Andrew Jonathan Davies v The Nursing and Midwifery Council [2026] EWHC 1139 (Admin)

[2026] EWHC 1139 (ADMIN)

Case No AC-2025-CDF-000232

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Cardiff Civil Justice Centre

2 Park Street

Venue Cardiff

Date 13/05/2026

CF10 1ET

Before

THE HONOURABLE MRS JUSTICE COLLINS RICE DBE CB

Between

Mr ANDREW JONATHAN DAVIESAppellant

THE NURSING AND MIDWIFERY COUNCILRespondent

The Appellant appeared in person for in person

Mr David Claydon (instructed by NMC) for Respondent

Hearing Hearing date: 16 th April 2026

Approved Judgment

This judgment was handed down remotely at 10.30am on 13 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

THE HONOURABLE MRS JUSTICE COLLINS RICE DBE CB

Introduction

[1]Mr Andrew Davies told me about his 40 years’ nursing experience, including 20 years in intensive care nursing. He said he was proud of his long record as a caring professional, and passionate about the profession.

[2]In the first half of 2021, he was working regularly as an agency nurse in the intensive care unit of the Prince Charles Hospital in Merthyr Tydfil, having been registered with Richmond Nursing Agency since 2016. A patient was admitted to the unit on 3rd April 2021 with acute abdominal pain (he is anonymised for present purposes to protect his privacy, and I will simply refer to him as the Patient). The Patient was sedated and ventilated on arrival. He was diagnosed with Guillain Barré Syndrome (GBS), a rare and devastating autoimmune disease which affects the peripheral nervous system, from which it can take up to a year to recover, and which can cause lasting disabilities. The Patient remained unconscious under sedation for a month, until 5th May 2021. He spent a total of 143 days in the intensive care unit altogether.

[3]After emerging from sedation, and before in due course being moved on to another ward in the hospital on 5th August 2021, the Patient had been in a condition of high dependency. He was paralysed and non-verbal, able to communicate only by eye movement, blinking and a limited ability to move his head from side to side. He had a tracheostomy to support his breathing, and was artificially hydrated and nourished, and catheterised. He was constantly monitored, and relied on round-the-clock one-to-one nursing care and attention for all his needs. His progress towards recovery, as can be typical of GBS, was slow and gradual, subject to a detailed rehabilitation plan agreed by his professional care team and his family.

[4]Mr Davies was a part of the Patient’s intensive care nursing team, contributing to his care on a total of eleven occasions after the Patient’s period of sedation, between 5th May and 27th June 2021. He had nursed GBS patients before. He explained what a terrible illness it is, affecting as it can do motor but not sensory functions, hence exposing patients to the ultimate vulnerability of experiencing discomfort and pain, potentially of life-threatening significance, but having limited ability to communicate that. It requires constant, and especially alert and attentive, nursing accordingly. Mr Davies said he had particularly felt for the Patient, including because they were of an age, and he understood the Patient to be a successful self-made businessman for whom high dependency would be particularly difficult to tolerate.

[5]The Patient, however, towards the end of this time, made a number of complaints against Mr Davies, accusing him of repeatedly speaking to him unprofessionally, ignoring his needs and distress, and physically mishandling and mistreating him, singling Mr Davies out from his colleagues as deliberately subjecting him to pain, discomfort and humiliation. It appears from the undisputed evidence that these concerns began to be raised by the Patient with one nurse on 27th June and another on 3rd July 2021. This caused arrangements to be made to prevent Mr Davies working with the Patient while the complaints were investigated. Senior intensive care professionals held a meeting with the Patient’s wife and daughter on 5th July. Following that, Mr Davies’s nursing agency made a safeguarding referral to Merthyr Tydfil County Borough Council, and referred the Patient’s complaints to his regulator, the Nursing and Midwifery Council (“the NMC”), on 5th December 2021.

[6]The NMC charged Mr Davies with professional misconduct on a number of counts relating to individual incidents, some of them potentially repeated, alleged by the Patient. Those charges were heard by a Fitness to Practise Panel of the NMC (“the Panel”) in a procedure occupying a total of 18 days – nine days in April 2025 and a further nine days in November 2025 – during which it received written and oral evidence from the Patient and a small number of other witnesses called by the NMC, and evidence and submissions from Mr Davies. Mr Davies represented himself, and the Panel appointed Counsel to cross-examine the Patient. The Panel announced at the end of the liability hearing, on 14th November 2025, that it found all the charges proved. It considered at a hearing on 17th November 2025 whether the conduct so established amounted to professional misconduct, and announced the following day that it did so find, in each respect. It considered sanction at a hearing on 19th November 2025, and informed Mr Davies by letter of 24th November 2025 that it had decided to make an order striking him off the professional register.

[7]Mr Davies appeals, as of right, against the Panel’s decision to find the charges against him proved. He is adamant he did not do any of the things of which he was accused, as he has been throughout. He challenges both the Panel’s procedure and its outcome.

Legal Framework

[8]There is no dispute about the legal framework governing this appeal. Mr Claydon, Solicitor Advocate for the respondent NMC, directed me to the Nursing and Midwifery Order 2001, Article 38 of which confirms the powers of the High Court on an appeal of this nature (to dismiss an appeal; allow it and quash the decision below; substitute its own decision; or remit the case back to a different disciplinary panel). He also directed me to the cases of Cheatle v GMC

[2009] EWHC 645 (Admin)

at [12]-[15] and Sastry v GMC

[2019] EWHC 390 (Admin)

at [11]-[13]. I draw on these, and the authorities to which they refer, in the following summary.

[9]The High Court will allow a disciplinary appeal if it is satisfied that the Panel’s decision was either ‘wrong’, or unjust because of serious procedural or other irregularity in its proceedings. ‘Wrong’ in this context does not mean simply that the Panel might have decided things differently and in an appellant’s favour, nor does it mean simply that the appellate Court does not agree with the Panel and might have decided things differently itself. It means that the Panel has gone wrong and made decisions it was not properly entitled to make at all.

[10]An appellate Court will correct any material errors of fact or law it finds in the Panel’s decision. ‘Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing.’ But when the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence.

[11]An appellate Court does not have the special professional expertise of a disciplinary Panel. ‘As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person’s fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence.’ However there may be matters (dishonesty or sexual misconduct are frequently cited examples, but there may be others) where a Court may be more confident that it can assess for itself what is needed to protect the public or maintain the reputation of the profession, and thus attach less weight to the expertise of a Panel. The Court will seek to give an appropriate measure of respect to the judgment of the Panel, but will not defer more than is warranted by the circumstances.

[12]Failure to provide adequate reasons may constitute serious procedural irregularity rendering a Panel’s decision unjust. But an appellate Court does not hold Panel decisions to the standards of reasoning expected of a court of record. Reasons must be sufficient to enable an appellant to understand why adverse findings have been made against him. Where those findings are findings of fact, a Panel is not necessarily expected to give a detailed recitation of the evidence before it on which it relies, and an appellate Court will have regard to the extent and nature of that evidence, and the degree to which it speaks for itself, in assessing sufficiency of reasoning.

[13]On this matter of giving reasons, Mr Claydon directed me to the helpful summary set out at [18] of Shabir v GMC

[2023] EWHC 177

: As to the duty to give reasons:(i) The purpose of a duty to give reasons is to enable the losing party to know why they have lost and to allow them to consider whether to appeal: English v Emery Reimbold & Strick

[2002] 1 WLR 2409

at [16] and Byrne at [24].

(ii) It will be satisfied if, having regard to the issues and the nature and content of the evidence, reasons for the decision are apparent, either because they are set out in terms or because they can readily be inferred from the overall form and content of the decision: English at [26] and Byrne at [24];

(iii) There is no duty on a tribunal, in giving reasons, to deal with every argument made in submissions: English at [17]-[18];

(iv) In a straightforward case, setting out the facts to be proved and finding them proved or not will generally be sufficient both to demonstrate to the parties why they have won or lost and to explain to any appellate tribunal the facts found: Southall at [56] and Gupta at [13];

(v) Where the case is not straightforward and can properly be described as "exceptional", the position will be different: a few sentences dealing with "salient issues" may be essential: Southall at [56];

(vi) Specific reasons for disbelieving a practitioner are not required in every case that is not straightforward: Byrne at [119]; and

(vii) Where a Tribunal's stated reasons are not clear, the court should look at the underlying materials to seek to understand its reasoning and to identify reasons which cogently justify the decision. An appeal should not be allowed on grounds of inadequacy of reasons unless, even with the benefit of knowledge of the evidence and submissions made below, it is not possible for the appeal court to understand why the tribunal reach the decision it did: English at [89] and [118] Byrne at [27]. As to the duty to give reasons:

The Charges

[14]The charges brought against Mr Davies, following the Patient’s complaints, were the necessary starting point for the proper discharge of the Panel’s functions, and hence for the consideration of that discharge by an appellate Court. The precise formulation of those charges is accordingly of some importance.

[15]In the form in which Mr Davies faced them at the Panel hearings, the charges against him were formulated as follows: That you, a registered nurse, between around 5 May 2021 and 27 June 2021: 1. said to Patient A words to the effect of:a. “you look like a right prick in the sunglasses”

b. “don’t fucking roll your eyes at me”

c. “I told you, you have to sit in the chair, you’ve got to do it”; 2. on one or more occasion, failed to inform and/or obtain consent from Patient A for one or more of the following: a. lifting one or both of Patient A’s legs b. replacing the electrodes on Patient A’s chest; 3. on one or more occasion, ripped the electrodes from Patient A’s chest without warning; 4. continued to move Patient A’s head and/or neck despite Patient A communicating they were in pain by moving their head side to side and/or straining their eyes; 5. on one or more occasion, ignored Patient A when they indicated they needed assistance by shaking and/or rocking their head; 6. on one or more occasion, when providing personal care, without clinical justification squeezed Patient A’s penis; 7. on one or more occasion, when providing personal care to Patient A, pulled back Patient A’s foreskin with unnecessary force; 8. on one or more occasion, used a product other than soap and water and/or sterile cleansing pack to clean Patient A’s penis which was not clinically justified. 9. Your actions at one or more of charges 1-8 above were intended to and/or had the effect of: a. intimidating Patient A b. humiliating Patient A c. causing fear to Patient A

d. causing physical and/or psychological harm to Patient A. And, in light of the above, your fitness to practise is impaired by reason of your misconduct. That you, a registered nurse, between around 5 May 2021 and 27 June 2021: a. “you look like a right prick in the sunglasses” b. “don’t fucking roll your eyes at me” c. “I told you, you have to sit in the chair, you’ve got to do it”; a. lifting one or both of Patient A’s legs b. replacing the electrodes on Patient A’s chest; a. intimidating Patient A b. humiliating Patient A c. causing fear to Patient A d. causing physical and/or psychological harm to Patient A.

