England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		11th June 2004

1. MR JUSTICE MOSES: This is an appeal against a decision of the Professional Conduct Committee ("the PCC") of the Nursing and Midwifery Council pursuant to section 12 of the Nurses, Midwives and Health Visitors Act 1997 ("the 1997 Act").
2. On 25th March 2003 the PCC made an order removing this appellant's name from the nursing register. The charge in respect of which that order was made was that on 15th February 2002 at Plymouth Magistrates' Court, after a plea of guilty, this appellant had been sentenced to a community punishment order of 40 hours for one count of attempting to dishonestly obtain a pecuniary advantage. At the hearing before the PCC that charge was admitted, and the case proceeded on the basis of mitigation and the appropriate order that should be awarded in consequence of that misconduct.
3. The decision of the PCC was expressed by the Chairman in these words which were subsequently confirmed in writing by letter dated 1st April 2003:

"The nursing profession is an exceptional profession dealing with vulnerable people. For this reason the post of nurse is not protected under the Rehabilitation of Offenders Act 1974. The purpose of this exclusion is to protect the public and to ensure that employers are given frank information about the applicant. On two occasions, in your application form and on your request for a Police Check, you denied caution or conviction of a police offence. The offence you were convicted of by the court was one of dishonesty and your antecedent history indicates other incidents of dishonesty. The committee feel that by removing your name from the Register they do so with the intention of protecting the public and maintaining the standards of the nursing profession."

4. The facts are unfortunate. This appellant was born in 1953 and had a hard early life, but she came through those misfortunes and sought, comparatively late in life, access to training and admission to the Register of Nurses. She had, in her earlier life, a number of offences of dishonesty, minor offences I should say, mostly in the nature of shoplifting, at a time when her life was particularly hard. However, she had come through that and had applied, as I said, to be a nurse and passed a number of exams giving her substantial qualifications. She had, in the past, always declared her previous convictions.
5. On this occasion, however, she had not. She had applied, in a form dated 12th May 2001, for employment with the Plymouth Community Services National Health Trust. In relation to that form there was a heading called "Rehabilitation of Offenders". The notes under that read:

"Because the nature of the work for which you are applying, this post is NOT protected by the Rehabilitation of Offenders Act 1974. You are required to divulge any police cautions, or convictions in a Court of Law, no matter where or when they occurred (including spent convictions). In the event of employment, failure to disclose all previous cautions and/or convictions may lead to dismissal or disciplinary action. All information will be treated in the strictest confidence and will only be taken into account where the context makes it absolutely essential."

After those notes the question was asked: "Have you ever been cautioned or convicted of a criminal offence, or have you any investigations/hearings pending? Write 'Yes' or 'No' here." This appellant wrote "No".

6. Subsequently she was required to sign a request for a police check -- although I am told this appellant says it was at the same time -- but again she, in answer to the question: "Do you have a prosecution pending or have you ever been convicted in court or cautioned by the police for an offence?" replied "No". A police check revealed the previous convictions to which I have referred, and indeed more recently, during the course of her career as a nurse, a caution for shoplifting in June of 1996 and a further offence of theft on 23rd September 1998 at Plymouth Crown Court as an employee, in fact employed by the National Health Service Trust, for which she was placed on probation for six months and ordered to pay costs.
7. There was before the PCC substantial mitigation advanced, not only by the appellant herself who gave evidence explaining the circumstances in which she, to put no fine a point upon it, lied about her previous record. She pointed out that she had never done so before, and in other applications had been wholly truthful about her past criminal record. There was an important full report prepared in relation to her by the Nurses' Welfare Service that gave no very clear explanation as to why she chose to lie on that occasion, save that she clearly was under considerable pressure at the time. She had had repeated problems from her husband who she said had abused her and from whom she is now divorced, and serious burdens caused by her own children, one of whom unfortunately suffered from cancer and another who, by reason of mental health problems, was dependant upon her. The report spoke well of her commitment for the future and her wish to continue as a nurse. She herself confirmed that. There was further evidence from an employer who, knowing her previous convictions which this appellant had volunteered, spoke highly of her, and further written statements of support.
8. The PCC, for the reasons I have explained, nevertheless ordered her removal from the nursing register, and it is against that decision that she now appeals. The first issue which I have to determine is whether the appeal this appellant has launched is within time. The decision was sent to her on 1st April 2003. The appeal to this court, so the Council submit, was way out of time, coming as it did to this court, so it is said, in December 2003. That is certainly the time when the notice of appeal was filed in the court on 11th December 2003.
9. The statutory provisions relating to an appeal are contained within section 12 of the 1997 Act. This reads:

"(1) A person aggrieved by a decision to remove him from the register or to direct that his registration in the register be suspended or to remove or alter any entry in respect of him, or by any decision under section 10(3) or (4), may, within three months after the date on which notice of the decision is given to him by the Council, appeal to the appropriate court; and on the appeal --

(a) the court may give such directions in the matter as it thinks proper, including directions as to the costs of the appeal; and

(b) the order of the court shall be final."

