The Nursing and Midwifery Council v Daniels

This judgment is in six parts, namely:

This is an appeal by the Nursing and Midwifery Council (“NMC”) against an order extending time for appealing against a decision of the NMC’s Conduct and Competence Committee. The issue in this appeal is whether exceptional circumstances existed, such that the court had power to extend time.

Ms Dorothy Daniels was the respondent in proceedings before the Conduct and Competence Committee. She was the appellant in an appeal to the High Court. She is the respondent in the Court of Appeal. I shall refer to her as “DD”.

The Nursing and Midwifery Order 2001 (“the 2001 Order”) sets out the procedures to be followed in disciplinary proceedings against nurses and midwives. Under the 2001 Order the Investigating Committee of the NMC investigates allegations of misconduct or lack of competence. Thereafter, if disciplinary proceedings are merited, the NMC’s Conduct and Competence Committee hears those proceedings. If that Committee concludes that any of the allegations are well-founded, it may make one of the orders set out in article 29 (5) of the 2001 Order. These are a striking off order, a suspension order, a conditions of practice order or a caution order.

In relation to appeals, article 29 provides:

“(9)

The person concerned may appeal to the appropriate court against an order made under paragraph (5) and article 38 shall apply to the appeal.

(10)

Any such appeal must be brought before the end of the period of 28 days beginning with the date on which notice of the order or decision appealed against is served on the person concerned”

Article 38 provides that such appeals lie to the High Court.

The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 provides rules which govern the conduct of disciplinary proceedings under the 2001 Order. I shall refer to these as “the 2004 Rules”. Rule 34 of the 2004 Rules provides that (subject to exceptions not material to this appeal) documents may be sent by ordinary post and are deemed to have been delivered on the day after they were sent.

After these introductory remarks, I must now turn to the facts.

In 2010 DD was working as a band 5 staff nurse employed by the Royal Free Hampstead NHS Trust. On 9^th October 2010 she administered a controlled drug, namely morphine, to patient A without another nurse being present. There were allegations that DD required patient A to undress when the curtains were not fully closed and that she carried out the procedure under inadequate lighting. DD admitted having administered morphine without another nurse being present, but she disputed the other matters.

Following that incident DD’s managers suspended her from unsupervised practice while they investigated. This meant that DD could only undertake (a) essential care duties under the supervision of a nurse who was band 6 or above and (b) duties as directed by the ward senior sister and matron. In breach of those instructions DD worked bank shifts on a different ward on 22^nd, 23^rd, 24^th and 27^th February 2011.

These matters rapidly came to light. The Investigating Committee of the NMC initiated disciplinary proceedings against DD before the Conduct and Competence Committee. The charges were as follows:

“1.

On 9 October 2010 administered a controlled drug, namely morphine to Patient A:

a.

Without another registered nurse being present at the time of administration

b.

When the curtains were not closed fully and Patient A was required to undress.

c.

When most of the lights were not working in the nursing bay.

2.

On 9-10 October 2010 failed to comply with Mr 1’s instruction not to have any further interaction with Patient A.

3.

Failed to comply with the conditions of your supervised practice in that you worked bank shifts on a different ward other than within 7 Ward South on:

a.

22 February 2011

b.

23 February 2011

c.

24 February 2001.

4.

Failed to comply with Ms 5’s instruction not to work a bank shift on 27 February 2011.”

In order to protect the anonymity of the patient, the staff involved are all referred to by numerals.

DD admitted charge 1a, but disputed the other charges. A panel of the Conduct and Competence Committee conducted a full hearing over six days in December 2013 and two days in February 2014. DD was present throughout the hearing. Ms Tina Ewane, a solicitor, represented DD during December 2013. Ms Nabila Mallick, counsel, represented DD during February 2014.

On 4^th February 2014 at the end of the hearing the panel announced its decision. The panel dismissed charge 2, but found all the other charges proved. The panel found that as a result of misconduct DD’s fitness to practise was currently impaired. The panel made a caution order for three years commencing on 8^th March 2014 pursuant to article 29 (5) of the 2001 Order.

The panel chose the date 8^th March 2014 for good reason. That was the date when DD’s time for appealing would expire.

