Robert Lambert-Simpson v Health and Care Professions Council

On 22 May 2019, you posted a picture of a fire-damaged van with the caption ‘Look a Van-b-que on probably the busiest street in Europe. I think it was full of Asians. So it was a Korean Van-b-que’

The Registrant admitted posting this picture and caption on his social media account. The questions under Allegation (1)(a) and (2) were whether this comment and/or post was “inappropriate and/or offensive” and whether it was “racially motivated”. In relation to this post, the Panel found both inappropriateness and offensiveness, but not racial motivation. The Panel reasoned as follows: comparing a vehicle crash resulting in a fire, with the potential for people to have been burnt, with a barbecue was highly inappropriate and deeply offensive; to have referred to an ethnic and racial group made it even more inappropriate and offensive; this was meant to be an attempt at humour and for the benefit of a closed group of friends; it was, however, in extremely poor taste and at the expense of an ethnic and racial group; although the post was most distasteful, reprehensible and with racist connotations, the Panel was not satisfied that in making this post the Registrant had been racially motivated; there was no evidence of any hostility towards Asians or Koreans and, in contrast to Allegation (1)(d), no use of racial terminology.

On or around [a given date], you responded to a comment on your photograph stating, ‘Had to look good for the 87 year old kiddie diddler I saw today’ on your social media account.

The Registrant admitted posting this response on his social media account. The questions under Allegation (1)(b) were whether this comment and/or post was “inappropriate and/or offensive”. There was no question of this post being “racially motivated”. In relation to this post, the Panel found both inappropriateness and offensiveness. The Panel reasoned as follows: on any view, the use of the phrase ‘kiddy diddler’ to describe someone, particularly someone the Registrant had seen on a professional basis, was wholly inappropriate and highly offensive; there was also the chance that someone might have been able to identify the person had they accessed this post, given the detail provided by the Registrant.

On or around 26 February 2020, you responded to a comment on your post sharing your location at a Latin American restaurant stating that it was ‘Weirdly white people good’ on your social media account.

The Registrant admitted posting this response on his social media account. The questions under Allegations (1)(c) and (2) were whether this comment and/or post was “inappropriate and/or offensive” and whether it was “racially motivated”. In relation to this post the Panel did not find inappropriateness or offensiveness; nor racial motivation. In its reasons, the Panel described the Applicant’s explanation as to what this post meant and what his intention was. The Panel recorded: that the Applicant had explained at length how he had eaten in restaurants all over the world and that in his experience Latin American food was best cooked by Latin Americans; he said he was surprised, therefore, when he went to the Latin American restaurant in Portsmouth, the food was very good and it had not been cooked by Latin Americans but rather by white people; that he said he had been on his own and got talking to the owners and asked them who had cooked the food, expecting to hear it was Latin Americans (who he wanted to thank for a nice meal); that the owners, who were white, said it was them and hence his comment on Facebook with the restaurant tagged was meant to be a compliment, not some sort of racist slur. The Panel reasoned as follows: that it considered this post to be somewhat ambiguous, with many possible interpretations; that the Applicant’s account was one of them; that it could equally be a suggestion that the food in the Latin American restaurant was good enough for white people to eat, which would be inappropriate, offensive and potentially racist; that the Panel was not able to determine how this comment should be interpreted; and that, given the Registrant’s potentially plausible explanation, it could not be satisfied, on the balance of probabilities, that the HCPC had proved this Allegation.

On 29 February 2020, you posted ‘I have decided to self-isolate. Not because of any chink based “it’s got a pulse let’s eat it” stuff but mainly because I really hate people’ on your social media account.

The Registrant admitted posting this comment on his social media account. The questions under Allegations (1)(d) and (2) were whether this comment and/or post was “inappropriate and/or offensive” and whether it was “racially motivated”. In relation to this post the Panel found inappropriateness and offensiveness; and racial motivation. The Panel’s reasoning is set out at §20 below.

First, the Panel took into account the HCPC Guidance on Social Media (the “Social Media Guidance”), observing that it was not restricted or limited to social media entries available to the public at large but covered all use of social media. The Panel quoted the following passages from the Social Media Guidance:

Secondly, the Panel considered the Standards of Conduct, Performance and Ethics applicable to all HCPC registrants, identifying the following Standards which it found to have been breached in the present case.

