GMC Sanctions Guidance Not a “Tick-Box”: Erasure Is Not the Default in s40A Sufficiency Appeals

1. Introduction

General Medical Council v Gilbert & Anor [2026] EWCA Civ 53 concerns the appellate control of sanctions imposed by the Medical Practitioners’ Tribunal (“MPT”) for serious non-clinical misconduct by a surgeon, Mr James Gilbert. The proven allegations comprised sexually motivated comments, sexual harassment, non-consensual touching motivated by sexual gratification, and racist comments, directed at colleagues (predominantly junior staff) over a lengthy period.

The MPT found Mr Gilbert’s fitness to practise impaired by misconduct, but imposed eight months’ suspension and initially determined that no review hearing was necessary. The GMC and the Professional Standards Authority (“PSA”) appealed to the High Court under the Medical Act 1983. Calver J increased the sanction to 12 months’ suspension with a review, but declined to substitute erasure. The GMC (supported by the PSA) sought to overturn that refusal in the Court of Appeal.

The central issues on the second appeal were not whether the misconduct was grave (it was), but how appellate courts should reason about sanction sufficiency in a section 40A “review” appeal—especially where guidance lists multiple “erasure indicators”—and whether identified omissions in the tribunal’s reasoning compelled erasure or at least remittal.

2. Summary of the Judgment

The Court of Appeal dismissed the appeal. It held, in substance, that:

  • The Sanctions Guidance, including paragraph 109’s list of factors “which may indicate erasure,” is not a score sheet; sanction is determined by an overall evaluative assessment of gravity, not by counting how many factors can be ticked.
  • Erasure is not the default from which departure must be justified; it is the ultimate sanction, to be imposed only if necessary and proportionate for the overarching objective.
  • Even in cases of sexual misconduct/racist behaviour—where courts may attach less weight to tribunal expertise—the tribunal’s sanction choice remains a multi-factorial evaluative judgment to which an appellate court owes a proper measure of respect, particularly under s40A (review, not rehearing).
  • The High Court was entitled to substitute a longer suspension (and require a review) without being compelled to remit, and the “logic” of identifying certain tribunal errors did not make erasure inevitable.
  • The distinction between conduct capable of imperilling patient safety and conduct that actually puts patients at risk was not “artificial” and could rationally influence proportionality.

The Court also treated subsequent procedural developments as reinforcing the remediation assessment: the later review tribunal found no current impairment, and Lang J refused to suspend Mr Gilbert pending the PSA’s separate appeal, noting the review tribunal’s careful evaluation of insight/remediation.

3. Analysis

3.1 Precedents Cited

(a) Jagjivan v GMC & PSA [2017] EWHC 1247 (Admin)

The Court of Appeal reaffirmed the appeal principles summarised in Jagjivan v GMC & PSA, including:

  • appellate correction of material errors of fact/law, but caution on credibility-based primary findings;
  • less disadvantage when drawing inferences from facts;
  • “diffidence” toward specialist tribunal judgments on seriousness/impairment/sanction;
  • but less deference where the court can assess protection of the public/reputation more easily (examples given: dishonesty/sexual misconduct), coupled with “appropriate measure of respect”;
  • mitigation matters less in regulatory proceedings than in retributive sentencing;
  • inadequate reasons can be a serious irregularity.

Here, the Court used Jagjivan as the conceptual baseline, but emphasised that the “less deference” point does not abolish respect for evaluative sanction decisions under s40A.

(b) Bawa-Garba v GMC [2018] EWCA Civ 1879 and GMC v Bawa-Garba [2019] 1 WLR 1929

The Court relied on Bawa-Garba v GMC for the modern articulation of restraint in reviewing “multi-factorial” sanction decisions: appellate interference is justified only where there is (1) an error of principle or (2) a decision outside the bounds of what could properly and reasonably be decided.

Zacaroli LJ’s permission decision (quoted in the judgment) applied that framework expressly: once it is accepted that sexual misconduct does not make erasure mandatory, the appellant must identify a principled flaw or an out-of-bounds evaluation. The full Court of Appeal treated that as determinative of what was—and was not—open on the second appeal (especially given the finality of permission refusals).

(c) Biogen Inc v Medeva plc [1997] RPC 1

Lord Hoffmann’s warning in Biogen Inc v Medeva plc—that appellate courts should be cautious where application of a legal standard is “a matter of degree”—reinforced the proposition that sanction selection is quintessentially evaluative.

(d) Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915

The Court invoked Lord Millett’s formulation in Ghosh v GMC that appellate courts afford an “appropriate measure of respect” but do not defer more than circumstances warrant—supporting a calibrated, not absolute, posture of restraint.

(e) Sastry v GMC; Okpara v GMC [2021] EWCA Civ 623; [2021] 1 WLR 5029 (“Sastry”)

Sastry was used to clarify the interaction between subject-matter (sexual misconduct) and appellate route. The Court stressed that Sastry involved s40 practitioner appeals (rehearing), whereas the present case arose under s40A (GMC sufficiency appeal by review). Even if courts are “well placed” on sexual misconduct, the statutory appellate mode matters: s40A remains a review jurisdiction, and Sastry itself endorsed Bawa-Garba as governing that review.

(f) Professional Standards Authority v Health and Care Professions Council and Doree [2017] EWCA Civ 319

The Court drew on Professional Standards Authority v Health and Care Professions Council and Doree to frame guidance documents as aids to fairness, consistency, and transparency—not as prescriptive “statutes.” This directly underpinned the rejection of the GMC’s “logic” submission that the number of paragraph 109 factors found must drive erasure.

