The General Teaching Council for Scotland

Enhancing professionalism in education since 1965

General Teaching Council for Scotland Fitness to Teach Panel Outcome

Procedural Hearing

25 July 2017

 Respondent  Respondent A (not in attendance)
 Registration category  Secondary - Physical Education
 Panel  John Kilpatrick (Convener), Maureen Anderson, Mirian Zziwa
 Legal Assessor  Gareth Jones
 Servicing Officer  Dani Tovey
 Presenting Officer  Gary Burton, Anderson Strathern
 Respondent's representative  Paul Reid, Fleming and Reid

Any reference in this decision to:

  • "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
  • the "Register" means the GTCS register of teachers

Please note that this decision has been abridged in accordance with the GTCS Fitness to Teach Publication Policy so as to strike an appropriate balance between the public interest in knowing what information the Panel considered, its decision and reasons and in protecting the Respondent’s right to privacy regarding his health and personal circumstances.

Background

The Procedural Hearing was arranged to consider the following:

  1. The procedural hearing be conducted in private.
  2. Any evidential hearing in relation to this process be conducted in private.
  3. Any information relating to the hearing of this process including the identity of the parties or information published on the website of the GTCS be anonymised in order to protect the privacy and confidentiality of the Respondent.

All as provided for in terms of Rules 1.7.3 and 1.3.5 of the 2012 Rules.

Hearing papers

The Panel considered the following material:

PH 1 – Notice of Procedural Hearing
PH 2 – Motion for the Respondent including:

  • List of Witnesses for the Respondent
  • Inventory of Productions for the Respondent
  • Medical reports dated 30 December 2013, 31 May 2016, 8 September 2016 and 16 June 2017
PH 3 – Notice of Full Hearing        

Preliminary matters

Proceeding in absence

As the Respondent did not attend the hearing, the Convener asked the Respondent’s representative if there was any reason for the Respondent’s absence and if he was content to proceed in the absence of the Respondent.

The Respondent’s representative confirmed that the Respondent was aware of the procedural hearing but, given the terms of the medical reports, made a decision not to be present. The Respondent was aware of and engaging with the process and the Respondent’s representative was content to proceed with the hearing on behalf of the Respondent.

Accordingly, the Panel decided to proceed with the hearing in the absence of the Respondent.

Private hearing application in relation to the procedural hearing

The Respondent’s representative asked the Panel to conduct the procedural hearing in private. He submitted that this was appropriate with reference to the medical reports produced regarding the health of the Respondent and the possible catastrophic consequences associated with publicity. 

The Respondent’s representative accepted that the default position is that all GTCS hearings are held in public and only where there are compelling reasons should the default position be departed from. The Respondent’s representative was conscious of the conclusions reached by the medical practitioners regarding the Respondent and invited the Panel to conduct the procedural hearing in private on that basis.

A member of the press was in attendance at the hearing and was invited by the Convener to make representations regarding the privacy application. The member of the press indicated that, if privacy was sought on medical grounds, he had no opposition to it.

The Panel concluded that it was necessary to conduct the procedural hearing in private. The Panel had regard to the content of the medical reports containing sensitive information about the Respondent’s health. The Panel was of the view that the Respondent’s right to privacy regarding sensitive information about his health outweighed the public interest in the hearing taking place in public. The Panel noted that the applications to be made during the course of the procedural hearing related to privacy and anonymity and, therefore, conducting the procedural hearing in private was necessary so as not to defeat the purpose of the applications being made.

Psychiatrist 1

Psychiatrist 1 attended the hearing to speak to the terms of her report dated 16 June 2017. She is a Consultant Psychiatrist with NHS Dumfries and Galloway. She qualified in 1997 and has written about 200 similar reports and given evidence in the Sheriff Court and at tribunals. 

At the time of preparing her report, Psychiatrist 1 had access to the previous medical reports regarding the Respondent’s health contained within the hearing papers and prepared her own report in light of this information and information obtained during interview with the Respondent.

In the view of Psychiatrist 1, the medical report dated 30 December 2013 was reasonable. It had been written sometime after the doctor had seen the Respondent. The report made clear that the Respondent was significantly unwell. That report described the Respondent’s mental health difficulties as commencing in 2009. Psychiatrist 1 said that that was consistent with what the Respondent had reported to her.  Psychiatrist 1 agreed with the initial diagnosis set out in the report dated 30 December 2013.

Psychiatrist 1 also had 2 medical reports from the Respondent’s GP. The GP had been seeing the Respondent regularly but had passed away in the last few months. Psychiatrist 1 understood that the GP knew the Respondent extremely well and had provided a significant amount of support to the Respondent. In her view, the opinion of the GP should carry a lot of weight. Psychiatrist 1 was of the view that the GP’s recommendations were entirely reasonable.

