England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF A STATUTORY APPEAL
PURSUANT TO ARTICLES 29 AND 38 OF THE
NURSING AND MIDWIFERY ORDER 2001

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 October 2013

Mrs Justice Andrews:

1. This is an appeal brought pursuant to Articles 29(9) and 38 of the Nursing and Midwifery Order 2001 ("the Order") against a decision by a Panel of the Respondent ("the NMC")'s Conduct and Competence Committee to strike the Appellant's name from the Respondent's register following findings of misconduct.
2. The Appellant worked as a registered nurse at Thackeray House Care Home. Following an investigation by external solicitors on a referral from Barchester Healthcare, she faced allegations that she had dishonestly provided false information in her employment application to the Care Home (stating that she had worked as a Staff Nurse at Plumstead Lodge Care Home when she had not), provided a false reference purporting to be from Plumstead Lodge Care Home, and that she had made drug errors by administering metolazone to a patient on four days when it was not prescribed to be administered. The Appellant admitted the charges of dishonesty straight away, and eventually admitted two of the drug administration errors. The remaining drug administration errors were found proved after hearing evidence. The Appellant's evidence was disbelieved.
3. In its decision letter of 14^th November 2012 the Panel found that the Appellant's serious drug errors and dishonest conduct put patients at unwarranted risk of harm. She was found to exhibit only limited insight. The Panel found the Appellant's fitness to practice impaired by reason of her misconduct and imposed the sanction of a striking-off order. It imposed an 18 month interim suspension order to cover the period for any appeal. In its reasons the Panel said:

"The panel is in no doubt that you, in your dishonest conduct and serious drug errors, have put patients at unwarranted risk of harm, brought the profession into disrepute, have breached fundamental tenets of the profession and have acted dishonestly. The panel is particularly concerned that your dishonest behaviour involved a deliberate and premeditated deceit….

While you are sorry for your behaviour, the panel has seen little evidence of insight. In the absence of any evidence of remediation, the panel is concerned that there remains a risk of repetition. In these circumstances, the panel concluded that a suspension order would be insufficient to protect the public and the wider public interest…. The panel considers that a striking-off order is the only sanction sufficient to protect the public and to maintain proper standards of conduct so as to maintain confidence in the profession and in the NMC as regulator."

4. The Appellant seeks to challenge the sanction imposed on her. It is alleged that there was a breach of Article 6 of the European Convention of Human Rights (ECHR) because there was no "equality of arms" in that she was unrepresented before the Panel at the resumed hearing at which the sanction was imposed; that there was no evidence of any actual harm being caused by the Appellant's behaviour; and that no criminal investigations or charges arose out of her actions.
5. As a preliminary issue, the NMC contends that this appeal is out of time, because the Appellant's notice was filed a day later than the date on which the NMC asserts the prescribed statutory period for appeals expired, and there are no exceptional circumstances that would justify the Court in exercising its limited discretion to entertain the appeal out of time.
6. Article 29 of the Order provides as follows:

"29(9) The person concerned may appeal to the [High Court] against an order made under paragraph (5)…...

29(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."

Thus 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. There is no power to extend the statutory time limit.

7. Rule 34 of the NMC (Fitness to Practice) Rules 2004 deals with the service of documents. Special rules apply to a notice of hearing. By sub-rule (2), any other notice or document to be served on a person under the Rules, including notice of a decision of a Panel of the Conduct and Competence Committee, may be sent by ordinary post. The Rule then provides, so far as is material:

"(3) The service of any notice 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 …

(4) Where any notice or document is sent or otherwise served under these Rules, it shall be treated as having been served on the day after it was sent by delivery service…."

