Sanctions in regulatory proceedings: A multi-factorial evaluative decision or a tick box exercise?

The Court of Appeal has dismissed an appeal brought by the GMC against the sanction imposed in the case of Mr Gilbert.

Mr Gilbert was a Consultant Transplant and Vascular Access Surgeon at Oxford University Hospitals NHS Foundation Trust. He was alleged to have engaged in inappropriate conduct on various occasions between 2009 and 2022 towards six colleagues. His actions were found by a Medical Practitioners Tribunal (“MPT”) in August 2024 to have been sexually motivated, an abuse of his position and to have constituted sexual harassment (in addition to a finding of racist conduct).

The GMC originally appealed to the High Court against the 8-month suspension imposed by the MPT. Mr Justice Calver allowed the appeal, held that two further allegations were found proved, and imposed a 12-month suspension with a requirement for a review hearing.

The GMC maintained that the outcome should have been one of erasure and applied for permission to appeal to the Court of Appeal. The GMC’s grounds of appeal were that; (1) given the nature of the case, the outcome should have been erasure; and (2) the sanctions guidance (the “Guidance”) had not been properly applied by Calver, J.

Permission to appeal on ground 1 was refused on the papers but permission was granted at an oral hearing on the limited issue of whether the case should have been remitted to a differently constituted Tribunal as opposed to Calver J. substituting a decision as to sanction.

At the appeal hearing, the GMC returned to its arguments regarding the Guidance, and the argument about remittal vs. substitution “barely resurfaced” (para 61, Judgment). The GMC argued that it was incumbent upon Calver J. to properly apply the factors set out at paragraph 109 of the Guidance, which indicate that erasure may be appropriate, and to justify any decision not to erase once 7 out of the 10 factors listed were present (3 additional factors having become relevant following Calver J.’s Judgment).

The Court of Appeal was not persuaded. Lord Justice Bean held:

“In a case where several allegations have been found proved and the Tribunal is deciding whether the ultimate sanction of erasure is necessary the judgment should be based on an evaluation of the overall gravity of the matter. This is a question of substance rather than of counting how many factors out of ten were present and on how many occasions, as though paragraph 109 was a form of score sheet against which the Tribunal should place ticks or crosses and then count up the number of ticks… The GMC’s somewhat repetitive style of pleading allegations runs the risk of encouraging a score sheet approach” (para 62) (emphasis added).

Lady Justice Andrews supported the dismissal of the appeal and held:

“… Erasure was not the default position from which any departure had to be justified.  I wholeheartedly endorse the view that a mechanistic “tick box” or score sheet approach to the Guidance is to be deprecated. What matters far more than any labels is the substance of what the registrant actually did, which might well be characterised in more than one of the ways identified in the Guidance” (para 71) (emphasis added).

The Professional Standards Authority had joined the High Court appeal and brought a cross-appeal at the Court of Appeal. Again, the Court was not persuaded by the PSA’s arguments. Lady Justice Andrews held:

“… erasure was not the only rational outcome of the disciplinary process, as Zacaroli LJ explained when he refused the GMC permission to appeal on Ground 1. On examination, the submissions of the PSA turned out to be little more than variants on that ground of appeal.  Ms Morris complained that Calver J had not addressed the question whether the behaviour which amounted to misconduct was of a nature that was easy or difficult to remediate, and that this was a necessary precursor to determining whether there was a sufficient likelihood of remediation. However this was just a roundabout way of submitting that, where conduct of this type is concerned, to use the vernacular, a leopard cannot change its spots, and any rational evaluation would have led to the conclusion that remediation was impossible (and thus that suspension was inappropriate). The judge rejected that submission at [118] for unimpeachable reasons” (para 73) (emphasis added).

As Tribunals and registrants grapple with the new MPTS sanctions bandings, the Judgment serves as a timely reminder that sanctions guidance does not mandate a particular outcome. Further, it is the gravity of a doctor’s conduct that needs to be considered, as opposed to how that conduct is labelled or categorised within the guidance. The case confirms that Tribunals are required to make an “evaluative judgement”ⁱ rather than adopting a tick-box exercise.

No doubt there will be further cases where the GMC and/or PSA consider that a case should have resulted in an outcome of erasure but that does not mean that erasure was the only “rational outcome”. That is a high bar to meet and one that the GMC will need to keep in mind whilst it still retains its, somewhat controversial, s.40Aⁱⁱ right of appeal against decisions made by MPTs (likely to be removed by the end of 2026ⁱⁱⁱ).

The Judgment comments on the s.40A review jurisdiction, with Lord Justice Bean stating: “In this case, on the critical issue of whether erasure rather than suspension was necessary in the public interest, the MPT decided that it was not; and on appeal the judge agreed with them. Each of these decisions was an evaluative judgment as to what the public interest required. Where the MPT and the High Court are in agreement, the review jurisdiction should be exercised with particular caution” (para 58).

The PSA will, of course, continue to be able to challenge sanctions imposed by regulators where it considers that the sanction is insufficient to protect the public^iv. The Judgment in GMC v Gilbert will hopefully, however, give the PSA some pause for thought when contemplating future challenges.

Laura Smith of Clyde & Co has represented Mr Gilbert throughout these proceedings, with Mark Sutton KC as leading counsel and Nicola Newbegin as junior counsel in the Court of Appeal proceedings.

ⁱ See paragraphs 57 and 58 of the Judgment.
ⁱⁱ S.40A Medical Act 1983.
ⁱⁱⁱ Pulse article by Harry Hetherington, 21 January 2026. 
^iv Under s.29 of the National Health Service Reform and Health Care Professions Act 2002.