FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President
Lord Macfadyen
Sir David Edward, Q.C.
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[2007] CSIH 53
XA29/07
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OPINION OF THE COURT
delivered by LORD
MACFADYEN
in the Appeal
under
Article 38(1) of
the Nursing and Midwifery Order 2001
by
PETER JOSEPH HUME
Appellant;
against
a decision of the
Conduct and
Competence Committee of
the Nursing and
Midwifery Council
dated 25 October 2006.
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Act:
Lindsay; Anderson Strathern
Alt:
No appearance
16 May 2007
Introduction
[1] The issue which arises in this appeal is
whether it is competent to entertain a statutory appeal under the Nursing and
Midwifery Order 2001 ("the Order") when the appeal was not presented within the
time limit set by the relevant legislation.
[2] The appellant was formerly a Registered
Nurse, registered under the provisions of the Order. On 9
October 2006 the Conduct and Competence Committee ("the Committee")
of the Nursing and Midwifery Council ("the Council") upheld a charge of
misconduct against the appellant and made a striking off order in respect of
him. The striking off order was made on 25 October 2006. The appellant was unaware of the charge and
of the date of the hearing, and consequently did not attend the hearing. He now appeals against the order of 25 October 2006 ("the decision"),
which was made following the hearing which took place in his absence. His appeal was not timeously presented. He
therefore applied by motion for leave to appeal late. Solicitors acting for the Council intimated
by letter dated 2 March 2007
that the Council did not oppose that motion, and would be willing to consent to
an order setting aside the decision, so as to permit a fresh hearing to take
place. When the motion called on the
Single Bills we heard submissions by counsel for the appellant on the
competency of allowing the appeal to proceed although it was made out of time,
and on the merits of the appeal.
The Order and the right of appeal
[3] In terms of Article 3 of the Order the
Council is a body corporate whose principal functions are to establish from
time to time standards of education, training, conduct and performance of
nurses and midwives and to ensure the maintenance of those standards. Part III of the Order (Article 4 et seq.) provides for a system of
registration of nurses and midwives.
Part V (Article 21 et seq.)
makes provisions regulating fitness to practise. In Article 22 provision is made dealing with
" ... any allegation ... against a registrant to the effect that
-
(a) his fitness
to practise is impaired by reason of -
(i) misconduct
..."
Such
an allegation may in due course come before the Committee. Article 27 provides inter alia that the Committee shall -
"(b) consider -
(i) any allegation
referred to it ... "
Article
29, paragraphs (3) and (5), provide inter
alia that where the Committee concludes that an allegation is well founded,
it may make various orders, the most severe of which is "an order directing the
Registrar to strike the person concerned off the register (a 'striking off
order')".
[4] A right of appeal to the appropriate
court (in the case of a person whose registered address is in Scotland, the
Court of Session - see Article 38(4)(a)) is conferred on the person concerned
by Article 29(9). By virtue of Article
29(10), such an appeal must be brought before the end of the period of 28 days
beginning with the date on which notice of the order appealed against is served
on the person concerned. There is
provision elsewhere in the legislation that service is deemed to be effected on
the day following posting of the notice to the person's registered
address. Under Article 38(3) this court
has power inter alia to allow the
appeal and quash the decision appealed against, and to remit the case to the
Committee to be disposed of in accordance with the directions of the court.
The charge and the disciplinary proceedings
[5] The charge against the appellant was
that on 10 January 2005 he
misappropriated two diazepam 5 mg tablets, and was thereby guilty of
misconduct. On that date the appellant
was in the employment of the Lanarkshire Health Board as a Deputy Charge
Nurse. The appellant admitted at the
time, and admits, that he misappropriated the tablets. He resigned his employment immediately after
the incident.
