Why getting the burden of proof right is non-negotiable

Mr Andrew Davies, an experienced ICU nurse with 40 years’ service including 20 years in intensive care, faced allegations of unprofessional language, failures to obtain consent, and physically harmful treatment of a highly vulnerable patient (“the Patient”) admitted to Prince Charles Hospital, Merthyr Tydfil, with Guillain Barré Syndrome (“GBS”) – a devastating autoimmune condition that left the Patient paralysed, non-verbal, and entirely dependent on round-the-clock nursing care.

Mr Davies denied all allegations.

Following an 18-day hearing spread across April and November 2025, the Panel found all eight charges proved and, by letter dated 24 November 2025, imposed a striking-off order. Mr Davies appealed on twelve grounds.

The Duty to Give Reasons

Mrs Justice Collins Rice helpfully restated the duty to give reasons, drawing on the summary at paragraph 18 of Shabir v GMC [2023] EWHC 177. The purpose of that duty is to enable the losing party to understand why they have lost and to consider whether to appeal. Reasons need not be exhaustive, but where a case is not straightforward, at least “a few sentences dealing with salient issues” may be essential. The Panel’s decision fell short of that threshold in this case.

A Practical Note on Generated Transcripts

Before turning to substance, Mrs Justice Collins Rice was critical of the “conspicuously poor” machine-generated transcripts from the November 2025 hearing days, being the sessions at which Mr Davies gave his own evidence. She observed that such unedited, error-laden records “are not of a standard to support appeal or other litigation proceedings” and that their use for such purposes “is to be discouraged”.

Regulators and practitioners alike should note that while the existence of a record is important, its quality matters just as much.

Legal Advice

The Legal Adviser had given the Panel comprehensive and accurate directions, including on the burden and standard of proof, credibility, corroboration, the good character direction applicable to Mr Davies, and the risk of a “domino effect”. Crucially, the Adviser told the Panel it was “vital”, before embarking on charge-by-charge fact-finding, to stand back and give a broad, reasoned assessment of each witness and their evidence overall.

Mrs Justice Collins Rice observed at paragraph 37 that, “Making such allowance as I must for the quality of the transcript, nothing about [the directions] suggests any cause for concern. The Panel appears to have been impeccably directed in law by its Adviser on the exercise of the functions to which this appeal relates.”

The problem was not the directions – it was what the Panel did with them.

Failure to Begin with the Vital Overall Assessment

Rather than starting with the “vital” overall assessment of each witness, the Panel opened its reasoning by examining Mr Davies’s “submission” or “position” that the Patient had associated false memories, and asking whether that proposition could explain the Patient’s allegations. This was legally backwards.

It was not Mr Davies’s task to prove a motive or explanation for the Patient’s complaints: that obligation lay with the NMC. Mrs Justice Collins Rice noted at paragraph 103 that this opening section was “difficult to reconcile with the legal direction that Mr Davies bore no burden of establishing a motive or explanation for the Patient’s complaints.”

Fabrication Is Not the Right Question

The Panel framed much of its reasoning around whether the Patient had “fabricated” his allegations, a concept implying conscious dishonesty. That was not the point. The Panel’s task, as Mrs Justice Collins Rice explained at paragraph 105, was to assess objectively whether the events alleged probably occurred. Eliminating fabrication as an explanation did not entitle the Panel to proceed on the basis that the Patient was credible, nor did it relieve the Panel of its duty to weigh his evidence properly in all the circumstances.

No Overall Witness Assessment – and No Good Character Direction Applied

In the charge-by-charge analysis which followed, the Panel found the Patient gave “consistent, credible evidence” while Mr Davies’s evidence was “less credible”. However, no overall reason was given for that conclusion. More troublingly, as Mrs Justice Collins Rice observed at paragraph 106, there was “no indication of the Panel’s applying the ‘good character’ direction to Mr Davies’s own evidence, or of giving any reason for not doing so.”

Mr Davies’s 40-year unblemished record was at least potentially relevant both to his credibility and to the inherent probability that he had behaved as alleged.

Internal Inconsistency – and the “Disciples” Problem

The Patient’s witness statement said Mr Davies usually nursed him alone. Under cross-examination, however, he accepted that much of his care, including personal hygiene, required at least two nurses. Pressed on this coherence problem, the Patient advanced for the first time an account of Mr Davies’s “two disciples”, who were said to have been present and complicit.

Mrs Justice Collins Rice identified inconsistency on the face of that evidence, noting at paragraph 113 that it was “not apparent on the face of [the Panel’s] decision that the Panel addressed itself to, dealt with, or accounted for these evidential issues.”

Animus – an Obvious Issue, Ignored

The Patient’s oral evidence demonstrated clear and intense animus against Mr Davies, calling him a liar and suggesting his clinical notes had been falsified, to the extent that the Panel had to intervene during the hearing. Yet this animus, and what it might mean for the weight of the Patient’s evidence, does not appear in the Panel’s reasons.

