General Medical Council v Dr Manish Tripathi

This is an appeal brought by the General Medical Council (“the GMC”) under s40A of the Medical Act 1983. The GMC appeals against a decision made by a Tribunal (“the Tribunal”) of the Medical Practitioners’ Tribunal Service (“MPTS”) in proceedings that began on 11 August 20205 and concluded on 22 August 2025. The Tribunal considered allegations of sexual misconduct brought by the GMC against the Respondent, Dr Manish Tripathi (“Dr T”). The allegations were found proved and the Tribunal decided that Dr T’s fitness to practise was impaired. The Tribunal decided that he should be suspended from practice (with immediate effect) for 10 months, with a review to take place before the expiry of that term.

The GMC appeals on the basis that this outcome was wrong, within the meaning of CPR Part 52.21, and that it was insufficient to protect the public.

The Grounds of Appeal are:

This court is invited to quash the decision of the Tribunal on sanction on the above grounds and to substitute the sanction of erasure.

Dr T is a doctor who qualified in India in 2000 and who came to the UK in 2005. Initially, he taught at the Health and Social Care faculty of Sheffield Hallam University, but he moved into clinical practice and obtained a GMC registration number in 2011. He joined the GMC’s GP Register in 2017 and has worked as a locum GP since.

The hearing concerned allegations that, on 24 August 2023, he performed an examination of Patient A that was not clinically indicated, was sexually motivated and amounted to sexual harassment.

There is no issue that the determinations of the Tribunal at Stage 1 (fact-finding) and 2 (impairment) were justified and proper. At Stage 1, the Tribunal determined that the allegations were all proved. These were that:

Dr T had denied the allegations made by Patient A, but he accepted that during the consultation he had examined Patient A’s thyroid and abdomen. It was Dr T’s case that the alleged actions did not occur.

The Tribunal accepted Patient A’s version of events as the more plausible and accepted the alleged facts in their entirety. Having regard to the expert clinical evidence (which was not disputed), the Tribunal also found that an examination performed in this way was not clinically indicated.

The Tribunal went on to consider sexual harassment, referring to s26 of the Equality Act 2010. It concluded that Dr T’s actions did constitute sexual harassment, in that he engaged in unwanted conduct of a sexual nature, which had the effect of violating the dignity of Patient A and creating an intimidating, degrading, humiliating and offensive environment for her. It found that Dr T’s conduct was sexually motivated, although opportunistic rather than planned.

At Stage 2, the Tribunal reminded itself of its findings of fact. It stated as follows:

“The Tribunal has, in its factual determination, found that this conduct was inappropriate, and that Dr Tripathi acted with sexual motivation. The Tribunal also concluded that its finding that Dr Tripathi’s actions constituted sexual harassment was significantly serious so as to amount to misconduct, and that it occurred within the context of a power imbalance as Dr Tripathi held as a doctor”.

The Tribunal decided that the conduct amounted to misconduct:

“39.

Generally, the Tribunal considered that patients have a right to be treated with respect. Dr Tripathi had subjected Patent A to unwanted behaviour that made her feel that her dignity was violated, she felt degraded, and it created an offensive and intimidating environment. The conduct had also taken place in a consultation room in the presence of her seven year old son.

40.

The Tribunal accepted that Dr Tripathi’s conduct was a one-off event that had not happened previously, nor has it been repeated since. However, the Tribunal considered that its findings of inappropriate touching and exposure of intimate parts of a patient’s body with sexual motivation; which also amounted to sexual harassment, against the background of an abuse of his position as a doctor, were serious departures from the standards expected of a registered general practitioner and would be considered “deplorable” by fellow practitioners.

41.

The Tribunal also determined that Dr Tripathi’s actions constituted a serious departure from Good Medical Practice. His actions fell far short of the standards of conduct reasonably expected of a doctor.”

The Tribunal further held that Dr T’s fitness to practise was impaired, both in relation to the public safety limb and also having regard to public confidence and the need to maintain professional standards.

The Tribunal noted the obstacles to remediation of the misconduct:

“The Tribunal therefore first considered whether the misconduct, and in particular the sexual misconduct, was capable of being remedied. It concluded that, whilst it was theoretically possible, it was difficult to demonstrate remediation, especially since it was attitudinal.”

The Tribunal held that Dr T had “limited insight”. With regard to the risk of repetition, it stated as follows:

“The Tribunal next considered whether Dr Tripathi’s misconduct is “highly unlikely” to be repeated.... Once again, the Tribunal is drawn to the conclusion that, as his insight at present is not fully developed, in that he has failed to demonstrate sufficient understanding of why he acted in the way that he did, there is currently a real risk of repetition. Accordingly, the Tribunal considers that the likelihood of repetition is currently not sufficiently low so as to be described as “highly unlikely”.”