That you, a registered nurse, between around 5 May 2021 and 27 June 2021:

[16]Charges 1-8 constitute or contain allegations of primary fact – they have to do with what it could be established Mr Davies said, did, or failed to do. Charge 9 is dependent on one or more of the preceding charges being established; it has to do with the intention of Mr Davies in relation to each or any of the primary facts so established and/or their effect on the Patient.

[17]As noted, all of the charges were orally confirmed to have been found proved at the close of evidence and submissions on liability on 14th November 2025. The Panel’s reasons were subsequently set out in a written statement of reasons. This appears in more than one form in the materials before me. None of them is dated, but a version was attached to the striking-off decision letter sent to Mr Davies on 24th November 2025.

The Challenge on Appeal

[18]Mr Davies has represented himself as a litigant in person throughout these proceedings. He has formulated twelve formal grounds of appeal as follows. 1. The NMC’s preparation of the case was inadequate leading to multiple adjournments whilst relevant information was sought. No provision had been made for someone with a lack of computer skills, such as myself, and this further delayed the process whilst documents were sent to me. The NMC initial case presenter also attempted to pass the blame onto the counsel provided to question Patient A. The independent legal advisor brought this to the presenter’s attention and received an apology and a request to remove the sentence from the public record as the counsel had only been allocated two working days prior to the hearing. 2. An interim panel hearing in late December 2021 found that there was no corroborative evidence. They failed to understand how the Safeguarding panel had reached their decision based on the lack of corroborative evidence. They imposed no restrictions on my practice at that time, allowing me to work freely as a nurse, if I had wished to. However, understanding the gravity of the accusations and realising the potential consequences, I chose not to work as a qualified nurse during this period. 3. The NMC panel found that there was only one credible witness, and that was patient A, this is despite patient A’s story changing and evolving at each opportunity. 4. The NMC panel did not grasp the complexity of the Intensive Care environment, and the number of staff that would be present for each of the care giving tasks, and the time required to perform these tasks. 5. The panel did not appreciate that it is impossible, as claimed by Patient A, that one nurse (i.e. myself) is solely responsible for the transfer and comfort of a patient with his needs and equipment, from bed to chair and back again. All of the nurses involved (4-5) will all be attuned and responsible for the task at hand and ensuring the patient’s comfort. The suggestion that during this period of close contact, none of my colleagues would have seen what is claimed, or report the inaction of a colleague, is without foundation. 6. The NMC panel discounted evidence from professional colleagues, called as witnesses by the NMC, on the grounds that they did not work with me 100% of the time, and therefore could not provide credible statements. 7. The NMC panel have found that a noxious substance was used on the patient’s genital area, but have never identified the substance they believe it was, and patient A’s description, who they describe as a credible witness, varies with each telling of the story. 8. The NMC panel accepted claims made by patient A that are physically impossible to achieve. 9. The NMC panel accepted patient A’s evidence as credible, even though he claimed that medical records had been altered for the benefit of myself. The panel chair corrected him of this fact. 10. The NMC panel failed to accept that some of patient A’s claims would have resulted in the loss of his airway and led to his death. Patient A also claimed that medical staff lacked the experience to care for him, despite one of his physicians being a Consultant Neurologist at the University of Wales Hospital in Cardiff, the largest tertiary care and teaching hospital in Wales. 11. The NMC panel has failed to address patient A’s claims that I had 2 ‘disciples’ who would observe and assist me whilst I carried out this alleged abuse, and as such, there are, allegedly 2 members of staff who remain in post. No attempt has been made to identify these individuals. 12. Lastly, it is my belief that the NMC panel were unfair and due to the swiftness of their decision and refusal to accept other evidence given to them, that they were biased against me, and my fate was already sealed despite my fervent protestations, lack of corroborative evidence and a clear contempt towards me from patient A during his verbal evidence.

[19]I have necessarily borne in mind that these are not professionally-drafted grounds. I have noted their narrative quality, and considered them in the context of the wider narrative set out in Mr Davies’s ‘Notice and Grounds of Appeal’, in his skeleton argument for this appeal, and in his oral submissions to me to which I listened with particular care, including his answers to my clarifying questions. A number of points arise in these circumstances.

[20]In the first place, I have treated this as an appeal essentially going to primary liability only. Mr Davies has never, so far as I can see, disputed that if any of the Patient’s primary factual allegations were made out then they would amount to professional misconduct. Neither party to the appeal addressed me more than briefly on the Panel’s consequential findings of misconduct or its sanctions decision. Nor did Mr Davies address me discretely on the Panel’s finding on the dependent charge 9. The appeal as I have understood it is instead focused on the Panel’s finding that all of charges 1-8 were found proven; although I do not overlook that the Panel found nearly all of that conduct to have been intentional.

[21]This is therefore an appeal involving challenges to the Panel’s findings of fact – both primary fact and inferences – and, importantly, to the fairness of its decision-making and the sufficiency of its reasoning in this regard. I hold in mind the guidance of the authorities that appellate courts must be ‘extremely cautious’ in handling any invitation to upset findings of fact. I have of course seen and heard from Mr Davies, but that is in his capacity as an advocate for his appeal rather than as a witness of fact. While I have read their evidence, and noted how the Panel handled it, I have not seen or heard from the Patient or any of the other witnesses, and am not myself acting on this appeal as a primary assessor of witness credibility or fact-finder.

[22]On the other hand, where the fairness of a Panel’s procedure or the comprehensibility of its conclusions are impugned on appeal – that is, where serious procedural irregularity is said to have occurred and been productive of injustice – an appellate Court must scrutinise that anxiously and, consistently with that high degree of caution around fact-finding matters, in some detail. My principal focus on this appeal is therefore on the Panel’s approachto and explanationof its fact-finding.

[23]At the appeal hearing, having encouraged Mr Davies to focus on the principal or most important among the many issues raised in his grounds of appeal, and listened to his primary submissions, I summarised back to him that I had heard his chief challenges to be that the Panel had essentially regarded its fact-finding function as a choice between the credibility of the Patient and of himself, but in doing so had failed to deal properly and transparently (including in its reasoning) with the issues in particular of(a) inconsistencies in the Patient’s evidence, and other reasons limiting the weight that could properly be put on it,

(b) the rejection of his own evidence, and

(c) the lack of any direct witness evidence corroborating any of the alleged incidents apart from one of the oral remarks alleged in charge 1 which was corroborated by the Patient’s wife. I understood this last challenge not to rest on any suggestion that direct corroboration was necessary as a matter of principle in order to make adverse factual findings against Mr Davies, but rather that the realities of intensive care nursing made it highly improbable that had any of the allegations been accurate they would have been unwitnessed, and that the Panel did not deal properly and transparently with that.

[24]I put a summary along those lines to Mr Davies to confirm I had correctly understood the principal thrust of his grounds of appeal and his submissions. He confirmed as much. I also did so, of course, in order to assist Mr Claydon by giving him clear sight of the matters on which I was therefore proposing to focus, and a fair opportunity to direct his own submissions accordingly. Mr Claydon took the opportunity to remind me again of the caution with which I am bound to approach challenges to fact-finding and the assessment of witness credibility on appeal, and the limits on the proper scope of appeals against reasoning. On that point he re-emphasised [18(vii)] of Shabir which directs an appellate Court, to the extent that it has reservations about the clarity of a Panel’s reasoning, to consider the underlying materials as an aid to resolving any ambiguity.

The Decision Challenged

(a) Preliminary

[25]In these circumstances, I have taken as my primary materials for the purposes of this appeal the reasoned decision document of the Panel on liability (noting the lengthy litigation history and the extempore oral liability decision), the written evidence before the Panel, and the transcripts of its proceedings, including oral evidence and submissions.

[26]The transcripts of the November 2025 proceedings are of conspicuously poor quality. They appear to comprise unedited machine-generated records of remote hearings. They are densely replete with mistranscriptions, and consistently challenging to read and understand. This sort of record is not of a standard to support appeal or other litigation proceedings. Its use for such purposes is to be discouraged. It was during the November 2025 hearings that Mr Davies gave his own oral evidence and made his submissions.

[27]I emphasise: I am considering the written and oral evidence not from the perspective of coming to any conclusions of my own about whether the factual charges were made out, but from the perspective of the appellate functions of considering whether the Panel’s findings were within a range properly open to it on the materials before it and for the reasons it gave, and/or whether they are rendered unjust by reason of serious procedural irregularity including failure to give sufficient reasons. I have taken particular note of the evidence to which my attention was specifically drawn at the appeal hearing, but, mindful of the authorities’ guidance, have taken care to consider it in its full context, as of course the Panel itself was required to do.

[28]I summarise the most relevant evidence briefly below, for that purpose, holding in mind Mr Davies’s challenges on this appeal as clarified at the appeal hearing. I then set out the Panel’s reasoning. But first I set out the legal structure within which the Panel was directed and required to exercise its relevant functions.

(b) Legal Directions

[29]Before retiring to consider its decision at the end of closing submissions, the Panel was addressed by its Legal Adviser. The record of the advice refers to a copy of his ‘written advice on the facts’; that does not appear in the materials before me, but it seems the Adviser read most of it into the record.

[30]The Panel was advised that the burden of proof was on the NMC, and the standard of proof was the balance of probabilities – ‘more probable than not’. The Panel was guided to focus on the precise wording of the charges and apply the NMC’s burden of proving precisely those matters and only those matters.

[31]Noting the likely salience of contests of credibility between the Patient and Mr Davies, the Panel was reminded that that did not require a decision that one witness was lying or dishonest and the other telling the truth – it was always simply a matter of reliability on any particular point, and in the event of a fine balance, the NMC’s burden of proof should be at the forefront of the Panel’s mind. The Legal Adviser reminded the Panel in particular that that meant Mr Davies was not required to provide a motive or explanation for the Patient’s allegations in order to exculpate himself – that was a matter for the NMC to prove conversely if the issue arose. The Panel was also reminded that if Mr Davies had suggested any possible motives for the Patient’s allegations other than their objective historical accuracy, it should hold in mind the possibility that he was simply himself trying to understand why the allegations might have been made.

