Racist or racially motivated? – Lambert Simpson v HCPC

In Robert Lambert-Simpson v Health and Care Professions Council [2023] EWHC 481 (Admin), a registered psychologist posted a series of offensive comments on his social media account. The comments ranged in tone and content; three of them were alleged by the HCPC to be ‘racially motivated’.

Of those three, one was found by the Panel to be ‘racially motivated’. The Panel found that the comment contained a ‘combination of a blatantly racist description with a highly derogatory remark… his intention had been to use race as a cheap way of getting a laugh’. The post read “I have decided to self-isolate. Not because of any [racial epithet for Chinese people]-based “it’s got a pulse let’s eat it” stuff but mainly because I really hate people”.

The Registrant appealed the Panel’s determination that this comment had been racially motivated (amongst other complaints, all of which were rejected by the High Court). The case illustrates, though, how a regulator’s charging approach can widen or narrow the ambit of a tribunal in considering the allegations involving racism, and gives a clear steer on how tribunals are to approach the issue of ‘racial motivation’.

Alleging that comments were ‘racially motivated’ marks a departure from the approach taken by some regulators in other cases involving the use of racist language. PSA v GPhC & Nazim Ali [2021] EWHC 1692 arose from comments made by a pharmacist during a rally held to demonstrate support for Palestinian rights. The allegations brought were that the comments were antisemitic and offensive (but not that they were ‘racially motivated’). The Fitness to Practise Committee found (having first established that what was required was an objective test) that the words used had not been antisemitic, but that they had been offensive. In reaching a conclusion, the FPC considered the use of the language ‘in the context of the day and the explanation provided by the Registrant’. In other words, the FPC set out to apply an objective test, and then applied a subjective test.

In Nazim the High Court took issue with this approach: the allegation was that the pharmacist had used the specific words, and that they were (objectively) offensive and antisemitic. Context and intention were therefore not relevant to the allegations. The approach may have been appropriate if different allegations had been brought:

The underlying facts (i.e. the language that was used by Mr Ali) could have given rise to a slightly different form of allegation. It could, for example, have been alleged that Mr Ali had been intentionally offensive. Or it could have been alleged that he had intended to cause offence. Or it could have been alleged that he had been intentionally antisemitic. Or it could have been alleged that he had intended his words to have been interpreted as being antisemitic. Any of these allegations would have required an assessment of Mr Ali’s intention. [PSA v GPhC, Nazim. Ali at para 19]

In Lambert-Simpson, the HCPC did allege racial motivation. The High Court ruled that this allowed, indeed required, a wider investigation of the context and intentions underlying the language used. The Court identified a ‘helpful encapsulation’ for when an inappropriate and / or offensive communication will be ‘racially motivated’: (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.’ [para 24(iii)]

The Court also gave a clear indication that, when considering the intentions behind racist language, the suggestion that it was done to ‘get a laugh’ among friends was unlikely to detract from the fact that it was referable to race and done in a way showing hostility and / or a discriminatory attitude:

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. [Para 24(iv)]

There are therefore two approaches to charging this sort of misconduct: allegations relating to the language itself, and to the intentions behind it. Lambert-Simpson suggests that the better route for regulators is the wider approach: particularising both the comment and its motivation. It also suggests that regulators should take a thorough approach to investigating the ‘attitudinal’ problems raised by the sort of behaviour considered in the appeal, and not to adopt too narrow a construction of ‘racially motivated’.

It is of note that one issue not considered in Lambert-Simpson was whether the Registrant’s Article 10 rights arose on the facts of the appeal. That issue is considered by Ben Rich’s article on Adil v GMC in this Newsletter here.

Robert Dacre