Professional Standards Authority for Health & Social Care v Health and Care Professions Council & R  3 WLUK 95
We recently successfully defended a High Court fitness to practise appeal, resulting in the reported decision cited above. In addition to dismissing the appeal, the Court ordered the Professional Standards Authority for Health & Social Care to pay our paramedic client's legal costs of the appeal in full.
R, a paramedic, attended a patient at home during Spring 2017. Following a challenging consultation, R subsequently used a racist acronym when describing the patient’s medical condition to his colleagues. A colleague reported R’s comment to their mutual NHS Ambulance Trust, which conducted a disciplinary process and referred R to the Health & Care Professions Council ("HCPC"). From the outset, R admitted his actions and stated that he was ashamed of his deplorable conduct.
HCPC Conduct & Competence Committee
At his HCPC fitness to practise hearing in 2019, R gave "credible, unguarded and sincere evidence" regarding his remorse, his reflections on the incident, his significant personal mitigation and the remedial steps he had taken during the intervening period. He expressed the view that his conduct had fallen below the standard to be expected either of a registered healthcare professional "or a decent person".
After carefully considering all the evidence and circumstances, the HCPC Panel found that R's conduct amounted to the statutory ground of misconduct, but did not find his fitness to practise impaired. The Panel determination noted that, whilst in no way condoning or excusing R's misconduct or underestimating its seriousness and wider impact, the Panel was "satisfied that this was a one-off, isolated incident, which was wholly out of character for R". No sanction was imposed and R retained unrestricted HCPC registration.
Professional Standards Authority Appeal
The Professional Standards Authority for Health & Social Care ("PSA") is the body which oversees the 10 UK health and care regulators, including the HCPC. The PSA reviews the fitness to practise determinations issued by these regulators and can appeal a decision to the High Court if it considers that the decision is not sufficient (whether as to a finding, or a penalty, or both) for the protection of the public.
In this case, the PSA argued that the HCPC Panel had erred in its approach to the question of impairment, had failed to meet the need to maintain public confidence in the profession and that its determination was insufficient to protect the public interest.
The PSA asked the High Court to quash the HCPC Panel's decision on impairment, make a finding in terms that R's fitness to practise was in fact impaired and direct that a new HCPC hearing take place to decide on an appropriate sanction.
We were instructed to defend the appeal on behalf of R. We argued that the HCPC Panel's determination was correct and represented a fair evaluation of the multi-factoral evidence which the Panel (unlike the PSA or High Court) had the benefit of hearing first hand. We also sought to rely upon the well-established caselaw which emphasises that courts should afford considerable deference to the expertise of specialist committees such as HCPC panels and be very slow to interfere with their decisions.
The appeal hearing took place before Mrs Justice Foster (who, incidentally, wrote the textbook 'Disciplinary and Regulatory Proceedings' whilst in practice).
In dismissing the PSA's appeal, the Court held that there was no error of law in the HCPC Panel's approach. The Panel had addressed the seriousness of the conduct and, exercising its judgement in what was an "unusual" case, was entitled to find that the public interest did not require a finding of impairment.
The Judgment also helpfully reiterates several important principles applicable to fitness to practise cases, namely:
~ The test of impairment is in the present tense: whether R’s fitness to practise “is” impaired now;
~ Isolated incidents could show a momentary lapse, not reflective of a deep-seated attitude;
~ A finding of misconduct does not necessarily mean that fitness to practise is impaired.
Counsel instructed on behalf of R was Miss Wendy Hewitt of 5 St Andrew's Hill, who has also blogged about the case here.
The test of impairment is in the present tense: whether R’s fitness to practise “is” impaired...Isolated incidents could show a momentary lapse which was not reflective of a deep-seated attitude.