The Tribunal made the finding that Dr T’s fitness to practise was currently impaired on the ground of public protection, but also based on the need to maintain public confidence in the medical profession and the need to promote and maintain proper professional standards and conduct for the members of the profession.

At Stage 3 of the proceedings, the sanctions stage, the GMC sought the sanction of erasure; Dr T contended that a period of suspension would be proportionate. The Tribunal decided that suspension for 10 months, with a review, would be appropriate. That is the decision in issue in this appeal.

Section 40A of the Medical Act 1983 provides that:

“(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.

A “relevant decision” for the purposes of section 40A(3) includes a decision under section 35D giving a direction for suspension (as per section 40A(1)(a)(i)).

The court’s approach to appeals under section 40A has been usefully summarised by the Divisional Court in GMC v Jagjivan [2017] EWHC 1247 (Admin) at paragraphs 39 and 40:

“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.

In summary:

In Bawa-Garba v General Medical Council [2018] EWCA Civ 1879 the Court of Appeal stated 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 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”. The application of this approach to section 40A appeals was confirmed by the Court of Appeal in Haris v General Medical Council [2021] EWCA Civ 763 at paragraph 11.

The Court of Appeal stated in the case of General Medical Council v (1) James Gilbert (2) The Professional Standards Authority for Health and Social Care [2026] EWCA Civ 53 at paragraph 21(2):

“Section 40A of the 1983 Act permits the GMC to appeal against a relevant

decision to the relevant court on the limited basis that "they consider that the

decision is not sufficient (whether as to a finding or a penalty or both) for the

protection of the public." Appeals under section 40A are by way of review.”

However, the Court of Appeal emphasised the measure of respect that must be accorded to professional tribunals such as the MPT:

“53.

Jagjivan must be read in the light of Bawa-Garba v GMC [2018] EWCA Civ 1879, in which this court (Lord Burnett of Maldon CJ, Sir Terence Etherton MR and Rafferty LJ) held:

"61.

The decision of the Tribunal that suspension rather than erasure was an appropriate sanction for the failings of Dr Bawa-Garba, which led to her conviction for gross negligence manslaughter, was an evaluative decision based on many factors, a type of decision sometimes referred to as "a multi-factorial decision". This type of decision, a mixture of fact and law, has been described as "a kind of jury question" about which reasonable people may reasonably disagree…. It has been repeatedly stated in cases at the highest level that there is limited scope for an appellate court to overturn such a decision.

54.

The court cited the observation of Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1 that "Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation". They continued:

"67.

That general caution applies with particular force in the case of a specialist adjudicative body, such as the Tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts…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…

94.

As we said earlier in this judgment, the Tribunal was, in relation to all those matters and the carrying out of an evaluative judgement as to the appropriate sanction for maintaining public confidence in the profession, an expert panel, familiar with this type of adjudication and comprising a medical practitioner and two lay members, one of whom was legally qualified, all of whom were assisted by a legal assessor.

55.

An issue before us is the measure of respect to be accorded to a decision of the MPT in a case involving sexual misconduct or racist behaviour…”

A failure to provide adequate reasons for a decision constitutes a serious irregularity allowing the court to intervene: see, for example, General Medical Council v Bramhall

In General Medical Council v Stone [2017] EWHC 2534 (Admin), Jay J found that the

Collins-Rice J in Bramhall at paragraph 36 emphasised the duty of the Tribunal to state clear reasons for departure from the steer of the Sanctions Guidance, requiring “something more (a) clear, (b) substantial and (c) specific in the way of reasons than would be required if the steer of the Guidance were being followed.”

I have also considered the further authorities cited by the Respondent in this case, which deal with appeals from the Solicitors’ Regulation Authority. However, given the wealth of cases on appeals in relation to the medical profession, and the fact that there was limited disagreement in any event between the parties on the legal position, I have not cited these further.

The Appellant argues that the Tribunal misdirected itself by referring to, and considering, a previous version of the MPTS’s Sanctions Guidance, instead of the correct version, which has been in place since 5 February 2024.

At paragraphs 50 and 61 of its Sanction Determination, it quoted the old versions of paragraphs 97(a), which deals with suspension, and 109(a), which deals with erasure. Both of these paragraphs refer to misconduct “fundamentally incompatible” with continued registration. The more recent and current version of the Sanctions Guidance refers to conduct “which is difficult to remediate”.

