Introduction
This recent High Court decision provides powerful guidance on how fitness to practise panels must approach evidence, credibility, the burden and standard of proof, and the duty to give adequate reasons. For healthcare professionals facing investigation, it highlights arguments that can make a decisive difference at case preparation, hearing, and appeal.
In Davies v Nursing and Midwifery Council EWHC 1139 (Admin), the High Court allowed an appeal and set aside an NMC panel’s findings because serious procedural irregularities undermined the fairness of the decision, including failures in reasoning and misapplication of the burden and standard of proof.
Case Background
The registrant, Mr Andrew Jonathan Davies, was an experienced intensive care nurse who faced a series of misconduct charges arising from a single high‑dependency patient’s complaints during 2021.
An NMC Fitness to Practise Panel heard the case over 18 days in 2025, found all charges proved, determined misconduct, and imposed a striking‑off order.
Mr Davies appealed to the High Court, challenging the panel’s findings of fact, its handling of credibility, its treatment of inconsistencies and corroboration, and the adequacy of its reasons.
The appeal was heard by Mrs Justice Collins Rice, who reviewed the panel’s written reasons, the oral and written evidence, and transcripts.
Issues before the Court
The Court applied the well‑established appellate framework. It could allow the appeal if the decision was “wrong” or “unjust because of serious procedural or other irregularity,” approaching primary fact‑findings with caution and respecting regulatory expertise on impairment and sanction, while ensuring adequate reasons were given.
Key Findings of the High Court
Fair process, reasons, and the burden and standard of proof
The Court held that the panel’s approach produced serious procedural irregularity because it did not demonstrably maintain the correct burden and standard of proof, appeared to require the registrant to disprove the allegations or prove an exculpatory motive, and failed to provide sufficiently clear reasoning showing how conflicting evidence was resolved.
The judgment emphasised that it is always for the regulator to prove the charges on the balance of probabilities, and panels must be cautious about “domino” reasoning and all‑or‑nothing credibility assessments.
Assessment of credibility and consistency
The panel failed to conduct, and to record, the “vital” broad assessment of each witness’s credibility and reliability before turning to individual charges, notwithstanding express legal advice to do so.
The panel repeatedly described the complainant’s evidence as “clear, consistent and credible” without grappling with material inconsistencies, late‑emerging features (such as alleged “disciples”), possible exaggeration, or the practical realities of ICU care which bore on plausibility.
Corroboration and ICU realities
While corroboration is not legally required, the panel did not engage with the objective improbability—given ICU staffing, teamwork, visibility, and chaperoning—that serious misconduct of the types alleged would occur unobserved and unreported. This went both to plausibility and to the weight of the complainant’s account.
Good character direction
The panel did not visibly apply the “good character” direction to the registrant’s evidence or explain any departure, despite his long unblemished career and the bearing of character on both credibility and inherent probability.
Implied consent and intentionality
The panel’s treatment of consent was unclear, including an insecure grasp of implied consent, and it appeared to make undifferentiated findings of intentional misconduct without addressing alternative explanations, mistake, or misunderstanding.
Adequacy of reasons
The written reasons were insufficient to show why all charges were found proved, particularly in light of inconsistencies, lack of corroboration, ICU practicalities, and the caution required in assessing historic events and memory.
Outcome
The Court allowed the appeal and set aside the panel’s decision, holding that the cumulative irregularities and reasoning failures meant the decision could not justly stand.
Key Takeaways for Registrants
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Keep the regulator to its burden of proof. Panels must not invert the burden by expecting registrants to prove an exculpatory motive, disprove allegations, or explain the complainant’s account.
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Demand a structured credibility assessment. Panels should record a reasoned, overarching assessment of each witness, address inconsistencies, plausibility, exaggeration, and memory reliability, and avoid all‑or‑nothing credibility findings.
