Andrew Jonathan Davies v The Nursing and Midwifery Council

On a disciplinary appeal, the High Court must correct material errors of fact or law and serious procedural irregularity, while remaining cautious about disturbing primary findings based on witness credibility. A panel must apply the regulator’s burden of proving the charges on the balance of probabilities. It must assess the evidence fairly and coherently, rather than treating the case as a choice between believing one witness and rejecting another. In particular, it should address material inconsistencies, corroboration or its absence, objective probabilities, alternative explanations, and any good-character direction. Reasons need not resemble those of a court, but they must enable the practitioner to understand why adverse findings were made. Failure to engage with salient matters may make the decision unjust and require it to be set aside.

Mr Andrew Davies, an experienced agency intensive-care nurse, appealed against findings by a Fitness to Practise Panel of the Nursing and Midwifery Council. The Panel found proved eight allegations concerning unprofessional remarks, failures to obtain consent, painful or inappropriate physical treatment, and failure to respond to the Patient’s non-verbal indications of pain or need. It subsequently found professional misconduct and imposed a striking-off order.

The appeal principally concerned the Panel’s fact-finding, its treatment of inconsistencies and the absence of corroboration, its rejection of Mr Davies’s evidence, and the adequacy and fairness of its reasons. The central issue was whether the Panel’s decision was wrong or unjust because of serious procedural irregularity.

1. Appeal allowed. The Panel’s decision was set aside. The court did not determine whether any individual charge was factually proved and made no findings of its own on the evidence.
2. The applicable appellate approach, drawn from Cheatle v GMC [2009] EWHC 645 (Admin) and Sastry v GMC [2019] EWHC 390 (Admin), required the court to correct material errors of fact or law and to allow the appeal where the decision was wrong or unjust because of serious procedural or other irregularity. The court had to remain extremely cautious before disturbing primary findings based on credibility, but could draw justified inferences from established facts. A panel’s professional expertise also warranted appropriate respect on questions of misconduct, fitness to practise and sanction.
3. The Panel had been correctly directed in law. However, its reasons did not show that it had applied those directions. It began by requiring Mr Davies to support possible explanations for the Patient’s allegations and treated the absence of proof of fabrication or motive as significant. That risked reversing the burden of proof. The NMC had to prove the charges; Mr Davies did not have to prove an exculpatory explanation or disprove the Patient’s account.
4. The Panel also failed to give the required broad and reasoned assessment of each witness before undertaking charge-by-charge fact-finding. It did not adequately address material inconsistencies concerning when Mr Davies was alone with the Patient, the late emergence of the account of two alleged assistants, the Patient’s animus and exaggeration, the objective improbability of some allegations, the effects of illness and treatment, the absence of corroboration, or the relevance of Mr Davies’s good character.
5. Corroboration was not legally necessary. Its presence or absence was nevertheless potentially relevant to the balance-of-probabilities assessment, particularly in the intensive-care setting described by the professional witnesses. The Panel considered these matters piecemeal and sometimes treated possibility as sufficient, rather than asking whether the alleged events were more probable than not.
6. Applying the guidance summarised in Shabir v GMC [2023] EWHC 177, the court held that the cumulative deficiencies created serious and pervasive procedural irregularity. The reasons were not sufficiently clear or accessible, and the underlying evidence did not cure the defects. The parties were given an opportunity to agree next steps or make further submissions.

• High Court (Administrative Court): The appeal from the NMC Fitness to Practise Panel was allowed. The Panel’s decision was set aside.
• NMC Fitness to Practise Panel: The Panel found all charges proved, found professional misconduct, and imposed a striking-off order, communicated on 24 November 2025.