[6] At the time of the incident the
appellant resided at an address in Glasgow. In April 2005 he moved to another address in Glasgow. He was obliged, in terms of rule 16(1) of the
Nursing and Midwifery Council (Education, Registration and Registration
Appeals) Rules Order 2004, to notify the Council's Registrar of his change of
address within one month. He did not do
so. He avers that at the material time
he was suffering from epilepsy and from a major episode of depression, and that
as a result of these conditions he forgot to inform the Registrar of his new
address. As a result of his failure to
notify the Registrar of his change of address, notice of the charge and of the
date of the hearing before the Committee was sent to his registered
address. It was not forwarded to him at
his new address. He was thus unaware of
the proceedings against him, and did not attend the hearing.
[7] The appellant avers that his absence
from the hearing resulted in the Committee reaching its decision without having
the opportunity to take into account mitigating circumstances which he would
have placed before the Committee if he had been present. He avers that a few days before the incident
his fiancée's mother had died. His
fiancée was distraught, and her elderly father required much attention. The appellant himself was suffering from
depression, and was unable to cope with these circumstances. In "a moment of desperation" he
misappropriated the tablets. He realised
at once that he had done wrong, and did not remove the tablets from the ward,
but returned them to a colleague. In his
letter of resignation he expressed remorse, but did not detail the mitigating
circumstances. The appellant further
avers that, if the Committee had been aware of the mitigating circumstances, it
is likely that he would merely have been cautioned (Article 29(5)(d)), not
struck off.
The appeal
[8] As we have already noted, the Order
provides that any appeal to this court must be brought before the end of the
period of 28 days beginning with the date on which notice of the Committee's
order was served on the person concerned (Article 29(10)). An appeal to this court under the Order is
brought under Part III of Chapter 41 of the Rules of Court. Rule 41.20(1) provides inter alia that "the appeal shall be lodged in the General
Department ― (a) within the period prescribed by the enactment under
which it is brought". In the event, the
appellant did not become aware of the decision until 20 December 2006, by which date any appeal was
already out of time. He consulted the
Royal College of Nursing, and there followed a further period of delay because
of confusion between the English and Scottish appeal procedures.
[9] Rule of Court 2.1(1) provides as
follows:
"The court may relieve a party from the consequences of a
failure to comply with a provision in these Rules shown to be due to mistake,
oversight or other excusable cause on such conditions, if any, as the court
thinks fit."
Seeking
to rely on that rule, the appellant applied to the court for leave to appeal
late. That application came before the
court on the Single Bills on 22
February 2007 when, in respect that it raised a question of
competency, intimation to the Council was ordered, and the motion was continued. As we have already noted, the Council
intimated that it did not oppose the motion, and expressed a willingness to
have the decision set aside, so that a fresh hearing in respect of the charge
of misconduct might be held. The Council
did not enter the process, and the motion for leave to appeal late was renewed
at an unopposed hearing on the Single Bills.
The competency issue
[10] Concern over the competency of
entertaining this appeal out of time was prompted by the unreported decision of
this court in Collins v Scottish Ministers (30 January 2004). In that case it was held to be incompetent to
rely on Rule 2.1(1) so as to entertain a particular form of statutory appeal
when it was not timeously presented. The
issue comes to be whether the circumstances of that decision are
distinguishable from those of the present case.
[11] Collins
was an appeal to this court under section 239 of the Town and Country
Planning (Scotland) Act 1997 ("the 1997 Act") against a decision of a reporter
to whom power to determine an appeal to the Scottish Ministers under section 47
of the 1997 Act had been delegated. It
is important to note the terms of the legislation applicable to such an appeal
to this court.
[12] Section 239(1) of the 1997 Act provides
for proceedings in this court for questioning the validity of "any action on
the part of the [Scottish Ministers] to which this section applies". Section 239(4) provides: "This section
applies ... to any such action on the part of the [Scottish Ministers] as is
mentioned in subsection (3)" of section 237.
Section 237(3) includes among the actions which it mentions "(b) any
decision on an appeal under section 47".