8. The appellant's notice in this case was filed with the Court on 14^th December 2012. In Part C the Appellant has applied for an extension of time for filing her appeal notice because "though the final decision was made on the 9^th November the claimant did not receive or notified [sic] until the 14^th November. The said decision of the defendant was not received until the 16^th November 2012. Further claimant had to look for funds to finance the case. It is in the interest of justice that the application for extension be granted."
9. In R (Adesina and Baines) v The Nursing and Midwifery Council [2013] EWCA Civ 818 the Court of Appeal had to decide whether the 28 day time limit is an absolute one, admitting of no exceptions, or whether it may be tempered and, if so, on what basis. It decided that, in the light of the decision of the Supreme Court in Pomiechowski v Poland [2012] 1 WLR 1604, there is a discretion in the court to ameliorate the absolute approach in "exceptional circumstances" where the time limit would otherwise impair the very essence of the statutory right of appeal, and strict adherence to it would therefore infringe Article 6 of the ECHR. However, the appellant must "personally have done all he can to bring the appeal timeously." Maurice Kay LJ gave the examples of a person who falls seriously ill immediately upon receipt of the decision removing him or her from the register, and remains in intensive care whilst the time limit expires, or a case in which the notice is sent by post and never arrives, but is deemed served on the day after it was posted. In the event, both the appeals in that case were unsuccessful because the appellants had simply left it too late. In one case, the notice was lodged only two days out of time, but there was no evidence of any exceptional difficulties encountered by the appellant or her solicitors. The Court of Appeal was unimpressed by the point that it had taken her some time to find a specialist solicitor and to obtain legal aid.
10. The Chronology in the present case is as follows. Notice of the substantive hearing was sent to the Appellant on 16 April 2012. The hearing commenced on 23 August 2012. The Appellant attended and was represented by Mr Olu Ogundiran of Ronik solicitors. The case presenter for the NMC was Mr Paul Pretty. Mr Ogundiran cross-examined the witnesses called by the NMC and made an unsuccessful submission of no case to answer in respect of the drug error charge, charge 5. In the course of his submissions it was disputed whether the Appellant had administered half a tablet or a full tablet, but it was clear that the real complaint was that she had administered a drug to a resident on dates when it was not prescribed. On the second day, 24 August 2012, the Panel amended charge 5 to read "Administered metolazone to Resident A on the following days when it was not prescribed." The Appellant did not oppose the amendment, and after it was made, she admitted that she administered the drug on two of the four occasions charged. The NMC sought a decision on facts in respect of the remaining two occasions charged.
11. The Appellant gave evidence and was cross-examined by Mr Pretty. She was also asked questions by the Panel. Mr Ogundiran made submissions on her behalf. At 4.15pm the Chairman of the Panel gave its oral decision, with reasons, that it was satisfied that the Appellant did administer metolazone to Resident A on the two dates that were contested, and that sub-charges 5(a) and 5(b) were proved. The Panel adjourned the hearing of the question of impairment and, if current impairment was found, what sanction should be imposed, until 9^th November.
12. On 9^th November the NMC was represented by a different case presenter, Mr Nabeel Osman. The Appellant appeared but she was unrepresented. She told the Panel that her lawyer had wanted full payment for the hearing in advance, and that she had been unable to pay him. She asked for an adjournment. The Panel took legal advice from the Legal Assessor, and then obtained the Appellant's permission to speak to her former legal advisors directly about the circumstances leading to her lack of representation. After doing this, the Panel decided to refuse the adjournment. It ruled that the Appellant had had sufficient time to acquire the services of a legal representative and that she would not be unfairly prejudiced if the case proceeded that day, because it had already heard her evidence on impairment and misconduct at the earlier hearing.
13. After hearing submissions from the Case Presenter and the Appellant, and obtaining advice from the Legal Assessor, the Panel first determined that there had been misconduct and that the Appellant's fitness to practice was currently impaired. It gave reasons for that determination orally straightaway, and invited representations about the sanction to impose. The Case Presenter made very short submissions; the Appellant was given a proper opportunity to make her own representations on sanction; the Panel took legal advice from the Legal Assessor and then went away to determine the sanction. Again, the Chairman stated the Panel's determination orally. The Appellant was asked whether she understood what was happening and she was told in terms that the Panel had made a striking off order. The Chairman then stated "you have 28 days in which to appeal our decision. This order cannot take effect until that 28 days is up." There was then a discussion as to whether an interim suspension order should be made, and the Appellant indicated that she would not oppose that course. At the end of the hearing the Chairman told the Appellant that the appeal would be to the High Court and suggested that she should take some legal advice or at least do some research as to how to appeal if she intended to act for herself.
14. On 14 November 2012 a letter was written to the Appellant, signed on behalf of the Respondent's Hearings Manager, Fitness to Practice, a Mr Allwood. The letter was headed "Conduct and Competence Committee – notice of decisions taken at your Panel hearing" and continued "I am writing to inform you of the decisions taken by the Panel at its hearing of your case on 23 and 24 August 2012 and 9 November 2012." There was then set out a summary of the Panel decisions and outcome, including the sanction of a striking-off order, followed by details of the decisions and its reasons for them.
15. The letter made it clear that the striking-off order would come into effect "28 days after the posting date of this letter." In a section headed "Appeal" it stated:

