When do personal religious views, publicly expressed, affect fitness to practise?

‘Professional discipline, rightly, sits relatively lightly on its members outside the workplace, but it is never entirely absent where conduct in public is concerned’

Mr Ngole, a former mature student at the University of Sheffield, brought judicial review proceedings to challenge the decision of his university to remove him from his course, following comments he posted on a website . Mr Ngole was studying on the two-year MA Social Work course, which is a Health and Care Professions Council (HCPC) approved course leading to a qualification approved for the purpose of professional registration. As such, the University was required to act as a gatekeeper to the social work profession and to make determinations, where necessary, about whether students are fit to practise. Unlike most student conduct disciplinary cases, Mr Ngole’s removal from the course was justified by the University on fitness to practise grounds. This makes it particularly interesting as a demonstration of how a person’s fitness to practise may come into question as a result of conduct outside the work environment and at the academic stage of a social worker’s training.

The case is also a good example of an effective intervention by a professional regulator in judicial review proceedings. The HCPC was granted permission to intervene, to attend and make oral submissions at the hearing. In her judgment, Rowena Collins Rice (sitting as a deputy High Court judge) stated that:

The court was considerably assisted by the HCPC as a result, particularly as to the status, expectations and obligations of the University, and of students such as Mr Ngole, within that framework.”

Background

In September 2015, at the beginning of his second year of study, Mr Ngole posted various comments on the American NBC news website in response to an article about the release from jail of Kim Davis, an American registrar who had been imprisoned in the USA after refusing to administer same sex marriages on grounds of her Christian faith. Mr Ngole made his posts from his personal Facebook account. His first post was to the effect that same sex marriage was a sin. When challenged about this view by another poster, he responded by citing a number of Biblical passages. Among the posts were references to same sex marriage as ‘detestable to God’ and‘an abomination’, and describing homosexuality as ‘a wicked act’. These posts were drawn to the attention of the University authorities who initiated an investigation. During the investigation Mr Ngole agreed that he had made the posts and that the comments represented his views, but maintained that in practice his beliefs were compatible with being supportive and non-discriminatory towards LGBT people.

The matter was referred to a faculty Fitness to practise (FTP) Panel, who took issue with the postings not on the grounds of Mr Ngole’s views but because he had posted them publically in a way that would have an effect on his ability to do the job of social worker. In the Panel’s view Mr Ngole’s behaviour demonstrated poor judgement and transgressed professional boundaries. They were concerned that Mr Ngole had not stated that he would refrain from presenting his views in the same way in future, and they concluded that Mr Ngole should be excluded from further study on the programme leading to a professional qualification (he would instead be permitted to enrol on an alternative programme, not leading to professional qualification).

Mr Ngole appealed to the Appeals Committee of the University of Sheffield Senate, who rejected his appeal. Having exhausted the appeals process, Mr Ngole then brought a judicial review claim in the High Court, challenging the lawfulness of the decision of the Appeals Committee.

Grounds of Challenge

The grounds of Mr Ngole’s challenge were that there had been an unlawful interference with his rights under Articles 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the European Convention of Human Rights (ECHR) and that the decision was arbitrary and unfair in substance (in effect public law irrationality).

It was agreed by all parties that Article 10 ECHR was engaged in this case, but the University disputed that Article 9 was also engaged. The court agreed with the University, and held that the postings were not made in a religious context coming close to the examples of worship or devotion recognisable as forming part of the practice of a religion or belief in a generally accepted form. The key issue was therefore whether or not the interference with Mr Ngole’s Article 10 rights was lawful. In order to be lawful, such interference must be prescribed by law, pursuant to a legitimate aim and necessary in a democratic society. The proportionality of the interference was the crux of the matter in this case.

Prescribed by law

Mr Ngole’s argument on this point centred on the interpretation and application of the HCPC and University standards and guidance. He argued that these codes were too imprecise to guide his conduct, or to create enough foreseeability of the consequences that would be attached by the University to his conduct. The court rejected this, saying that:

Typically, professional standards require a measure of personal responsibility to be taken for conforming to the ethos of the profession. A degree of self-regulation is expected, rather than an attitude of mechanical rule conformity.”

