The General Teaching Council for Scotland

Enhancing professionalism in education since 1965

General Teaching Council for Scotland Fitness to Teach Panel Outcome

Procedural Hearing

31 July 2017

 Respondent  XXXXXX
 Registration number  XXXXXX
 Registration category  Secondary - Music (Provisional)
 Panel  John Kilpatrick (Convener), Peter Hempsey, Lynda Dalziel
 Legal Assessor  Una Docherty
 Servicing Officer  Vivien Whyte
 Presenting Officer  Gary Burton, Anderson Strathern LLP
 Respondent's representative  Jamie Foulis, Balfour & Manson

Any reference in this decision to:

  • The “Convener” means the Convener of the Panel;
  • "GTCS" means the General Teaching Council for Scotland
  • the "Panel" means the Fitness to Teach Panel considering the case
  • the “Rules” (and any related expression) means the GTCS Fitness to Teach and Appeals Rules 2012 or refers to a provision (or provisions) within them.

Background

The Procedural Hearing was arranged to consider the following applications:

  1. for the Procedural Hearing to be held in private;
  2. for the Full Hearing to be conducted in private and for the name of the Respondent to beanonymised in any written decision issued at the conclusion of that hearing; and
  3. regardless of the decision in relation to part b) above, for the decision of this Procedural Hearing to be kept private or for the Respondent's name to be anonymised in any decision published by reason of the extremely sensitive nature of the material to be considered at it.

Evidence

In accordance with rule 3.1.3, the Panel admitted all of the documents and statements listed below as evidence for the purposes of the hearing:

  • PH1 Email attaching Notice of Procedural Hearing dated 24 July 2017 along with delivery and read receipts
  • PH2 Written submissions for the Respondent
  • PH3 Respondent's documents
  • PH4 Notice of Presenting Officer's Case Form

Preliminary Matters

Mr Foulis submitted that the Procedural Hearing should be held in private in order to avoid the substantive application being frustrated by being considered in public. Mr Burton did not oppose that application. The Panel agreed with Mr Foulis’ submission and so decided to hold the Procedural Hearing in private.

Respondent's submissions

The remaining applications were for the Procedural Hearing decision to be kept private or for the Respondent’s name to be anonymised within it and for the Full Hearing to be conducted in private with the Respondent’s name being made anonymous in the published written decision following on from that hearing.

Mr Foulis referred to rule 1.7.3, to the overriding objective of the Rules and to the GTCS Conducting Hearings in Private practice statement. That practice statement made reference to Articles 6 and 8 of the European Convention on Human Rights (“ECHR”). He relied upon two examples provided within the practice statement which may justify an order for privacy, those being the “protection of private life” and “special circumstances where publicity would prejudice the interests of justice”. The practice statement also referred to anonymising individuals and Mr Foulis submitted that it would be equally competent to anonymise an individual as well as holding the entire hearing in private.

In support of the applications, Mr Foulis referred to the lodged GP report dated 22 February 2017 and the clinical psychology report by Dr PXXXXX dated 16 June 2017. He noted the likely impact of the proceedings themselves, and in particular their publicity, on the Respondent’s health, outlined by Dr PXXXXX, as well as the serious concerns regarding her XXXXXX health. Mr Foulis submitted that the Respondent was committed to and had made extensive efforts to improve her health with medical assistance but that Dr PXXXXX’s report made it clear that those endeavours had borne little fruit to date. Accordingly, he submitted that the Respondent’s health is unlikely to improve significantly while the present proceedings are ongoing and not to the extent that it could be said that their continuing and doing so in public will not XXXX X XXXX XX XXX XXXX.

Mr Foulis referred to the sections in Dr Pxxxxx’s report outlining the stress and anxiety that the Respondent had been experiencing in relation to the GTCS proceedings and the likely consequences should the hearing be held in public. Dr Pxxxxx strongly advised that the hearing be conducted in private.

