Nurse who was struck off fails in bid to challenge decision after appeal was lodged late

The Inner House of the Court of Session refused to allow the case to proceed despite the “relatively short period of lateness” after ruling that the applicant had not done all that she “reasonably could have done” to lodge her appeal within the 28-day window.

The Lord President, Lord Carloway, sitting with Lord Drummond Young and Lord Malcolm, heard that the applicant Margo Neilly, a former mental health nurse working for NHS Highlands, was struck-off the register of qualified nurses and midwives by the Fitness to Practice Committee of the respondents, the Nursing and Midwifery Council, in terms of article 29(5)(a) of the Nursing and Midwifery Order 2001.

The striking-off order came into effect on 25 February 2019, six days after the hearing at which the committee’s decision was made, which she had attended.

Time limit

The applicant was seeking to appeal the decision to the Court of Session, but article 29(10) of the 2001 order states that: “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 court was told that the order was served on the applicant on 26 February - the day after it was sent to her by first class post - but the appeal was lodged on 2 April, six days after the expiry of the 28-day time limit.

Ms Neilly accepted that she was aware of the order when it was made at the hearing on 19 February 2019, even if the full reasons were not then given.

But she claimed she did not receive the documentation until 4 March because she had gone to stay with her 80-year-old father, who was in ill-health.

Her central contention was that, as a result of the disciplinary process, she was “unable to read, fully process or respond” to the formal written intimation of the order because of “increased anxiety levels” associated with “complex PTSD”.

She could not instruct legal representation because of “financial constraints” and had become “depressed” to such a degree that she found it extremely difficult to talk to anyone, to look for support and generally to seek help.

At the hearing she had been given the contact details of NMC Watch - an organisation which supports nurses and midwives - and it was only on making contact with them that she was able to discuss the prospects of an appeal, but she did not do so until the end of March.

‘General dispensing power’

The respondents objected to the competency of the appeal because it was late, thus the court required to consider whether the failure to bring the appeal timeously could be treated as a failure to comply with the court’s own rules and thus within the scope of the “general dispensing power” in RCS 2.1(1) which states that: “(1) 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.”

In the case of Hume v Nursing and Midwifery Council 2007 SC 644, in which it was held that the statutory time limit was subject to the court’s own procedural rules, the court relieved the applicant of the consequences of his lateness, because it had been caused by his oversight, during a period of poor health which caused him to be unaware of the charge of misconduct against him, the date of the hearing and the striking-off order.

The judges also considered the case of Miloslavsky v United Kingdom [1995] 20 EHRR 442, in which the European Court of Human Rights determined that a security for costs order did not violate the applicant’s right of access to the court as guaranteed by Article 6(1) of the European Convention on Human Rights.

The UK Supreme Court applied the principle in Miloslavsky to time limits in statutory appeals in the case of Pomiechowski v District Court of Legnica, Poland [2012] 1 WLR 1604, and observed that Article 6(1) required that any restriction of the right must not impair “the very essence” of that right - it must pursue a “legitimate aim” and involve a “reasonable relationship of proportionality between the means employed and the aim sought to be achieved”.

Accordingly, in Adesina v Nursing and Midwifery Council [2013] 1 WLR 3156, the Court of Appeal held that the 28-day time limit provided by article 29(10) was subject to what was described as the “discretion” in Pomiechowski, namely that the court had discretion in “exceptional circumstances” to hear an out of time appeal where the appellant “personally has done all he can to bring the appeal timeously”.

This approach was applied in Nursing and Midwifery Council v Daniels [2015] Med LR 255, where the Court of Appeal refused to entertain an appeal where the appellant had done nothing about an order until contacting solicitors on the day before the expiry of the 28 days. 

‘Objection sustained’

The Inner House said there will be circumstances in which the court will entertain a late statutory appeal, but decided not to exercise its dispensing power to grant the application.

Delivering the opinion of the court, the Lord President said: “The decisions in Hume v Nursing and Midwifery Council 2007 SC 644, Pomiechowski v District Court of Legnica, Poland [2012] 1 WLR 1604, Adesina v Nursing and Midwifery Council [2013] 1 WLR 3156 and Nursing and Midwifery Council v Daniels [2015] Med LR 255, are reconcilable. Hume remains applicable, to the extent that the general dispensing power in RCS 2.1(1) is the vehicle through which the time limit in art 29(10) may be extended. 

“However, in light of the imperative terms of a statutory provision, which must carry great weight, the power to do so should be exercised not simply where there has been a mistake, oversight or other excusable cause but, as required by article 6(1) of the Convention, only when the applicant has personally done all he or she can to bring the appeal on time, and if not on time, as soon as possible after that. That is the meaning of ‘exceptional circumstances’ in this context.

“However sympathetic the applicant’s case may be in terms of her mental health and the relatively short period of lateness, it does not meet the test set out above whereby it could be said that she did all that she reasonably could have done to bring the appeal on time. 

“On that basis, the court will refuse to exercise the dispensing power in favour of the applicant. It follows that the objection to the competency of the appeal will be sustained.”