Section 12(2) identifies the appropriate court for the purposes of the section as being the High Court.

10. The first question which arises is whether or not an appeal was made to the appropriate court within three months of 1st April 2003. On 12th June 2003 this appellant wrote:

"Reference: Appeal

To whom it concerns

I would like to register with you that I wish to appeal against my removal from the nurse register.

I am finding it difficult getting advice from Unison, but wish to register for an appeal. As I would like to proceed subject to opinion.

Please could you send me the necessary paperwork required to begin this procedure.

Also could you register the above date as the official date for the appeal. As good as our royal mail cope with postage I would hate to miss my deadline.

I appreciate your cooperation in this matter."

The Council replied in a helpful and highly responsible letter dated 13th June 2003, the relevant part of which reads:

"Thank you for your letter dated 12th June 2003. I must inform you that it is not the NMC that you register an appeal with.

I have included another copy of section 12 of the Nurses, Midwives, and Health Visitors Act 1997. This explains that the appeal must be made to the High Court.

I understand from your letter that you are having trouble getting advice from your representatives.

May I suggest that you either contact a solicitor firm or the Citizen's Advice Bureau for further help. May I also suggest you have all your documentation available for them, including the transcript of your hearing. As you are aware, you have three months after the decision of the committee to register your appeal. May I remind you that you were removed from the Register on 25th March 2003 so please do not delay in registering your appeal with the High Court.

I have also sent a copy of this letter to your representatives at the conduct hearing who were Chris Dayus (UNISON), Colin Breed MP, and Greg Cunningham (NWS). If you require any further assistance please do not hesitate to contact me."

A further letter to the same effect was sent by the Council on 20th June 2003.

11. Notwithstanding those letters, the appellant did nothing until purporting to launch this appeal in the High Court on 11th December 2003. Her explanation, written in her own hand, is that since she had no address or contact and no legal advice, it took her until some time in July to establish contact at the High Court when she wrote to an official in the Administrative Court on 31st July 2003. She says she was at a loss as to how to complete an appellant's notice. It is true that there was a correspondence with the court in which it, on the Council's argument, erroneously suggested she could apply for an extension. But if that was erroneous, that correspondence did not delay the time for bringing the appeal since, if the Council are correct, the time had already passed. I shall record at this stage that there appears to be no explanation whatever, and certainly no good explanation, as to why she did not adopt the advice given to her so carefully and sensibly by the Council to seek advice from the Citizen's Advice Bureau.
12. However, that does not deal with the central issue I have to determine. The question is as to whether the three months to which section 12 refers can, in any way, be overwritten. In my judgment it cannot. The statute provides three months for bringing an appeal. If the appeal is not brought within three months then it is out of time, and there is no power in this court to extend the time. My reasons for that conclusion are, firstly, the wording of the statute itself. There is nothing within section 12 which suggests that there is power in the court to extend the time.
13. Mr Gledhill, who has argued this case on behalf of the appellant with cogency and moderation, which ought to be the subject of particular praise since he is appearing for her pro bono, has drawn attention to Order 52 of the Civil Procedure Rules 1998. In my judgment, those rules do not confer any power on the court in relation to a statutory appeal under section 12 to enlarge the time for bringing an appeal. By Order 52, rule (1):

"The rules in this part apply to appeals . . .

(2)(b) the High Court.

Under sub-rule (3):

"In this part, a lower court means the court, tribunal, other person or body from whose decision an appeal is brought."

Sub rule (4) of 52(1) reads:

"This Part is subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal."

Section 12 is just such an enactment.

14. Mr Gledhill, on behalf of the appellant, sought to argue that there was power to vary time, pursuant to Order 52(6). That rule provides:

"(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court.

(2) The parties may not agree to extend any date or time limit set by --

(a) these Rules;

(b) the relevant practice direction; or

(c) an order of the appeal court or the lower court."

The rule then refers to rule 3.1(2)(a)

15. It is plain that rule 52(6) confers no power at all but merely directs how an application to vary time may be made in circumstances where such a power does exist. Rule 3.1(2)(a), equally, does not confer any power to vary the time where no such power is conferred by the statute. Rule 3.1:

"The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction, or by any other enactment or any powers it may otherwise have.

(2) Except where these rules provide otherwise, the court may extend or shorten the time limit for compliance with any rule, practice direction or court order, even if an application for extension is made after the time limit for compliance has expired."

I need read no further. It is plain that that provision does not apply to a time limit contained within a statutory provision. The only other reference I need make is to the reference to statutory appeals under Part 52 practice direction at 17(1) which reads:

"This part of the section --

(1) applies where under any enactment an appeal other than by way of case stated lies to the court ... (statutory appeals).

17(2) Part 52 applies to statutory appeals with the following amendments.

17(3) The appellant must file the appellant's notice to the appeal court within 28 days after the date of the decision of the lower court he wishes to appeal."

There is nothing within that paragraph which could confer power upon this court to override the statutory limitation contained within section 12.

