The Nursing and Midwifery Council v Dorothy Daniels
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lady Justice Black |
| Judgment Date | 20 March 2015 |
| Neutral Citation | [2015] EWCA Civ 225 |
| Docket Number | Case No: C1/2014/2865 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 March 2015 |
[2015] EWCA Civ 225
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
MRS JUSTICE NICOLA DAVIES
CO/1090/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lord Justice Jackson
and
Lady Justice Black
Case No: C1/2014/2865
Ms Alice Hilken and Ms Tania Dosoruth (instructed by Regulatory Legal Team, Nursing & Midwifery Council) for the Appellant
Ms Nabila Mallick (instructed by Blavo & Co Solicitors) for the Respondent
Hearing date: Tuesday 24 th February 2015
This judgment is in six parts, namely:
| Part 1. Introduction | Paragraphs 2 to 7 |
| Part 2. The facts | Paragraphs 8 to 20 |
| Part 3. The appeal to the Court of Appeal | Paragraphs 21 to 23 |
| Part 4. The law | Paragraphs 24 to 33 |
| Part 5. Decision | Paragraphs 34 to 43 |
| Part 6. Executive summary and conclusion | Paragraphs 44 to 47 |
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...
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