[32]The Legal Adviser gave the Panel a ‘good character’ direction, to be applied to Mr Davies’s denials of the charges. His record was long and hitherto unblemished. The Panel was entitled to take that into account in two respects. First, it was able to conclude that it enhanced Mr Davies’s credibility. And second, it was able to conclude that it made it inherently less likely that he had behaved as alleged. But of course this was not a determinative consideration in either respect.

[33]The Legal Adviser guided the Panel to reflect on any inconsistencies or internal contradictions in a witness’s evidence. While avoiding unevidenced speculation, it should also consider the range of possible explanations for those inconsistencies and whether they were core or peripheral to the witness’s evidence. The Panel was cautioned against an all-or-nothing approach to credibility – some parts of a witness’s evidence might be more credible than others, and some rejected while others were accepted, ‘so careful consideration and caution are the watchwords’. The Legal Adviser gave the Panel a hearsay direction in relation to some of the material before it which had passed through ‘chains of communication’.

[34]In relation to the evaluation of witness evidence, the Panel was advised that memories may be unreliable not least where the events in question occurred four and a half years previously. Contemporaneity and corroboration were potentially relevant. The Panel was advised as to the potential relevance not only of motive and consistency, but also of exaggeration, and of any candid adverse admissions.

[35]The Panel was advised of the guidance of the decided authorities that, before setting out its findings on individual charges it should consider a general and reasoned ‘broad assessment of each of the witnesses from whom they had heard, and whether that witness’s evidence was generally credible and reliable’. The Legal Adviser is recorded as stating that such an assessment was ‘vital’ in a case such as the present if its findings were to be fairly made.

[36]The Panel was also warned against the ‘domino effect’ of assuming that if one matter were found proved against Mr Davies the rest would follow. Each matter had to be looked at individually – although real and sufficient similarities between the allegations should be considered for potential relevance. Caution, however, remained the watchword.

[37]No complaint is made on this appeal of the legal directions given to the Panel. Making such allowance as I must for the quality of the transcript, nothing about them 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.

(c) Evidence

[38]The Panel heard oral evidence from Mr Davies, the Patient, the Patient’s wife, two senior nurses at the hospital intensive care unit, the Director of Mr Davies’s nursing agency, and the safeguarding manager at Merthyr Tydfil Council. The Panel also had before it formal written witness statements from each of these witnesses except Mr Davies. Mr Davies was not obliged to provide a witness statement; it does not appear from the materials I have seen how far his attention was drawn to the opportunity to do so. He called no witnesses of his own, and again it is not clear how far his attention was drawn to the opportunity to do so (he says the terms of his interim suspension precluded contact or communication with his former colleagues). Mr Davies makes no complaint of these matters in this appeal.

[39]I have read the witness statements included in the appeal papers, and the transcripts of the oral evidence. The Panel also had before it the Patient’s (voluminous) clinical records; I have not seen these.

(i) The Patient’s evidence

[40]The Patient provided a short (six page) witness statement dated 23rd May 2022 – around a year after the incidents alleged. It states he could not recall the dates on which Mr Davies looked after him, but it felt like a lot, and when he did ‘it would be just him alone that would provide my care except for on some occasions when he would ask other people to assist him’.

[41]The first allegation addressed in the witness statement was a time he was taken outside in a wheelchair on a sunny day by Mr Davies and another nurse. His wife and daughter were with them. He states Mr Davies said to him something along the lines that he looked ‘a right prick’ in the sunglasses he was wearing. He thought that demonstrated Mr Davies’s ‘horrible attitude’.

[42]The next allegation was that on other occasions (plural but unspecified) Mr Davies would ‘rip’ electrodes off his chest without warning, causing pain. When the Patient tried to communicate that pain with his eyes, Mr Davies would say ‘don’t roll your fucking eyes at me’. The Patient thought Mr Davies acted in this way ‘so that he could see the pain in my eyes. I felt as though he was torturing me.’

[43]The Patient alleges that on everyshiftMr Davies was allocated to him, he would push his neck too far when repositioning him, so that it really hurt. The Patient tried to communicate this with his eyes and head but Mr Davies made no acknowledgment that he was trying to communicate.

[44]Again, on every shift, Mr Davies would suddenly and without warning lift the Patient’s leg up. There was no reason for this, and it hurt.

[45]Every time Mr Davies was the Patient’s allocated nurse, he would squeeze the Patient’s penis, pull back the foreskin, get something out of a drawer that might have been a sachet and apply a liquid out of it onto or into his penis. It was so painful it felt like acid. On one occasion this was witnessed by another member of staff he thought was called Sue.

[46]Mr Davies did not explain the care he was going to provide – ‘he would just come straight over and do whatever he wanted to me without warning’. An example was the removal of electrodes from his chest.

[47]While he was in the unit, the Patient was so worried about Mr Davies that he would lie awake at night wondering ‘whether I would have him torturing me for the next 12 hour shift. When the next shift came on and I saw that I was not being treated by Mr Davies I would feel so relieved and would then be able to go to sleep. What I was going through was bad enough without having him torturing me as well.’

[48]The Patient explains that it came to a point where he felt he had to report matters. He asked a particular nurse to ‘put my voice box in’ (a procedure introduced towards the end of his stay in intensive care) to explain that he did not want to be cared for by Mr Davies again. He could not remember times or dates.

[49]The Patient says he can no longer get an erection and believes this is the result of whatever substance Mr Davies was putting on his penis which felt like acid. He also mentions that after being discharged from hospital he suffered with penile bleeding which he had also connected with this, but his doctors had not endorsed that, and suggested other causes.

[50]There is an informal contemporaneous note of a conversation the Patient had with another nurse on 3rd July 2021. The nurse was not a witness in the disciplinary proceedings and provided no evidence. The note records the Patient reporting Mr Davies regularly being rough and hurting him when providing pressure relief and repositioning despite the Patient communicating his pain. He ‘continuously’ hurt his head and neck. The Patient believed Mr Davies did this deliberately. The note records the Patient complaining that Mr Davies put alcohol gel on his penis regularly, and deliberately to cause him pain. Mr Davies did not seek consent before undertaking any personal care, he just did it without asking or telling him. The Patient puts this down to a ‘personal issue’ Mr Davies had with him.

[51]The Patient gave oral evidence to the Panel on 8th April 2025. The Panel had appointed Counsel for the purposes of cross-examination (Mr Davies says that happened only a few days before the hearing). It appears both the Patient and Counsel were on links remote from the Panel and each other. Counsel took the Patient through the general details of his care management, including the multidisciplinary plan for gradually reducing his dependency and enabling him first to leave intensive care and in due course to be discharged from hospital altogether. The Patient accepted the plan was inevitably physically and mentally challenging for him and focused among other things on him spending more time out of bed, including physiotherapy and transfer to a chair six times a week. The Patient did not like being moved out of bed and into a chair. He often refused to do so and other nurses respected his wishes. ‘But Mr Davies took it upon himself every single time to torture me in the chair, whether I said no. It didn’t matter. He would push me into that chair and torture me. … Every time I disagreed with Mr Davies, he made me go into the chair and absolutely tortured me even though I disagreed.’ The only time he went in the chair it was because Mr Davies put him there. Challenged by Counsel that it would have taken more than one person to move him into the chair, he accepted that whenever this happened there was at least one other nurse there at the time. He also accepted that records showed examples of his being moved to a chair and taken outside when Mr Davies had not been involved.

[52]The Patient was taken by Counsel to the layout of the intensive care ward he was in. He accepted there would at all times be at least one nurse per patient on duty at any one time – so multiple members of staff were always on the ward. He accepted that being moved from bed to chair and chair to bed required two nurses or more. He accepted that changing his bedding took more than two nurses, as did caring for his continence needs, and for personal hygiene there would be at least two nurses – one to wash and one to dry. This passage of the Patient’s evidence was followed by this exchange: Q: So every time you were given personal care, whether that’s general hygiene or continence, there were at least two nurses there. A: Yes. I can see where you’re coming from. … A: He selected, there were two other disciples, like himself, that when he used to torture me, was putting the stuff down my penis, there were only these select two people. So it was only when they were on that he would do this. He wouldn’t do it when the other nurses were.

[53]The Patient suggested one of these ‘disciples’ was called Sue, the other was another female member of staff, and he would recognise both of them. Challenged by Counsel that no mention of these ‘disciples’ had been made in his witness statement, and this was the first time they had been referred to in evidence, the Patient replied: A: Yes, yes. That’s common knowledge that they were there, because it takes two people, like you said, or two plus. Counsel did not pursue the matter further, other than to confirm with the Patient he had never reported or made any complaint about these ‘disciples’.

[54]The Patient subsequently stated that ‘ripping off’ electrodes happened when Mr Davies was with him on his own, with no other nurse present. He also said that when he was being given personal care, and indicated non-verbally that he did not consent or was in pain but was ignored, that did not occur when others were present, only when he was alone with Mr Davies.

[55]In relation to genital hygiene, the Patient maintained under cross-examination that Mr Davies had administered alcohol from a sachet taken from a bedside drawer by squeezing his penis open and squirting it inside. He said he reported this promptly to another nurse, but she had not taken any action because she was in trouble herself. He accepted he was unable to turn his head laterally sufficiently to see the bedside drawers or what exactly Mr Davies had administered or how. When Mr Davies’s denial was put to him, his response was that Mr Davies was nothing but a liar and his denials total and utter lies. He maintained the substance had been administered in the presence of the two ‘disciples’.

[56]Following cross-examination, the Patient was re-examined by the case presenter. Asked how being looked after by Mr Davies made him feel, the Patient gave the following evidence: A: At that moment in time I felt absolutely suicidal; I could have taken my life with the blink of an eye because I did not want to see the next day coming. It was 12 hours I had to wait before I see the person which comes in only 20 to 30 minutes before they start their shift, and obviously I could not sleep. I was dreading every single time, waiting to see if Mr Davies would be on my shift. … I felt unsafe every time he came onto my shift, I thought ‘Am I going to die?’, and this is my 100% thing. And Mr Davies, which I can see over there, is just lying through his teeth. That’s all I want to express to all you people out there what a complete and utter liar this person is and driven by jealousy. That’s all it is. … I felt, every time, ‘Is it going to be the end of my life? Is he going to kill me? …’

[57]Questioned by the Panel, the Patient maintained he had never misunderstood any words or actions of Mr Davies. He maintained that the genital hygiene incidents occurred only when the ‘two disciples’ were present. The electrode incidents and the movement of his legs occurred when he was alone with Mr Davies. He also maintained that ‘when I was getting pulled up off the bed, he would just do it by himself. He used to put one arm under my other arm and just pull me back, you know’. He also answered in the affirmative the question ‘So based on everything in your statement regarding what you allege, except the issue regarding the sunglasses and the issue regarding your private parts, were the other incidents – did they only occur when the Registrant was alone?’.