3.2 Legal Reasoning

(a) The decisive “anti-score sheet” principle

The key doctrinal contribution is the Court’s explicit repudiation of a mechanistic approach to paragraph 109 of the GMC Sanctions Guidance. Paragraph 109 provides that “any of the following factors being present may indicate erasure is appropriate.” The GMC’s appellate strategy sought to convert this into a quasi-threshold test: once multiple factors are present, erasure must follow unless specially justified.

The Court rejected that approach as misconceived. It held that sanction must be grounded in an evaluation of overall gravity and public interest necessity, not a tally of labels. A single episode can fit multiple descriptors (e.g., “abuse of position,” “harm to others,” “bringing profession into disrepute”), so counting “factors” risks double-counting the same misconduct and distorting proportionality.

(b) Erasure is not the starting point

Lady Justice Andrews sharpened the point: erasure was “not the default position from which any departure had to be justified.” The evaluative task is to decide what is necessary and proportionate for the overarching objective; the fact that erasure is a “real possibility” does not invert the burden of justification.

(c) Respect for evaluative decisions, especially where MPT and High Court agree

The Court recognised the well-known qualification that courts may more readily assess sanctions in cases of sexual misconduct or racist behaviour. Nonetheless, it emphasised that:

  • the MPT’s decision remains an expert multi-factorial evaluative judgment;
  • under s40A, the High Court conducts a review for sufficiency, not a rehearing;
  • where the MPT and High Court converge on the core outcome (here: suspension rather than erasure), the Court of Appeal should be “particularly cautious” before intervening.

(d) Substitution vs remittal after identifying omitted factors

Permission to appeal had been granted on an arguable point: once a judge identifies that a tribunal omitted relevant factors, should the judge remit rather than “second-guess” by substituting? The Court’s disposal confirms that remittal is not automatic. The High Court may substitute a sanction if satisfied it can properly do so within the statutory powers and the evaluative bounds, and if its reasoning demonstrates that it has weighed the relevant factors (including those omitted by the tribunal).

On the facts, Calver J’s approach—correcting certain errors, increasing the suspension period, and directing a review—was treated as a legitimate exercise of the s40A appellate function; it did not trigger an obligation to remit, and did not logically compel erasure.

(e) Patient safety: “capable of imperilling” vs actual risk

The PSA argued that conduct “capable of posing a risk” should be treated as having put patients at “unwarranted risk of harm.” The Court rejected that equivalence. It accepted that sexualised conduct or racist remarks in theatre may distract colleagues and thus create a safety risk; however:

  • there was no evidence of actual harm to any patient;
  • the case had been presented to the tribunal as “not a patient safety case”;
  • “unwarranted risk of harm” was not a statutory test, and its application was fact-sensitive;
  • the distinction between capability and actual risk was real and potentially consequential for proportionality.

(f) Remediation and the role of later events

The Court treated remediation as an area where tribunals are particularly well placed, given the evidence base (reflective writing, testimonials, oral evidence, observation of demeanour). Importantly, later events supported the original assessment: the review tribunal concluded impairment had lapsed, and Lang J refused interim injunctive relief, emphasising the review tribunal’s careful evaluation.

3.3 Impact

  • Sanctions Guidance will be treated as guidance, not a checklist: Parties should expect appellate courts to resist “factor counting” submissions. Persuasion will depend on demonstrating why, in substance, protection of the public/public confidence/professional standards require the ultimate sanction.
  • s40A review discipline is reinforced: Even in sexual misconduct/racism cases, appellants must identify an error of principle or an out-of-bounds evaluative conclusion; “less deference” does not become free substitution.
  • Substitution is permissible without remittal: Where a High Court judge identifies omissions or weighting errors, substitution (e.g., longer suspension, review) can be legitimate if adequately reasoned; remittal is not required merely because some factors were omitted.
  • Patient safety arguments must be evidenced and framed consistently: The judgment highlights forensic consequences where a regulator characterises a case as not involving patient safety, then seeks to elevate patient safety risk on appeal.
  • Review hearings matter in serious misconduct: While the appeal ultimately concerned erasure, the case also signals that dispensing with review after suspension will be closely scrutinised against paragraph 164 of the guidance.

4. Complex Concepts Simplified

  • Impairment: A finding that a doctor’s fitness to practise is currently affected (for public protection, public confidence, or standards), even if clinical skill is not in question.
  • Suspension vs erasure: Suspension is temporary removal from practice; erasure removes the doctor from the register (the most severe sanction).
  • Overarching objective (Medical Act 1983, s1): Protection of the public, including maintaining confidence and professional standards—not punishment.
  • s40 vs s40A appeals: s40 (doctor’s appeal) is generally by way of rehearing; s40A (GMC appeal) is a review limited to whether the decision is insufficient for public protection.
  • Multi-factorial evaluative decision: A decision requiring judgment across many variables (gravity, harm, insight, remediation, deterrence, confidence). Appellate courts rarely interfere unless there is a principled error or the outcome is outside reasonable bounds.
  • “Sanctions Guidance is not a statute”: Guidance helps structure decision-making but does not impose rigid rules; a panel may depart from it if it explains why.

5. Conclusion

General Medical Council v Gilbert & Anor [2026] EWCA Civ 53 confirms that in s40A sufficiency appeals, sanction remains an overall evaluative exercise. Paragraph 109 of the Sanctions Guidance cannot be transformed into a “tick-box” trigger for erasure, and erasure is not the default outcome whenever multiple “erasure indicators” can be articulated. The Court of Appeal’s insistence on substance over labels, and on calibrated appellate restraint (particularly where the MPT and High Court agree), provides a clear appellate template for future regulatory sanction challenges in cases of sexual misconduct and racist behaviour.