The General Medical Council v James Gilbert & Anor

A regulator’s appeal against a professional tribunal’s sanction is a review, not a rehearing. Even in cases involving sexual misconduct or racist behaviour, the appellate court must give proper respect to the tribunal’s evaluative judgment, especially where the tribunal and first appellate court agree that erasure is unnecessary. Sanctions guidance is not a score sheet. The court must assess the overall gravity of the misconduct, allowing factors to overlap. Conduct capable of distracting colleagues and imperilling patient safety is distinct from conduct that actually creates an unwarranted risk of harm. Remediation remains primarily for the tribunal to evaluate. Erasure is not the default outcome, and omitted factors do not make it inevitable.

The Medical Practitioners’ Tribunal found extensive sexual and racist misconduct by James Gilbert, an experienced surgeon, and found that his fitness to practise was impaired. It imposed an eight-month suspension without a review hearing.

On appeals by the GMC and the PSA, Calver J held that further allegations should have been found proved, that the Tribunal had failed to account sufficiently for certain aggravating matters, and that a review hearing was required. He substituted a 12-month suspension with review but rejected erasure.

A later review Tribunal found no continuing impairment. The GMC appealed to the Court of Appeal, arguing that erasure was required or that the sanction should be remitted. The PSA cross-appealed on patient safety and remediation. The central issue was the proper scope and disposal of a regulator’s review appeal under section 40A of the Medical Act 1983.

1. Nature and standard of the appeal. The Court of Appeal dismissed the GMC’s appeal and the PSA’s cross-appeal. Under section 40A of the Medical Act 1983, a regulator’s appeal is a review jurisdiction, unlike a practitioner’s section 40 appeal, which proceeds by way of rehearing. The court may interfere with an evaluative sanction decision only for an error of principle or where the decision falls outside the bounds of what the Tribunal could properly and reasonably decide. This approach was consistent with Bawa-Garba v GMC [2018] EWCA Civ 1879 and the review-jurisdiction analysis in Sastry v GMC; Okpara v GMC [2021] EWCA Civ 623.
2. Respect for the specialist Tribunal. Sexual misconduct and racist behaviour may reduce the weight given to the Tribunal’s specialist expertise because the court is well placed to assess public protection and professional reputation. They do not remove the need to respect the Tribunal’s evaluative judgment. That obligation was particularly important because the MPT and the High Court agreed that erasure was unnecessary.
3. Sanctions Guidance. The Sanctions Guidance is not legislation and does not dictate the result. Paragraph 109 provides non-exhaustive factors which may indicate that erasure is appropriate. The decision must be based on the overall gravity of the misconduct, not on counting factors mechanically. A single incident may fall within several descriptions, and the presence of several factors does not make erasure inevitable.
4. Patient safety. Misconduct during an operation may distract colleagues and thereby create a possible risk to patient safety, depending on the facts. That is distinct from conduct which actually places a patient at an unwarranted risk of harm. The absence of evidence of actual patient harm was capable of affecting the seriousness and proportionality assessment.
5. Remediation and disposal. Remediation was primarily a matter for the MPT’s evaluative judgment, based on the evidence of insight, remedial steps and likelihood of repetition. The later review Tribunal’s finding that fitness to practise was no longer impaired reinforced the conclusion that the misconduct was not irremediable. The judge was not required to treat erasure as the default sanction or to remit the matter merely because certain factors had been omitted. It was sufficient that he explained why, after considering those factors, a 12-month suspension with review was proportionate.

1. Court of Appeal (Civil Division): In [2026] EWCA Civ 53, dismissed the GMC’s appeal and the PSA’s cross-appeal on all grounds.
2. High Court of Justice, Administrative Court: Calver J allowed the appeals in part, declined to order erasure, and substituted a 12-month suspension with a review hearing for the MPT’s eight-month suspension without review.
3. Medical Practitioners’ Tribunal: Found misconduct and impairment, imposed an eight-month suspension without review, and later, at a review hearing, found that Mr Gilbert’s fitness to practise was no longer impaired.