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It's a matter of time...

  • Legal Development 13 June 2019 13 June 2019
  • UK & Europe

  • Healthcare

It's a matter of time...

Where a registrant wants to appeal the decision of their regulator, there are statutory time limits for bringing the appeal. If a deadline is missed by only a handful of days, will the court exercise its discretion to allow the appeal to continue?  In Margo Neily v The Nursing & Midwifery Council [2019] CSIH 32 the court refused to allow an appeal that was lodged six days late. The court made it clear that mere oversight or error are not sufficient reasons and that an appellant must show they did everything possible to try to bring the appeal on time.

Ms Neily, a party litigant, was a mental health worker who was removed from the NMC register following a hearing. The striking off order was served on her on 26 February 2019. The Nursing and Midwifery Order 2001 stipulates that an appeal must be brought within 28 days of the date on which notice was served.  The appeal was lodged on 2 April 2019, six days late. The NMC objected to the competency of the appeal because of its lateness.

Ms Neily knew the order that was made at the hearing on 19 February 2019 but she did not receive the documentation until 4 March 2019 as she had gone to care for her sick father.  She argued that she could not read the full decision because of increased stress levels associated with complex PTSD. She found it very difficult to talk to anyone or look for help. It was only after contact with a support organisation that she could discuss the prospects of appeal.

Courts do have a discretion over time limits and in Scotland that discretion lies with the Court of Session.

The court reviewed the case law on statutory time limits and their compliance with Article 6(1) of European Convention on Human Rights.  It concluded that any restriction of a right of appeal must be proportionate. The court should only exercise its discretion in exceptional circumstances. The appellant must show they had done all they possibly could to bring the appeal in time or as soon as possible thereafter. The discretion should not be exercised where there had simply been a mistake or oversight.

The court considered whether the dispensing power should be exercised in Ms Neily's case. Notwithstanding the court's sympathy, it held that it could not be said that she did all that she reasonably could to bring the appeal on time. It's notable that the three judges do not state what they think she could or should have done.

Some may consider the decision to be harsh where Ms Neily had relied on health difficulties and the appeal was only six days late. However the court made it clear that mere delay or oversight is not a sufficient reason. An appellant must show they have taken positive steps to bring an appeal on time before the court will exercise its discretion. This case can be contrasted with Hume v The Nursing & Midwifery Council 2007 SC 644 where the late appeal was allowed when the appellant was unaware of the hearing and order due to ill health.

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