The Appellant argues that there is no apparent reason or proper explanation for this error. The Tribunal was referred to the correct version of the Sanctions Guidance by Counsel in the course of the hearing and were addressed on it.

The Appellant further argues that the error was material. At Stage 3, the Tribunal failed to give proper or adequate attention to the difficulties of remediating conduct that constituted sexual harassment and was sexually motivated, and to the guidance offered about this in the Sanctions Guidance.

The Respondent points to the lengthy discussion about sanction within the Tribunal’s determination. He points out that the Tribunal were addressed on the correct test by both the Appellant’s and Respondent’s Counsel.

The Respondent further points to other parts of the current Sanctions Guidance, such as at paragraph 92, where the phrase “fundamentally incompatible” appears again. He says that both versions of the Sanctions Guidance require a Tribunal to make an evaluative judgment as to where on a spectrum of seriousness the conduct lies. Further, it is clear from a reading of the determination as a whole that the Tribunal determined that Dr T’s misconduct was not incapable of being remedied, albeit such remediation was difficult to demonstrate, particularly in a case such as this where the time between the determination on Stages 1 and 2 and on Stage 3 was very short.

I accept that the Sanctions Guidance is only guidance and that it is not to be followed in the same way as a statute might be. I also accept the Respondent’s argument that one cannot expect the Tribunal to draft their determination as might be done by a professional lawyer. But it is nonetheless a matter of real concern that the Tribunal, despite being addressed on the correct test within the guidance, referred to an outdated version within their determination. The test has changed and it cannot be said that the change is merely cosmetic or drafting.

While the Respondent has argued that it is clear from the remainder of the determination that the Tribunal applied their minds to the correct questions and that nothing would have changed in their determination, I do not consider that this is inference is inevitable.

Quite simply, the Tribunal have applied the wrong test. They have not applied their minds to the correct test. Further, they have not demonstrated that they properly considered the correct questions. It must follow that their decision is wrong and unjust because of a serious irregularity. In those circumstances, this ground of appeal must succeed. I will come on to the appropriate relief below.

On this ground, the Appellant argues that the Tribunal failed to consider paragraph 109(c) of the Sanctions Guidance. Paragraph 109 contains the list of factors which, where present, may indicate that erasure is the appropriate sanction. Paragraph 109(c) reads: “Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients (see further guidance below at paragraphs 129 – 132 regarding failure to provide an acceptable level of treatment or care).”

The Appellant points out that the Tribunal did consider paragraph 109, which it set out at paragraph 61 of the determination on sanction. However, in its quote of paragraph 109, it omitted paragraph (c) in the list of factors from a – f. The Appellant further points out that it had expressly relied on (c) in its submissions, both written and oral. In particular, it relied upon the findings of the Tribunal that Dr T’s behaviour “made [Patient A] feel that her dignity was violated, she felt degraded, and it created an offensive and intimidating environment” and the Stage 2 findings that Dr T’s actions had deeply affected his victim and had left her traumatised and reluctant to seek medical help even from other practitioners.

The Appellant argues that the failure to reference paragraph 109(c), or to any reasons why the Tribunal considered that it did not apply, was wrong, a failure to give attention to relevant considerations and an error in approach. Alternatively, Appellant argues that the Tribunal failed to demonstrate by its reasoning that it had given proper consideration to this factor and had taken it into account.

The Respondent has argued that Dr T’s conduct could never have justified a finding of serious harm. He says that there was certainly no physical harm or evidence that any failure to see a doctor on another occasion had caused such harm to Patient A. He says that the findings of the Tribunal as to the violation and degradation felt by Patient A could never amount to serious harm.

Further, the Respondent argues that there is nothing to suggest that the Tribunal did fail to consider that factor in any event. He says that the only reasonable conclusion that can be drawn from the omission of a reference to paragraph 109(c) is that the Tribunal did not find that any harm was sufficiently serious to amount to serious harm.

There is nothing within the Sanctions Guidance to suggest that serious harm is confined to serious physical harm. One can envisage any number of situations where serious psychological or other harm might readily come within the definition of serious harm. Further, I do not agree that the findings as to the impact of Dr T’s actions on Patient A are incapable of justifying a finding of serious harm. It is possible that this was the Tribunal’s view, but that is pure speculation.

In any event, once again, the Tribunal have not demonstrated through their determination why they concluded that the harm in this case was not serious. There is no apparent reason why they should have omitted a reference to paragraph 109(c) from their determination, if indeed they had considered and rejected it. One obvious inference from its omission is that it was not considered by the Tribunal. Alternatively, the Tribunal should have set out in its reasoning why it did not consider that the harm was serious, although this still would not fully explain its omission from the list of factors considered by the Tribunal.

