Regulatory sanctions on appeal: Court of Appeal upholds suspension for surgeon
General Medical Council v Gilbert & Professional Standards Authority [2026] EWCA Civ 53
Both the General Medical Council (“GMC”) and the Professional Standards Authority (“PSA”) appealed decisions of a Medical Practitioners Tribunal (“MPT”) and the High Court not to erase Mr Gilbert, a consultant surgeon, from the register following findings of serious misconduct.
In rejecting the appeals, the Court of Appeal demonstrates the restrained supervisory role of the appellate courts in relation to professional disciplinary sanctions. An appellate court will not interfere where a tribunal has applied the correct legal framework and undertaken a rational evaluation.
Tribunal proceedings
After a 19-day hearing, the MPT determined that Mr Gilbert had engaged in inappropriate sexualised and racially offensive conduct towards colleagues over a sustained period. It found a significant majority of allegations proved (with a small number not proved). It concluded that Mr Gilbert’s fitness to practise was impaired. The MPT considered its own Sanctions Guidance. That guidance sets out factors which the MPT should consider in deciding whether to erase a doctor from the register or suspend them. The MPT determined that Mr Gilbert’s misconduct was serious but not fundamentally incompatible with continued registration. It imposed a sanction of eight months’ suspension with no review hearing.
Appeal to the High Court
The GMC considered the MPT outcome insufficient. It brought a statutory appeal under s.40A of the Medical Act 1983 (“the 1983 Act”). Such appeals are limited in scope. They may be brought when the GMC “consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public“: s.40A(3). Appeals under section 40A are by way of review. Where the GMC brings a s.40A appeal, s.40B permits the PSA to become a party by giving notice to that effect to the court.
The appeal court will allow an appeal where the decision of the Tribunal is (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings of the Tribunal.
The appeal to the MPT decision was heard by Calver J sitting in the High Court. The GMC’s and the PSA’s principal contention was that Dr Gilbert should have been erased from the register as that was the only appropriate sanction.
Calver J found that two further allegations (of racism and harassment) should have been upheld. He rejected an argument that the context of the misconduct in respect of the allegations was so serious as to require erasure. While some factors which were listed in the Sanctions Guidance as being potentially suitable for erasure were present, the guidance was not to be read as though it were a statute. It imposed no requirement on the MPT. Rather, the MPT must make an evaluative decision based on the evidence. He distinguished between conduct capable of imperilling public safety and actually doing so. Suspension (not erasure) was appropriate in this case. However, he accepted that the MPT made an error of principle in finding that a review at the end of Mr Gilbert’s period of suspension was unnecessary. There would be a review hearing at the end of his suspension. Calver J increased the suspension period to 12 months.
Appeal to the Court of Appeal
The GMC again considered the sanction insufficient. It sought permission to appeal to the Court of Appeal regarding the decision of Calver J not to direct the erasure of Mr Gilbert’s name from the register. Only one ground proposed by the GMC was permitted to proceed to a full hearing: that “having found errors by the MPT and allowed their appeal the judge should have remitted the case to the Tribunal for reconsideration rather than substituting his own decision”: [61].
The PSA, as a Respondent to the appeal, sought (and obtained) permission to cross-appeal. However, the Court of Appeal judgment reflects that “the submissions of the PSA turned out to be little more than variants on [the GMC’s rejected] ground of appeal” on which permission had been refused [73]. Both regulators were bound by the refusal of permission against the GMC: [51].
The GMC submitted that there was a failure by the judge to apply the Sanctions Guidance and that the logic of his decision to reverse the Tribunal’s decisions meant that erasure should have been inevitable. It identified that Calver J’s findings meant that seven, rather than four, of the relevant factors to consider in an erasure decision applied: [61]. The PSA argued that no reasonable MPT could have failed to conclude that Mr Gilbert had put patients at unwarranted risk of harm. Further, that Calver J had artificially distinguished between conduct capable of imperilling patient safety and conduct that has in fact done so. Mr Gilbert should have been erased from the register.
Judgment of the Court of Appeal
The Court emphasised the limited nature of its function when reviewing sanction decisions of specialist professional tribunals. It would correct material error of fact or law but would exercise caution in reconsidering a conclusion of primary fact [52]. It did not have the professional expertise of the MPT. Decisions relating to sanction are a mixture of fact and law where there is limited scope for an appellate court to overturn the decision [53].
In such cases, it was essential to distinguish between appeals brought under s.40 and s.40A of the 1983 Act. Under s.40, the appellate court conducts a rehearing. This appeal was brought under s.40A: the court could only conduct a review of the existing decision.
The Court of Appeal noted that in this case, both the MPT and Calver J decided that it was not necessary to erase Mr Gilbert from the register. Where the MPT and the High Court were in agreement, the Court of Appeal’s own jurisdiction to review should be exercised with particular caution.
The Court of Appeal emphasised that the question of whether to erase a professional from the register must be a question of substance: [62] and [71]. It was not a tick-box exercise: [62]. Calver J had properly evaluated the facts, applied the guidance, and had made no error of logic in determining that a suspension was appropriate in this case. He had been justified in imposing a longer period of suspension.
The appeal was dismissed.
Key takeaways
- Appellate courts exercise a restrained supervisory role in relation to professional disciplinary sanctions. Where a tribunal has applied the correct legal framework and undertaken a rational evaluation, the court will not interfere merely because it might have reached a different view. The findings of specialist tribunals will be respected.
- For prospective appellants, disagreement with the weight given to particular factors is unlikely to be a viable ground of challenge. The court will deprecate any submissions that guidance should be approached as a box-ticking exercise or mandating any automatic outcome. Guidance is not to be engaged with mechanistically.
