High Court applies Court of Appeal guidance on time limits for appeals in regulatory proceedings.

Judgment date: 30 October 2013

Background

The appellant nurse (N) appealed against a decision of the Nursing and Midwifery Council’s Conduct and Competency Committee (the Panel) to strike her name from the register in view of findings of misconduct. The Panel found that N had dishonestly provided false information in her employment application to Thackeray House Care Home (the Care Home), had provided false references in respect of the same and had made errors of drug administration, namely that she had administered metolazone to a patient on four occasions when it was not prescribed.

N admitted the charges of dishonesty and two occasions of making errors of drug administration. The Panel found that she had made the two further errors as alleged. In view of this, and in respect of what the Panel saw as limited insight, the Appellant’s fitness to practise was found to be impaired by reason of her misconduct and a striking off order was imposed. This was buttressed by an 18 month interim suspension order to cover the period of any appeal.

Appeal

Ultimately, N appealed on three grounds and alleged that:

  1. There was a breach of Article 6 of the European Convention on Human Rights (ECHR) in that, as she was unrepresented at the resumed hearing where sanction was imposed, she had no equality of arms;
  2. There was no evidence of actual harm caused by her actions;
  3. No criminal charges or investigation had arisen from her actions.

The NMC contended that N’s appeal was out of time and should not be entertained.

Decision

Notice of the decision of the Panel had been deemed served on 15 November 2012, this allowed N until 13 December 2012 to lodge an appeal. However, N’s Appellant’s Notice was not lodged until 14 December. It was not a matter in issue that N’s appeal was out of time by one day and N’s notice of appeal requested an extension of time for filing.

In considering whether to allow the appeal out of time the Court quoted with approval the approach taken in R (Adesina and Baines) v Nursing and Midwifery Council [2013] EWCA Civ 818 where the Court of Appeal had considered the 28 day time limit for appeals, imposed by Article 29 (10) of the Nursing and Midwifery Order 2001, and determined that it was not an absolute time limit permitting no exceptions but that it could be waived in exceptional circumstances were the appellant had ‘personally done all he can to bring the appeal timeously’.

In the instant case Grounds of Appeal were settled by Counsel on 30 November 2012 and N did not at any point explain the delay between this date and filing.

On the basis of this lack of explanation for the delay the Court held that no exceptional circumstances existed and that as such the waiver of the time limit envisaged by R (Adesina and Baines) v Nursing and Midwifery Council[2013] EWCA Civ 818 could not be entertained in this case. The appeal was dismissed as out of time and it was commented obiter that, on the materials before the court, the substantive appeals chances of success were minimal in any event.

A useful case which serves as a reminder that, even in the wake of new case law suggesting the time limits in regulatory appeals is more mutable that previously thought, it will require strong and persuasive evidence that a registrant has done all they can to bring the appeal in good time.