Thirdly, the Panel reiterated its finding that the Registrant had believed he was only sharing his posts with his Facebook friends, a closed group of 22 people, but continued:

It concluded:

Fourthly, the Panel concluded that these three posts represented a pattern of inappropriate and offensive behaviour over a period of time and, when considered in the round, were sufficiently serious to amount to Misconduct. It reasoned as follows. In relation to Allegation (1)(a):

In relation to Allegation (1)(b):

In relation to Allegation (1)(d) (and Allegation (2)):

First, the Panel explained that it was concerned with attitudinal issues, but considered them to be “capable of remedy”. It said:

Secondly, the Panel referred to the Registrant’s response, including actions, acceptance and recognition. It said:

Thirdly, the Panel gave this assessment of the Registrant’s degree of insight:

Fourthly, the Panel expressed concerns about the Registrant’s behaviour during the Panel proceedings:

Fifthly, the Panel explained that “in all the circumstances” it “could not be satisfied that it was highly unlikely the Registrant would engage in such behaviour, as detailed in the facts found proved, in the future”. Addressing “whether a finding of current impairment was warranted on the grounds of public protection”, it said this:

Finally, the Panel addressed “whether this was a case that required a finding of impairment on public interest grounds in order to maintain confidence in the profession and also to maintain standards within the Psychologist profession”. On that topic, it said this:

As to the approach to Sanction, the Panel referred to the HCPC guidance found in the Sanctions Policy (“the Sanctions Guidance”).

Next, the Panel explained that it had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance (as to which, see §1 above). The Panel explained that it was cognisant of the need to ensure that any sanction is proportionate.

The Panel next identified aggravating and mitigating factors. The aggravating factors were identified as: repeated posts of an inappropriate and offensive nature over a period of time; and limited insight. The mitigating factors were: no previous regulatory findings; admissions to some of the matters alleged; apology and remorse; and relevant courses attended. The Panel added:

Next, the Panel undertook the familiar discipline of the ‘stepped approach’ to Sanction, considering options from the least serious upwards. Starting with the option of taking no further action or mediation, the Panel reasoned as follows: in light of the seriousness of the conduct, which included a racially motivated post, this was not an appropriate case to take no further action or consider mediation; neither of these would protect the public from the risks identified by the Panel; nor would they satisfy the public interest.

As to the option of a caution:

As to the option of imposing conditions:

As to the option of a Suspension Order:

Finally, as to the option of Striking-Off. The Panel reasoned that a Striking-Off Order – the sanction of last resort and reserved for the most serious case where a registrant’s behaviour is fundamentally incompatible with continued registration – was not justified. It was important that the misconduct was seen in context and the sanction imposed proportionate. The Registrant had made three posts on social media which he believed were only going to a closed group of his Facebook friends. Those posts were all inappropriate, as he readily acknowledged. They were also offensive which (inferentially) he also acknowledged. One was racially motivated. Whilst abhorrent, the behaviour was not fundamentally incompatible with continued registration.

The Registrant said, “I am a bit strange, I am autistic and see the world through a different lens. I am in my own world a lot of the time, I have no friends, I had my partner and that is it, I am completely isolated.”

The Panel included that passage in the (non-public) Determination. It did so, precisely because this was part of the factual and evidential picture in the context of the Registrant’s behaviour. The Panel plainly did consider the possibility that autism may have contributed to the Registrant’s conduct. At no point within the transcript including within any question asked or contention advanced, nor within the Determination, can I find an indication that the Panel disbelieved the Registrant’s claim to be autistic. Nothing suggests that the Panel in any way held any aspect of this against him. There was no ‘harassment’ or ‘barrage’ of questions in the cross-examination. There was no failure to protect the Registrant. I asked for his help as to whether he was pointing to anything in the transcript or the Determination said to indicate: his being disbelieved about being “autistic”; or his being ‘harassed’; or where he should have been ‘protected’. In response, no passage was identified. The Registrant was plainly self-aware. He was able to speak to the Panel about autism. He did so in the closed session. He was asked on several occasions about the posts which were the subject of the Allegations. He did not, at any stage, link his conduct to autism. He did not adduce any expert evidence. The Panel needed to address the case in light of the evidence which it had. The Panel was well aware of what the Claimant said about his autism. But it was fully entitled – indeed, correct – to be concerned, when it reached the topic of Impairment, about the behaviour it had seen first-hand (see §12iv above). Even then, this was an aspect – described in measured and appropriate terms – which added to the concerns that the Panel described.