"Under articles 29(9) and 38 of the Nursing and Midwifery Order 2001 you have 28 days to appeal against the order…. "

16. The letter did not indicate when the 28 days for appealing commenced, but since it made it clear that the striking-off order was due to come into effect 28 days after the posting date of the letter, one might expect the recipient to understand that the time for appealing ran either from the posting date of the letter, or from the day after the posting date (which is, of course, the deemed day of its receipt under the rules.) Thus the Appellant had been told about the 28 days at the hearing on 9^th November, and she was told again in the letter of 14^th November that she had 28 days in which to bring an appeal. There was enough information provided to her to indicate that the time was already running when she received the letter on 16^th November 2012. In any event there is no evidence from the Appellant that she believed that time only started running from the date when she received that letter; on the contrary, the application for an extension of time is an indication that she was aware that her appeal was out of time.
17. The NMC applied to me for permission to adduce evidence relating to the posting of the letter and correspondence between the Appellant's solicitors and the NMC thereafter. As that evidence plainly related to the question whether the appeal was in time and if it was not in time, whether exceptional circumstances arise such as to engage Article 6, rather than the merits of the appeal, I doubt whether my permission was required. In any event, it is obviously in the interests of justice that I should admit this evidence, because otherwise the court would not be in possession of all relevant information when making its decision on the preliminary issue. The evidence consisted of a short Affidavit from Ms Ximena Baddeley, a case officer in the Fitness to Practice Directorate of the NMC. Ms Baddeley has confirmed that she sent the letter of 14^th November 2012 to the Appellant's address by first class post on 14^th November 2012. Although the regulations permit posting to be proved by "a confirmation of posting issued by or on behalf of the Post Office or other postal operator or delivery service," it may be proved by other credible evidence, and an Affidavit from the person who posted the letter will suffice. I therefore accept that the letter was sent by first class post on 14^th November 2012.
18. At the start of the hearing, Counsel for the Appellant, Mr Serugo-Lugo, asked me to admit a witness statement of the Appellant which had been prepared and served on the NMC yesterday, and which he told me was intended to provide evidence of when she received the letter of 14^th November. Miss Stephenson, on behalf of the NMC, pointed out that the witness statement went beyond that matter, but when I read it, it became apparent that it contained nothing to take the NMC by surprise and that its relevance was confined to the question whether the appeal should be allowed out of time. In fairness to the Appellant, because I was prepared to allow the NMC to adduce evidence on that issue, and because there was no apparent prejudice to the NMC, I was prepared to allow the statement in evidence despite its lateness. I accept the Appellant's evidence that she received the letter on 16^th November; but the date of actual receipt is irrelevant for the purposes of the time limits, as it was deemed to have been served on 15^th November.
19. Ms Baddeley received a letter by fax from the Appellant's solicitors, A& C Solicitors, on 29 November 2012. A copy of that fax is exhibited to her affidavit. The letter states that their instructions are to appeal the decision to strike off the Appellant and that they have had an opportunity to peruse the decision and note the contents. They asked Ms Baddeley for copies of other documents as a matter of urgency, including the witness statements and other evidence relied upon at the hearing by the NMC. The letter stated "As we would need to appeal the decision within the relevant period allowed, we would be obliged if you could respond back to us as soon as possible." Ms Baddeley spoke on the telephone with Mr Clement Omamogho of A&C Solicitors on the same date. Her attendance note states as follows:

"Confirmation with representative that they had to lodge their appeal within 28 days of the decision letter date, and that I could send them the IC masters, and any further evidence we had acquired, but that the transcripts from the hearing would take 10 days to acquire. He said that they would go ahead and lodge the appeal, and await the documents I would send".