[58]The Patient also maintained (under ‘further cross examination’ by Counsel) that he had refused to get in the chair but ‘Mr Davies took it on himself to put me into the chair. … He had the pleasure of putting me into the hoist and just crucifying me.’ He did accept that what Mr Davies had said to him (charge 1(c)) was along the lines that he needed to use the chair more, rather than that he had to. But he added, ‘But that just didn’t work at all. That’s his words. He’s not a professional person, he doesn’t know what GBS is.’

[59]A few further points are notable. One is that the Patient referred a number of times to Mr Davies as ‘the lovely Andrew Davies’.Another is that it appears from the transcript that whenever issues relating to the Patient’s mental health arose or were discussed the Panel went into private session. It seemed to do so, briefly, on a number of occasions. No transcripts for the private sessions appear. At one point in the public proceedings the Panel Chair intervened on Counsel’s cross-examination to ask ‘Sorry, can you just be very, very careful? We have got a patient; he has made allegations. I want to ensure that we don’t further affect the patient’s mental health.’ I note also that Counsel observed to the Chair after the end of the Patient’s evidence session that she had found the hybrid procedure exceptionally difficult. She appeared to have been taking instructions from Mr Davies but she was not apparently invited to make closing submissions. (ii). The NMC’s additional evidence

[60]The Patient’s wife provided a five-page witness statement dated 18th June 2022. In it, she estimates Mr Davies cared for her husband on more than 10-15 shifts between April and June 2021. She describes the sunglasses incident in which she says Mr Davies and another nurse conveyed the Patient outside in a wheelchair to enjoy the sun. She had fetched her sunglasses from her car for him, but when she went to take them back, she says Mr Davies said something along the lines of ‘leave them on you look like a right prick with them on’. She and her daughter had looked at each other but taken no action at the time. She describes another incident in which Mr Davies had said in the presence of herself and her daughter something like ‘I told you, you have to sit in the chair, you have got to do it.’ She had not liked his tone – it was stern and not very nice. She describes a conversation with the Patient and her daughter on 3rd July 2021 in which he complained that Mr Davies was hurting him – pulling and pushing his leg and squeezing his penis and putting a liquid on it which burned and agonised him.

[61]The Patient’s wife gave oral evidence to the Panel on 9th April 2025, the day after her husband. She was cross-examined by Mr Davies. She maintained her evidence of the two verbal incidents she mentioned witnessing in her statement. Questioned by the Panel about the sunglasses incident, she gave evidence that the second nurse had been ‘standing right behind’ the Patient, holding oxygen or some other equipment. She said there was nothing else going on in the car park where they were, no cars moving around, ‘there wasn’t much background noise or anything’ – indeed they had come down to the car park by a rear entrance ‘because it’s quieter … we came out that way because it was a lot quieter.’ Her evidence was that she was sure the other nurse would have heard the comment complained of, but did not say a word.

[62]The Panel received evidence from this second nurse, Mr Brown, a senior staff nurse in the intensive care unit at the Prince Charles Hospital. He had provided a seven-page witness statement dated 6th July 2022. His statement had described the ward layout, staffing and shift patterns at the unit. He stated that high dependency patients required four members of staff to turn them for personal care or reposition them. He explained in some detail the personal hygiene and sanitiser products in use on the unit. He gave a brief account of his first-hand knowledge of the Patient and his family, with whom he said he had a good rapport.

[63]He had been on duty often with Mr Davies, whom he regarded well as a professional and friendly colleague who had a good, thorough and attentive approach to patients. He had never witnessed him acting otherwise than professionally with patients. He could not recall any details of shifts when they were both caring for the Patient, but described two incidents he witnessed first hand.

[64]One was a time they were both working in the same bay and Mr Brown overheard Mr Davies engaged on trialling a speaking valve with the Patient. A pharmacist had come to speak to Mr Davies but Mr Davies asked him to wait while he prioritised giving his undivided attention to the Patient. Mr Brown thought that an inspiring example of good practice. The other was the sunglasses incident. He recalled accompanying the Patient down to the car park, using the maternity unit entrance because it was ‘less noisy from traffic than the front entrance and Patient A didn’t want people looking at him’. He remembered the Patient’s wife giving him sunglasses, but ‘I did not hear Mr Davies make an inappropriate comment about the sunglasses or hear him say anything else inappropriate. If I had heard something inappropriate, I would have said something about it.’

[65]Mr Brown gave oral evidence to the Panel on 10th April 2025. Questioned by the case presenter about the sunglasses incident, he confirmed he had remained with the Patient, his family and Mr Davies throughout, and was ‘in immediate proximity’ to them all. He had heard no inappropriate comment. Questioned by Mr Davies, he confirmed and provided further detail on practice in the unit on moving patients (‘never done’ by a single nurse), providing genital hygiene care to male patients, applying and removing electrodes monitoring heart function (‘they’re not that adhesive, so they fall off by themselves’). He confirmed also that in all their time working together he had never seen or heard of any example of Mr Davies acting otherwise than professionally and kindly. Questioned by the Panel, he stated that Mr Davies had been training him and a few other nurses on the best way to rehabilitate patients who had been on a ventilator for a long time, including based on his care of the Patient.

[66]Ms Owen was a senior nurse with professional oversight of the intensive care unit at the relevant time. She provided a witness statement dated 15th July 2022, setting out how the unit was run and exhibiting the Patient’s clinical notes. Her statement sets out the history of the raising and investigation of the Patient’s complaints about Mr Davies. She had not herself witnessed any of the matters complained of, and was not aware of any first-hand witness among the unit’s staff. A very short supplementary witness statement dated 4th March 2025 added three further paragraphs about practice in providing genital hygiene care to male patients.

[67]She gave oral evidence to the Panel on 9th April 2025. Cross-examined by Mr Davies, she confirmed she was never informed of any other cause for concern about his practice. She agreed she would not think it possible to squeeze open a penis and pour fluid into it. Her evidence also featured this exchange: Q: Would you expect the whole team then to have picked up that the patient was in discomfort when I’m turning or cleaning? A: If you’re in a ward, you get different separated bays as you know. If they’re isolated, then you tend to be one on one. If you’re in a bay, there could be up to two other nurses in a bay at one time. So if there was discomfort, you would think that the other nurses could have noticed that the patient was showing signs of distress. Q: So what I’m asking about is when we’re all together caring for the patient. A: Oh, when you’re turning the patient, you mean, as a team. Q: Absolutely, so as a team, doing a turn or providing personal hygiene, as you know, there’s always more than one of us there. Would you expect everybody else to spot, see what I was doing or causing discomfort to the patient? A: Oh yes, I would expect that from any team member.

[68]Questioned by the Panel, Ms Owen confirmed she had never met the Patient.

[69]The Panel was provided with evidence from Mr Hearn, the Director of the nursing agency that had provided Mr Davies’s services to the Hospital. He had made witness statements dated 3rd May 2022 and 17th March 2025; neither appears in the appeal papers. Mr Hearn gave oral evidence to the Panel on 9th April 2025. Questions to him addressed the steps he had taken once he had become aware of the Patient’s complaints about Mr Davies’s nursing.

[70]The NMC’s final witness was Mr Eyre, Safeguarding Principal Manager for Merthyr Tydfil Council. His witness statement of 12th July 2022 covered the history of the safeguarding referral. He gave oral evidence on 10th April 2025. Cross examined by Mr Davies, he confirmed he was aware of no evidence of any investigation carried out by the nursing agency, or evidence corroborative of the Patient’s complaints. (iii). Mr Davies’s evidence

[71]Mr Davies gave oral evidence to the panel on 10th and 11th November 2025. He was cross-examined by the case presenter and further questioned by the Panel. As noted, he called no witnesses of his own. I have already commented on the poor quality of the transcripts of these sessions. But I can be satisfied nevertheless that the case against Mr Davies was put, charge by charge, and that he maintained firm and unequivocal denial that he had done any of the things of which he was accused.

[72]What follows by way of summarising Mr Davies’s further evidence is necessarily selective. I have made the selection on the basis of its potential relevance to these appeal proceedings and the challenge Mr Davies now makes to the Panel’s decision-making.

[73]Mr Davies’s evidence covered his own record and experience, including of nursing high-dependency patients and patients with GBS. He emphasised the norms of working practice in intensive care nursing, especially the norms of constant monitoring and of two or more nurses being deployed to movement of any patients with assisted breathing in order to protect airways, and to intimate hygiene for practical reasons and as a privacy chaperon. He was at pains to stress to the Panel that the matters of which he was accused each constituted highly irregular practice, shocking matters which were obviously unprofessional and some of which (particularly moving patients without separate protection of the airway, exposing patients to unwarranted infection risks, and ignoring signs of discomfort or distress) were potentially life-threatening. He suggested they would have struck any colleague as such, and no colleague would hesitate to report it – and, within the norms of intensive care deployment, management and culture, the impossibility or high improbability of any such incident or any patient distress passing unnoticed or unmentioned by a colleague. These general points Mr Davies applied to each of the incidents with which he was charged. He gave evidence, citing examples, about his assiduousness in providing supportive care to the Patient, in accordance with the documented care plan agreed on a multidisciplinary basis and with the Patient’s immediate family, and his scrupulousness over matters such as patient communication and consent, the maintenance of patient dignity, and the necessity of keeping patients motivated to support their recovery, sometimes in highly adverse circumstances.

[74]Some of the incidents alleged by the Patient (for example squeezing open a penis and pouring fluid into it, or ‘ripping’ off lightly adhesive electrodes so as to cause pain, or being moved by a single nurse while maintaining the airway) he stated to be physically impossible.

[75]Mr Davies drew attention to inconsistencies in the Patient’s evidence, including the issues of what he said he had seen being applied to his penis (and the physical limits on what he would have been able to see in any event) and the late appearance in his evidence of the suggestion that Mr Davies had ‘two disciples’ on the staff who were prepared to witness or assist him harming a patient or otherwise acting unprofessionally or unkindly without demur. He also noted that the Patient had described extremes of distress, discomfort and terror in his oral evidence but had made no complaint until, in some cases, weeks or months after the event. It was put to him in that connection that ‘for a person in a patient’s condition, it would take significant strength and courage, or it would require significant strength and courage to make a complaint against a nurse’. He did not agree that was a potential explanation for any delay in reporting matters of the magnitude of those being alleged.