One witness, as you know, attended for the HCPC and gave oral evidence. It is for you as a Panel to consider her credibility and reliability. No inference adverse to the Registrant should be drawn by the fact the witness gave evidence over a live telephone-link rather than being physically present. It is not uncommon for witnesses to give evidence in this way. When considering her evidence, it is important to focus on what is actually alleged in this case and the issues that you have to decide. You may consider her evidence to be particularly relevant when deciding whether the posts were publicly available or not, whatever the Registrant’s understanding of the status of the posts.

The Panel recorded in the Determination that it accepted the advice of the Legal Assessor. There is nothing in the transcripts and nothing in the Determination which reflects or indicates anything approaching an adverse inference being drawn from the special measures.

In evidence, when asked if he thought the use of the word ‘chink’ was racist, the Registrant said, “I don't know, maybe it was culturally insensitive.” He said that he cringed when he read it, but it was at a time when he had Covid-19 and there was a “lot of stuff going around about where it had come from and why it happened” and that influenced what he wrote. He accepted it was wholly inappropriate. He added that he had been to rural China and had a poor experience as he came back with health issues dysentery. He said his post was not racially motivated but was just him being inappropriate and he should not have posted it. He said he objected to being called racist as he works with people from all walks of life, his best friend is Guatemalan and his best friend growing up was a black Caribbean.

The Panel was in no doubt that the word ‘chink’ was a racial slur used to describe Chinese people. It was a wholly inappropriate word to have used and clearly offensive to right-minded people. Furthermore, referring to the Chinese as people who will eat anything that has a pulse is derogatory, inappropriate and offensive. The Panel thus found Particular (1)(d) proved on the basis that the post was both inappropriate and offensive.

The Panel then considered whether these comments were racially motivated. Unlike Particular (1)(a), in (1)(d) the Registrant had used a combination of a blatantly racist description with a highly derogatory remark, depicting all Chinese people effectively as uncivilised, who will eat anything. The Panel was in no doubt that the Registrant had posted these comments in an attempt at humour and that his intention had been to use race as a cheap way of getting a laugh. That behaviour, in the Panel’s view, suggested his actions were racially motivated and the Panel therefore found Particular (2) proved in relation to (1)(d).

First, when giving his evidence in chief the Registrant was asked by the Panel Chair:

Secondly, in the HCPC Counsel’s cross-examination of the Registrant, there were these exchanges:

Thirdly, after cross-examination and during further questioning by the Panel, there was this question from the Chair, with this response:

Counsel for the HCPC’s oral submissions to the Panel included this:

The Registrant’s own oral submissions to the Panel included this:

The Legal Assessor gave the Panel this advice:

This Court is in a position to look at the words and context for itself, to see whether any hostility was present. The Panel was obliged to consider (a) the words in their context and (b) the question of personal motivation. This Court is in just as good a position to consider those matters.

The Registrant accepts and acknowledges that the phrases used in Allegation (1)(d) were “ill-advised” and “inappropriate”. The Registrant openly admitted, to the Panel, to cringing when he read them. The words are “so inappropriate that I can barely bring myself to read them”. The word “chink” was “arguably culturally insensitive”. It “can be offensive”. It “can be a slur”. This was a “potential racial slur”. But it needs to be considered “in context” and it is “entirely realistic” to regard it as “slang”. It was “ill-advised and puerile” but “never racist”. With “hindsight” it was “a poor way to express myself”. “At worst”, these were “badly chosen words to describe the Chinese in the vernacular”. This was, so far as the Registrant was concerned, “banter among friends”. The Registrant takes full responsibility. He accepts, unreservedly, that the words he used were indelicate, unprofessional, inappropriate, derogatory, in bad taste, ill-chosen, ill-advised and unacceptable.

