In the recent case of Lambert-Simpson v Health and Care Professions Council  EWHC 481 (Admin), the High Court affirmed the meaning of ‘racially motivated’ in the context of professional discipline proceedings.
In July 2022, the Health and Care Professions Tribunal Service (“HCPTS”) conducted a fitness to practise hearing in connection with a registered Practitioner Psychologist. The case centered on the registered professional making inappropriate and/or offence comments of a racial nature on their social media account(s) which they believed to be a closed group.
After hearing evidence from the registrant and the witness(es) concerned, the HCPTS determined that three out of the four comments and/or social media posts were racially motivated and the registered professional’s actions amounted to misconduct. Accordingly, the registered professional’s fitness to practise was found to be impaired and their registration suspended for a period of four months.
In February 2023, the registered professional appealed the HCPTS’s decision on four grounds, namely:
- The Medical Condition Issue concerning whether the HCPTS Panel had appropriately considered the registered professional’s medical condition (i.e.: autism) when passing its assessment. [This ground was not upheld]
- The Special Measure Issue concerning whether it was procedurally unfair to the registered professional for one witness to give evidence by way of special measures e.g. by video link. [This ground was not upheld].
- The Racial Motivation Issue concerning whether the HCPTS Panel erred in finding that one of the social media posts was racially motivated; in that the Panel needed to find that the registered professional was motivated by racism.
- The Sanction Issue concerning whether an outcome of suspension was too harsh given the registered professional’s acceptance that the social media posts were inappropriate and their assurances to improve on future behaviour. [This ground was not upheld].
For a number of reasons thoroughly outlined in its judgment, the High Court dismissed the appeal, concluding that the HCPTS Panel’s decision was not “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings.” While the procedural points within the judgment are not novel, the Court’s discussion around determining what constitutes a racially motivated act is a new development.
At  of the judgement, it is outlined that a finding or determination that an individual is racially motivated is centered around ‘personal motivation’ and what an individual ‘has in mind.’ In other words, in making a determination on whether an act is racially motivated, the deciding authority must consider an individual’s subjective state of mind. While there is no legal definition of ‘racially motivated’, the HCPTS Panel were directed to section 28 of the Crime and Disorder Act 1998:
“An offence is racially or religiously aggravated if at the time of committing the offence or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership or presumed membership of a racial or religious group of the offence is motivated purely or partly by hostility towards members of a racial or religious group, based on their membership of that group.”
On appeal, the registered professional argued that the HCPTS Panel could not reasonably conclude that their commentary was racially motivated as their oral evidence supported a motivation of attempted humor through the cheap usage of race to get a laugh and, in their submissions, this did not lend itself to being racially motivated or termed a racist. This was not accepted by the Court.
In determining its conclusion, the High Court heard submissions on when an ‘inappropriate’ and/or ‘offensive’ communication would be considered ‘racially motivated.’ It accepted counsel for the HCPC’s two-part assessment, namely 1) “that the act in question (here, the posting of the content) had a purpose behind it which at least in significant part was referable to race; and 2) that the act was done in a way showing hostility or a discriminatory attitude to the relevant racial group.”
In accepting this assessment, the High Court considered the following points:
- A reasonably minded individual could define the wording utilised by the registered professional as a racial slur which is likely to lend itself to causing offence.
- A racial slur utilised in conjunction with a derogatory remark generates hostility towards the subject group.
- An intention to obtain a laugh from an individual does not detract from racial content of the material.
- An explanation by the registered professional of the commentary described regret and demonstrated an attitudinal problem which should be known, and managed, by the relevant regulatory supervisory authority.
It was this attitudinal issue which the Court suggested held the most relevance for the outcome of the proceedings. The lack of insight by the registered professional into why a ‘joke’, with racial undertones, which was only meant to be heard by a select group of friends was not the appropriate actions of an individual entrusted by the public to undertake a certain practice resulted in the High Court upholding the HCTPS Panel’s determination that the commentary was racially motivated.
Accordingly, the appeal was dismissed.
The peril of a regulated professional’s use of social media, normally by way of untoward commentary, is not an uncommon occurrence and it is anticipated that it will only be a matter of time before the HCTPS Panel, and other regulatory fitness to practise panels, will be considering similar circumstances with use of the High Court’s guidance.