffering from cancer in her own home. During his NMC hearing, he faced a number of criticisms, the most serious of which was that he had provided care to his patient in her home whilst under the influence of alcohol. The allegations dated from 2018 to 2021.
Some of the allegations were dismissed and some were found proven. Mr Green was found to be impaired and was suspended for 6 months, with a review. He appealed some of the factual findings as well as the sanction.
This case examined the degree of deference due to a panel’s fact finding. It reiterated the position: the courts respect professional regulators, but will intervene where decisions lack clear reasoning or evidential support.
The first finding challenged on appeal related to Mr Green’s dismissal of Health Care Assistants during a shift, for which he did not have the authority. The allegation was predicated on the evidence of a single witness, who the panel had found to be “consistent, reliable and credible”. The court rejected the suggestion the reasons were inadequate…
Appeals against findings of fact can be divided into two categories – appeals against primary findings as to whether a particular fact has or has not been proved, and secondary findings as to, for example, the inferences that can be drawn from those proved facts.
The High Court will be slow to interfere with primary findings of fact, given that it has not seen or heard the witnesses and lacks the in-depth knowledge of a case gained often over a period of days or weeks by the lower court or tribunal. There will be rare cases where it is possible to say that a factual finding is so out of kilter with the evidence that the High Court can dispense with the deference normally shown to the factfinder. By contrast, where primary facts have been proved, then the High Court is in an equally strong position to make secondary findings and to substitute its own findings for those of the lower court or tribunal: see Byrne v GMC [2021] EWHC 2237 (Admin) at paragraphs 10-16 on primary findings and GMC v Jagjivan [2017] EWHC 1247 (Admin) at paragraph 40 (and 40(iv) in particular) as to secondary findings.
In PSA v NMC and Budzichowska [2026] EWHC 610 (Admin), the PSA successfully appealed both primary and secondary findings of fact. The Registrant faced allegations based on her behaviour towards two patients, both of whom were diagnosed with dementia…
Registrant and Person A were both nurses in the military. The charges against the Registrant concerned allegations of non-consensual sexual intercourse and activity on 16 August 2021 and 7 February 2022, and two allegations of non-consensual sexual activity with Person A on a further two occasions on 3 and 5 July 2022. With the exception of certain factual areas of dispute, the Registrant accepted that sexual acts had taken place between him and Person A, but claimed all such acts had been consensual.
The panel heard the evidence of Person A, who was cross-examined by Special Counsel, and subsequently heard applications by the NMC to admit the following hearsay evidence: (i) a forensic expert report on a sample of saliva to support the disputed charge relating to sexual activity on 5 July 2022, which concerned kissing/sucking Person A’s breast; and (ii) a witness statement by a police officer containing “first complaint” evidence from Person A’s friend, Person B. The panel refused the applications citing potential unfairness to the Registrant.
Following submissions of no case to answer, many of which found favour, and the Registrant’s evidence-in-chief, the limited number of charges found proven were all treated on the basis that the sexual acts were consensual. Ultimately, the panel agreed and concluded that the Registrant’s fitness to practise was not currently impaired…
Michael Misick, the former premier of the overseas British Territory of the Turks and Caicos…
This article was written for HMRC EIP (Enquiries, Investigations & Powers) Magazine (Feb-March 2026 Issue)…