In all of those circumstances, once again, I find that the Tribunal’s decision is wrong and unjust because of a serious irregularity. As such, ground 2 must also succeed. Again, I will come on to the appropriate relief below.

At paragraph 97(g) of the Sanctions Guidance, the Tribunal is required to satisfy itself as to whether the doctor has insight and poses a significant risk of repeating behaviour.

First, the Appellant points to the earlier findings of the Tribunal at Stage 2 that Dr T had only “limited insight” (see paragraph 52 of the Stage 2 findings). At Stage 3 however, it went on to find in paragraph 58 that having “some insight” was sufficient for the purposes of paragraph 97(g):

“Finally, in relation to paragraph 97 g, the Tribunal repeats the reference to the quote from the case of Shah above (“not to expect a Damascene overnight revelation of full insight the day after the findings of fact”) and takes account of the fact that, if it decides to make a suspension order with a review, then Dr Tripathi would have the opportunity of reflecting on the Tribunal’s decision with a view to developing further insight into the matter. Accordingly, the fact that his insight is currently regarded as limited, is perhaps understandable – however, he does have some insight.”

The Appellant argues that this is insufficient to support a finding that Dr T had insight.

Second, in relation to the second part of 97(g) and as to the risk of repetition, the Tribunal found that there was not a significant risk of repetition. However, the Appellant points to the earlier finding of the Tribunal that there was a “real risk” of repetition and that the likelihood of repetition was not found to be sufficiently low so as to be described as “highly unlikely”.

The Appellant points to the case of General Medical Council v Khetyar [2018] EWHC 813 (Admin) at [52] in which, in the context of considering the Sanctions Guidance, Mr Justice Andrew Baker drew attention to the two limbs of a risk assessment (the probability of repetition and gravity of the harm which may result):

The Appellant argues that the treatment of the risk of repetition by the Tribunal, in particular at paragraph 59 of the determination on sanction, is purely as to the likelihood of the conduct being repeated. They argue that the Tribunal failed to consider not only likelihood, but the gravity of the misconduct if it were to be repeated, in order to determine if the risk was significant. In this regard, they refer to the case of Khetyar and its consideration by Mould J in GMC v Konathala [2025] EWHC 1550 (Admin) at paragraphs 91 – 94:

“[92] Counsel drew attention to General Medical Council v Khetyar [2018] EWHC 813 (Admin) at [52], where Andrew Baker J said – “As regards risk of repetition, the Tribunal found the risk not to be high, but para. 97(g) calls for consideration of whether the risk was significant. Depending on the seriousness of the conduct in question, a quantitatively small but nonetheless real (not fanciful) chance of recurrence might be significant”.

[93] I respectfully agree with that analysis. In the present case, any real risk of

repetition of the behaviour found proven by the Tribunal must, on any proper and reasonable assessment, be regarded as significant. In that context, any distinction between whether the Respondent’s sexually motivated actions in lifting Patient A’s top, pushing her breasts out of her bra and squeezing her breasts were predatory or opportunistic in nature is, in my view, immaterial. The material finding by the Tribunal was that there remained a risk that such behaviour, opportunistic though it may have been, would be repeated. The only determination reasonably open to the Tribunal was that they were unable to be satisfied that the Respondent did not pose a significant risk of repeating behaviour which they had rightly found to be very serious misconduct, and which impaired his fitness to practise.”

The Respondent points out that there is no reference in paragraph 97(g) to the individual having full insight. He argues that the Tribunal had already found that Dr T had developing insight and that his further efforts at remediation would be “at the very least genuine and wholehearted”. At the time of their determination on stage 3, the Tribunal had heard full argument from both sides. It had already determined where the conduct fell on a spectrum of seriousness and comparison with other cases should inevitably be approached with caution.

However, I do not consider that it is a permissible inference that the Tribunal would have considered at this point the severity of the repeated behaviour if it were to be repeated, together with its impact. Certainly, there is nothing within the determination of the Tribunal to suggest that they did so. As is apparent from the case of Konathala, a real risk might be significant, depending on of what that risk is. Certainly, at this point at least, it is not necessary to draw parallels with the conduct in Konathala. It is sufficient to look at the conduct of Dr T on its own merits. I can see no reason why a real risk of the repetition of such conduct might not be regarded as significant by the Tribunal. And if their finding was that it was not significant, they should further have demonstrated that and their consideration of it through their determination.