Having considered the relevant guidance, the court also held that it was sufficiently clear for Mr Ngole to know that a measure of personal responsibility was to be taken for general conformity to the ethos of the profession, and that Mr Ngole’s personal conduct in public could have an impact on the perception of the profession. . It would be absurd, it was said, to expect (or even attempt) a complete code of social media rules.

Legitimate aim

Mr Ngole argued that in the absence of evidence that he would act in a discriminatory way, neither the prevention of ‘inadvertent discrimination’ nor preventing someone from giving offence were legitimate aims for the purposes of Article 10 ECHR. The court held, however, that the University was pursuing a number of interlinked aims which, in the statutory regulation and service delivery contexts, were legitimate. Their belief that Mr Ngole would express the same views in the course of his service delivery, were of clear concern.

Proportionality

Having reiterated that proportionality is ultimately a balancing exercise to be carried out by the court, the judge outlined and followed Lord Sumption’s four stage approach, as endorsed in Bank Mellatt v HM Treasury (No 2) [2014] AC 700.

(i) Is the objective sufficiently important to justify limitation of a fundamental right?

The regulation of the social work profession, the proper discharge of the role which universities are required to play in the regulatory framework, the maintenance of public trust in the profession, and the protection of the interests of social work and service users, were all sufficiently important to meet this requirement.

(ii) Is the measure rationally connected to the objective?

Mr Ngole argued that if his postings did not identify him as a student social worker, they were incapable (on their own) of being related to the profession by a casual reader. The court recognised that there was some force in this but ultimately rejected them. It was not fanciful that a service user would search on Mr Ngole’s name and find the postings. He already had professional obligations, not only as to the use of social media, but also in terms of demonstrating personal circumspection, judgement and accountability. Mr Ngole was held to be sufficiently ‘proximate’ to service users and had chosen publically to express his views on a sensitive matter of direct relevance to social work practice. He could fairly have been expected as a trainee professional to think through the ‘multiple meanings’ of that speech. [125]

(iii) Whether there are less intrusive means?

It was relevant that the University did not object to the fact that Mr Ngole held the views that he did; it was his response to the initiation of FTP proceedings and his sustained position thereafter had been the basis of the University’s actions. There was an on-going lack of insight and unwillingness to consider the potential concerns of vulnerable service users who could feel judged, and wider public confidence in a profession sensitive to diversity. In addition the court emphasised the deference due to those who had previously decided this matter, all of whom were experienced in the education and teaching of social work and in the effect of comments such as these on the profession. The unanimous conclusion of those best placed to determine the matter was that Mr Ngole could not be further educated to make a successful social worker.

(iv) Has a fair balance been struck?

Rowena Collins Rice considered the overall fairness of the decision and held that the balancing exercise carried out between the public interest in the guaranteed professionalism of social workers, and the free exercise of important ECHR rights by Mr Ngole, was a fair and proportionate one. It was made clear that ‘this was a deeply regrettably, and fundamentally unnecessary course of events. There is not, after all, an obvious incompatibility between deeply held religious views on one hand, and social work on the other. ..Those worlds are eminently reconcilable…This is a case about a singular failure of reconciliation

It was said that ‘Professional discipline, rightly, sits relatively lightly on its members outside the workplace, but it is never entirely absent where conduct in public is concerned. There, it always requires attention to the perceptions of others, especially those most directly interested in the performance of professional functions’

This case is useful for regulators, as it supports and emphasizes the fact that it is not always possible to prescribe clear guidance on each and every type of behaviour that could bring a matter into the remit of FTP, confirming that there is a degree of awareness required by a practitioner (or even student practitioner) of how their behaviour would be perceived. In addition it highlights the important role that universities and training organisations should play as the gatekeepers of the profession and how regulators rightly play a keen role in supporting this objective.