Act : Logan; Balfour & Manson LLP

Alt: Davis; Harper Macleod LLP

16 October 2009

[1] Part V of the Nursing and Midwifery Order 2001 (SI 2002 No 253), made under section 62(9) of the Health Act 1999, provides a scheme for the establishment and review by the respondents of the standards of conduct of registered midwifes. Where there is an allegation made against such a midwife, in relation to her fitness to practise by reason of her physical or mental health, the respondents can refer it to its Investigating Committee. If that Committee decides that there is a case to answer, it can refer the matter to the respondents' Health Committee. If the Health Committee holds that the allegation is well founded, it can make a variety of orders affecting the midwife, including a "suspension order" or a "conditions of practice order". In relation to such orders, the Order provides as follows:

"29 (9) The person concerned may appeal to the appropriate court against an order made under paragraph (5)...

(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".

The Health Committee can review a condition of practice order and replace it with a suspension order. If it does so, the midwife can appeal against it under paragraphs 30(10) and (11), which are, for present purposes, in identical terms to paragraphs 29(9) and (10).

[2] On 24 October 2008, the respondents' Health Committee imposed a conditions of practice order on the appellant. On 11 June 2009, the Committee held a review and decided to replace the conditions of practice order with a suspension order for 12 months. This decision was intimated by the respondents to the appellant in a letter, which was sent both recorded delivery and by first class mail, dated 22 June 2009. It was presumably received on the following day. The letter explained that the appellant could apply to the Court of Session to "revoke" the order and that, if assistance in that regard were required, she should consult her union or solicitor. No time limit for an application to the Court was mentioned. On 10 August 2009, the appellant lodged her appeal. The appeal purports to be under paragraph 29(9) of the Order, but ought to be under 30(10). In any event, it is undoubtedly late.

[3] The appellant has applied for leave to allow the appeal to be received late under reference to the dispensing power contained in Rule of Court 2.1(1). The reason for the lateness is described in the motion as "an administrative oversight by the local agents in that their letter of instruction was dictated timeously but not despatched until after the deadline". This explanation was expanded at the Bar whereby agents had instructed counsel some time in early July. Counsel had provided an Opinion on 16 July. The precise content of that Opinion was not revealed. A consultation with counsel was arranged for 30 July, by which date the period for an appeal had already expired. Thereafter, the grounds were drafted and lodged. It was accepted that the grounds of appeal had poor prospects of success.

[4] The appellant relied heavily upon Hume v Nursing and Midwifery Council 2007 SC 644. There, founding upon Graham v John Tullis & Son (Plastics)(No 1) 1992 SLT 507 and distinguishing Collins v Scottish Ministers 2004 SLT 228, the First Division held that it was competent to use the general dispensing power in Rule of Court 2.1.(1) to relieve a party of the consequences of his failure to appeal timeously under the Order. The appellant submitted that Hume was directly in point and that similar considerations applied to the present application. As had been done in Hume, the Court required to look at the particular statutory provision and to determine whether or not the intention of the statute was to exclude the jurisdiction of the Court if the time limit were not met. A similar approach had been adopted in Mucelli v Government of Albania [2009] 1 WLR 276 (e.g. Lord Phillips of Worth Matravers at para 1). The reasoning of Bean J in Mitchell v Nursing & Midwifery Council [2009] EWHC 1045 (Admin), which held that appeals out of time under the Order were not competent, contained an inadequate analysis of the speeches in Mucelli. The reasoning in Hume, which had not been brought to the attention of the Court in Y v Law Society 2009 SLT 593, should be followed.

[5] The respondents argued that, notwithstanding Hume, the appeal was incompetent and that the reasoning in Mucelli, notably that of Lord Neuburger (at paras 74 - 75), should be adopted. Hume had not been correctly decided. Graham was distinguishable as it dealt with the hierarchy of Courts and not appeals from Tribunals.

[6] The Court is satisfied that, even if a late appeal could be entertained by using the dispensing power in Rule of Court 2.1(1), no adequate explanation for allowing a late appeal has been proffered. The motion to allow the appeal late must therefore be refused.

[7] The decision of the First Division in Hume v Nursing and Midwifery Council (supra) is binding on this Court. It is not a good argument in law that this Court should not follow it simply on the basis that it might not agree with the decision or the reasoning behind it. Such an argument could only be advanced in support of a motion to convene a Full Bench. This Court cannot overrule, or ignore, Hume. It is also indistinguishable, even if the precise paragraph of the Order, which ought to have been used here, is different from that in Hume.

[8] It is not correct to state, as Bean J did in Mitchell (para 10), that Hume "has plainly been overruled by Mucelli [v Government of Albania]" (supra). Such a view conflicts with the principle of stare decisis relative to the effect in Scotland of decisions of the House of Lords in English cases which deal with different statutory provisions. Hume was not even cited in Mucelli. However, it is reasonably clear from the speeches in Mucelli that, were the Supreme Court to be asked to determine the issue of late appeals under the Order, then it would hold, presumably overruling Hume, that such appeals were not competent.

[9] Quantum valeat, this Court does not find the reasoning in Hume attractive. It is of some note to observe that the respondents in Hume, whilst not consenting to the late appeal, were content that it should be heard. There was effectively no contradictor. The attention of the Court was certainly drawn to Collins v Scottish Ministers (supra), where it was held, under reference to several earlier authorities, that a late appeal under planning legislation was not competent. However, the Court in Hume distinguished these cases because of the existence of an "ouster clause" in planning legislation. It also considered the existence of the dispensing power in Rule of Court 2.1(1) of importance, as it had been in Graham v John Tullis & Son (Plastics)(No 1) (supra). But Mucelli suggests that the absence of an ouster clause is not significant nor is the existence of a general dispensing power in relation to the procedural rules of a court (see Lord Neuberger of Abbotsbury at paras 74 - 75).

[10] It is unfortunate that the Court in Hume was not referred to the clear guidance given by Lord Jamieson in Simpson v Assessor for Selkirkshire 1948 SC 270 (at 272) that:

"...where the Act says that appeals are to be lodged not later than a certain date, ...it means just what it says, and that, if an appeal is not lodged by that time, then it is not a competent appeal".

That view, which was adopted by the Court in Y v The Law Society (supra at para [9]), appears to be consistent with the reasoning in Mucelli. It may in time prevail over that in Hume. But such an argument is, however, for another day and a larger court.