“Impairment is in the present tense” – High Court

The High Court reaffirmed important legal fitness to practise principles in the case of PSA v HCPC recently.

Mrs Justice Foster reaffirmed the very important legal principle that “the test of impairment is in the present tense, whether fitness to practise is impaired now”.

This case stemmed from a decision of the HCPC’s Conduct & Competence Committee which found that a registrant’s (a paramedic) conduct amounted to statutory ground of misconduct but, notwithstanding this, their fitness to practise was not impaired. As a consequence, no sanction was imposed and the registrant retained unrestricted HCPC registration.

The Professional Standards Authority for Health & Social Care (PSA) appealed the HCPC’s committee decision on the grounds that the HCPC erred in its approach to the question of impairment, failed to meet the need to maintain public confidence in the profession and its determination was insufficient to protect the public interest.

Whilst much of the case turned on its individual facts, Mrs Justice Foster reaffirmed important legal principles in doing so. In addition to reaffirming that the test of impairment is in the present tense, she also restated in the judgement the following general principles:

1. Isolated incidents could show a momentary lapse, not reflective of a deep-seated attitude
2. A finding of misconduct does not necessarily mean that fitness to practise is impaired

R, the paramedic, used a racist acronym when describing the patient’s medical condition to colleagues. Before the HCPC’s Conduct & Competence Committee, it was reported, that R gave “credible, unguarded and sincere evidence”. Reaffirming the legal principle outlined above (1), Mrs Justice Foster concluded that the HCPC committee had addressed the seriousness of the conduct and was well aware of the deplorable nature of the racist comment finding that an isolated incidents could show a momentary lapse that was not reflective of a deep-seated attitude and this was an exercise of judgment.

On this second point, Mrs Justice Foster concluded the committee had separately considered the public interest component and a finding of misconduct did not necessarily mean that fitness to practise was impaired.