[76]Mr Davies was questioned at some length for his perspective as to why the Patient might have ‘fabricated’ or ‘made up’his allegations. He offered a number of thoughts about that in response. Principal among them was the extreme misery inflicted by GBS itself, with its paralysis, pain, high dependency and disability, and struggles to communicate, and the mental anguish inevitably to be associated with all of that. He set out that the Patient’s rehabilitation plan necessarily proceeded on the basis of slow, incremental rehabilitation, itself demanding a lot of commitment and resilience from highly disadvantaged patients, including tolerance of procedures and therapies involving an irreducibly minimum degree of discomfort. He canvassed the incidents mentioned in the Patient’s clinical records of his impatience with or intolerance of such procedures and therapies, and occasions on which the Patient had either been too discouraged to persist with them or had expressed a belief that they were unnecessary and GBS would get better by itself. (Mr Davies said there were over 30 separate documented episodes of the Patient declining treatment or therapy.)

[77]He also noted that GBS and the high-dependency hospitalisation it necessitated was not only traumatic in itself, but characteristically associated with intense medication regimes producing their own side-effects, and with disrupted circadian cycles and sleep deprivation, frequent infections and their treatments, and mental health challenges – all of which were also capable of impacting a patient’s wellbeing and perceptions. He mentioned that psychosis associated with prolonged intensive care is a recognised medical condition. He noted there was evidence in the Patient’s medical records of multiple infections during his time in intensive care. He noted the Patient had been prescribed antidepressants and pain relief.

[78]He gave evidence that he himself had witnessed some of the Patient’s psychological struggles in his time in the unit. He described how he had tried to provide informal support and encouragement, including by noting the Patient’s interest in cars and sitting with him to watch formula one racing on TV.

[79]He offered some thoughts as to how the Patient might have been mistaken about specific incidents. He had applied alcohol to the Patient’s thigh for the removal of a suprapubic catheter adhesive patch, as was the product-recommended procedure, and the Patient might have conflated that with his experience of penile pain and dysfunction arising from his condition and/or associated infections. He (or his wife) could have misperceived passionate encouragement to keep with the plan to increase time out of bed as a demand to do something he hated doing and was entitled to refuse to do.

[80]He also gave evidence that he connected the Patient’s animus against him with an incident in which, while there was a clear ‘nil by mouth’ instruction on his bed, the Patient had craved a drink of squash and he had refused that, telling him he was allowed small sips of water only. He described the natural craving for a drink in ventilated patients, notwithstanding the maintenance of hydration by artificial means, and explained why it was potentially high risk or even life threatening to administer anything more than a sterile moistened swab. He acknowledged that other members of staff might have been giving the Patient drinks by mouth, and that his own refusal to do so could have made him ‘look like an ogre’. He speculated that the incident could have been intensely experienced by the Patient and precipitated a strong animus accompanied by false memories or misattributions.He had noted that the Patient had made his complaints against him shortly after this incident (although the Patient had not raised a complaint of the incident). It was put to him that he was just making the whole account up. He denied that.

[81]He was challenged on his record-keeping. It was put to him that ‘if it’s not documented it didn’t happen’ and pointed out that the records of his care for the Patient did not give a full account of matters such as the obtaining of express or implied consent to procedures, or the removal of electrodes. Comparison was made with the records of other nurses. His evidence was that record-keeping was a pragmatic and patient-focused duty in which a balance had to be struck, so that very routine and apparently unremarkable interactions would not be recorded to every last detail. He pointed to the evidence in the clinical records where he had set out that he had explained procedures and proceeded on the basis of consent.

[82]Towards the end of his evidence session, in response to an invitation from the Panel to describe the layout, staffing and sightlines of the unit, he was explaining how and why all patients had to be continuously monitored by at least one member of staff in case they woke and disconnected any of their tubes. He explained that the teamwork this involved meant a nurse was never on their own and a patient always had someone looking at them. He made a passing reference to patients being able to have screens brought in and put around them to protect their dignity and modesty and prevent anyone passing in the corridor seeing them being cared for. He said that whenever screens were in place there were always two or three nurses within the screens with the patient; there could be no instance in which a nurse could be alone with a patient behind a screen. He was emphatic that he himself had never been alone with the Patient in such, or any other, circumstances.

(d) The Panel’s reasoning

[83]The Panel’s substantive reasoning opened as follows: Before considering the individual charges, the panel considered your submission that Patient A did have potential motives for making the allegations about you. The panel noted that it is your position that Patient A has associated false memories given his type of illness and the time period he was in ITU. The panel also noted that you propose that a possible motive for making the allegations was that you refused to allow Patient A to have a drink of squash due to the potential risk of aspiration and infection. The Panel considered whether these propositions could explain why Patient A has made these allegations against you.

[84]It found they could not. There was no medical evidence capable of supporting false memory. The Patient had been able to recall the incidents ‘with apparent clarity’ under oral questioning. The Patient had never complained that Mr Davies refused him a drink and the matter had not been put to him in cross examination. It continued: The panel appreciated that you have speculated that these could be reasons for why Patient A has made the allegations against you, as you maintain that these incidents did not happen. However, the panel noted that this is purely speculation, and it has not seen any evidence in support of this position. In light of this, the panel determined that it could not be satisfied that this was a plausible motive for Patient A making the allegations against you. The panel noted that its decision on the facts of this case are made on the basis of the evidence provided by the NMC. The panel determined that it would consider the evidence of the NMC, your evidence, and would determine whether it is more likely than not that the alleged incidents happened, and it would not consider any motive Patient A may have for fabricating allegations unless there was some cogent evidence in respect of this. Prior to considering the charges, as advised by the legal assessor, the panel made assessments regarding the credibility of each witness, including yourself, which it has incorporated into its reasonings in relation to each of the charges.

[85]The Panel found charge 1(a) (sunglasses incident) proved on the basis that the Patient gave a clear and credible account supported by his wife. It accounted for Mr Brown’s evidence on the basis there was no reason to suppose the Patient ‘fabricated’ the evidence, ‘the parties were outside in a potentially loud environment’, there was a difference between not hearing words and evidence they were not said, and Mr Brown had struggled to recall the incident due to the passage of time. It preferred the evidence of the Patient and his wife to that of Mr Davies and Mr Brown.

[86]The Panel found charge 1(b) (‘don’t roll your eyes’ incident) proved on the basis that it considered ‘Patient A gave credible and consistent evidence throughout the hearing. The panel considered that you also gave consistent evidence, however it determined that your evidence that this could not have happened because other people would have heard was less credible’. Reasons for rejecting Mr Davies’s evidence included(a) that he had himself referred to privacy screens and ‘these screens may have made it possible for the alleged incidents to occur in practice’,

(b) other nurses on the unit ‘might not necessarily have been cognisant of your alleged actions in respect of Patient A’,

(c) Mr Brown had said only that patients were ‘rarely’ left alone with a patient and that there was ‘nearly always’ another nurse present, so it was ‘disingenuous and evasive’ for Mr Davies to have insisted he was never alone with the Patient.

[87]The Panel found charge 1(c) (‘you have to sit in the chair’) proved on the basis that the Patient’s wife had been ‘clear, consistent and compelling in her evidence, and it had no reason to suppose that this evidence was fabricated’. It found the evidence of the Patient and his wife in relation to this incident supported each other. The Panel rejected Mr Davies’s evidence on the basis it ‘was not satisfied that this evidence supported your denial of the charge’.

[88]The Panel found charge 2(a) (lifting the Patient’s leg without consent) proved on the basis that the Patient had said it happened every time, or nearly every time, Mr Davies was on duty, and consent was insufficiently recorded.

[89]The Panel found charge 2(b) (replacing electrodes without consent) proved on the basis that they found the Patient’s evidence ‘consistent, credible and compelling. The panel did not feel as though this account was embellished in any way.’ Rejecting Mr Davies’s evidence it said this:

‘The panel noted that you referred to having implied consent to deliver care throughout your evidence, however it bore in mind that Patient A could communicate non-verbally and therefore could have provided consent. It therefore did not accept your evidence that you had always obtained implied consent.’

[90]The Panel found charge 3 (ripped electrodes off without warning) proved on the basis that the Patient was able vividly to recall occasions when this had happened and that his evidence was clear and consistent throughout. Rejecting Mr Davies’s evidence, it took into account its finding on charge 2(b) and did not accept that the incident could not have happened on a busy ward without anyone else noticing.

[91]The Panel found charge 4 (continued to move Patient’s head and neck despite non-verbal communication of pain) on the basis that the Patient alleged this happened on every occasion on which Mr Davies nursed him. The Panel noted this was an early complaint, but also that there was no corroborative evidence. It considered ‘it had no evidence before it of whether the allegation arose whilst you were delivering care that would have required more than one nurse to deliver’ and ‘made a reasonable inference that this could have occurred on an occasion where you delivered care on your own to Patient A. For the same reasons given above, the panel did not accept that this could not have happened because you were working on a busy ITU ward.’

[92]The Panel found charge 5 (ignoring non-verbal expressions of desire for assistance) proved on the basis that Ms Owen’s evidence was that nurses should check for non-verbal communication cues, it was satisfied that the Patient communicated non-verbally because his evidence was clear and credible throughout, and Mr Davies should have responded.

[93]The Panel found charge 6 (squeezed penis) proved on the basis that the Patient’s recall of the incident was clear, consistent and credible, it was satisfied that the account was ‘not embellished’ and the incident was the subject of an early complaint. Rejecting Mr Davies’s evidence it said, ‘You stated that you always had a chaperone when delivering personal care to patients. However, for the same reasons as given above, the panel did not consider this to be a credible suggestion.’

[94]The Panel found charge 7 (pulled back foreskin with unnecessary force) proved on the basis of the Patient’s evidence. ‘The panel considered that Patient A’s evidence focused on pain being caused by his penis being squeezed, and by an unidentified liquid being used to clean his penis. The panel was of the view that there was limited evidence in respect of the level of ‘force’ used to pull back the foreskin. The panel considered that from Patient A’s description that other nurses could provide personal care without causing pain, it could reasonably infer that you used more force than was necessary.’

