NMC Panel’s Failure to Grasp and Apply Burden and Standard of Proof

The findings of a Nursing & Midwifery Fitness to Practise Panel which resulted in the striking-off of a nurse with 40 years’ experience, including 20 years in intensive care nursing, were set aside by the Administrative Court: Davies v The Nursing and Midwifery Council [2026] EWHC 1139 (Admin)  Collins Rice J

The nurse acted in person both before the tribunal and before the Administrative Court.

Applying the test of whether the Panel’s conclusions were wrong or its overall procedure irregular to the point of injustice, required stepping back from the detail, and that brought into focus a number of issues.

Serious procedural irregularity could be constituted by a failure to maintain focus on the appropriate burden and standard of proof and to assess evidence coherently and consistently by reference to them.

It could also be constituted by a failure of reasoning so that, looking at a statement of reasons (and, if the stated reasons were not sufficiently clear, at all the underlying material), a nurse was not fairly able to understand how or why a decision had been taken. It was for the purpose of considering those matters that the court reviewed the panel’s decision-making on the materials before it.

The burden and standard of proof meant that professionals were entitled to the benefit of any proper doubt about what objectively, weighing and balancing all of the evidence, more likely than not happened. The panel had before it a number of reasons properly to doubt that it could fairly and objectively find the allegations proved, and it was required to address itself to them, consider them fully and fairly (and cautiously) and, if it resolved them against the nurse, set out a sufficient account of why.

There was, in the first place, the combination of the nurse’s long, unblemished record, the Legal Adviser’s good character direction and the objective improbability of such motives and intentions as were advanced against him (themselves unevidenced outside the allegations of the patient and his wife, and whether or not formally charged). Although not determinative, this was at least potentially relevant.

There was the unanimous professional evidence as to the (at least) improbability that any intensive care nurse in the unit would have had the opportunity both to carry out what was alleged to have happened there in the first place, and to do it either unnoticed or with the acquiescence or collusion of colleagues.

Related to that was the near total lack of corroborative evidence whether from witnesses or clinical records. There were at least potentially material inconsistencies, and the warning signs of exaggeration, improvisation and animus in the patient’s evidence.

There were the significant number of questions, including those arising from his devastating illness, its treatments and its effects both short and long term, about possible alternative explanations for the patient’s evidenced subjective experiences, however passionately felt or expressed, together with a range of real possibilities of mistake, misperception or misremembering. These were all proper reasons to doubt.

In the circumstances, there were features of the decision which gave cause for concern that the panel did not give the nurse the proper benefit of the doubt, particularly bearing in mind that he was acting in person, and the importance of any tribunal’s active maintenance of demonstrable procedural and explanatory fairness which went with that.

There were too many signs of an insufficiently secure grasp and application of the burden and standard of proof and of a fair and transparent approach to assessing evidence in doing so. Its decision suggested too often that it was the nurse’s task to persuade the panel that the patient’s evidence was not credible, rather than the NMC’s that it was.

Some of the features were capable of being regarded as errors of law or misdirection in their own right. But it was their cumulative effect which persuaded her Ladyship, on balance, that there was sufficiently serious and pervasive procedural irregularity apparent in the panel’s decision-making to concluded that its decision could not, in justice to the nurse, stand.

Its reasoning was not sufficiently apparent or accessible, and the underlying evidence before it did not speak for itself sufficiently to remedy that. This was a case in which at least a few sentences dealing with the salient issued discussed in the court’s analysis were essential for confidence in the fairness of the decision.

The manner in which the panel reached and/or explained its decision-making fell short of the standard of justice to which the nurse was entitled, particularly having regard to the panel’s obligation in law to direct all of its evidentiary and fact-finding functions, objectively, towards the NMC’s burden of proof as to the balance of objective probabilities, and to do so demonstrably.