Kabba v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 01 February 2016 |
| Neutral Citation | [2016] EWHC 3677 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 February 2016 |
| Docket Number | CO/3695/2016 |
[2016] EWHC 3677 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Morris
CO/3695/2016
The Appellant appeared in person
Ms Mary-Clare Kennedy (instructed by NMC) appeared on behalf of the Respondent
This is an appeal brought by Solomon Sallieu Kabba ("the appellant") pursuant to Articles 29(9) and 38 of the Nursing and Midwifery Order 2001 ("the order") against a decision dated 15 June 2016 by a panel of the Nursing and Midwifery Council's Conduct and Competence Committee ("CCC") to strike the appellant's name from the respondent's register following findings of misconduct. I refer to the Nursing and Midwifery Council as "the respondent".
The appellant appears in person and the respondent is represented by Ms Kennedy of counsel. The court is grateful for the assistance provided to it by the appellant and those assisting him today, including a representative of the PSU, and by counsel for the respondent.
The appellant was employed as a Band 5 nurse by the East London NHS Foundation Trust. The charges brought by the respondent against the appellant were as follows:
(1) He purported to work overlapping shifts at two different NHS trusts on five occasions between June and August 2013. In that regard, the appellant was charged with dishonesty on the basis that he knowingly falsely represented that he was available to, and did, work at two separate locations at the same time.
(2) He falsely claimed that he was unable to work at his employer's trust on two occasions. In that regard, the appellant was charged with dishonesty on the grounds that he knew that the reasons he gave for not attending work at the Trust were not true.
(3) He had worked back-to-back shifts on 19 occasions between June and December 2013. In that connection, the appellant was charged with dishonesty in that, first, he knew that he was not permitted to work back-to-back shifts and/or undertake secondary employment without obtaining his employer's approval; and, secondly, that he deliberately did not disclose to his employer and/or attempted to conceal that he had worked back-to-back shifts and/or had undertaken secondary employment.
As a result, his fitness to practise was impaired by reason of his misconduct.
The appellant admitted these charges and, at a substantive meeting of the CCC on 10 June 2016, the panel concluded that an order for striking off was the only appropriate and proportionate order that would be sufficient to protect the public.
By a notice of appeal lodged with this court on 27 July 2016, the appellant seeks to challenge the sanction imposed upon him. He puts forward two essential grounds of appeal. The first is that he did not have legal representation in the panel process and that he was neither prepared for nor attended the hearing. The second is that a striking-off order was disproportionate on the facts of the case and the panel should have considered the option of suspension or of a conditions of practice order ("COPO") or a caution. He puts forward a proposed order of COPO which he invites the court to consider.
As to these substantive grounds, the respondent submits first that the decision was reached at what is known as a substantive meeting rather than at a hearing, and that the appellant had agreed to that procedure and that is a procedure which is based on documents alone. That procedure was, in any event, appropriate. Secondly, the respondent submits that the panel gave clear reasons for the decision on sanction and that it was entitled to reach the decision of striking off.
Preliminary objection
As a preliminary issue, the respondent contends that this appeal is out of time. The appellant's notice was filed 13 days after the expiry of the prescribed statutory period for such appeals and there are no exceptional circumstances which would justify the court in exercising its limited discretion to entertain the appeal out of time.
The relevant provisions governing the bringing of an appeal are as follows. Article 29 of the order provides, inter alia:
"(9) The person concerned may appeal to the [High Court] against an order made under paragraph (5)…[which includes an order for striking off].
(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."
The 28 days for bringing an appeal commences on the date of service of written notice of the panel's decision, even though it is the normal practice for the person concerned to be informed of the outcome of the hearing on the date on which the relevant decision is made. As we shall see, this in fact happened in the present case. There is no power to extend the statutory time limit.
Rule 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 ("the 2004 Rules") deals with the service of documents. Special rules apply to a notice of hearing. By 34(3):
"Any other notice or document to be served on a person under these Rules [including notice of a decision by the panel of the CCC] may be sent by —
(a) ordinary post …"
Rule 34 then provides, so far as it is material:
(4) The service of any notice or document under these Rules may be proved by —
(a) a confirmation of posting issued by or on behalf of the Post Office, or other postal operator or delivery service;
…
(5) Where any notice or document is sent or otherwise served under these Rules, it shall be treated as having been served —
(a) on the day after it was sent by delivery service."
The appellant's notice in this case was filed with the court on 27 July. In Part C of that notice the appellant has applied for an extension of time for filing these notices of appeal, giving an explanation for the late filing. I return to this explanation shortly.
The respondent submits that the appeal has been brought out of time and that, in line with established authority, there are no sufficient exceptional circumstances justifying an extension of time in this case.
Relevant principles on extension of time
The leading authority on the criteria to be applied in relation to an application for an extension of time in a case such as the present is the case of Adesina and Baines v Nursing and Midwifery Council [2013] EWCA Civ 818. I have also been helpfully referred to the more recent Court of Appeal decision in Nursing and Midwifery Council v Daniels [2015] EWCA Civ 225 where Jackson LJ applied the approach in Adesina. I have also been referred to three first-instance decisions in which the principles in Adesina have been applied and where an extension of time was declined. Those cases are Adegbulugbe v Nursing and Midwifery Council [2013] EWHC 3301 (Admin); Pinto v Nursing and Midwifery Council [2014] EWHC 403 (Admin) and Parkin v Nursing and Midwifery Council [2014] EWHC 519 (Admin). Subsequently, in Daniels Jackson LJ approved the approach of each of the judges in these three first-instance decisions. I do not propose to recite in greater detail the judgments in those cases.
In essence, the principle established in the Adesina case is that although there is no general power to extend the 28 day time limit contained within article 29(10), time can be extended in "exceptional circumstances"; namely, where enforcing the 28 day time limit "would impair the very essence of the statutory right of appeal." Examples of such exceptional circumstances included where someone was seriously ill and in intensive care or if a decision letter was posted but never in fact arrived. In such cases, the appellant in question would remain in blameless ignorance of the fact that time was running for the whole of the 28 day period: see in particular the judgment of Maurice Kay LJ in Adesina at paragraphs 14 and 15.
As pointed out by Jackson LJ in Daniels:
"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."
In each of these fives cases where exceptional circumstances were not established, the appeals were out of time by a period of between one and four days. The reasons for being out of time in those cases included in summary: time to find a specialist solicitor and obtain legal aid; inability to find the funds to pay the court fee on time, and in that regard I refer in particular to paragraph 25 of Pinto; poor health; lack of legal representation or an oversight on the part of the appellant's representative or solicitor. In each of those cases, even where the court indicated that the delay could be seen as marginal, it was found that those reasons did not amount to "exceptional circumstances" such that the "very essence of the right of appeal was impaired."
In particular, I note that in Daniels an inability to find the amount needed to pay the court fee in time was not regarded as an exceptional circumstance. Indeed, there was no evidence before court that the appellant had been unable raise the court fee nor was there any evidence of any steps taken by the appellant in the 28 day period. In Pinto, it was held that not having sufficient money to pay the court fee at the point of lodging the appeal was not an exceptional circumstance. In Parkin, a delay of no more than a few hours after the relevant deadline...
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GJ v Secretary of State for Work and Pensions (PIP)
...Council [2014] EWHC 519 (Admin); Darfoor v General Dental Council [2016] EWHC 2715 (Admin); Kabba v Nursing and Midwifery Council [2016] EWHC 3677 (Admin). The earlier of these cases were cited with approval by the Court of Appeal in Nursing and Midwifery Council v Daniels [2015] EWCA Civ 4......