[95]The Panel found charge 8 (cleaned penis with a product not clinically justified) proved on the basis that this was an early complaint and that the Patient’s evidence was clear and credible. It said this:

‘The panel noted that Patient A described that this happened on every occasion that you were responsible for his care, and on one occasion two other members of staff were present and one person passed you the cleaning solution. The panel noted that you deny the allegation. It considered that you mentioned that Patient A may be referring to an instance when you asked another member of staff for an alcohol wipe, for a different reason entirely. You have also suggested that this allegation may have arisen out of Patient A suffering with false memories stemming from his stay in the ITU. However, the panel has already considered this suggestion and determined that it has little credence as an explanation.’

Analysis (a). The Charges

[96]I have explained the approach I am taking to the determination of this appeal. I must start with the charges, the precise wording of which is the necessary central focus of both the Panel’s functions and the appellate Court’s. So I record here a number of aspects of Mr Davies’s criticisms of the Panel’s decision-making where I am in agreement with Mr Claydon that it is important not to lose sight of that precise wording. Limiting factors in that language include, in the case of the verbal incidents in charge 1, ‘to the effect’, meaning that the exact words did not need to be established, and, in the case of the other allegations ‘on one or more occasion’, meaning that it was sufficient to establish a probable single occasion in each case. That is important, because although the Patient sometimes alleged habitual or repeated actions, the Panel did not need to be persuaded of that to find these charges proved. Again, it was not necessary for the Panel, in order to find charge 8 proved, to establish what substance had been applied to the Patient’s penis, simply that anything other than soap and water or a sterile swab had been used. None of the charges required the Panel to find that Mr Davies had inserted anything into the Patient’s penis.

[97]Consistently with that, of course, the Panel was required to note that some of the charges included elements necessitating the proof of a degree of deliberate intention going beyond the actions alleged. Charge 5, for example, is framed in terms of ignoring the Patient’s indications, suggesting something more than not noticing them. And charge 4 similarly alleges conduct undertaken despite the Patient’s communicating non-verbally his distress.

[98]It is also important to note that there were a number of matters which featured prominently in the Patient’s evidence but in relation to which no charge was brought at all. That includes, notably, the issue of whether and how Mr Davies moved the Patient from his bed to a chair. The Panel was not required to make supported findings on matters other than those within the terms of the formal charges.

(b) The Panel’s general approach

[99]I can see from the opening of its reasoned decision that the Panel recited correctly, and in accordance with its Adviser’s legal directions, the burden and standard of proof, and stated that it accepted the legal advice more generally. There are aspects of Mr Davies’s challenge, however, from which questions necessarily arise about whether the Panel followed it. So I revert briefly to the advice itself before identifying and addressing those questions.

[100]The Panel was advised in clear terms that, in view of the likely choices it would have to make to resolve conflicts of evidence between the Patient and Mr Davies, in order for its decision-making to be fair it would be ‘vital’, before embarking on the detailed fact-finding exercise, to set out in broad and reasoned terms its assessment of each witness and their evidence. It was advised not to approach fact-finding on an all or nothing basis, nor to regard it as a contest between truth and ‘lying’, but to approach the exercise with caution and with the NMC’s burden of proof at the forefront of its mind, being wary of any ‘domino’ effect. The Panel was emphatically advised, no doubt having regard to the extended questioning of Mr Davies on this issue, that it was not Mr Davies’s burden to establish an exculpatory motive or explanation for the Patient’s allegations, and cautioned that, to the extent Mr Davies suggested any such motives or explanations, the Panel was to hold in mind the possibility he was simply giving evidence of his own attempts to explain to himself why he might have been accused of matters of which he was innocent. It was advised that it was proper to proceed in relation to Mr Davies’s evidence in accordance with the ‘good character’ direction.

[101]In his skeleton argument for the NMC on appeal, Mr Claydon referred to the NMC’s Guidance to its fitness to practise panels on assessing evidence (DMA-6). The legal advice the Panel received was, I am satisfied, fully in accordance with this Guidance. But the Guidance itself did not feature prominently in the materials to which the Panel addressed itself, nor were developed submissions made about it by either Party on appeal. It is nevertheless good, clear and succinct Guidance, and a helpful summary of what the Panel needed to do. I further reproduce the extract from it cited in Mr Claydon’s skeleton, noting that any panel is guided to ‘hold fast’ to the guidance it provides. Credibility Credibility considers how much a witness account can be relied on. It involves more than whether the account is honest or not. A person may have confidence in his or her recollection and be honest. However, that does not mean that their recollection provides any reliable guide to the truth on this basis alone. An account can be honest but objectively unreliable. We believe memories to be more reliable than they are. Two common errors are to suppose(1) that the stronger and more vivid the recollection, the more likely it is to be accurate;

(2) the more confident another person is in their recollection, the more likely it is to be accurate. Memories are fluid and malleable and can be subject to powerful biases. Events can come to be recalled as memories which did not happen at all or which happened to somebody else. The older the events, the more important it is to hold fast to these principles of reasoning. The objective and reliable approach is to focus on the content of a person’s evidence. A panel will need to carefully consider issues such as:

• whether the evidence is consistent with contemporaneous evidence;

• whether it’s consistent with admitted or incontrovertible facts;

• whether the evidence is internally consistent;

• whether it’s consistent with previous accounts;

• whether it’s supported by other evidence;

• how probable or plausible it is;

• the possible motive of the person giving evidence;

• the potential for mistake or unconscious bias. Panels should consider whether evidence is plausible and consistent with objectively verifiable evidence (including evidence of what the witness has said on other occasions) and with known or probable facts. They should start with the objective facts as shown by authentic, contemporaneous documents, independent of the person giving evidence, and use oral evidence to test it. Credibility

A panel will need to carefully consider issues such as:

[102]Turning then to the Panel’s preliminary paragraphs under the heading of ‘Decision and reasons on facts’, these raise in the first place some significant questions about its approach to the fundamental matters of burden and standard of proof, and assessment of evidence. It did not begin with either the ‘vital’ overall reasoned assessment of the witnesses and their evidence, or the unchallenged objective facts. Instead it began by considering what it described as Mr Davies’s ‘submission’ or ‘position’ that the Patient had ‘associated false memories’, and his speculation of a possible motive arising out of an incident involving a request for a drink of squash. It directed itself to consider ‘whether these propositions could explain why Patient A made these allegations against you’. It noted there was no medical evidence to support false memory, considered it a speculative idea, and concluded ‘it could not be satisfied that this was a plausible motive’. It also noted that the squash episode had not been complained of by the Patient or put to any witness in cross-examination, and concluded it could not be satisfied it furnished a plausible motive. It directed itself that it would not consider ‘any motive Patient A may have for fabricating allegations unless there was some cogent evidence in respect of this’.

[103]This opening section of the Panel’s reasons, and the transcribed account of the underlying questioning of Mr Davies on these matters, are problematic in themselves. They are difficult to reconcile with the legal direction that Mr Davies bore no burden of establishing a motive or explanation for the Patient’s complaints. It was not his task to satisfy the Panel, with or without medical or other evidence, that the Patient’s allegations should be attributed to any one or more exculpatory cause. Mr Davies was not fairly or relevantly to be regarded as having taken a position on this beyond having raised some potentially pertinent questions about the circumstances in which the Patient’s evidence fell to be considered by the Panel.

[104]Nor was it the Panel’s task to satisfy itself that any good reason not to accept the Patient’s evidence had to be, or had not been, proved. There was certainly no proper default to accepting the allegations, quite the reverse: the NMC had a burden of proof to discharge, and it was the Panel’s duty to put it to that proof.

[105]‘Fabrication’ by the Patient has connotations of conscious invention (perhaps even dishonesty). That was not a fair characterisation of what Mr Davies was asking the Panel to consider (including in what he said about the drink of squash incident). And nor was a finding about ‘fabrication’ by the Patient or any other witness necessarily appropriate to the Panel’s task in any event. Its task was, objectively and taking all the relevant evidence into account, to consider whether or not the events alleged did in fact occur as charged, more probably than not. And it was the NMC’s burden to satisfy the Panel of that. Elimination of ‘fabrication’ as a satisfactory account for the Patient’s evidence did not by itself entitle the Panel to proceed on the basis the Patient should be regarded as credible, nor absolve it of its duty to assess the weight that could properly be given to his evidence in all the circumstances. Moreover assessment of the credibility or fallibility of witnesses, and of the probative value of their evidence in relation to the charges to the extent it was reliable, was the means by which it had to do that, but not the end in itself.

[106]There was an important reason the Panel was advised so clearly that it was ‘vital’ to stand back at the outset and give a reasoned assessment of the overall strength and quality of each witness’s evidence before embarking on fact-finding. It was precisely to engage it with applying the correct approach to evidence assessment, and burden and standard of proof, throughout. It was to direct it to an articulation of the strengths and weaknesses of each witness’s contribution to that task. In the charge-by-charge consideration which followed these opening paragraphs, the Panel found the Patient gave consistent, credible evidence and Mr Davies gave consistent evidence but that it was less credible. But no overall reason is indicated for that, and this approach was not equivalent to or a substitute for the ‘vital’ overall balanced assessment of the witnesses the Panel had seen and heard. It is notable also in this connection that there is 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.

[107]The risk in all of this was that the Panel would embark on its detailed fact-finding without a sure enough hold on the standard and burden of proof, to which the weighing and assessment of witness evidence had to be directed. There is cause for concern accordingly in these preliminary paragraphs of the Panel’s decision about its general approach to the burden and standard of proof, and to the assessment of witness evidence.

[108]That is the background against which I turn to consider Mr Davies’s essential challenges on appeal that the Panel had regarded its fact-finding function as not only requiring choices but being a choice between the credibility of the Patient and of himself, and that it had failed to deal properly and transparently with the issues in particular of(a) inconsistencies in the Patient’s evidence, and other reasons to the limit the weight that could be put on it,

(b) the comprehensive rejection of his own evidence, and

(c) the lack of any direct third-party evidence corroborating any of the alleged incidents apart from the oral remarks alleged in charge 1(a) which were corroborated by the Patient’s wife.