On 7^th February 2014 the Conduct and Competence Committee sent a written copy of the panel’s decision to DD. The last page of the decision included the following paragraph:

“You have 28 days to appeal against the decision. The 28 day period commences from 8 February 2014. A note explaining your right of appeal is enclosed.”

The attached note gave clear guidance about appealing and stated that the time limit was 28 days.

Pursuant to rule 34 of the 2004 Rules the written decision was deemed to have been served on DD on the 8^th February 2014. DD’s 28 day period for appealing commenced on that date and ended on 8^th March 2014.

DD did nothing about appealing until Friday 7^th March 2014. On that date she spoke to Ms Mallick, her former counsel. Counsel advised DD to contact the solicitors who had acted for her at the hearing. DD did so. Meanwhile counsel got on with drafting grounds of appeal ready for incorporation into the appellant’s notice.

On 11^th March 2014 DD’s solicitors filed an appellant’s notice at the Office of the Administrative Court, which is part of the Queen’s Bench Division of the High Court. That notice included an application for extension of time on the following grounds:

“1.

The appellant is not working and needed to raise funds to seek legal advice on the decision and to then instruct her legal advisers to draft the grounds.

2.

The appellant instructed counsel on the 7/3/14 to draft the grounds.

3.

Bearing in mind the financial circumstances of the appellant it is just and equitable to extend time.”

At a hearing on 12^th August 2014 Mrs Justice Nicola Davies dealt with the application for extension of time as a preliminary issue. The judge granted the application and extended time for appealing to 11^th March 2014.

In reaching that decision the judge referred to the principles stated by the Court of Appeal in Adesina and Baines v Nursing and Midwifery Council [2013] EWCA Civ 818; [2013] 1 WLR 3156. She concluded that DD’s inability to find £235 to pay the court fee in time constituted a good reason for the delay. Taking into account that the period of delay was only three days and that the NMC had not suffered any particular prejudice, the judge held that there were exceptional circumstances which enabled the court to extend time.

The NMC is aggrieved by the judge’s decision. Accordingly it appeals to the Court of Appeal.

By an appellant’s notice filed on 29^th August 2014 the NMC appealed against the decision of Mrs Justice Nicola Davies on no less than six grounds. Those six grounds really boil down to a single proposition: there were no exceptional circumstances in this case such as to enable the judge to override the statutory time limit of 28 days. Therefore the judge did not have power to make the order which she did.

The appeal was heard on 24^th February 2015. Ms Nabilla Mallick represented DD, as she had done in the latter part of the hearing before the Conduct and Competence Committee. Ms Alice Hilken leading Ms Tania Dosoruth represented the NMC. We are grateful to all counsel for their assistance.

The central issue between the parties was the nature of the circumstances which would entitle the court to override the statutory time limit of 28 days. The resolution of that issue turns upon an analysis of the authorities, to which I must now turn.

Article 29 (10) of the 2001 Order allows 28 days for commencing an appeal. It contains no provision for extension of time. Nor do the 2004 Rules contain any such provision.

It used to be thought that the 28 day time limit was inflexible and would admit of no exceptions. However, the Supreme Court’s decision in Pomiechowski v District Court of Legunica Poland [2012] UKSC 20; [2012] 1 WLR 1604 established that an absolute statutory time limit may need to be read down in order to comply with article 6 of the European Convention on Human Rights.

The time limit under consideration in Pomiechowski related to the commencement of an appeal in extradition proceedings, but it was clear that the decision may have wider implications. The Court of Appeal considered the application of Pomiechowski in the context of appeals by nurses under the 2001 Order in Adesina and Baines v Nursing and Midwifery Council [2013] EWCA Civ 818; [2013] 1 WLR 3156. In those two appeals which were heard together two nurses, Ms Adesina and Ms Baines, sought to appeal out of time against decisions of the Conduct and Competence Committee of the NMC. The judge struck out both appeals and the Court of Appeal upheld that decision.