16. I should add, but only because I have been asked to, a comment that is purely obiter, namely that similar provisions are now contained within the Nursing and Midwifery Order 2001/2002, 253, which has no application in this case, which does not itself provide a time limit, so in the future nurses and midwives will be well advised to look at Part 52 practice direction in which it may well be revealed that the time limit is more restrictive than it is at present. I am only making those comments because I have been asked to, not because they have any judicial force.
17. The question, therefore, arises as to whether there was an appeal within the three month time limit, since I have concluded that there is no power in this court to extend the time. In my judgment, the letter dated 12th June 2003 was not an appeal to the appropriate court. The nature of such an appeal is explained in rule 52 which contemplates the filing of an appellant's notice. No notice in any form whatever was given to the appropriate court, namely the High Court.
18. The only other question that arises is as to whether it is necessary to read section 12(1) in a way that is compatible with Article 6 of the European Convention on Human Rights, so as to give power to extend the time limit in order to provide consistency with that Article. In my judgment, there is no reason to read section 12 in that way. The European Court of Human Rights has acknowledged the need for statutory time limits for appeals. It has acknowledged that the setting of such limits pursues the legitimate aim of justice and certainty. This is a Convention principle analogous tothe well-known common law principle that it is in the interests of State that there should be a finality to litigation.
19. In Cavanilles v Spain, to which Collins J referred without citing the correct citation in J & PM Dockeray v Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC 420 Admin, the European Court of Human Rights, at paragraph 45, expressed the principles that there is no breach of Article 6(1) in setting time limits. As Collins J pointed out at paragraph 16 of his judgment, the facts of that case were particularly stark, as indeed they were in Wetter v Sweden, a case to which he again refers without citation.
20. The setting of the three month time limit is consistent with Article 6. It pursues the legitimate aim of providing certainty, particularly in the context of disciplinary proceedings designed to protect the public. Secondly, the three month period is not, in my judgment, and certainly not on the facts of this case, to be regarded as disproportionate and more than necessary to pursue the objective of that legitimate aim. It was plenty of time, as indeed shown by the fact that this appellant wrote on 12th June, in which to appeal, and plenty of time to cure her position once she had been so advised by the Council. There is no basis for saying that its rigidity exposes a lack of proportion.
21. In those circumstances, I conclude that there is no incompatibility with Article 6 in the provision of the three month time limit within section 12, and no disproportionate application of that time limit on the facts of this particular case. There is no basis, therefore, for saying that there are any grounds upon which the time limit could or should be extended. Mr Gledhill advanced various hypothetical examples where an injustice might occur. Whether that be so or not is beside the point. This court has no power to extend the time limit. In so ruling, I am not seeking to lay down any fresh principle but merely following the decision of Scott Baker J in Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [1997] EWHC Admin 704, particularly at paragraph 10.
22. In those circumstances, since the appeal is out of time, the appeal must fail. I cannot, however, leave this case without referring to its substance. The case is undoubtedly tragic. The appellant deserves considerable admiration for the resolution with which she has hitherto pursued her career in the face of substantial domestic difficulty. Mr Lee Gledhill advanced the argument that the Council had misdirected itself, or had been unnecessarily harsh by placing reliance upon her previous convictions. Those convictions either happened very long ago or, in the more recent times, were so minor as not to merit so stringent a penalty which will result in her being deprived of her livelihood. It is true that the offence in 1998 appears trivial. It concerned theft from her employer in a hospital of some yoghurt whose sell-by date was well past and which was destined for a dustbin. There was an argument as to whether that yoghurt was abandoned but, perhaps sensibly, the appellant did not pursue that argument, pleaded guilty and received probation.
23. But that fails to deal with the gravamen of the charge against her in this case. She was not being dealt with for that previous offence but for the misconduct, which was also reflected in the criminal charge to which she pleaded guilty, of failing to disclose to her employer those previous convictions. Disclosure enabled the employer to reach a judgment one way or the other as to whether she was fit to be a nurse. By failing to disclose those matters, she deprived her potential employer of the opportunity of making such a judgment. Further, as Mr Lawson on behalf of the Council points out, the failure to disclose convictions does provide a reflection of her character in pursuit of a profession which requires the utmost integrity in the light of the trust given to nurses by patients. The profession which we all admire requires those high standards, since it is based upon trust, and it is a trust substantially diminished if, on application for a job, a nurse does not disclose a past history when specifically invited to do so.
24. In those circumstances, the comments of the Chairman seem to me particularly apt and particularly well-founded. It is trite that this court cannot merely substitute its opinion in the place of the expert and skilled Professional Conduct Committee. It would be unwise and unnecessary to add to the well-known jurisprudence as to the task of this court in a statutory appeal. I merely say that not only was this decision well within the ambit of reasonable decision, but is a decision with which I wholly agree. Nothing has been placed before me, sympathetic though I am to the appellant, which begins to suggest that the decision of the Council in this case was outwith the ambit of a decision which it might reasonably have reached. In those circumstances, had this appeal been in time, I would have refused it.

Do I need to say anything else?

25. MR LAWSON: No, my Lord.
26. MR JUSTICE MOSES: Thank you both very much. I am very grateful.