The provisions of the 1997 Act having thus defined the sort of action in
respect of which proceedings may be brought in this court, section 239(3)
provides inter alia that: "an
application under this section must be made within 6 weeks from ... the date on
which the action is taken". One further
provision was of crucial importance to the decision in Collins. Section 237(1) of
the 1997 Act provides inter alia as
follows:
"Except as provided by this Part, the validity of ... any such
action on the part of the [Scottish Ministers] as is mentioned in subsection
(3), shall not be questioned in any legal proceedings whatsoever".
[13] In Collins,
the reporter's decision letter was dated 2
July 2002. The six week
period specified in section 239(3) therefore expired on 13 August 2002.
Although there was correspondence between the appellants and the court
which began before the latter date, the formal appeal document was not
presented until 6 November 2002. On 8 November, an interlocutor was pronounced
which purported to "allow the appeal to be received although late". Answers were lodged in which it was submitted
that the appeal was incompetent because it had not been timeously lodged.
[14] At the hearing of the appeal in Collins, submissions were made on behalf
of the Scottish Ministers, founding on section 237(1) as a "limited ouster
clause" which had the effect of rendering incompetent any appeal other than one
brought in strict compliance with the timetable set by section 239(3). Reliance was placed on the authority of Smith v East Elloe Rural District Council [1956] AC 736, which had been
followed in Scotland
in Pollock v Secretary of State for Scotland 1993 SLT 1173. The court upheld those submissions and said
(at paragraph 8 of the Opinion of the Court):
"In the light of the authorities to which we were referred,
we are in no doubt that the statutory provisions just quoted have the effect of
rendering the present appeal incompetent, since it was commenced outwith the
six week period provided for. It is also
clear that the Court has no power either to extend that period, or to excuse
any failure to comply with it. In these
circumstances we have held the appeal to be incompetent and have dismissed it."
The appellant's submissions on competency
[15] Mr Lindsay, who appeared for the
appellant, submitted that Collins was
distinguishable, and that there was nothing to preclude reliance on Rule 2.1(1)
in a case such as the present one.
Although Article 29(10) of the Order, like section 239(3) of the 1997
Act, set a time limit within which an appeal to the court required to be made,
the crucial consideration in Collins had
been the limited ouster clause contained in section 237(1). That constituted a statutory prohibition on
challenge to the decision otherwise than by way of a timeous application to the
court under section 239(3). There was no
such provision in the Order. The ratio of Collins thus did not apply to the present case. There was here no such obstacle to the motion
for leave to appeal out of time as had existed in Collins. Further, although
the time limit set by Article 29(10) had its origin in the Order, it applied to
the appeal proceedings in this court by virtue of Rule 41.20(1) (cf Graham v John Tullis & Son (Plastics) Ltd (No. 1) 1992 SLT
507). As in Graham, the failure to comply with the time limit in the present
case could therefore properly be described as a failure to comply with a
provision of the Rules of Court. It
therefore fell within the scope of Rule 2.1(1), and the court had a discretion
to relieve the appellant of the consequences of that failure, if satisfied that
it was due to mistake, oversight or other excusable cause. The application for leave to appeal out of
time could therefore competently be granted under Rule 2.1(1).
Discussion of competency
[16] In our opinion, the submissions of the
appellant are well founded. The decision
in Collins depended essentially on
the presence in the legislation under consideration in that case of a limited
ouster clause, excluding the jurisdiction of the courts, except for
applications made strictly in accordance with the terms of the statute. In the Order under consideration in the
present case there is no such ouster clause.
The timetable laid down in the Order is reflected in the Rules of Court,
which expressly contemplate, as part of the ordinary jurisdiction of the court,
the possibility of granting relief in respect of excusable non-compliance with
procedural requirements. In our opinion,
therefore, the present motion for leave to appeal late may competently be
entertained by virtue of Rule 2.1(1).