Although the Court of Appeal held that there could be no extensions of time in those two cases, it rejected the proposition that the 28 day time limit was absolute and inflexible. Maurice Kay LJ (with whom Patten and Floyd LJJ agreed) held that the principle established in Pomiechowski was applicable to the time limit contained in article 29 (10) of the 2001 Order. He held that time could be extended in exceptional circumstances, namely where enforcing the 28 day limit would impair the very essence of the statutory right of appeal. He gave the following two examples of such exceptional circumstances at [14]:

“Take, for example, a case in which a person, having received a decision removing him or her from the Register, immediately succumbs to serious illness and remains in intensive care; or a case in which notice of the disciplinary decision has been sent by post but never arrives and time begins to run by reason of deemed service on the day after it was sent…. In such cases, the nurse or midwife in question might remain in blameless ignorance of the fact that time was running for the whole of the 28 day period. It seems to me that to take the absolute approach in such circumstances would be to allow the time limit to impair the very essence of the statutory right of appeal.”

In neither of the cases before the Court of Appeal in Adesina were exceptional circumstances present. The facts of the second case were not unlike the facts of our case. Ms Baines had difficulty in finding a specialist solicitor to act for her and in obtaining legal aid. As a result her notice of appeal was lodged two days out of time. The Court of Appeal held that those matters did not constitute exceptional circumstances enabling the court to extend time.

There have been three subsequent cases in which first instance judges have applied the principles stated in Adesina. They are:

The present case is the first occasion upon which a court, applying the principles stated in Adesina, has found that exceptional circumstances existed such as to warrant extending the time limit under article 29 (10) of the 2001 Order. We shall have to decide whether the judge was right to reach that conclusion.

In the course of argument counsel have drawn our attention to a number of cases in which courts have granted or refused extensions of time in jurisdictions where the rules expressly permit time to be extended. Examples are United Arab Emirates v Abdelghafar [1995] ICR 65, where rule 37 of the Employment Tribunal Rules 1993 permitted time to be extended; Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633, where rule 3.1 (2) (a) of the Civil Procedure Rules permitted time to be extended.

In my view those authorities, although helpful as background reading, are not a guide as to how the court should deal with applications for extension of time in respect of appeals under article 29 of the 2001 Order. Neither the 2001 Order nor the 2004 Rules make any provision for extending the time limit for appeals. They therefore differ from the Employment Appeal Tribunal Rules and the Civil Procedure Rules in a critical respect. The principles which the court must apply in the present case are those stated by the Court of Appeal in Adesina.

Having reviewed the legal principles, I must now reach a decision in the present appeal.

The following features of the present case stand out as significant:

On the basis of counsel’s submissions and without the assistance of any evidence the judge made a finding that DD was unable to raise the court fee of £235 before 8^th March 2014. I have read the transcript of the hearing below. There was no material before the court on which the judge was entitled to make that finding. The obvious inference from the known facts is that DD did not take any steps towards appealing until the very end of the 28 day period.

The sequence of events between 7^th and 11^th March 2014 indicates that DD and her lawyers were able to move swiftly. If DD had contacted her lawyers during February and set out about raising funds then, she would have been able to file her appellant’s notice well within time. Indeed if DD had contacted her lawyers or spoken to the court office during February, she would have had time to apply for, and would probably have obtained, remission of the £235 court fee.

It therefore follows that there is no proper basis for the judge’s findings of fact and I would allow the NMC’s appeal on that ground. In case I am wrong in that regard, however, I must also consider the case on the same factual basis as the judge. The crucial part of her judgment reads as follows:

“10… In this case, I find there was a good reason why the appeal could not have been lodged in time. It was that the Appellant could not find £235 in order to pay the court fee. That is unsurprising, given that she was living on benefits, had been dependent on family and friends to help her get through the NMC proceedings and had been dependent on family and friends to help her get through the NMC proceedings and had been unemployed for a period of three years. I note also that the time by which she was outside the relevant 28 days was short and it cannot be said that any particular prejudice was suffered by the NMC in dealing with her case by a matter of some two or three days.

11.

Accordingly, because of the particular financial circumstances of the Appellant, not only in the 28 days when she was trying to find the funds for the court fee but against a background of three years’ unemployment and having to find funds to allow herself to be represented before the NMC, I am satisfied that there are exceptional circumstances.”

