The Court of Appeal: NMC ruling


Appeal against and NMC CCC decision

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

There are over half a million nurses on the NMC register. A fair few may find themselves in front of the Conduct and Competence Committee (CCC) for various practice or professional transgressions. This is a scary event - if you haven't attended a NMC hearing, you should. It's not an informal chat over tea and Eccles cakes (well, not in the South at least!). It is a legal process, and is therefore subject to various legal and regulatory rules.

Here, present a case to illustrate the importance of taking the process seriously.

The Story

An  nurse sought to appeal against the CCC decision that her fittness to practise was impaired and the imposition of a caution order for three years. Legally, she had the right to appeal; article 29(10) of the Nursing and Midwifery Order 2001 (the Order) allows for 28 days from the date of the decision. On the 27th day, she sought legal advice about appealing the decision and four days later her legal representatives filed notice, including an application for an extension due to lack of funds to pay the £235 court fee.

The law and the Nursing and Midwifery Order

The statutory time limit in the Order is absolute and provides no discretion to extend the time limit for appealing. However, case law suggests that the only basis for an extension could be through Article 6 of the European Conviction on Human Rights. In Adesina and Baines v NMC, it was held that the limit can be extended where enforcing it “would impair the very essence of the statutory right of appeal”, for example in the case of serious illness, or if the Registrant had not known of the decision and is therefore ignorant that the time to appeal is reducing

What happened next

The extension was granted by the High Court on the basis that the inability to pay the court fee amounted to an 'exceptional circumstanc'e .

The NMC appealed this decision and was successful - the Court of Appeal found that the High Court judge should not have made the original finding as there was no material upon which to make it - the nurse had not sought advice until the penultimate day of expiry and provided no explanation as to how and from whom she raised the court fees and when she first sought to raise those funds.

While the High Court’s decision appeared to soften the Appellate Court’s approach to applications for extension of time, the Court of Appeal’s decision reaffirms that an applicant’s circumstances must be truly extraordinary and emphasises that evidence, not merely an assertion, is required to demonstrate that an applicant’s circumstances are exceptional.

Anyone interested in reading more about legal cases, visit the Lexology website - brilliantly interesting!