Vehemence Is Not a Reliable Guide to Credibility

The Legal Adviser had specifically directed the Panel to be wary of exaggeration. The Patient’s evidence was characterised throughout by themes of “torture”, “crucifixion” and fear for his life. Some of his more extreme allegations, including that Mr Davies moved him alone from bed to chair, were described by professional witnesses as impossible or potentially lethal. The Panel did not address the impact of this highly emotive evidence on the weight properly to be given to his account.

The Panel repeatedly described the Patient’s evidence as “consistent, credible and compelling”. However, as Mrs Justice Collins Rice explained at paragraph 109, assessing consistency required more than noting vehemence and persistence. It required examining the evidence as a whole, including its internal coherence and its consistency with the evidence of other witnesses.

The Patient’s Illness – an Obvious and Acute Issue

The Patient had Guillain-Barré Syndrome (GBS), a devastating condition. He was paralysed, sedated, receiving pain medication, suffering documented anxiety and depression, experiencing disrupted sleep and had a limited ability to communicate.

Mrs Justice Collins Rice acknowledged at paragraph 118 that the Panel was correct not to speculate medically in the absence of medical evidence. Nevertheless, at paragraph 119 she identified what she described as “an obvious and acute issue”: the NMC, not Mr Davies, bore the burden of proving that the Patient’s illness and its debilitating effects were not a more probable explanation for some or all of his evidence. The Panel did not address this.

Corroboration: The Intensive Care Context

Mrs Justice Collins Rice accepted that direct corroborating evidence is not a legal necessity for adverse findings. However, as she noted at paragraph 122, corroboration, or its absence, is at least potentially relevant when applying the balance of probabilities.

The NMC’s own advocate accepted during the appeal that the only charge corroborated by independent evidence was the sunglasses remark (Charge 1(a)), supported by the Patient’s wife. Mr Davies’s account of that same incident was, in turn, corroborated by the NMC’s own witness, Mr Brown, the senior nurse who had been standing immediately beside the Patient at the time.

The Panel dismissed Mr Brown’s evidence, that he had heard nothing inappropriate, on the basis of the passage of time and potential ambient noise, without considering whether those same factors might equally affect the reliability of the Patient’s or his wife’s evidence.

More broadly, Mrs Justice Collins Rice identified at paragraph 127 the need to address the inherent improbability of unwitnessed misconduct in an intensive care setting, a unit characterised by high staffing ratios, constant observation and team-based care, all matters supported by evidence from the senior ICU staff called by the NMC itself.

The Panel dealt with this context in a piecemeal fashion rather than considering it in the round and, in doing so, effectively placed on Mr Davies the burden of proving it was impossible for him to have been alone with the Patient.

Running through the judgment was a deeper concern that the Panel had, in effect, inverted the burden of proof. Rather than requiring the NMC to prove the charges on the balance of probabilities, it repeatedly appeared to require Mr Davies to demonstrate that events could not have occurred.

Mrs Justice Collins Rice’s Conclusion: Cumulative Irregularity

At paragraphs 138 to 142, Mrs Justice Collins concluded that this Panel had before it “a number of reasons properly to doubt that it could fairly and objectively find the allegations proved” – Mr Davies’s good character, the unanimous professional evidence as to the improbability of unwitnessed misconduct in an ICU, the near-total lack of corroboration, the Patient’s internal inconsistencies and signs of exaggeration and animus, and the significant unaddressed questions arising from his serious illness and its effects.

The written decision did not demonstrate that the Panel had “fully grappled with all, or even any, of the principal reasons to doubt which plainly appeared from the materials before it” (paragraph 140). At paragraph 142, she concluded that taken cumulatively these deficiencies amounted to “sufficiently serious and pervasive procedural irregularity” to render the decision unjust.

The Panel’s decision was set aside.

1. The burden of proof is the regulator’s, and must remain so throughout

The NMC bore the burden of proving each charge on the balance of probabilities. The Panel lost sight of this. For example, a lesson from paragraph 119 is that where a patient’s serious illness raises real questions about the reliability of their evidence, it is for the regulator to address that – either by obtaining independent expert evidence or by confronting the issue squarely. It cannot be left to the registrant to disprove it.

2. Regulators must probe their own evidence

The NMC called two senior nurses, Mr Brown and Ms Owen, both of whom gave evidence broadly favourable to Mr Davies: confirming high staffing levels, team-based personal care, and professional standards consistent with Mr Davies’s account. Regulators should interrogate the implications of their own witnesses’ evidence and engage with the probability arguments that arise from it, rather than leaving those arguments unaddressed.

3. Panels must begin with the overall assessment – and hold to it

The Legal Adviser told this Panel it was ‘vital’ to stand back and assess all witnesses before embarking on fact-finding. The NMC’s own Guidance (Decision Making Assessment) says the same. A charge-by-charge approach which substitutes for that overall assessment is not equivalent to it. Panels which skip that step ,or pay only lip service to it, risk their findings being set aside on appeal.

4. The good character direction must be applied visibly

Mr Davies’s 40-year unblemished record was not a technicality. It was at least potentially relevant to both his credibility and the inherent probabilities of him acting in the manner as alleged. The Panel gave no visible account of having applied the direction.