If the 2001 Order or the 2004 Rules provided that the judge had discretion to extend time and if the judge were exercising such discretion in favour of DD for the reasons stated in paragraphs 10 and 11 of her judgment, then the Court of Appeal could not possibly interfere with that exercise of discretion. The problem in the present case is that neither the 2001 Order nor the 2004 Rules confer such a discretion.

The court has no power to extend or override the 28 day time limit except in circumstances of the kind described by Maurice Kay LJ in Adesina at [14]. In other words the circumstances must be such that enforcing the 28 day time limit would impair the very essence of the statutory right of appeal. The facts stated in paragraphs 10 and 11 of the judge’s judgment do not constitute circumstances of that character. The present case is similar in its essentials to that of Ms Baines, who was one of the unsuccessful appellants in Adesina.

Although that is the position under the 2001 Order and the 2004 Rules, I do not regard the outcome as satisfactory. The disciplinary proceedings against DD proceeded at a snail’s pace. Three years elapsed between DD’s misconduct and the conclusion of those proceedings. The hearing itself occupied eight days. That is a surprising amount of time to devote to investigating matters of minimal complexity. If the NMC is incapable of conducting disciplinary proceedings promptly and swiftly, it seems harsh that the 2001 Order and the 2004 Rules allow the court no discretion to extend the 28 day time limit for appealing.

Ms Hilken for the NMC has explained to the court that the strict 28 day time limit exists because of the importance of finality and the need to promote confidence in the system. The interests of patients in hospitals and care homes are at stake. Many of the cases are high profile. Therefore there has to be an expeditious and effective system for dealing with allegations of misconduct.

I see the force of all those comments and express regret that the NMC has not abided by them in its conduct of the disciplinary proceedings against DD. In Southall v General Medical Council [2010] EWCA Civ 407 at [65] Leveson LJ made harsh comments about dilatoriness in the conduct of disciplinary proceedings against a doctor. I make similar comments about the dilatory conduct of the disciplinary proceedings in the present case.

Let me now draw the threads together. If the 2001 Order and the 2004 Rules had conferred upon the court a general discretion to extend time, I could not fault the judge’s exercise of that discretion. Unfortunately they do not. The court only has power to extend time in exceptional circumstances of the kind described by Maurice Kay LJ in Adesina. Such circumstances do not exist in the present case. Therefore the court had no power to extend time, I would allow the NMC’s appeal.

The Nursing and Midwifery Council (“NMC”) instituted disciplinary proceedings against a nurse for misconduct. A panel of the NMC’s Conduct and Competence Committee heard the matter between December 2013 and February 2014. The panel found most of the charges proved. On 4^th February 2014 the panel announced its decision, namely that there be a caution order for three years. The nurse was present when the decision was announced and subsequently received written notice of the decision. Article 29 (10) of the Nursing and Midwifery Order 2001 (“the 2001 Order”) allows 28 days for appealing to the High Court against such an order. That 28 day period expired on 8^th March 2014. The nurse filed an appellant’s notice on 11^th March 2014 which was three days out of time.

Mrs Justice Nicola Davies, at a preliminary issue hearing on 12^th August 2014, granted a three day extension of time, thus allowing the appeal to proceed. The NMC appeals against that decision.

Neither the 2001 Order nor the rules governing proceedings under that Order give the court any discretion to extend time for appealing. There do not exist in this case exceptional circumstances of the kind which the Court of Appeal in Adesina and Baines v Nursing and Midwifery Council [2013] EWCA Civ 818; [2013] 1 WLR 3156 has held would enable a court to extend time. Accordingly the judge did not have power to make the order which she did.

If my Lord and my Lady agree, this appeal will be allowed.

I agree. I have also seen in draft the additional observations of the President and also agree with them.

I also agree. I add only my expression of concern at the time that this disciplinary process has taken. All disciplinary bodies must have regard to the legitimate interests not only of the professional under investigation but also complainants and the public generally. It is therefore necessary to ensure that procedures are both efficient and expeditious: in this case, the three years taken on the investigation and the eight days then required to hear what is a comparatively straightforward allegation could hardly be so described.