Leeks v Health and Care Professions Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cheema-Grubb |
| Judgment Date | 14 January 2016 |
| Neutral Citation | [2016] EWHC 826 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 January 2016 |
| Docket Number | CO/4149/2015 |
[2016] EWHC 826 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Cheema-Grubb
CO/4149/2015
Mr I Stebbings (instructed by Direct Access) appeared on behalf of the Appellant
Ms V Butler-Cole (instructed by Bircham Dyson Bell) appeared on behalf of the Respondent
This is an appeal under Article 29(9) of the Health and Social Work Professions Order 2001, as amended. The appellant is a bio-scientist who worked in the Department of Blood Sciences at St George's Health Care Trust. She was dismissed for misconduct from that post. An appeal to the Employment Appeal Tribunal was unsuccessful and she was refused permission to appeal to the Court of Appeal. She has engaged in other legal proceedings arising out of the circumstances that led to her dismissal.
The disciplinary action taken by the Health and Care Professions Council proceeded to hearing before that Council's Conduct and Competence Committee on 21 and 22 July 2014, and 29 to 31 July 2015.
In brief, the allegations heard by the Committee were that whilst she had been employed at St George's Health Care NHS Trust, on or before 25 May 2010, she had engaged in conduct which amounted to misconduct by breaching confidentiality.
There were four heads of breach alleged against her. The Committee found three of the four allegations proved on the balance of probabilities, but one allegation was not proved. That final determination was reached on 31 July of last year and the Committee also proceeded to dispose of the case by way of sanction on that same day.
The Committee found that the appellant's determination to prove fraud in the promotion of her two colleagues led her having no compunction in disregarding data protection rules and the duty of confidentiality. She had made covert recordings of meetings and telephone conversations and had taken possession of documents containing personal information without authority or consent.
The Committee also found she continued to maintain that she had done nothing wrong. She did not show any remorse or insight, and after due deliberation her fitness to practise was found to be impaired by this misconduct.
The Committee concluded that there had been a very serious breach of confidentiality and that the appellant had shown herself to be untrustworthy and untruthful. The Committee concluded that the only appropriate sanction was a striking off order.
The appellant has lodged an appeal and she seeks to challenge the decision on sanctions only on the basis that the sanction imposed on her was excessive and disproportionate and a period of suspension or on some other disposal would have sufficed and should be substituted.
Plainly, this is an important appeal for this appellant and the consequences of failing in her appeal are serious. The Respondent's counsel has taken a preliminary point and I have to determine whether, as the Respondent submits, the notice of appeal was out of time. The Respondent submits that the decision of the Committee including the sanction was served on the appellant in person, not only orally, but in documentary form, at the end of the hearing on 31 July 2015. It was then served on her again by email on 3 August 2015 and also by post, by letter, which I am satisfied bears a postmark of 7 August 2015.
An appeal under Article 29(9) of the Health and Social Works Professions Order 2001, as amended, must be brought before the end of period of 28 days beginning with the date on which the notice of the order or decision appealed against is served on the person concerned.
This is provided for by Article 29(10) and by rules that govern the practice of the Conduct and Competence Committee called the Conduct and Competence Committee Procedure Rules 2003.
Rule 12 provides for the disposal of cases:
"1. Where the Committee concludes its consideration of an allegation it shall dispose of the case in accordance with Article 29 of the order.
2. The Committee shall notify the registrant and the complainant of its decision and the reasons for reaching that decision and shall inform the registrant of his right of appeal."
The requirement, therefore, is that the Health Care Professions Council must notify the registrant of the decision under rule 12 and the right to appeal. There is no specific requirement within the rules as to the form of notification although provision is made (where documents are to be served) that they may be served by post.
The Respondent submits that the appellant in this case has filed her application for a statutory appeal out of time, as I say. The appeal notice bears a fee date stamp of 28 August, and the notice itself was by lodged her in person at the Administrative Court office (public counter) on 1 September 2015.
The first matter is this: when did the Council notify the appellant of the decision and sanction? When did they serve the notice of the order or decision upon her? It is accepted by the appellant, as submitted by Mr Stebbings, instructed by her, and also in her witness statement (albeit she has not begun given formal permission to rely upon that witness statement) that she was present when the Committee reached its decision and declared the sanction on 31 July.
The Respondent, however, does not rely on that oral notification. The Respondent relies on the fact that, as is accepted the decision and sanction were, in a documentary form, provided to the appellant on 31 July.
I have been shown today via counsel the documents that she was given. Whilst they are not in exactly the same format as the later email, to which I shall come, and as a result of that, the Respondent does not rely upon the handing of those documents in order to further this preliminary point, I observe that anyone who was present when the decision was made and the sanction expressed orally, and provided with those documents, could reasonably be taken to have been notified of the decision.
But I will move on to that which the Respondent does rely upon which is the email sent by an officer of the Council to the appellant on 3 August, and there is no dispute at all between the parties that that email was sent and that the email included in full format the decision and the disposal by way of sanction that the Committee had reached on 31 July.
A statement from the officer of the Council, Miss Ashleen Peters has been prepared. Again, no formal permission has been given to rely on that statement, and I do not need to, because as I say it is accepted by the appellant that she was served by email with the properly formulated order and decision as required by Article 29(10), and that was on 3 August.
I have no difficulty in deciding that the appellant was served at the latest by 3 August and 28 days, as allowed under the relevant provisions, began to run from that day. Consequently, those 28 days would end on bank holiday Monday, 31 August 2015. The appeal notice was not lodged until after the bank holiday and that is also agreed. If the deadline was bank holiday Monday, 31 August, the notice should plainly have been lodged at the latest by the Friday before.
As counsel for the Respondent points out there is plain authority in the case of Baines v Nursing and Midwifery Council [2012] EWHC 2615 (Admin) concerning a similar statutory scheme to the one that the appellant is subject to, the statutory deadline of 28 days cannot simply be extended because the last day of that period falls on a non-working day. As Mr Stebbings for the appellant readily conceded, the Civil Procedure Rules, which would have admitted such an extension in other circumstances do not apply to this statutory regime which governs my consideration of the appeal. There is no statutory provision giving this court the power to extend the 28 day deadline and in the past this has been considered an absolute cut-off point. The courts have refused to go behind the statutory limits.
The next question having determined as a matter of fact that the notice of appeal was filed late is whether there is any discretion in the court to extend time. I bear in mind as I have already mentioned quite how important and serious this appeal is to this appellant.
The courts have traditionally treated time limits for appeals for regulatory bodies where the relevant statute contains no provision for extending time as absolute. But, as counsel for the Respondent has helpfully and properly brought to my attention, in recent jurisprudence the Court of Appeal has held that in similar statutory appeals' regimes relating to the Nursing and Midwifery Council the strict time limits have to be read down so as to comply with Article 6 of the European Convention on Human Rights.
I am going to refer to two cases, one of which I was taken to by Ms Butler-Cole. That case is R (on the application of) Adesina & Ors v The Nursing and Midwifery Council [2013] EWCA Civ 818. The Court of Appeal considered the question of whether on similar wording, the time limit in that case was an absolute one admitting no exceptions, or whether it may be tempered and, if so, on what basis.
Having considered the decision of Pomiechowski v District Court of Legunica, Poland [2012] EWHC 3161 (Admin), and in particular the judgment of Lord Mance at paragraphs 37 and 39 in that case, the Court of Appeal in Adesina & Ors [supra] came to the conclusion that a discretion to extend a statutory time...
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