All of this is, however, “a long way from establishing any racist intent”. The Panel’s conclusion on “racial motivation” cannot logically be sustained. It is “wholly perverse”. The phrase “racially motivated” required the Panel to be satisfied that the Registrant was “actually motivated by racism”. There was no intent or evidence of intent. He had never been racially motivated. The posting was never motivated by “dislike” or “racist attitudes” towards any ethnic group. “Chink” was not a word “aimed at anyone”. It was not “designed to hurt anyone”. He had “no axe to grind” with anyone including the Chinese. There is not a shred of evidence of any “hostility” towards the Chinese. What the Panel had was a series of words, and an assurance by the Registrant that he never had any such intent at all. He never intended to offend anyone and there is not a single strand of evidence that he did intend to offend anyone. There was no element of hate speech. There was no proof that anyone was offended. This action cannot fairly result in a professional person of repute “forever being labelled as a racist”. That is an abomination. The Registrant knows, and his friends know, that it could not be further from the truth. His character and good name have been “decimated” and “desecrated”.

The Registrant had no history of any such personality traits. There was no history of racist or discriminatory conduct. There was no corroborative evidence. The Registrant despises all forms of racism. He is vehemently and vociferously opposed to any form of racism, sexism, ageism or religious bigotry. The notion that he has ever been labelled a racist is anathema to him. Racism is everything of which he does not approve. He regards any form of prejudice to be entirely unconditionally abhorrent. That is the “unfettered truth”. His reticence in answering questions – saying “no comment” – was only because he was appalled at the suggestion of any hostility. There was no intentional racism, which the Registrant has always categorically, openly and unreservedly stated that he deplores.

In the present context, where this content was being posted (so far as the Registrant was aware) to a closed group, it was “nothing more than a harmless term”. The post was “private” and “within a group of friends”. Those friends knew who the Registrant was. They understand his total lack of malice or intolerance in what he said. They knew how the Registrant despises any racism or other discrimination. They knew this to be harmless banter among friends. The recipients – the 22 Facebook friends – were never offended. The words used were wholly in jest. They were jocular with no harm intended. No offence was ever intended by what were “tongue in cheek” remarks.

The Registrant was – moreover – unwell at the time, having himself caught the Covid virus. And Covid was engulfing the country. There was an abundance of theories about the source of the pandemic.

Even if the Panel were right to characterise this as a combination of a “blatantly racist description” with a “highly derogatory remark” (depicting all Chinese people effectively as uncivilised he will eat anything), the Panel’s findings still did not support its conclusion that the post was “racially motivated”. The Panel reasoned that the Registrant had posted these comments “in an attempt at humour” and that his “intention had been to use race as a cheap way of getting a laugh”. But that motivation – attempted humour and the intention to use race as a cheap way of getting a laugh – could not and did not constitute a “racial motivation”. The Panel’s conclusion did not follow from, and was not supported by, its reasons.

The Panel’s ‘underpinning reasoning’ in support of its conclusion was clear. It identified that the word “chink” was a “racial slur” used to describe Chinese people, which was “wholly inappropriate” and “clearly offensive to right minded people”. It then identified the reference to the Chinese as uncivilised people who will eat anything that has a pulse as “derogatory, inappropriate and offensive”. It was satisfied that the Registrant had used a “combination” of a “blatantly racist description” with a “highly derogatory remark”. He had done this “in an attempt at humour” with his “intention” being “to use race” as a “cheap way of getting a laugh”. Each of these descriptions was, in my judgment, fully justified. The Panel had contrasted this social media post with Allegation (1)(a) (§7 above). The Registrant had every opportunity in the hearing before the Panel: to explain what the words, in their context, meant; and to explain what was in his mind when he posted those words. The Panel was rightly anxious to hear what he had to say. The Panel Chair put this point squarely – in light of the explanation he had given in relation to other posts – and returned to it to put it to the Registrant again.