20. It is obvious from that exchange that however stressful this experience may have been for the Appellant, she was able to obtain legal representation and give instructions to appeal well within the deadline (which expired on 13^th December 2012). The Grounds of Appeal are dated 30 November 2012. They were settled by Counsel, Mr Serugo-Lugo. However, the Appellant's Notice was not lodged with the Court until the day after the deadline expired, 14^th December. As I have already mentioned in paragraph 8 above, box C of the Appellant's Notice sought an extension of time. Thus by the time the documents were lodged, her solicitors must have appreciated that the deadline had already expired.
21. Despite the contents of the Appellant's Notice there is no mention of the need for an extension of time in the 2 page skeleton argument dated 30 January 2013 prepared by Mr Serugo-Lugo, which concentrates on the merits of the substantive appeal. Nor is there any evidence from the Appellant explaining why the appeal notice was not filed in time. The Court is therefore in the unhappy position of having no evidence and no explanation for the delay between 30 November 2012, when Counsel settled the Grounds of Appeal, and 14 December 2012.
22. As one might expect, there has been correspondence between the parties' legal representatives on the subject of the appeal being out of time. At the time when the appeal was launched, the case law on the time limit under these specific regulations clearly indicated that the time limit was strict and there was no power to extend time: this had been confirmed by Hickinbottom J at first instance in R(Adesina and Baines) [2012] EWHC 2615 (Admin), which was decided on 16 July 2012. The law then developed in a manner that was slightly more favourable to the Appellant when the Court of Appeal handed down its decision in that case on appeal on 9 July 2013 confirming the limited discretion to which I have already referred. Quite apart from the correspondence between the NMC and the Appellant's solicitors on this topic, Ms Stephenson's skeleton argument which was dated 16^th October 2013 and served on the Appellant's solicitors some two weeks before the hearing of this appeal flags the point up expressly, and even quotes the key passage in the judgment of Maurice Kay LJ.
23. Despite this, the late evidence produced on the Appellant's behalf does not put forward any explanation for the delay in lodging the Appellant's notice. Mr Serugo-Lugo submitted that his client was suffering a high degree of stress and was in straitened financial circumstances; but yet the evidence of the conversation on 29^th November and the fact that he was instructed to draft Grounds of Appeal on 30^th November indicates that she was able to get legal representation in good time. Mr Serugo-Lugo admitted this morning that he had not read the judgment of the Court of Appeal in R(Adesina and Baines) and I had little choice but to adjourn the hearing for 45 minutes to give him the opportunity to do so.
24. When the hearing resumed, I asked for an explanation from Counsel as to why he had failed to read the leading authority even after it had been expressly flagged up by his opponent and a copy was in the bundles prepared for the hearing. Counsel admitted that when he was first instructed he appreciated that the appeal was out of time, but because it was only out of time by one day, he regarded it as "marginal". He said that although a strict approach is applied to matters that are out of time by statute, there are authorities which suggest that time limits imposed by regulations are not subject to the same strictness, and he referred to the well-known case of Alexander v Immigration Appeal Tribunal [1982] 1 WLR 1076, which of course relates to the Immigration Rules.
25. I then pointed out that there was already ample authority relating to the relevant regulations with which this appeal was concerned, and asked why he had not addressed the case law which was directly in point. I asked when he was briefed to appear in this matter and he said that he was briefed last week. I asked when he saw Ms Stephenson's skeleton argument and he said it was faxed to him by his instructing solicitors yesterday. I asked whether he had read it and he said that he was concentrating on the merits of the appeal, by which I understood him to mean either that he had not read it, or that he had read it but did not concern himself with the parts relating to the appeal being out of time.
26. All professional lawyers who represent clients before the courts owe duties to their clients and to the court. In this case, it seems to me that the Appellant has not been well served by either her solicitors or Counsel. The appeal has been shoddily prepared and its presentation falls well below the professional standards that are to be expected in any court.
27. I do not know where the blame lies for the failure to lodge the documents on time; however, given that they were lodged out of time, albeit only a day too late, this appeal was doomed to fail in the absence of strong and persuasive evidence that the essence of the right to appeal would be impaired if I did not allow the merits to be heard. The Appellant did manage to obtain legal representation in good time to meet the deadline and there is no excuse for the fact that it was not met. Although of course I accept that the examples given by Maurice Kay LJ of cases in which the discretion would be exercised are not exhaustive, there is no evidence of any exceptional circumstances here. Indeed even when it was pointed out to them, the Appellant's legal representatives did not address their minds to the test. Even if I were to give them the benefit of the doubt for the entire period up to the service of Ms Stephenson's skeleton argument (which is probably an unduly generous approach) that document could not have flagged up the fundamental preliminary issue and the difficulties facing the Appellant more clearly. Yet although the Appellant's legal representatives woke up to the fact that there was a lacuna in the evidence as to when she received the notice of the Panel's decision, and prepared a last minute witness statement to fill that gap, they did not address the point that has turned out to be fatal. There is and can be no excuse for this behaviour. In consequence, the NMC has been put to trouble and expense in defending a hopeless appeal and valuable court time has been wasted.
28. As the appeal was lodged out of time, it cannot be entertained. I should only add that on the basis of the materials that I have seen, the Appellant's prospects of success on the merits were minimal. The appeal is dismissed.