Sanctions Guidance is not a score sheet – Court of Appeal findings from GMC v Gilbert & PSA

In a judgment handed down on 6 February 2026, the Court of Appeal (CoA) dismissed appeals by both the General Medical Council (GMC) and the Professional Standards Authority (PSA) to overturn the decision to suspend, rather than erase, a consultant surgeon from the medical register.
 

The judgment arrives at an interesting moment. In November 2025, the Medical Practitioners Tribunal Service (MPTS) introduced new Sanctions Guidance based on bandings structured around low, medium and high-risk levels, replacing the previous approach that required tribunals to start with the least restrictive sanction. The Court’s findings in Dr Gilbert’s matter should now influence how this guidance is applied.  

Summary of the proceedings

Background

Dr James Gilbert, a consultant surgeon at Oxford University Hospitals NHS Foundation Trust, faced fitness to practise proceedings concerning allegations spanning 2009 to 2022. The allegations included sexually motivated comments and unwanted physical contact towards junior female colleagues, as well as racist remarks made in clinical settings, sometimes in the presence of patients. 

The MPTS Hearing (August 2024)

The Tribunal found most allegations proved and imposed an 8-month suspension without review, concluding the conduct was serious but remediable. It found that Dr Gilbert had taken significant steps to remediate and therefore suspension was sufficient to protect the public.

The High Court Appeal [2025] EWHC 802 (Admin)

The GMC appealed the decision, joined by the PSA, seeking erasure. Mr Justice Calver heard the appeal and, in a decision dated 3 April 2025, upheld two additional allegations regarding racist comments about patients and increased the suspension to 12 months with review but rejected erasure, finding the Tribunal’s remediability assessment sound.

The Court of Appeal [2026] EWCA Civ 53

The GMC appealed again. The PSA, joined as second respondent, sought permission to cross‑appeal. The GMC argued: (1) erasure should have been imposed given the nature of the misconduct (permission to appeal on this ground was refused by Lord Justice Zacaroli); and (2) 7 out of 10 erasure factors in paragraph 109 of the Sanctions Guidance (which indicate that erasure is appropriate) were present, therefore erasure was not only appropriate but necessary; and ultimately that Calver J should have sent the matter back to the Tribunal. The PSA argued Calver J failed to adequately address patient safety risk and whether such conduct, being sexually and racially motivated, was inherently irremediable.

The CoA dismissed all grounds of appeal, holding that sanctions guidance is not a tick-box exercise and remediability must be assessed on evidence, not categorical assumptions.

 

Sanctions Guidance – how do you score a sanction?

The Court’s treatment of the Sanctions Guidance is of note.

The GMC argued that 7 out of 10 factors in paragraph 109 of the Sanctions Guidance were present in Dr Gilbert's case. These factors included that the misconduct was sexually motivated, involved abuse of a senior position, demonstrated discrimination, and brought the profession into disrepute. This had increased from four factors following Calver J's additional findings. The GMC's position was straightforward: once a sufficient number of factors are engaged, erasure should follow.

Lord Justice Bean delivered a comprehensive rejection of this approach:

"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.” (para 62) (emphasis added)

Lady Justice Andrews reinforced this principle: "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." (para 71) (emphasis added)

The Court identified a fundamental flaw in the score sheet approach: the same conduct can be described in multiple ways. For example, a single incident of inappropriate sexual comments towards a colleague in a clinical setting might simultaneously be characterised as:

• sexual misconduct;
• abuse of a senior position;
• conduct bringing the profession into disrepute; and
• conduct showing disregard for patient safety.

If each characterisation counts as a separate "tick," the same behaviour is counted multiple times, artificially inflating its apparent severity. This was found to be particularly problematic when combined with what the Court described as "the GMC's somewhat repetitive style of pleading allegations" which "runs the risk of encouraging a score sheet approach."  If allegations are drafted in overlapping ways, they can create multiple findings from a single course of conduct.

The Court emphasised that tribunals must undertake a holistic evaluative judgment that:

• considers the overall gravity of misconduct in its full context;
• weighs all relevant factors together rather than in isolation;
• focuses on the substance of what the registrant actually did;
• takes into account the particular circumstances of the case; and
• assesses what sanction is necessary and proportionate for public protection and maintaining professional standards.