The Panel’s ‘underpinning reasoning’ (§24i above) was fully capable of supporting the conclusion derived from it: that the Allegation (1)(d) social media posting was “racially motivated”. This “use” of “race”, with a “blatantly racist description”, constituting a “racial slur”, used in “combination” with a “highly derogatory remark”, is unmistakeably – knowingly and consciously –hostile towards the relevant racial group. True, this was believed to be a closed private group, where no third party and no member of the relevant racial group would see or hear what was said. True, this “use” of “race” was “an attempt at humour” and a “cheap way of getting a laugh”. The Panel – which expressly recognised these truths – did not think, individually or in combination, that they inhibited the finding of “racially motivated”. In my judgment, the Panel was fully justified – indeed, objectively correct – about that.

When I asked Mr Micklewright for his encapsulation of when an “inappropriate” and/or “offensive” communication will be “racially motivated”, his answer was that there are really two elements: (i) 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 (ii) that the act was done in a way showing hostility or a discriminatory attitude to the relevant racial group. I have found that encapsulation helpful. I also agree with Mr Micklewright that the Panel’s findings involved being satisfied as to these elements. This combination was a racial slur (blatantly racist) and a well-known racist trait (highly derogatory), in “combination”. The intention to try and get a “laugh” does not in any way detract from the fact that this was entirely or in significant part a purpose referable to race; nor from the fact that this was done in a way showing hostility and/or a discriminatory attitude. The Registrant could provide no explanation, other than descriptions of regrets and cringing and his protestations that he was not racist and everybody knew it.

There is good reason in principle, in my judgment, why this analysis of “racially motivated” should apply. Suppose someone in a private group of social workers thinks it will make other social workers laugh, to “use” disability, with a “combination” of a “blatantly” discriminatory “slur” and a “highly derogatory remark” about people with a disability. Suppose someone in a private group of police officers thinks it will make other police officers laugh, to “use” gender identity, with a “combination” of a “blatantly” discriminatory “slur” and a “highly derogatory remark” about people with a gender identity. No person with the disability, or gender identity, was ever supposed to hear what was said. The rest of the group were supposed to laugh. It was supposed to be funny. In my judgment, it is appropriate and important that a regulatory supervisory authority should be able to see in this a serious “attitudinal” problem. There is a hostility in this behaviour. There is a hostility in the state of mind of the person communicating. Attitudes matter. The relevant hostility can thrive in attempted ‘humour’, as it can in ‘ridicule’. The ‘private’ context may be relevantly – indeed may be especially – revealing.

In Professional Standards Authority for Health and Social Care v Health Care Professions Council (Roberts) [2020] EWHC 1906 (Admin) a racist comment was made by a paramedic during a handover with an ambulance team, using an extremely derogatory acronym. It was accepted to be a “racial slur” (§9) and “deeply offensive” (§10). In that case, there was a finding of no impairment. This was in light, in particular, of the paramedic’s response (§§8-11). But it was not – for one moment – because this was meant to be a ‘private’ comment between colleagues, which no member of the relevant racial group had overheard or was intended to hear; or because it was attempted ‘humour’. Indeed, in her judgment in Roberts, Foster J emphasised the importance of addressing evidence of what may be deep-seated “personality traits” which may be “incompatible with the practice” (§62). She referred to the thoroughgoing repugnance for racially offensive “language” and “attitudes” (§63). A firm resolve and preparedness to address ‘attitudinal’ concerns must, in my judgment, strongly feature – in the public interest – wherever regulatory authorities operate within the field of anti-discrimination. In the present case, the Panel hit the nail on the head when – during the section of the Determination on Sanction – it said the Registrant’s behaviour “suggested some underlying attitudinal concerns”, which it went on to say “needed to be addressed before he could be allowed to return to unrestricted practice”.

In confronting this “racially motivated” unacceptable and offensive language the Panel did not say they were “labelling” the Registrant as “a” racist, still less “forever”. The same could be said of Roberts, where the comment made was racist. Here, the Panel was clear, and careful, as to what it found. Its finding was made, in light of all the evidence, including from the Registrant. It was not persuaded by strong protestations from the Registrant as to his stance on racism and discrimination; nor his assertions about what his 22 Facebook friends know and think about him. Nor am I. However, the Panel did not find the conduct to be incompatible with registration. It did not find the evidenced attitudinal concerns to be irremediable. What the Panel was then looking for was insight; and for the issue to be addressed. All of which takes me to the final issue.

