Pitfalls When Fact Finding: PSA v NMC and Budzichowska [2026] EWHC 610 (Admin)

Appeals against findings of fact can be divided into two categories – appeals against primary findings as to whether a particular fact has or has not been proved, and secondary findings as to, for example, the inferences that can be drawn from those proved facts.

The High Court will be slow to interfere with primary findings of fact, given that it has not seen or heard the witnesses and lacks the in-depth knowledge of a case gained often over a period of days or weeks by the lower court or tribunal. There will be rare cases where it is possible to say that a factual finding is so out of kilter with the evidence that the High Court can dispense with the deference normally shown to the factfinder. By contrast, where primary facts have been proved, then the High Court is in an equally strong position to make secondary findings and to substitute its own findings for those of the lower court or tribunal: see Byrne v GMC [2021] EWHC 2237 (Admin) at paragraphs 10-16 on primary findings and GMC v Jagjivan [2017] EWHC 1247 (Admin) at paragraph 40 (and 40(iv) in particular) as to secondary findings.

In PSA v NMC and Budzichowska [2026] EWHC 610 (Admin), the PSA successfully appealed both primary and secondary findings of fact. The Registrant faced allegations based on her behaviour towards two patients, both of whom were diagnosed with dementia.

In relation to one patient, the allegation was that she had “grabbed [the patient’s] face”. The context for this incident was that the Registrant had pushed the patient into a lift, whereupon the patient had spat at her. A colleague witnessed the incident and said in their witness statement that after the patient had spat at the Registrant, the Registrant had grabbed their face, squashing their cheeks. In a safeguarding report, this witness had stated simply that the Registrant had grabbed the patient’s face. In evidence in chief, the colleague stated that the Registrant had grabbed the patient’s face. When cross-examined, it was put to them in one proposition that the Registrant had neither touched or grabbed or squeezed or squashed the Registrant’s face, to which they answered, “I do not agree.”

It is clear that the colleague had consistently stated that the Registrant had grabbed the patient’s face. However, the tribunal dismissed this charge because they found that the colleague had been inconsistent by saying in evidence that the Registrant had squashed the patient’s cheeks in a violent manner. There were three problems with this finding. First, on reviewing the evidence it was clear that at no time did the colleague make this comment. Secondly, the tribunal had asked no questions seeking to elucidate the difference, if any, between grabbing and squashing and therefore had given the witness no opportunity to explain themselves. Finally, there was no material difference between grabbing someone’s face and squashing their cheeks.

Because this was a primary finding of fact, which depended on an assessment of the witnesses and their credibility, the High Court was minded to remit this charge, acknowledging that this was an expensive and time-consuming process. However, given that the High Court also allowed the PSA’s appeal against sanction, replacing the original order of suspension with one of erasure, remitting would have served no purpose.

One of the reasons the High Court was prepared to increase the sanction was that it was prepared to make a finding of secondary fact that the tribunal had not made. Despite the Registrant’s denials, the tribunal had found that the Registrant had refused to assist a patient who was incapable of raising themself from the floor, had suggested that the patient crawl along the floor to the chair, and had sat in the chair nearest to the patient so that the patient had to crawl to another chair. The tribunal found that the effect of this had been to humiliate the patient. He was soaked in urine. Other witnesses had described the scene as “heartbreaking” with the patient being visibly upset and exhausted. The tribunal rejected the Registrant’s evidence that she had sat in the chair in order to stabilize it for the patient’s safety as “implausible” and “untenable”. The tribunal had also noted the Registrant’s evidence that she believed that the patient had deliberately thrown themselves to the floor to get attention.

Having made these findings, the tribunal then found that there was insufficient evidence to prove that the Registrant’s intention had been to humiliate the patient stating in very brief terms that initially the Registrant had wished to promote the patient’s mobility but that her actions then became uncaring and lacked compassion. The High Court looked at all the evidence and concluded that there was an irresistible inference on the evidence and the findings already made by the tribunal that the Registrant’s intention had been to humiliate the patient. Therefore, the High Court did not remit the case but substituted its own finding.

This case illustrates two errors that tribunals can fall into. First, there can be an over-pedantic approach to the meaning of words and to the way in which people express themselves. It was clear that in the first case the witness had always described the Registrant taking hold of the patient’s face with a degree of force. The focus should always be on what the evidence as a whole reveals. Here, there was no distinction between grabbing and squashing.

Secondly, when it comes to motivation, people rarely state aloud what their motivation is. Here the Registrant’s own evidence powerfully pointed to her attitude and motivation.