Christopher Geering
Editor
Foreword
Welcome to this Professional Discipline Featured Update Newsletter.
Ben Rich has set out a useful summary of Davies v NMC – a helpful warning to panels who may wish to reverse the burden of proof by asking “why would the witness lie”. It is worth a read. I have looked at Thampi v GMC, which increases the chances of being able to persuade a panel to impose no sanction after a finding of impairment in the right case. Finally, Bea gives another cautionary tale of the use of AI and the challenges it poses to public authorities.
Davies v NMC is well worth a read for at least two reasons. First, it is an example of a successful challenge to the facts, partly based in the Panel reversing the burden of proof, and partly based in a failure to do an overarching witness credibility assessment. Second, it is also a good illustration of how the High Court gets round the apparently very severe “virtually unassailable” criterion from Southall on overturning primary findings of fact.
Mr Davies was an intensive care nurse of 20 years’ standing. In all, he had enjoyed a forty-year nursing career free of any fitness to practise issues. Until, that is, a patient with a devastating and debilitating disease accused Mr Davies of ‘torturing” him on repeated occasions while administering personal care, and treating him in a dismissive manner.
The patient was wholly dependent on nursing care, as he could do little more than move his eyes and could not speak. He used a tracheostomy to breathe. The allegations included cleaning the patient’s penis with unnecessary force and (although the allegation was not framed in quite this form) putting some sort of inappropriate cleaning liquid into the patient’s penis, as well as ripping electrodes off his chest without warning, lifting the patient’s leg without consent (which was painful), and talking to him in insulting or dismissive ways. All were alleged to be done with the intention (or effect) of intimidating, humiliating, or scaring the patient, or causing him physical or psychological harm…
Dr Thampi is a Consultant in Obstetrics and Gynaecology. At her Fitness to Practise hearing, she accepted she had failed to obtain informed consent from Patient A and had communicated inappropriately with her. In finding her impaired, the Tribunal noted:
“The Tribunal did appreciate that the misconduct related to one patient and was an isolated incident that Dr Thampi accepted responsibility for and that it was unlikely to be repeated. However, that had been a serious departure from the relevant sections of GMP and the GMC’s 2008 consent guidance … and it had caused a patient in a vulnerable position to undergo a procedure that she did not want. The Tribunal concluded that a finding of no impairment of Dr Thampi’s fitness to practise would undermine the public interest.”
In coming to this view, it took into account that “psychological harm was caused to Patient A”. Ultimately, it went on to impose a sanction of three months’ suspension.
On appeal, the Appellant argued that this reference to psychological harm was inappropriate. The court agreed:
“Although I accept that the MPT was entitled to take into account the impact on Patient A of the proven failings, nonetheless the panel erred when it concluded that Patient A had suffered “psychological harm” as a result of those failings. There was no such allegation before the MPT; there was no expert evidence or relevant reasoning to support the conclusion and Dr Thampi was unfairly denied the opportunity to respond in evidence and submissions.”
However, the error did not vitiate the finding of impairment, given the seriousness of the findings…
The facts of R (Bea) are not relevant. Of interest, however, is an observation made about the use of AI, and the strain being placed on the administrative court by an ever-increasing case load.
In response to the Council’s contention that the issue in dispute in the judicial review was academic, the Claimant – who was a litigant in person – produced a written response which referred to the issue of “academicity”. The judge declined to decide the claim and commented:
“I am unsure about the origin of the written materials which are relied upon by the Claimant. As I cite above at paragraph 31, the term used is ‘academicity’. I had not ever read that word until this week when, coincidentally, I heard an oral renewal for permission in which the claimant’s case was said to be academic. The claimant in that case appeared in person and submitted a document which was formatted in just the same way as the Claimant’s skeleton argument in this case, and included the same word: ‘academicity’. It caused me concern that I was dealing with AI-generated material… The basis of the Claimant’s written submissions is not known and I am sceptical about it. The court has to have confidence in the research and comprehension of the legal authorities which underpin a submission. My concern that AI has contributed to the written argument without reference to the key authorities may be ill-founded.”
This concern echoes numerous recent judgments. For example, a couple of weeks ago in Rafique v HMRC [2026] UKFTT 00673 (TC), the Upper Tribunal again dealt with the case of a litigant using AI. It observed he had used cases “hallucinated by AI” where “the majority of the cases relied upon by the Appellant either do not exist, do not support the propositions in the way stated in his emails, or they have been superseded by more recent case-law.”…
Michael Misick, the former premier of the overseas British Territory of the Turks and Caicos…
This article was written for HMRC EIP (Enquiries, Investigations & Powers) Magazine (Feb-March 2026 Issue)…