(c) The Panel’s approach to the Patient’s evidence

[109]The Panel repeatedly emphasised that the Patient’s account had been clear, consistent and credible throughout. Assessing the consistency of the Patient’s evidence, as relevant to the Panel’s fact-finding task, necessarily meant something more than noting his vehemence and persistence in making the allegations and satisfying itself he had not fabricated them or consciously made them up. It meant looking at his evidence as a whole and assessing it for(a) internal consistency or coherence on core issues and

(b) consistency or inconsistency with others’ evidence, and considering the explanationsfor that consistency or inconsistency. And to support its conclusion on the consistency of the Patient’s evidence, the Panel would have needed to have dealt with a number of respects in which it was apparent from the evidential materials before it, and from submissions Mr Davies made about them, that the Patient’s account included obvious internal inconsistencies which were at least potentially material, if not core, to the facts it needed to find, and to the proper weight-bearing capacity of his evidence as part of doing so.

[110]Perhaps the most significant of these relates to the issues of how often Mr Davies was said to be alone with the Patient, and how often he was said to have misconducted himself. These were potentially important matters because, however carefully framed in the charges, they go to the opportunities Mr Davies had to misconduct himself as alleged and therefore the objective probability that he did so on at least one occasion in each respect.

[111]In his witness statement, the Patient said that whenever Mr Davies looked after him, he did so alone, except for ‘some occasions when he would ask other people to assist him’. He said that on every occasion he nursed him, Mr Davies(a) pushed his head and neck and ignored his non-verbal communications about that,

(b) lifted his leg without warning and

(c) hurt him by squeezing his penis, pulling his foreskin, and applying a painful substance, including on one occasion when he was assisted by another nurse (‘Sue’).

[112]In his oral evidence, the Patient accepted that the provision of much of his care required, or in practice involved, at least two nurses – moving him, changing his bedding, providing continence care and, importantly, providing hygiene care. Having given that evidence, the Patient had remarked to Counsel, ‘I see where you’re coming from’ and proceeded to give his account (for the first time) of Mr Davies’s ‘two disciples’. His evidence then was that Mr Davies would hurt his penis only when these two people were present and not when any other nurse was present. Replying to Counsel’s challenge that this was a new account, the Patient’s response was that it was ‘common knowledge that they were there, because it takes two people, like you said, or two plus’.

[113]There is inconsistency on the face of this evidence. That is at least potentially material, not only because it goes to the general coherence of the Patient’s account of what happened to him and the opportunities Mr Davies would have had to misconduct himself, but also because it raises an obvious question about whether Counsel’s questioning had prompted the Patient to acknowledge a coherence problem himself, and to respond in an improvisatory and self-serving manner which only exacerbated the coherence problem. It is not apparent on the face of its decision that the Panel addressed itself to, dealt with, or accounted for these evidential issues.

[114]There were other aspects of the Patient’s evidence with which the Panel might have been expected to deal in coming to a fair and balanced view of the weight it was proper to give it. These include the following.

[115]First, there is the clear demonstration of animus against Mr Davies in the Patient’s oral evidence, and the associated question of how far that might either(a) amplify his evidence of an unforgettable ordeal at Mr Davies’s hands, or conversely

(b) suggest an explanation other than objective probability for his narrative of complaint. The Panel had to intervene on this during his oral evidence in relation to the number of times the Patient called Mr Davies a liar, and to a suggestion at one point that Mr Davies had fabricated his clinical notes. It was an obvious issue. It is not mentioned or apparent in the Panel’s reasoning. There is little or no obvious sign, outside the allegations themselves, of reverse animus on Mr Davies’s part in the materials before it; that reverse animus was however at the heart of the Patient’s allegations.

[116]Second, there is the Patient’s insistence that Mr Davies tortured or crucified him by repeatedly forcibly moving him, unassisted, including from his bed to his chair. A notable amount of hearing time was spent on this issue, bearing in mind it formed no part of any charge against Mr Davies or of the Panel’s fact-finding functions. It was the unanimous evidence of all three professional witnesses that this was, if not wholly impossible, highly improbable and dangerous to the point of being potentially lethal. A similar point perhaps arises on the Patient’s (equally uncharged) account of having a fluid squirted or poured into his penis, and the professional evidence before the Panel of its physiological impossibility or improbability. The Patient’s oral evidence was that Mr Davies caused him to fear for his life.

[117]Vehemence is not a reliable guide to credibility, and the Legal Adviser had directed the Panel’s attention to the possible issue of exaggeration in evaluating the weight to be put on a witness’s evidence. These particular aspects of the Patient’s evidence may not have been directly on point to the facts the Panel had to determine. But the theme of ‘torture’ or deliberate malice, repetitively inflicted, characterised much of the Patient’s evidence and, as already noted, intentionality characterised at least some of the individual charges. The impact one way or the other of its high colour and emotional register on the weight that could be given to the Patient’s evidence in assessing the objective probability of what happened is not dealt with in the Panel’s reasons.

[118]Third, and perhaps most obviously, there is the issue of the traumatic impact of falling ill with GBS, and the Patient’s state of extreme debility, admittedly limited field of vision, admitted sleep disruption, documented anxiety/depression and pain medication, and compromised ability to communicate (non-verbally) at the relevant time. It is perhaps surprising that there was little in the way of independent professional evidence of the potential impact of the Patient’s illness and its treatment on his perceptions and recollections, including of Mr Davies’s nursing. The Panel was correct not to speculate on medical matters in the absence of medical evidence. But neither was it able properly to consider the weight it was appropriate to give the Patient’s evidence without at least addressing itself to the potential relevance of such factual matters about his condition as were clearly, objectively and undisputedly evidenced before it.

[119]The need for the Panel to put the NMC (not Mr Davies) to the proof that the Patient’s illness and its consequential debilities were not on balance a more probable explanation for some or all of his evidence than its historical accuracy was an obvious and acute issue. It was for example striking, and at least potentially relevant, that the Patient’s evidence indicated he continued to suffer with distressing problems such as penile bleeding and erectile dysfunction long afterwards, and that he had associated them in his own mind with Mr Davies’s treatment notwithstanding there being no medical endorsement of that and other medical explanations having been suggested. The Panel does not deal with any of this in its reasons.

[120]I should perhaps mention also in passing the unclarity about the material before the Panel concerning the Patient’s mental health, and the intervention by the Panel suggesting that not worsening it was a consideration in its conduct of the hearing. It may be that the Panel concluded that there was nothing in this connection to which it needed to have regard in assessing his evidence, and no reason to mention it in its decision. But that can only be a matter of speculation.

(d) Corroboration

[121]As I have already said, corroborating evidence was not necessary as a matter of principle in order for the Panel to accept the Patient’s evidence. I agree with Mr Claydon also that the fact that the interim panel hearing in December 2021 had noted a lack of corroborative evidence does not by itself add anything to the challenge Mr Davies makes more generally on that ground. That panel’s functions were different from those of the fitness to practise Panel.

[122]Corroboration, or lack of it, is at least potentially relevant, however, in the assessment of evidence against the probability test required by the standard of proof, as the Legal Adviser (and the Guidance) had directed the Panel. At the appeal hearing, Mr Claydon accepted that the only charge of which there was any evidence before the Panel corroborating the Patient’s account was the sunglasses incident. The Patient’s account of that was corroborated by his wife. Mr Davies’s account was to a degree corroborated by Mr Brown. The Panel did not give any apparent weight to Mr Davies’s evidence, and did not give material weight to Mr Brown’s evidence on the basis that he ‘struggled to recall the incident due to the passage of time’,the parties were ‘outside in a potentially loud environment’ and Mr Brown had not said that the alleged words were not said, but only that he had not heard them.

[123]This is the only example I noted in its decision of the Panel’s considering the passage of time as a potential consideration in assessing any witness’s evidence, and it did so adversely to the corroborative value of Mr Brown’s testimony to Mr Davies’s account. I note that Mr Brown had, however, stated clearly in his oral evidence that he was in close proximity and within earshot, and the Patient’s wife said the same about him. Mr Brown’s account of the event reads on its face as clear, straightforward and detailed in its relevant essentials.

[124]There was no evidence at all before the Panel that the environment was otherwise than quiet, and indeed chosen for that very purpose (the Patient’s wife had said specifically that there ‘wasn’t much background noise’ when the alleged remark was made). The decision contains no reflection about why, if ambient noise could have accounted for Mr Brown’s failure to hear any such remark at close quarters, it could not also have accounted for a mishearing or misrecollection by either the Patient or his wife, (with perhaps (unconscious) post-event mutual reinforcement). The correct application of the burden of proof and the objective probability test (the standard of proof) is not clear in this. It was the NMC’s task to establish that the remark was more probably than not made (and without Mr Brown having heard it), not Mr Davies’s to evidence or prove the negative.

[125]The finding that charge 1(c) (‘you’ve got to get into the chair’) was proved was principally based on the Patient’s wife’s evidence. It was not corroborated by the Patient himself; he accepted that what Mr Davies had said was more along the lines that he needed to use the chair in accordance with his rehabilitation plan. The Panel ‘had no reason to suppose that [his wife’s] evidence was fabricated’, but (deliberate) fabrication was not in issue or obviously relevant here.

[126]The Panel said it inferred support for his wife’s account from the Patient’s evidence. It is not clear whether that was his evidence of dislike of and discomfort with the bed/chair transfer exercise in general, or his more specific (albeit uncharged) allegations that Mr Davies in fact compelled him into the chair (alone). Neither of these was directly corroborative that Mr Davies had used words along the lines of those alleged, and the latter was contradicted by the unanimous professional evidence. It is also troubling that the Panel concluded, in relation to Mr Davies’s evidence and the (unchallenged) evidence that regular transfer to a chair was a key component of the Patient’s rehabilitation plan, that it ‘was not satisfied that this evidence supported your denial of the charge’. Again, that raises questions about the correct application of the burden and standard of proof: it was the NMC’s task to persuade the Panel that, objectively, the words were more probably than not said. It was not Mr Davies’s task to demonstrate they were not.

[127]Mr Davies’s principal challenge on corroboration, however, goes to the evidence before the Panel, including but not restricted to his own, that all of the incidents apart from the sunglasses remark were alleged to have happened on a busy intensive care unit. The undisputed evidence was that that unit had an essential high staff to patient ratio and necessary teamwork systems, and the tasks that nurses had to perform for patients took an irreducible minimum amount of time and concerted action. His point on this was that it was, if not impossible, at least highly improbable that what he was alleged to have done would not have been witnessed or overheard, and, given its gravity, reported, by another member of staff. It is a twofold point: not only was this a matter going to the objective probability that he had behaved as alleged in the first place, but the lack of corroboration was, in these particular circumstances, a surprising matter going to the weight that could properly be placed on the Patient’s evidence. This was an important issue, and the Panel did not deal with it in the round, but in piecemeal fashion.