The sanction which was entirely appropriate in all the circumstances, and which gave the correct signal, was a caution order. That would have been a proper “punishment”. Given the Registrant’s exemplary record, his honesty and diligence, his apology and unhesitating acceptance of responsibility, and his genuine assurances; given that the social media posts were in private and not a threat; and given than only one of three allegations of racial motivation was proven: the draconian sanction of a suspension order depriving the Registrant of his livelihood was wrong and unjustified. No adequate consideration was given to the relevant circumstances. The sanction was grossly excessive. The options of a caution order, or alternatively conditions of registration, were available. They were not fairly considered. If fairly considered, they would have been perfectly adequate to protect the public and public confidence, in circumstances where nobody was subjected to any racism, and the HCPC would have been being seen to take action.

The sanction is perverse and wholly disproportionate. The public, whose protection is key, were never at risk. This was an isolated incident, never repeated before or since. The Registrant responded immediately, appropriately and correctly. In the real world – rather than the closeted world of the Panel – there was no genuine risk at all. This was self-evident and obvious. To describe the Registrant as having “limited insight” is baseless and offensive. He knows and understands what is offensive, what racism means, and what is unacceptable to a wider public. The sanction was avoidable and entirely inappropriate in a case where the social media group was private, where the Registrant has shown genuine remorse and given an absolute assurance, and where KL’s complaint was dubious in nature and pursuit. The public is not at risk of the Registrant using any language that could conceivably offend. The sanction of suspension should be replaced with a caution order. A caution would achieve every possible legitimate objective, giving notice to the Registrant, and ensuring no repetition thus protecting the public.

The suspension order, although expressed to be a four-months order, was the short end of the wedge. It opened the gates to being extended on an ongoing basis. That susceptibility to ongoing extension demonstrates the draconian potential effect. The fresh evidence before the Court of what subsequently happened when the Review Panel considered the suspension on 14 November 2022, is evidence illustrating the potential effect of the sanction. The suspension order was extended for a further five months, simply repeating the “conditions” on which the original four-month suspension order was imposed. The November 2022 extension replicated those same conditions, notwithstanding that they had been met. The Registrant’s reflective piece was unreviewed and unread by the Review Panel. The four-month suspension period becomes an irrelevance given the almost inevitability of ongoing extension.

Mr Micklewright says the Review Panel should never have conducted a review or made an order, because there was an appeal, and the position should have been governed by the Interim Suspension Order. The Registrant does not dispute this, but he points out that this is not how the HCPC acted. He says there has been a lack of due diligence, an injustice and an abuse of process.

Mr Micklewright says this Court, on this appeal, “must … quash the order of 14 November 2022”. But the Review Panel’s Order is not the subject of this appeal. I am an appeal court dealing with an appeal. Mr Micklewright has not identified what jurisdiction I have to make such a quashing Order. There is no claim for judicial review.

The Registrant says “the overall suspension needs to be quashed with immediate effect”. In my judgment, that could not be right. The appeal has failed. The Suspension Order must now take effect, subject to a review in accordance with the statutory scheme. The real question that remains, in my judgment, is when that review should now take place.

If the four month Suspension Order now commences on the date of my judgment and order dismissing the appeal, it would expire four months later on 6 July 2023, unless further extended in the meantime. But the HCPC’s defaults have led the Registrant up the garden path, with a Suspension Order recorded against him throughout, believing that it would now expire on 28 March 2023 unless extended in the meantime.

In my judgment, securing a just and fair outcome – while protecting the public and the public interest – are all fully achievable, within the scope of my appellate powers. In the special circumstances of this case, I propose to Order that the Interim Order will take effect so as to expire on 28 March 2023 unless extended in the meantime. I am empowered by Article 38(3) to substitute any decision which the Panel could have made. Whether the Suspension Order continues after 28 March 2023 will be a matter for a Review Panel, considering such facts and circumstances as it considers relevant and appropriate, and with the Registrant able to engage with that review, as was already envisaged. However, since I am conscious that this is adopting a middle course not sought by either party, I will grant the parties liberty to apply.