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Use ICU or clinical realities to test plausibility. Where practice requires multi‑staff interventions, continuous observation, and chaperones, panels must confront the improbability of serious misconduct occurring unobserved and unreported, and explain how they overcome that improbability.
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Insist on proper application of good character. An unblemished professional record is relevant both to credibility and inherent probability; panels should apply the direction or explain why not.
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Press for coherent reasoning on consent and intention. Panels must engage accurately with implied consent and should not default to findings of intentional wrongdoing without addressing alternative explanations or mistake.
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Require adequate, charge‑specific reasons. Each finding should show how competing evidence was weighed against the balance‑of‑probabilities test, with clear, comprehensible reasons.
How This Case Can Assist in Defence Strategy
Written representations at investigation stage
Cite Davies v NMC EWHC 1139 (Admin) to remind the regulator that it bears the burden throughout and that plausibility, corroboration (while not essential), clinical realities, and good character must inform assessment of evidence.
Frame inconsistencies and late‑emerging features, and identify why ICU or team‑based care makes the alleged conduct objectively unlikely to have occurred unwitnessed.
Case management hearings
Seek directions requiring the panel bundle and legal assessor’s directions to reflect the need for a “broad assessment” of each witness before charge‑by‑charge findings, explicit engagement with inconsistencies and ICU practice evidence, and clarity on implied consent and intention.
Substantive hearings
Press the panel, with pinpoint references to Davies, to articulate on the record how it is applying the burden and standard of proof, how it is weighing inconsistencies, the impact of teamwork and chaperoning on plausibility, and how it applies the good character direction.
Use targeted cross‑examination to establish staffing levels, visibility, and chaperoning, and to test late‑arising allegations.
Appeals
On appeal, rely on Davies for propositions that inadequate reasons, misapplication of burden or standard, failure to grapple with inconsistencies or ICU realities, and omission of the “vital” credibility assessment can amount to serious procedural irregularity rendering the decision unjust.
Concrete examples
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Where allegations imply solo care for high‑risk tasks, invite findings on staffing norms, sightlines, and chaperones; submit that unobserved misconduct is inherently improbable and requires cogent reasoning to overcome. Davies stresses the need to confront such practical realities and explain how they are outweighed.
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If the complainant’s account evolves (for example, new witnesses or “disciples”), require the panel to address timing, motive to embellish, and internal coherence. Davies criticised failure to grapple with late‑emerging “disciples” and consistency problems.
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Where intent is alleged, propose alternative explanations (mistake, misunderstanding, clinical necessity) and insist the panel reasons through them. Davies identified concerns where intentionality was found without dealing with alternatives or implied consent properly.
Wider Implications
Regulator guidance and panel training
The judgment aligns with and reinforces guidance that credibility requires focus on objective plausibility, consistency with records, and caution about memory confidence, especially with historic events. It signals the need for panels to demonstrate structured reasoning rather than conclusory credibility labels.
Proceedings involving vulnerable complainants
While sensitivity to mental health is appropriate, fairness demands transparent reasoning that does not shift the burden or bypass inconsistencies and practical improbabilities.
Sanction decisions built on unsafe facts
If factual findings are unsound for reasons identified in Davies, any consequent misconduct and sanction determinations are at risk on appeal.
Consistency across regulators
The principles in Davies are equally applicable across NMC, GMC, GDC, HCPC, and GPhC panels: burden and standard of proof, coherent credibility analysis, attention to clinical context, and adequate reasons.
Conclusion
Davies v NMC is a timely reminder that allegations are not enough: regulators must prove them, panels must reason transparently, and real‑world clinical practice, good character, and inconsistencies matter.
If you face investigation, early, focused submissions using Davies can shape how evidence is assessed and, where necessary, provide solid grounds for appeal.
In Davies, the High Court set aside the panel’s decision for serious procedural irregularity and inadequate reasoning, underscoring the safeguards that protect registrants in fitness to practise proceedings.
If you are facing NMC fitness to practise proceedings, our NMC defence solicitors can help.