Professional Standards Authority for Health and Social Care v Health and Care Professions Council, [2020] 3 WLUK 95

Wendy Hewitt appeared on behalf of the Registrant ('R'), a paramedic, in an appeal brought by the Professional Standards Authority ('The PSA'). 

Wendy successfully defended the PSA's appeal. She represented R in his original fitness to practise hearing. The High Court dismissed the PSA's appeal that the original outcome was unduly lenient.  Full costs were also recovered on behalf of R. 

Wendy was instructed by Andrea James at Brabners Solicitors.

The original facts of the case:

The Registrant ('R'), a paramedic, had attended a patient at home following an emergency call. He attempted to communicate with the patient who had recently been discharged from hospital and he judged that he should be taken to hospital. When talking to his colleagues, he used a racist acronym to describe the patient’s condition. A colleague reported R’s behaviour to the NHS trust and R stated in an internal inquiry that he was ashamed of his deplorable conduct.

At the committee’s hearing, R gave evidence of significant personal mitigation and of the remedial steps he had since taken which included attending courses on cultural awareness. The committee accepted that R’s remark had been a one-off and out of character and that he was ashamed and remorseful. It stated that it also had to consider the public interest component and the need to uphold proper professional standards of conduct which included sending the message that racist comments would not be tolerated.

The committee found that the isolated incident was unlikely to be repeated and it was satisfied that the public interest would not be undermined by a finding that R’s fitness to practise was not impaired.

The PSA Appeal

The appellant authority appealed against a decision of the first respondent council’s conduct and competence committee that, although the second respondent paramedic (R) was guilty of misconduct, his fitness to practise was not impaired. The PSA submitted that the committee had not properly understood the public interest component and appealed the committee's original decision.

High Court Decision

The PSA's appeal was dismissed. The High Court held that The Health and Care Professions Council’s Conduct and Competence Committee had not erred in finding that, although a paramedic was guilty of misconduct in making a racist comment, his fitness to practise was not impaired.

The test of impairment was in the present tense

Whether R’s fitness to practise “is” impaired: It was held that there was no error of law in the committee’s approach. The committee had addressed the seriousness of the conduct and was well aware of the deplorable nature of the racist comment. Isolated incidents could show a momentary lapse that was not reflective of a deep-seated attitude. It was an exercise of judgment. 

The committee had separately considered the public interest component. A finding of misconduct did not necessarily mean that fitness to practise was impaired, Cohen v General Medical Council [2008] EWHC 581 (Admin), [2008] LS Law Medical 246, [2008] 3 WLUK 484. A finding of impairment was not required in the instant case. The committee had considered the personal and public components and its decision was reached on the correct legal principles. It was entitled to find that the public interest did not require a finding of impairment. The committee was entitled not to bring a sanction against R. It was an unusual case. 

Wendy Hewitt is Head of the Professional Discipline and Regulatory Team at 5SAH and practices exclusively in professional discipline and regulatory work. Wendy mainly represents regulated individuals in the medical and healthcare professions, and in teaching.

Wendy specialises in what may broadly be characterised as cases concerning fitness to practise and unacceptable professional conduct/conduct that may bring the profession into disrepute. Her clients are frequently doctors, pharmacists, nurses, midwives, paramedics, social workers, practitioner psychologists, audiologists, occupational therapists, teachers, and students - although this is by no means an exhaustive list.