Mr Foulis submitted that, in light of the information and opinion set out by Dr Pxxxxx, a Panel would be justified in granting the applications made and that the balance favoured the Panel doing so. There is a genuine need to protect the privacy and confidentiality of the Respondent, in order to protect her health xxx xxxxxxxxxxx, xxx xxxx. The interests in having the proceedings in public were vastly outweighed by the extreme circumstances that the Respondent finds herself in. Mr Foulis also submitted that, given the Respondent’s health difficulties, an order for privacy would represent no more than a reasonable adjustment.

Mr Foulis referred to the nature of the allegations. He submitted that orders for privacy have been made in cases where the allegations were significantly more severe and the background circumstances of the Respondent in those cases did not appear as severe as in this case. He submitted that the public interest may be less in light of the seriousness of the allegations. In any event, the public could be satisfied that the matter had been investigated.

Lastly, Mr Foulis submitted that it was clear from Dr Pxxxxx’s report that the Respondent’s participation in the hearing will turn upon whether or not that hearing is in private. Accordingly, should a public hearing lead to a party being unable to participate then that publicity would prejudice the administration of justice and would not be compliant with the overriding objective of the Rules. Dr Pxxxxx was clear that an order for privacy may allow the Respondent to participate in the proceedings.

Mr Foulis submitted that the public interest could be satisfied by way of a written decision containing sufficient information to explain the Panel’s decision, at the conclusion of proceedings. There was no requirement to protect the public because the Respondent is currently unable to work and had indicated that she did not wish to return to teaching.

Presenting Officer's submissions

Mr Burton submitted that the applications were a matter for the Panel and that there was no opposition to them. He submitted that the medical evidence was concerning and that, in his opinion, this was a case where the interests of the Respondent outweighed the interests in the hearing being held in public.

Decision

The Panel decided that the Full Hearing should be held in private in its entirety and that the Respondent’s name should be anonymised in the written decisions following both the Procedural Hearing and the Full Hearing. The Panel’s reasons are set out below.

In making its decision, the Panel took account of all of the written and oral submissions as well as the documentation lodged by the parties. As its starting point, the Panel considered rule 1.7.3, which states that:-

All or any part of a hearing may be conducted in private where the Panel is satisfied, having given the relevant parties an opportunity to make representations, that either:-

  1. publicity would prejudice the administration of justice; or
  2. there is a need to protect the privacy, confidentiality or other interests of a party, third party or witness concerned,

    and that the interests of the Respondent and the public in the hearing being held in public are outweighed. Any such decision (and the reasons for it) will be announced in public.

    The Panel considered the guidance set out in the GTCS Conducting Hearings in Private practice statement. That guidance sets out that Panels should make such decisions by carefully and proportionately balancing all of the factors involved in the context of the particular case with reference to rule 1.7.3 and the relevant ECHR provisions (namely Articles 6, 8 and 10). In addition, Panels should give consideration to conducting only part of the proceedings in private and what other steps could be taken to achieve (or help to achieve) the purpose of holding all or part of proceedings in private. The practice statement provided examples of circumstances when it may be appropriate for a hearing to be held in private, which included “protection of private life” and “in special circumstances where publicity would prejudice the interests of justice”.

    The Panel carefully considered the terms of Dr Pxxxxx’s report and the letter from the Respondent’s G.P, which had been lodged in support of the Respondent’s applications.

    Dr Pxxxxx stated that the Respondent had provided him with a detailed account of her physical and mental health issues, which were confirmed through her medical records. The impact of these issues significantly affect her quality of life. She said that stress has a significant influence over both her physical and psychological health and that a major component of this was stress in relation to the GTCS proceedings (in addition to other issues). Her physical health issues caused her constant pain and discomfort. The letter from her G.P. outlined the strong analgesics that she had been prescribed over the years. In addition, she had a number of diagnosed psychological conditions with which she found it extremely difficult to cope. The Respondent outlined that she had xxxxxxxxx xx xxxxxxxx xx x xxxxxx xx xxxxxxxxx and that she had an extremely difficult personal history. She felt that her attendance at a GTCS hearing would be very difficult, both physically and psychologically. She was categorical about the likely consequences of the hearing being held in the presence of the media. She stated xxxx xxx xxxx, xxxx xxxx xx xxxx, xxx x xxxxx”.