For those reasons, I conclude that ground 3 is made out and that the Tribunal’s decision is wrong and unjust because of a serious irregularity.

The Appellant argues that the Tribunal failed to give proper and adequate weight to the need to maintain public confidence and/or professional standards. The Appellant maintains that the appropriate and/or the only reasonable response to the facts found proven in this case was the sanction of erasure, and that this should have been recognised by the Tribunal. Again, the Appellant points to the case of Konathala [2025] EWHC 1550 (Admin) and [2025] EWHC 2029 (Admin). Mould J held:

“103.

However, in my view, the principal error in [243] of the decision is that it founds on too narrow a judgment of what is required for the protection of the

public. Sufficiency of a sanction for the protection of the public involves consideration not only of the health, safety and well-being of patients and the public. It also involves consideration of the need to maintain public confidence in the medical profession, and to maintain proper professional standards and conduct for the medical profession. When judged properly and reasonably against each of these factors and overall, I am in no doubt that, on the Tribunal's findings as to his misconduct and impairment of fitness to practise, the Respondent's behaviour was fundamentally incompatible with remaining in practice as a doctor. As the GMC submitted, the tribunal's approach to sanction did not adequately reflect the gravity of the misconduct. This was a deliberate and opportunistic sexual assault on a patient, an abuse of the doctor's position of trust and power which was undertaken for his own sexual gratification. It is behaviour that cannot properly and reasonably be regarded as compatible with the Respondent's continued registration as a doctor.”

Consequently, in the second hearing of this appeal, Mould J directed the doctor’s erasure from the Medical Register.

Although the Appellant acknowledges that each case must ultimately turn on its own facts, they point to the obvious parallels between Konathala and the instant case. Both cases were said to have involved an opportunistic but one-off sexually motivated and clinically unwarranted examination of a patient; with no previous complaints and a Registrant of good character; and no complaints since the one which formed the subject matter of the regulatory proceedings.

While the Appellant accepts that this court should give deference to the expert decisions of the Tribunal and be cautious before interfering in its decisions, the Appellant points to the principle that “…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 …": Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.

The Appellant submits that the public interest in this case required the sanction of erasure. It states that the Tribunal’s determination by contrast placed unreasonable reliance on matters distancing this case from ‘the most serious’ of cases and gave too much weight to allowing the doctor to demonstrate further steps towards gaining insight and/or showing that he had remediated his misconduct.

The Respondent has referred me to the number of cases dealt with by the Tribunal, many of which involve allegations of sexual misconduct, and to the variety of outcomes before it. He says that it is not inevitable that allegations of sexual misconduct should result in erasure or, if it were, the Sanctions Guidance would say so.

I have been referred to the case of Professional Standards Authority for Health and Social Care v General Medical Council, Dr Uppal [2015] EWHC 1304 (Admin), albeit that that case involved allegations of dishonesty. Mrs Justice Lang DBE reviewed the authorities and concluded at paragraph 34 that: “…I consider that the Panel was entitled to conclude that patients and the public were not at risk. Professional standards have been upheld, and public confidence in the profession maintained, by the fact that Dr Uppal has undergone a rigorous disciplinary assessment of her fitness to practise, resulting in a finding of misconduct on her record, with the option of a warning, by way of sanction.”

The Respondent further highlights the significance of suspension as a sanction and the message such sends out to the public and the profession as to what is and is not acceptable. He says that the Tribunal in this case gave a lengthy determination on sanction, which covered both of the options of suspension and erasure (unlike in the case of Bramall, which referred only to suspension). It could not be said that their determination fell outside the bounds of what they could properly and reasonably decide.

I recognise that I must give some deference to the professional expertise of the panel and that I should be cautious before substituting my view for theirs, even in cases of sexual misconduct such as here. And while I note the finding by Mould J in the case of Konathala, I accept that every case needs to be determined on its own facts. I have not had the benefit of hearing from Dr T, as the Tribunal had done.

In all the circumstances of this case, while I have found as above that there were serious irregularities in the determination of the Tribunal and that it is wrong in a number of material respects, I cannot say that the Tribunal erred in finding that erasure was not justified in this case and that such a decision was outside the bounds of what they could properly and reasonably decide.

Given my findings above on grounds 1 – 3, the determination was wrong. The appeal is therefore allowed and the sanction imposed by the Tribunal is quashed. However, for the reasons set out in relation to ground 4, I am not prepared to substitute the sanction of erasure. I consider that this case should be remitted back to the Medical Practitioners’ Tribunal for a fresh determination on the appropriate sanction by a differently constituted tribunal.