[17] Limited ouster clauses such as that found
in the legislation under consideration in Collins
are familiar in administrative law, particularly (but not exclusively) in
the context of town and country planning, compulsory purchase, environmental
protection and other land use issues. To
be effective to exclude the ordinary jurisdiction of the courts, such clauses
must be clear and unambiguous (see generally Clyde and
Edwards, Judicial Review, paragraph
11.04). It is unnecessary for us to
consider whether such ouster clauses, to be effective, require to be contained
in primary legislation, rather than in subordinate legislation such as an Order
in Council, because in the present case there simply is no such clause. We do not find that surprising, since the provisions
with which we are concerned relate to disciplinary proceedings which can affect
the ability of the individual affected to carry on his profession.
[18] In the absence of an ouster clause in the
Order, the issue which then arises is whether the time limit for appeal set by
Article 29(10) must nevertheless be strictly complied with if an appeal to this
court is to be contemplated; in other
words, to use the traditional terminology, whether it must be construed as mandatory.
As Lord Hailsham of St. Marylebone LC observed, in London and Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1 at 30, in the slightly
different context of the statutory requirements laid down for the exercise of
legal authority:
" ... what the courts have to decide in a particular case is
the legal consequence of non-compliance on the right of the subject viewed in
the light of a concrete state of facts and a continuing chain of events."
The
context in which Article 29(10) must be construed is a professional
disciplinary regime under which the individual may lose the right to exercise
his profession. In that context, we do
not consider that it would be right to infer that the legislators intended that
the right of appeal to this court should be lost irretrievably if the appeal is
presented after the expiry of the twenty eight day period mentioned in Article
29(10), even by as little as one day, and irrespective of the merits of the
circumstances in which the appeal came to be presented late. We are reinforced in that view by the fact
that the right of appeal is to a court which has, in its own Rules, a general
power to relieve a litigant of the consequences of failure to comply with
procedural requirements. For these
reasons we do not consider that Article 29(10) should be construed as demanding
strict compliance with the timetable and as excluding the possibility of
recourse to the court's power to grant relief.
The result, in our opinion, is that although the Order sets a timetable
for appeal, it does not deprive this court of its ordinary jurisdiction to
determine in the circumstances of the particular case the consequences of
failure to adhere to that timetable.
[19] The time limit set by Article 29(10) of
the Order becomes subject to the procedural requirements of the court by virtue
of Rule 41.20(1). We therefore consider
that, for reasons similar to those adopted in Graham, failure to adhere to the timetable which has its origin in
Article 29(10) is properly to be regarded as failure to comply with a provision
of the Rules of Court, namely Rule 41.20(1).
We therefore hold that Rule 2.1(1) is applicable, and that we therefore
have a discretion to relieve the appellant of the consequences of his failure
to present his appeal timeously, provided we are satisfied that the failure was
due to "mistake, oversight or other excusable cause". The motion for leave to appeal late is
therefore competent.
The merits of the motion and of the appeal
[20] We are satisfied that it is appropriate to
grant the motion. The lateness of the
presentation of the appeal resulted in the first instance from the appellant's
omission to advise the Council's Registrar of his change of address, which
meant that intimation of the Committee's decision did not reach him, and he learned of it only
through his new employers. We have no
reason to doubt the appellant's explanation that that omission was a matter of
oversight at a time when he was in poor health.
The delay was compounded by confusion as to the court in which the
appeal should be brought, but the appellant at that stage had the assistance of
his professional body. We are prepared
to regard the delay in presenting the appeal as excusable.
[21] We are also satisfied that the appeal
itself should be granted. The same
omission to inform the Registrar of his new address deprived the appellant of
the opportunity of being present at the hearing before the Committee which
decided that he should be struck off.
Had he been present, he would have been able to lay before the Committee
the mitigating circumstances mentioned in the appeal. Since it is the appellant's ability to
exercise his profession that is at stake, we are satisfied that it is
appropriate that he should have the opportunity of being heard. The Council, very properly, accepts that that
is so, and does not oppose the appeal.
We shall therefore allow the appeal, quash the decision of 25 October 2006 made following the
hearing on 9 October 2006,
and remit to the Committee to hold a fresh hearing in respect of the charge
against the appellant.