This approach is clearly more nuanced than a tick-box exercise, requiring tribunals to step back from individual factors and consider the totality of the conduct and circumstances. Importantly, the Court noted that sanctions guidance is not to be read "as though it were a statute" - it provides a framework for thinking, not a formula that mandates particular outcomes.

 

Remediability – can a ‘leopard change its spots?’

The Court's treatment of remediability is equally significant, particularly for cases involving sexual misconduct and discriminatory behaviour.

The PSA cross-appealed arguing that Calver J had failed to properly address whether Dr Gilbert's misconduct was "difficult to remediate" under the Sanctions Guidance. Lady Justice Andrews saw through this to its underlying premise: "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)

The Court firmly rejected the notion that sexual misconduct and racist conduct are inherently irremediable, emphasising that remediability must be assessed based on actual evidence, including genuine insight, steps taken towards remediation and behavioural changes, not categorical assumptions.

The Court's approach does not minimise the seriousness of sexual misconduct or racist behaviour. Such conduct is serious and warrants significant sanctions, requires public confidence to be maintained and must properly consider victims' experiences. However, these factors do not automatically preclude the possibility of remediation.

 

Patient Safety Considerations

The PSA argued that the High Court had drawn an “artificial distinction” between conduct capable of imperilling patient safety and conduct that actually imperilled patient safety. Their position was that inappropriate behaviour during operations inevitably puts patients at “unwarranted risk of harm.”

The CoA disagreed. It held that there was no evidence that any patient was actually put at risk or harmed, and it emphasised that “unwarranted risk of harm” is not a statutory test. (para 66)

Lord Justice Bean accepted that sexual or racist misconduct in theatre can distract colleagues and may affect patient safety depending on the circumstances, but he endorsed Calver J’s analysis: the fact that misconduct is capable of impacting patient safety does not automatically mean that it did or that erasure is therefore required.

Lady Justice Andrews agreed, and at paragraph 74 held “that distinction is not an artificial one, and could rationally make a difference when deciding what sanction is necessary and proportionate for the protection of the public and maintenance of professional standards”

The CoA reaffirmed that inappropriate sexual or racist conduct in theatre can, depending on the circumstances, be capable of impacting patient safety. However, capability alone does not automatically transform a case into a “patient safety” case. Where the regulator has not advanced the case on that basis - and where there is no evidence of actual compromise to patient care - tribunals are entitled to treat the clinical context as an aggravating factor, rather than a finding that patients were put at unwarranted risk of harm. The Court confirmed that this distinction is a real and rational one

 

A word of caution - Appeals by the GMC and PSA vs by the Practitioner

This case also highlights a key structural point: the appeal rights and standards of review are very different depending on who brings the appeal.

When the GMC or PSA appeals (s.40A of the Medical Act 1983 (the Act))
 

• The appeal is by way of review, not a rehearing.
• The court asks whether the Tribunal’s decision is sufficient to protect the public, not whether it agrees with it.
• Lord Justice Bean emphasised that where the MPT and High Court have reached the same evaluative judgment, the review jurisdiction must be exercised with “particular caution.” (para 58)

As the Court recognised, this is not a route for a full re‑determination of sanction. It is a limited supervisory jurisdiction - and this judgment is a reminder of the more limited scope of appeal the GMC and PSA have

When the practitioner appeals (s.40 of the Act)
 

• The appeal is a rehearing.
• No permission is needed.
• The Court has a much wider remit to substitute its own view.
• What this means going forward

The PSA will, of course, continue to bring s.40A challenges where sanctions appear insufficient. But Gilbert is a strong reminder that:

• appeals must identify genuine errors of principle, and
• the Court will not interfere simply because it would have assessed sanction differently.

Regulators carry the burden of showing that a Tribunal’s evaluative judgment was outside the range of rational responses. That is a high bar. After Gilbert, it may be even higher.

 

This case provides a useful steer for tribunals on how sanctions guidance should be applied. It also addresses fundamental questions about remediability in the context of sexual and racial misconduct, patient safety, and the limits of regulatory appeals.

About the authors

Jessica Etherington is an Associate in the Regulatory team.

Zoe is an Associate in the Regulatory team, advising regulated professionals and firms on regulatory compliance, professional ethics, internal investigations and disciplinary proceedings.