Court of Appeal rejects appeals by the GMC and PSA in GMC v Gilbert & PSA [2026] EWCA Civ 53
In a judgment handed down on 6 February 2026, the Court of Appeal has rejected appeals by both the GMC and PSA, challenging decisions by the MPT and the High Court not to erase a consultant surgeon’s name from the Medical Register. The Court of Appeal firmly deprecated what it regarded as a score sheet approach to the Sanctions Guidance: instead the MPT needed to undertake an evaluation of the overall gravity of the matter, taking into account all relevant factors. The Court of Appeal cautioned the GMC and PSA against seeking to appeal decisions which really turn on matters of evaluative judgement as to what the public interest may require in the given circumstances.
Background and appeal to the High Court by the GMC and PSA – Judgment of Calver J. [2025] EWHC 802
A number of allegations of sexual and racial misconduct towards colleagues were found proved by a fitness to practise tribunal of the MPTS, which imposed a sanction of 8 months suspension without a review. This sanction was appealed by the GMC and the PSA. In the High Court, Calver J. found that two further allegations should have been upheld and considered that an increase in sanction from eight months to 12 months was appropriate. The judge rejected the primary arguments advanced by both the GMC and the PSA that the doctor should have been erased This decision was appealed to the Court of Appeal by the GMC and the PSA.
Unsuccessful application for an interim injunction by the PSA – Judgment of Lang J. [2025] EWHC 3442
In the meantime, a review hearing took place before the MPTS shortly before the expiry of the 12 month suspension. The review tribunal concluded that Mr Gillbert’s fitness to practise was no longer impaired and the suspension order was permitted to expire at the end of the 12 month period, in consequence of which, Mr Gilbert was able to resume clinical practice.
The PSA appealed the review tribunal’s decision, arguing that a decision which enabled the doctor to resume practice was insufficient for public protection. It argued that the tribunal should have found that Mr Gilbert’s fitness to practise remained impaired and that the review tribunal had been led into error by the previous decisions of the original tribunal and the judgment of Calver J, which was subject to appeal to the Court of Appeal and in respect of which permission had been granted.
In addition, it sought an interim injunction preventing Mr Gilbert from practising pending the outcome of the PSA’s appeal. That application for an interim injunction was brought on ahead of the Court of Appeal hearing, and was dismissed by Lang J. at a hearing on 9 December 2025.
Lang J. held that the review tribunal had correctly directed itself as to its function in law and that its approach was consistent with the sanctions guidance relating to review hearings and that it was “clearly right” for the for the review to have proceeded upon the basis of the first tribunal’s decision, read in light of the decision in Calver J.
Lang J. considered that the balance of convenience was against the granting of interim relief. Lang J. noted that an application for a mandatory interim injunction justified a fuller inquiry into the underlying merits that might otherwise be applicable on standard Cyanamid principles.
The PSA’s interim injunction application was rejected with costs.
Unsuccessful appeal to the Court of Appeal by the GMC and PSA [2026] EWCA Civ 53
The GMC had sought leave to appeal to the Court of Appeal on two grounds.
Ground 1 was simply that Calver J. “erred in not erasing Mr Gilbert from the Medical register in the circumstances”. Permission to appeal on this ground was refused by Zacaroli LJ on the papers, on the basis that “it is not, and could not be, suggested that because there were findings of sexual misconduct (and racist statements) the only sanction that could be imposed was erasure”. The permission judge noted the guidance in GMC v Bawa-Garba [2019] 1 WLR 1929.
The GMC’s second ground of appeal, relating to the application of the Sanctions Guidance, was permitted to proceed following an oral permission hearing, albeit that the emphasis at the permission hearing was on the question of whether Calver J. was correct to substitute rather than remit the issue of sanction. The PSA was also granted permission to cross-appeal on the ground that Calver J. had failed to address properly the question of whether Mr Gilbert had acted so as to put patients at unwarranted risk of harm and had erred in his approach to the question of whether the doctor’s misconduct was “difficult to remediate”.
All grounds of appeal failed before the Court of Appeal. (Bean; Lewis and Andrews LJJ)
The Court of Appeal held that respect should be given to the “evaluative judgment” of the MPT, particularly where the GMC is the appellant and the Court thus exercises a review jurisdiction. Moreover, where the MPT and the High Court are in agreement, “the review jurisdiction should be exercised with particular caution”.
At the core of the Court of Appeal’s judgment is an emphatic rejection of the GMC’s challenge based upon a mechanistic or ‘score sheet’ approach to factors which are identified in Sanctions Guidance. Assessing the gravity of a practitioner’s conduct demanded “an evaluation of the overall gravity of the matter” which is “a question of substance rather than of counting how many factors out of ten were present and on how many occasions… This is especially so because a particular incident may be described in a number of ways. The GMC’s somewhat repetitive style of pleading allegations runs the risk of encouraging a score sheet approach.”
The Court of Appeal rejected both grounds advanced by the PSA. Andrews LJ held that “there is a distinction between conduct which actually puts a patient at risk and conduct which is capable of imperilling patient safety, but in fact does not” and the distinction is one that “could rationally make a difference when deciding what sanction is necessary and proportionate of the protection of the public and maintenance of professional standards”. As regards remediation, there had been no error in finding that Mr Gilbert’s misconduct was remediable and that that had been borne out by subsequent events, specifically the finding of the review tribunal that Mr Gilbert was no longer impaired.
Conclusion
The Court of Appeal’s decision serves as an important reminder of the limited scope of appeals by the GMC (and PSA), in contrast with the broader scope of appeals available to practitioners, which are in the nature of a rehearing. In addition, the judgment provides a useful caution to MPTs who may be tempted to apply a formalistic reading of the Sanctions Guidance, rather than carrying out a holistic evaluation of the overall seriousness of the conduct, having regard to the particular circumstances of the case.
Mark Sutton KC and Nicola Newbegin were instructed by Laura Smith of Clyde & Co.
