The Nursing and Midwifery Council v Dorothy Daniels [2015] EWCA Civ 225

Posted on

High Level Summary

This case concerned a challenge by the NMC to a High Court decision, namely the decision by Davies J to allow a Registrant's application for the extension of the NMC appeal time-limit. Jackson LJ succinctly noted that the central issue in this appeal was "… the nature of the circumstances which would entitle the court to override the statutory time limit of 28 days" (para 23). He expressly held that in cases concerning NMC appeal time-limit/delay that the test expounded by their lordships in Adesina and Baines v Nursing and Midwifery Council [2013] EWCA Civ 818 remained the main authority and must be followed. Namely that despite the absence within the NMC legislation of an express provision for the extension of time, that such an opportunity for extending could be read into the legislation as per the case of Pomiechowski v District Court of Legunica Poland [2012] UKSC 20. Nevertheless despite this possibility for extension, the test is one of "exceptional circumstances". This case re-affirms the very limited circumstances that could be deemed to be truly "exceptional" (serious immediate illness resulting in intensive care or a serious post service failure). The appeal in this case was allowed and the decision of the lower court quashed on the basis that there were no exceptional circumstances (financial hardship had been claimed), and no adequate evidence.

The Facts

The Registrant had worked as a Band 5 nurse and had been referred to the Council's Fitness to Practice Department on the basis of allegations that ranged from administering a controlled drug without another nurse being present and compromising a patient's dignity to breaches of restrictions that had been imposed on her by her employer. The NMC's Conduct and Competence Committee found all allegations proved and imposed a caution order for a period of three years, commencing immediately after the expiry of the 28 day appeal period.

The Registrant with the assistance of solicitors and counsel lodged grounds of appeal some 3 days after the expiry of the appeal period, and at the same time applied for an extension of the time limit on the grounds that "1. The appellant is not working and needed to raise funds to seek legal advice on the decision and to then instruct her legal advisors to draft the grounds; 2. The appellant instructed counsel on the 7/3/2014 [one day before the expiry of the deadline] to draft the grounds; 3. Bearing in mind the financial circumstances of the appellant it is just and equitable to extent the time [note the wrong text applied]" (para.17).

Davies J granted the application for the extension of the time limit on the ground that "... [the Registrant'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 has not suffered any particular prejudice" (para.19) that there were in this case "exceptional circumstances" which permitted the court to extend time.

The NMC "aggrieved" (para.20) by Davies J's decision appealed to the Court of Appeal.

Grounds of Appeal

There were in all some six grounds of appeal, and Jackson LJ was able to "boil them down" to the following, namely that the NMC contended that "there were no exceptional circumstances in this case such as to enable the judge to override the statutory time limit of 28 days … [and that] Therefore the judge did not have power to make the order which she did". (see para.21)

Judgment

In reaching their decision their lordships had regard to the fact that (i) the Registrant did not take any action until the last day before time for appealing expired; (ii) she had served no evidence, and so there was no explanation as to how and from whom she raised £235 to pay the court fee, nor did she reveal when she first took steps to raise that money; and (iii) no one (Registrant and her representatives) gave consideration to the fact that she was in all likelihood entitled to a remission of the court fee.

Their lordships were critical of the fact that as per point (i) above, namely "without the assistance of any evidence the judge made a finding that DD [Registrant] was unable to raise the court fee of £235 before 8th March 2014 [final date in which to appeal]. I have read the transcript from 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 facts is that DD did not take any steps towards appealing until the very end of the 28 day period (para.35)" In light of this they concluded that "… there is no proper basis for the judge's findings (para.37)".

Having decided on the underlying facts of the case, their lordships moved onto applying the law to their findings. They reiterated that "The court has no power to extent or override the 28 day time limit except in circumstances of the kind described by Maurice Kay LJ in Adesina at [14]." They concluded that the circumstances in this case did not meet the "exceptional circumstances" and therefore the judge below had erred in extending the time to appeal.

"Dilatoriness" on the part of the NMC

Despite finding for the NMC in respect of the substantive matter, Jackson LJ (with Black LJ and the President of the Queen's Bench Division in agreement) stated that he did not find "… the outcome as satisfactory" because of what he described as the NMC'S "snail's pace" disciplinary process. He noted "… In Southall v General Medical Council [2010] EWCA Civ 407 AT [65] Levesen 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 (para.42)"

Appeal allowed

<< Back to March 2015 bulletin