[128]In relation to charge 1(b) (‘don’t roll your eyes’) the Panel relied on Mr Davies’s own reference to privacy screens to conclude that ‘these screens may have made it possible for the alleged incidents to have occurred’. This charge related to words spoken. Mr Davies’s evidence had been that the screens were (external) visual privacy measures; there was no evidence before the Panel about these screens other than Mr Davies’s (which was that nurses were not alone with patients behind the screens), and no evidence at all in relation to any possible soundproofing effect. And of course the standard of proof to which this was potentially relevant was the balance of probability, not possibility.

[129]The Panel had also noted that Mr Brown said in more general terms that patients were ‘rarely’ alone with a single nurse and that there was ‘nearly always’ another nurse present when care was given. The Panel weighed that evidence against Mr Davies, without dealing with the inherent level of improbability of unwitnessed or unheard misconduct that Mr Brown’s evidence necessarily implied. Instead it rejected Mr Davies’s evidence that he was never alone with the Patient on the basis that the impossibility of that was implausible. Again, Mr Davies did not have to demonstrate it was impossible. The NMC had to demonstrate it was more probable than not that he had opportunities in a busy intensive care unit with other members of staff always at least in the vicinity to misconduct himself unseen and unheard, unchallenged and unreported, and that it was more probable than not that he successfully took those opportunities as alleged.

[130]The Patient accepted under cross-examination that genital hygiene was not provided by Mr Davies otherwise than with another nurse present. His account of ‘disciples’ was not put in those terms to Mr Davies; it was not substantively dealt with by the Panel in the terms in which the Patient gave evidence of it. The evidence before the Panel was therefore that charges 6, 7 and 8 related to an incident or incidents at which, if they happened at all, at least one other nurse was present, aware, acquiesced and/or failed to report. The Panel did not address the probability or improbability of that. Ms Owen’s evidence was that it was improbable. Mr Davies had explained in some detail why.

[131]In relation to charge 6 (squeezing penis), the Panel found as fact that this happened when Mr Davies was ‘alone’ with the Patient, giving hygiene care unaccompanied (although what it might mean for a nurse to be ‘alone’ with a Patient on a busy intensive care ward was not explored). It rejected the evidence that there was always another nurse there (one to wash and one to dry, and as a privacy chaperon) on the basis that Patient A had said genital hygiene had been given by Mr Davies ‘alone’. But Patient A’s oral evidence was, latterly at any rate, clear that there was always another nurse present for hygiene care. Ms Owen confirmed the same in response to a question from Mr Davies. The Panel noted in relation to charge 8 (applying a product to the Patient’s penis) that the Patient’s evidence was that other members of staff were present (but suggested that was on a single occasion, which was not the Patient’s concluded evidence). There is a real problem of coherence with all of this. I cannot see that the Panel dealt with it.

(e) Mr Davies’s evidence

[132]I have already noted that the Panel did not visibly apply the good character direction to Mr Davies’s evidence or take a reasoned decision not to. As the Legal Adviser correctly observed, Mr Davies’s good character was at least potentially relevant to assessing the credibility of his evidence and to the objective probabilities that he did what was alleged.

[133]It was also potentially relevant to the issue of his possible motivation for doing so, which appears to have gone entirely unexplored. The only reference to this that I noted in the evidence before the Panel was the Patient’s suggestion that he was motivated by ‘jealousy’ or ‘a personal issue’. That is not a possibility which speaks for itself in any way. The Patient’s wider suggestions of malice or deliberate cruelty also appear to have gone unexplored. On general principles allegations of that nature attract an elevated standard of proof precisely because of their inherent improbability.

[134]Also largely unexplored was the broad field of possibilities that the individual incidents alleged could have been attributed to misunderstandings or mistakes at the time either by the Patient or by Mr Davies, or to the normal process of imperfect recollection and subsequently superimposed subjective narrative. Although at least some of the charges were framed to comprehend broader possibilities, the findings of fact the Panel made were articulated in terms that Mr Davies had acted deliberately in each respect alleged. That is confirmed by the findings of intentionality in charge 9 in every respect but one, but in any event in its findings on each individual charge the Panel identified what it appears to have understood as a component in the Patient’s account of a targeted course of conduct. (The exception in charge 9 was charge 2(b) – failure to inform or obtain consent before replacing electrodes. The Panel’s reasoning here was that ‘you referred to having implied consent to deliver care throughout your evidence, however … Patient A could communicate non-verbally and therefore could have provided consent’. That is not easy to follow, and may indicate an insecure grasp of the concept of implied consent which does not, of course, depend on any patient’s inability to give or communicate consent.)

[135]The probabilities of a targeted course of conduct, whether or not charged in every respect alleged, were not obviously addressed by the Panel. It did not appear to have expressly reminded itself of the Legal Adviser’s caution against an all or nothing approach to credibility, or against the domino effect. The charges related to(a) three discrete allegations of brief incidents of unprofessional language, where even if established as probable events, the context and tone were actually or potentially in issue

(b) a number of seriously unprofessional and potentially dangerous or even life-threatening failures of communication with associated harm to the Patient (failures to inform or warn and to obtain consent in relation to specific and not obviously connected matters, and failure to acknowledge or respond to the Patient’s non-verbal communications), and

(c) three specific clinically unjustified aspects of genital hygiene care. The ‘real and sufficient similarities’ connecting all this do not speak for themselves.No attempt appears to have been made by the Panel to locate them in a context of the full range of care provided by Mr Davies to the Patient, including that of which no complaint was made (including, for example, the history set out in the clinical records), or to identify any interrelationship between them (and hence any interplay of objective probabilities) other than the Patient’s narrative of targeted ill-will. And the objective probability of that connection, and its manifestation in these particular incidents, does not seem to have been addressed.

Conclusions

[136]Mr Davies says he cannot understand why the Panel found the charges against him proved, or how it could fairly have done so, given the evidence (and lack of evidence) before it. As invited by both parties, I have tested Mr Davies’s challenge by looking at that evidence and at the Panel’s explanation for its conclusions. That is unavoidably a somewhat detailed or laborious exercise. But it also requires, at the end of the analysis, standing back from the detail and applying the test of whether the Panel’s conclusions were wrong or its overall procedure irregular to the point of injustice. That brings into focus a number of issues.

[137]I have reminded myself of both the purposes and the limitations of my appellate function. Serious procedural irregularity can 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 can also be constituted by a failure of reasoning so that, looking at a statement of reasons (and, if the stated reasons are not sufficiently clear, at all the underlying material), a nurse is not fairly able to understand how or why a decision has been taken. It is for thepurpose of considering these matters that I have reviewed the Panel’s decision-making on the materials before it.

[138]Disciplinary panels have a difficult job to do, and obligations to discharge to the regulator and the public as well as to the professionals appearing before them. They are not courts of law. But, as confirmed in the Panel’s legal advice, the burden and standard of proof applicable to its proceedings mean that professionals are entitled to the benefit of any proper doubt about what objectively, weighing and balancing all the evidence, more likely than not happened. This 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 Mr Davies, set out a sufficient account of why.

[139]There was, in the first place, the combination of Mr Davies’s long, unblemished record, the Legal Advisor’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). This was not determinative but it 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 cited, whether from witnesses or clinical records. There were the 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.

[140]In these circumstances, there are features of this decision which give cause for concern that the Panel did not give Mr Davies 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 goes with that. It was not of assistance (and perhaps surprising) in the first place that the Panel thought it appropriate, after weeks of oral evidence and submissions, spread out over half a year, to give an immediate extempore ruling with a relatively short form of subsequent reasons. The written decision does not demonstrate in its reasoning 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.

[141]There are also in the end 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 suggests too often that it was Mr Davies’s task to persuade the Panel that the Patient’s evidence was not credible, rather than the NMC’s that it was. The Panel appeared too often to have considered alternative explanations for the Patient’s allegations, and specifically fabrication, as a matter for Mr Davies to persuade it of – and to have viewed such suggestions as he made as matters automatically adverse to his own credibility. It left open the possibility of an inference that it had formed a sympathetic view of the Patient based on private information about his mental health. It disposed of all the charges before it on what appears to be the undifferentiated basis (or at least starting point) that the Patient’s allegations were on the face of it entitled to be regarded as determinative.

[142]Some of these features are capable of being regarded as errors of law or misdirection in their own right. But it is their cumulative effect which persuades me, on balance, that there is sufficiently serious and pervasive procedural irregularity apparent in the Panel’s decision-making to conclude that its decision cannot, in justice to Mr Davies, stand. Its reasoning is not sufficiently apparent or accessible, and the underlying evidence before it does not speak for itself sufficiently to remedy that. This is a case in which at least ‘a few sentences dealing with the salient issues’ discussed in my analysis above were essential for confidence in the fairness of the decision. I cannot myself clearly answer Mr Davies’s question as to how and why, on the materials before it and consistently with maintaining a fair and open mind and properly directing itself to the assessment of evidence and the correct burden and standard of proof, the Panel found all the charges against him proved. Without clear and demonstrable fairness in its approach to its evidential and fact-finding functions, it is not quite enough in the end just to be told the Panel believed all the allegations of the Patient (and his wife) and did not believe Mr Davies.

[143]It is important, in so concluding, to make clear what I am not deciding. My analysis and decision focus on how the Panel approached its decision-making, not on what it decided as such. So I am not deciding that the Panel had no proper choice but to agree with Mr Davies’s evidence and submissions, and to find the individual charges (or any of them) unproved. I am not deciding that the Panel could not have been entitled ultimately to give weight to or prefer the evidence of the Patient in some or all respects. I am not making any findings of fact myself one way or the other, and I am not to be taken as expressing any concluded view on the weighing and balancing of the evidence. I have raised questions about the probative value of the evidence, but I have not sought to answer them; I am not in a fair position to do so on this appeal. I am therefore not in the end concluding that the outcomes the Panel reached, or any of them, were necessarily unavailable (although as I have noted, some of them, to the extent articulated and reasoned by the Panel, are not visibly supported by the evidence it had before it).

[144]I am, however, sufficiently clear that the manner in which the Panel reached, and/or explained, its decision-making falls short of the standard of justice to which Mr Davies 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.

Decision and next steps

[145]Mr Davies’s appeal is allowed. The Panel’s decision is set aside.

[146]The NMC and Mr Davies will have an opportunity to reflect on next steps and, if they cannot agree, to make submissions to me about any points of difference.