When we are told we can no longer practice or have restrictions on our practice there is a range of emotions we go through, much like a grieving process. Everyone deals with it differently but the process can make you feel very alone and very desperate.
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Appealing: You Can Do It!
OK so you have had your hearing at the NMC and you are considering appealing the decision. At the moment you are likely to feel pretty desperate and the thought of doing any more work on your case seems pointless. Everyone feels like this – it has been a particularly traumatic experience but the important thing is to realise you are not alone. When you are considering appealing it is important to remember others have done so successfully, and those that have not been fully successful have still been able to bring about positive change as a result of their appeal.
However, it is true, it is not easy and after all of the trauma of investigation and hearings, you may feel like you can not cope with going through anymore. Take a moment and think – how may I feel in a year’s time?
You can do it, but you only have 28 days from the date on your decision letter so there is no time to be wasted.
You will be told that is it a huge risk because if you lose your appeal you will be subject to paying the NMC’s costs which can amount to thousands. This is correct, but in reality, the courts are generally sympathetic to self-litigant registrants. The courts have, in some cases before yours, already recognised that appellants (that’s you!) have been financially compromised by NMC proceedings so there is rarely any necessity for the court to add to this. This was shown in the following cases: Lusinga v NMC (2017) and Watters v NMC (2017).
However, it is important you realise it is a real risk and is up to the judge’s discretion. You have to show a valid case and one that is not wasting the court’s time, so think carefully about what grounds you think you have for appeal. Look at other cases that have gone through this process before you make your final decision.
What can I appeal?
- You can appeal an interim order and request that the High Court looks at a “provision for action” and in effect acts as a new panel and the court is the primary decision maker and does not have to remit the case back to the NMC. This is done by applying to the relevant court under Article 31
- You can also appeal a final substantive order ( COP, Suspension or Strike off ) where the judge undertakes a judicial review and determines if the panel have erred in the eyes of the law. The judge will either quash the order, replace it with a different one and / or refer back to a new panel for consideration. However here the NMC have to in essence agree with the judge’s outcomes and it will still be heard by a final Substantive Order Review committee for the NMC to officially take on board what the judge has recommended.
Key Facts:
- There are approximately 690,000 nurses and midwives currently registered with the NMC
- An average of 4,500 nurses and midwives are referred to the NMC annually, and since 2008 9,593 nurses and midwives have been sanctioned, impaired or struck off.
- Since 2008/9 sanctions have gradually increased year on year.
- Figures released on 3.7.17 show for the first time 20% more nurses are leaving the profession than joining it. (NMC, 3.7.17: Nursing Standard, 30.6.17: BBC News, 3.7.17). It is in the public interest to ensure we retain rather than discard experienced nurses
- The Guardian recently reported that the number of nurses leaving the profession has risen by 51% over the last 4 years. (July 2017)
- According to their own data online (annual fitness to practice reports, NMC) during 2014 – 2015 £57 million was spent on FTP cases with £55 million spent the previous year, this is extortionate and surely not in the public interest.
- The Indicative Sanction Guidance (ISG) gives no classification on how to assess low, medium and high risk. In 2017 a number of cases came before the High Court which highlighted the need for the ISG to be reviewed with the need for it to be more nuanced to ensure not all dishonesty claims were categorized in the same level of seriousness (Garnham, 2017, Lusinga v NMC, 2017). Finally, after Watters v NMC, 2017, the ISG was amended but still lacks clarity over how the levels of risk and classification of dishonesty are measured.
- Judges will rarely quash the decision of the NMC panel but they may advise it is returned for a rehearing by a different panel or they may suggest a different sanction. This means you will have to go back to the NMC under a Substantive Order Review (SOR) panel, although this process is a lot “nicer” than your original experience. Once a judge has reviewed your case and suggested a rehearing the panel will invariably look at the facts differently and ensure they have no risk of you going in front of a High Court judge again!
Appealing is all about understanding that you have options.
If you do not launch your appeal and let the 28-day period lapse you may regret it. So, as daunting as it may feel, and as much as you may want to forget it all, we advise you to get the appeal process started. You can always change your mind afterwards and retract the appeal later. If you never start the process your choices are limited later.
To start the appeals process
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Speak to your union and see if they will support an appeal – unfortunately unless they can guarantee an above 50% chance of winning they will not pursue this. Therefore it is extremely unlikely that the union will provide you with legal representation for this purpose.
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See if you are entitled to legal aid – this can sometimes be a lengthy process so start the appeal process whilst you are waiting to hear.
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Apply to all parties under the Freedom of Information Act and Data Protection Act for all relevant information held on you about your case and the events leading up to it. See the “files” section here for a template for this letter. It can take up to 40 days to be sent the information so the earlier you do this the better. Even if you don’t proceed to appeal it can be for some interesting reading.
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Find out which court you have to apply to, it will be one of these:
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The High Court of Justice in England and Wales
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High Court of Justice in Northern Ireland
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Court of Session in Scotland.
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There are regional offices of the Administrative Court in Leeds, Manchester, Birmingham, and Cardiff and you can issue the appeal in any of these instead of the Royal Courts of Justice – whichever suits you. However, the court that you issue the appeal at is the court you will have to attend to undertake your appeal so make sure it is the closest to where you live.
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The fee for launching your appeal is £240. You can apply to the court for exemption from paying the court fee: https://formfinder.hmctsformfinder.justice.gov.uk/ex160-eng.pdf which you can take with you when you register your appeal.
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In order to launch your appeal you need to complete a few forms.
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Once you have issued (make sure it is within the 28 day time period as you can’t leave it even a day over) you will then need to send to the NMC the appellant’s notice sealed by the court, the grounds of appeal, and a copy of the decision letter. Ask the court staff for advice as they are there to help unrepresented people. When you issue it to the NMC ensure you ask for a proof of receipt.
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As a “litigant in person” you are able to claim £19/hr costs for preparing your case for appeal – therefore start now and keep a good record of the time you spend on your case – it is amazing how the hours add up and if you have a clear record then you are more likely to get them awarded should you win your case. A template is available for this.
Now all you need to do is prepare your skeleton argument – you have 14 days but can request an extension to this if you are applying for further information under the FOI or DP Act as above – if you need an extension request this on the N161 form in the appropriate section
All forms required by the court including template Skeleton argument forms can be found on the UK Gov website.
- Because of the Covid – 19 pandemic the administrative courts are still not working at full capacity – therefore you can submit your forms via email. Please make sure you contact the admin office and ensure they have recieved them as if they are not recieved you will not be able to submit them after the 28 day period.
- Once accepted you need to also email them to your case officer at the NMC cc’ing in the appeals dept
This document supplied by the courts is a useful read and has all contact details and numbers.
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