Adegbulugbe v Nursing and Midwifery Council

A statutory appeal under the Nursing and Midwifery Order 2001 must be brought within 28 days beginning with service of written notice of the decision. The court has only a limited discretion to admit an appeal out of time where strict compliance would impair the essence of the statutory right of appeal and engage article 6. The appellant must have personally done all that could reasonably be done to appeal in time. Stress, financial difficulty and the shortness of the delay are insufficient without evidence of exceptional circumstances. Where legal representation was obtained before expiry of the time limit, but the appeal notice was lodged late without explanation, the appeal cannot be entertained.

The appellant, a registered nurse, appealed against a striking-off order imposed by the respondent’s Conduct and Competence Committee after findings of dishonesty and drug-administration errors. She also alleged unfairness arising from her lack of representation at the resumed sanction hearing and relied on the absence of actual harm and criminal proceedings.

The respondent raised a preliminary objection that the statutory appeal was one day out of time. The court therefore first considered when time began to run, whether service had been proved, and whether the exceptional circumstances jurisdiction recognised in R (Adesina and Baines) v Nursing and Midwifery Council [2013] EWCA Civ. 818 could be exercised.

1. Time limit. Under article 29(10) of the Nursing and Midwifery Order 2001, the 28-day period begins on service of written notice of the Panel’s order or decision, not merely on the date when the outcome is announced orally. The notice was sent by first-class post on 14 November 2012 and was deemed served on 15 November under rule 34(4) of the NMC (Fitness to Practise) Rules 2004. The appeal deadline was therefore 13 December 2012.
2. Limited discretion. Following R (Adesina and Baines) v Nursing and Midwifery Council [2013] EWCA Civ. 818, read in the light of Pomiechowski v Poland [2012] 1 WLR 1604, the court may admit a late appeal only in exceptional circumstances where strict compliance would impair the very essence of the statutory right of appeal and thereby infringe article 6. The appellant must personally have done all that could be done to bring the appeal in time.
3. The appellant had obtained legal representation, instructed counsel and settled grounds before the deadline. There was no evidence explaining the delay between settlement of the grounds and lodging the appeal notice. Stress, financial constraints and a delay of only one day did not amount to exceptional circumstances.
4. The appeal was consequently lodged out of time and could not be entertained. The court added that, on the materials available, the prospects of success on the merits were minimal. The appeal was dismissed.

This was a statutory appeal to the High Court under articles 29(9) and 38 of the Nursing and Midwifery Order 2001. The appeal was dismissed as out of time.