    Dr Pxxxxx stated that there was no doubt that the GTCS hearing itself would prove stressful for the Respondent and that there was a lifelong pattern of stressful life circumstances having a significant influence over her psychological health. Accordingly, it was his opinion that both the hearing taking place and the hearing taking place in public would exacerbate her psychological issues xxx xxxxx xxxxxxxxxxxx xxxxxxxx xxx xxxx xx xxxxxxx xx xxxxxxxxxxxxxx xxxxxxxxx. Dr Pxxxx was asked whether there were any measures short of the proceedings being conducted in private which would sufficiently alleviate the concerns. In response, he stated that any measures that can be taken to alleviate the stress involved for the Respondent should be taken. He continued “I would therefore strongly advise that the hearing be conducted in private”.

    The Panel accepted the opinion expressed by Dr Pxxxxx in his report, as outlined above. He was clearly experienced in the relevant clinical area and his report was unchallenged by Mr Burton. Dr Pxxxxx had had sight of the Respondent’s voluminous medical records and had interviewed her, by telephone, on two occasions. In addition, the Panel considered that the view taken by the Respondent with respect to the likely consequences of the Full Hearing being held in public and her name being disclosed appeared to be genuine when taking account of her personal and medical history. Those potential consequences appeared not to be simply down to a reaction to the GTCS proceedings but as part of a complex and extremely challenging background to her life.

    It was clear from the practice statement that the fact that the Respondent would be distressed by the proceedings being held in public was not sufficient for a hearing to be held in private. However, taking all of the medical evidence lodged, the Panel considered that there would be potentially consequences of the utmost seriousness for the Respondent should the Full Hearing be held in public and/or should her name be released into the public domain. Accordingly, the Panel was satisfied that there was a need to protect the private life of the Respondent.

    The Panel required to consider whether such a need outweighed the interests of the public in the hearing being held in public and the identity of the Respondent being disclosed. The Panel considered that the public interest could be satisfied in this case by the fact that action was being taken, the complaint would be made public (with any necessary redactions in order not to frustrate the decision of this Panel) and there would be a Full Hearing with the decision and reasons of the Panel being outlined in the written decision following on from that.

    The Panel carefully and proportionately balanced all of the factors involved in the context of this particular case having regard to rule 1.7.3 and the provisions of the ECHR. Given the particular circumstances of this case, the Panel considered that the Respondent’s interests outweighed the interests of the public in the Full Hearing being held in public and the Respondent’s name being disclosed. There was highly compelling evidence regarding the xxxxxx xxxxxx health of the Respondent and the risk to her of a further serious deterioration in her health should she be identified and the applications be refused.

    The Panel considered whether there were other measures short of the entire Full Hearing being held in private which could be taken. However, given the Panel’s decision regarding anonymity, the response provided by the Respondent when discussing with Dr Pxxxxx about the possibility of press being in attendance at the hearing, along with Dr Pxxxxx’’s opinion that the hearing should be held in private, the Panel considered that all of the Full Hearing required to be held in private.

    The Panel also considered that holding the Full Hearing in private was necessary in order to remove barriers to the Respondent participating at that hearing as effectively as she could.

    For clarity, the Panel decided to anonymise the Respondent’s name within this written decision rather than accede to the application made that the written decision itself be kept private. Rule 1.7.3 makes it clear that a decision to hold a hearing in private, and the reasons for it, will be announced publicly. The Panel was satisfied that its order for the Respondent’s anonymity was sufficient to address the concerns raised.