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‘Exceptional circumstances’ for extending an appeal period

Nursing and Midwifery Council v Daniels [2015] EWCA Civ 225

Nursing and Midwifery Council v Daniels [2015] EWCA Civ 225

The facts

Ms Daniels, a band 5 staff nurse, faced professional disciplinary proceedings in front of the NMC.  The allegations related to the registrant administering morphine to a patient without another nurse being present, requiring the patient to undress when the curtains were not fully closed and carrying out the procedure under inadequate lighting.  

Following the incident, the registrant was suspended from unsupervised practice but she breached those conditions and worked a number of bank shifts.   The allegations against the registrant brought by the NMC therefore included her failure to comply with the conditions of her supervised practice, failing not to work bank shifts and also failing to comply with a condition not to have any further interaction with the patient. 

The registrant admitted that she administered morphine without another nurse being present.  She denied the remainder of the charges.   The Conduct and Competence Committee of the NMC found all charges proved, except for charge 2 (failing to comply with a condition not to have any further interaction with the patient).  The registrant’s fitness to practise was found to be impaired.  The panel imposed a caution order for three years.  The order was to commence on 8 March 2014 when the registrant’s right to appeal would expire i.e. after 28 days. 

The registrant did nothing about appealing until 7 March 2014 when she contacted her former counsel who instructed her to contact her former solicitors.  In the meantime, counsel immediately commenced drafting grounds of appeal.  

The registrant’s solicitors’ filed the notice at the Administrative Court on 11 March 2014, which included an application for an extension of time.   The grounds for the application were that the registrant was not working and needed to raise funds to seek legal advice, counsel was instructed to draft the grounds on 7 March 2014 and it was just and equitable to extend time bearing in mind the registrant’s financial circumstances.

Administrative Court decision

Mrs Justice Nicola Davies granted the application and extended time for appealing to 11 March 2014.   In coming to that decision, having referred to the Court of Appeal decision in Adesina and Baines v NMC [2013] EWCA Civ 818, Davies J concluded that the registrant’s inability to find £235 for the court fee in time constituted a good reason for the delay.  Furthermore, the period of delay was only 3 days and the NMC had not suffered any prejudice.   Davies J held there were exceptional circumstances to enable the court to extend time.

Court of Appeal

The NMC appealed the decision on the basis that there were no exceptional circumstances such as to enable Davies J to override the statutory time limit of 28 days. 

In considering the appeal, Lord Justice Jackson noted that Article 29(10) of the Nursing and Midwifery Order 2001 allows 28 days for commencing an appeal.  It contains no provision for extension of time.  In addition, the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 do not contain any such provision.   Jackson LJ also noted the reference by Davies J in the Administrative Court to the principles in the case of Adesina and Baines, where the Court of Appeal rejected the proposition that the 28 day limit was absolute and inflexible; time could be extended in exceptional circumstances where enforcing the 28 day limit would impair the very essence of the statutory right of appeal.  

However, Jackson L J noted the following points to be significant in this case:

  • The registrant did not contact her lawyers until the last day before the time limit expired
  • On being contacted, counsel immediately drafted grounds of appeal without assurance of being paid
  • Within 4 days of being contacted, the solicitors filed the notice (2 of which were weekend)
  • There was no evidence or explanation as to how, when and from whom the registrant raised the funds for the court fee
  • There was no consideration as to whether the registrant was entitled to remission of the court fee (which she was later found to be).

Furthermore, Davies J had made a finding that the registrant was unable to raise the court fee, without any evidence.   It was found that there was no material before the court on which Davies J could make that finding.   Furthermore, had the registrant contacted her lawyers earlier and set about raising funds then, she would have been able to file the notice in time (and probably obtained remission of the court fee).  As such, it was held that there was no proper basis for Davies J’s finding of fact and the NMC’s appeal was therefore allowed. 

Conclusion

The court has no power to extend or override the 28 day limit except in ‘exceptional circumstances’ as per Adesina.   The facts in this case did not constitute circumstances of that character and therefore the court had no power to extend time.

The NMC were however criticised in this case in relation to the fact that three years elapsed between the registrant’s misconduct and the conclusion of the proceedings, following which the hearing took 8 days.

Comment

This decision reaffirms the importance of complying with statutory time limits in appealing to the High Court.  In the absence of an express statutory discretion to extend (which was not present here), unless the applicant has ‘exceptional circumstances’ as per Adesina, for failing to appeal within the time limit, the statutory time limit will not be extended or overridden.  Further, as one might expect, in demonstrating exceptional circumstances, mere assertion is insufficient; evidence will be required in order to substantiate those particular circumstances.