A Supervisory Jurisdiction: GMC v Gilbert & PSA [2026] EWCA Civ 53

At his initial MPT hearing, the Tribunal found Mr Gilbert had made sexually motivated comments which constituted sexual harassment. He had engaged in non-consensual and sexually motivated touching. He had also made racist comments. The conduct in question concerned five junior colleagues, and he had abused his senior position in respect of two of them.

Mr Gllbert had initially denied most of the allegations at the facts stage. Only after they had been found proved did he change his position. When the case resumed to consider impairment he was able to show significant remediation and insight (albeit not full insight). The Tribunal imposed an eight-month suspension without a review. Perhaps unsurprisingly, the GMC appealed.

The High Court refused to erase Mr Gilbert, although it did increase his suspension to twelve months with review. The GMC and PSA appealed this decision to the Court of Appeal. The appeal focused on the question of Mr Gilbert’s remediation, and the Tribunal’s application of the sanctions guidance.

In rejecting the appeal, the court stressed the limits of a supervisory jurisdiction under s.40A Medical Act 1983 – even where the underlying misconduct was sexual misconduct:

“in a case which concerns sexual misconduct or racist statements, the court can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and can attach less weight to the expertise of the Tribunal. Nevertheless, in determining sanction in such cases, the Tribunal is making an evaluative judgment to which the court should give a proper measure of respect, in particular when exercising the review jurisdiction under s 40A”

This respect applied in particular to an assessment of remediation.

“Remediation is very much a matter for the evaluative judgment of the professional Tribunal. If the MPT had decided against Mr Gilbert on this issue and held that his misconduct (in particular, the sexual misconduct) was incapable of remediation, it would have been difficult for Mr Gilbert to mount a successful appeal. The judge differed from the MPT in holding that it had been premature for them to decide that no review at the end of the period of suspension would be required. But I do not accept that there is any flaw in the MPT’s decision, upheld in this respect by the judge, that Mr Gilbert’s misconduct was not irremediable”

As for the sanctions guidance, the court was critical of the over-prescriptive approach advocated by the GMC.  The High Court had observed – and the Court of Appeal quoted with approval – the observation that the guidance:

“is not to be read as though it were a statute. It lists certain factors which may indicate that erasure is appropriate. Nor does the guidance mandate a particular outcome, as any decision on sanction is necessarily fact-specific. The Tribunal found that Mr. Gilbert’s misconduct was serious and that it impaired his fitness to practice. It was then for the Tribunal to reach an evaluative decision as to what was necessary to protect the public.”

The Court of Appeal added:

“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. 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.

An important feature of Mr Gilbert’s misconduct was what the MPT described at [514] as “the abuse of his position over a number of junior colleagues over a protracted period of time”. The judge observed that the MPT had this aggravating factor well in mind (but found, as he was entitled to do, that the Tribunal should have attached more weight to the harm done to the victims). Whether as well as being an aggravating factor, this was also “abuse of position/trust” within the meaning of paragraph 109(d) of the Guidance is merely a question of labelling, not of substance.”

This case, together with GMC v Shah, make clear that sexual misconduct does not necessarily have to result in erasure. Insight and remediation remain key. The Tribunal will be best placed to assess these, and – absent an error of law – its evaluative judgment will be very difficult to challenge on appeal.