Psychiatrist 1 met the Respondent twice in person and had also spoken to him on the phone. The first time they arranged to meet at the Respondent’s sister’s house, the Respondent did not bring the keys. They spent around an hour walking around. It was not appropriate to conduct a proper interview in these circumstances but this provided an opportunity for Psychiatrist 1 to gather background information. They met again at the office of Fleming and Reid where a full interview took place, lasting around an hour and a half. Psychiatrist 1 spoke to the Respondent on the phone on a couple of occasions after that. In her view, she had had enough contact with the Respondent to form a clear opinion.

Psychiatrist 1 provided a detailed account of the Respondent’s history, present symptoms and diagnosis as had been set out in her report. She explained that there was at present a significant risk to the Respondent’s health which, in her view, would increase substantially were the current events to become public knowledge.

Respondent’s submissions

The Respondent’s representative invited the Panel to direct that the full hearing of the Respondent’s case take place in private and that any information about the case presented publicly be anonymised in order to protect the identity of the Respondent.

The Respondent’s representative accepted that there must be a compelling reason to allow the Panel to depart from the default position of a public hearing. In this respect, the Respondent’s representative commended to the Panel the terms of the medical reports and in particular, the evidence of Psychiatrist 1. The Respondent’s representative also referred the Panel to the two GP reports. The GP treated the Respondent on a monthly basis and his opinion should be afforded considerable respect given his knowledge of the Respondent’s condition.

The Respondent’s representative submitted that, given the Respondent’s previous history and his present symptoms, there is a compelling reason that his name should be anonymised and that the full hearing should be held in private.

Presenting Officer’s submissions

The Presenting Officer explained that there was no opposition on behalf of GTCS. He directed the Panel to rule 1.7.3 regarding the test for a private hearing. 

The Presenting Officer submitted that GTCS was concerned that expert evidence presents a significant risk for the Respondent that would increase with public knowledge of the proceedings. The Presenting Officer referred the Panel to the complaint faced by the Respondent but indicated that, given the very significant concerns expressed, it may be that the public interest is outweighed.

Decision

The Panel carefully considered the submissions of both parties and the evidence that had been provided. The Panel considered the private hearing application together with the application for the Respondent’s name to be anonymised. The rationale and evidence provided in support of both applications was the same and the factors to be taken into account were also the same.

The Panel noted that the applications were unopposed. Nonetheless, the Panel was aware that it must reach its own conclusion based on the individual circumstances of the case and balancing the relevant factors as set out in the GTCS Conducting Hearings in Private Practice Statement.

The Panel reminded itself of the importance of fairness and transparency in GTCS proceedings, and of the need for GTCS to act in the public interest. The Panel was aware that the default position is that GTCS hearings will take place in public, unless, as is provided for in rule 1.7.3,

“…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…”

       

The Panel considered that the relevant rule in the present case was rule 1.7.3(b). The applications for privacy and anonymity had been made because of concerns regarding the impact of publicity on the Respondent’s mental health.

In the Panel’s view, there was a need to protect the “other interests” of the Respondent, namely his health. In reaching this conclusion, the Panel placed weight on the opinions provided by Psychiatrist 1 and the Respondent’s GP. 

The Panel accepted Psychiatrist 1’s evidence. The Panel had no reason to doubt her professional assessment of the Respondent’s history and background and the potential impact of the publicity associated with the GTCS proceedings on him. The Panel noted that Psychiatrist 1 had met the Respondent and considered the previous medical reports regarding his mental health. In the Panel’s view, Psychiatrist 1 had conducted a thorough assessment of the Respondent. The Panel accepted Psychiatrist 1’s assessment of the Respondent’s present mental health. The Panel accepted that there was a present risk to the Respondent’s health. The Panel accepted Psychiatrist 1’s expert opinion that, “this risk would increase substantially were the current events to become public knowledge.”

The Panel accepted both reports provided by the Respondent’s former GP. The Panel noted that the GP had been the Respondent’s GP for a number of years and had provided a significant level of support to the Respondent. The Panel considered this to mean that the GP was well placed to provide an opinion about the Respondent’s health and the potential impact on him of publicity associated with the forthcoming hearing.

In his report dated 31 May 2016, in relation to publicity associated with GTCS proceedings, the Respondent’s GP states:

[sensitive information redacted xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]

In his report dated 8 September 2016, the Respondent’s GP states:

  • “I consider the impact of this process upon the health and wellbeing of [the Respondent] to be very serious indeed. [sensitive information redacted].””
  • “If the process were not anonymised, [the Respondent] would become quite desperate and catastrophic.”
  • “The essential measure available, in my opinion, which could be employed by GTCS in order to alleviate the potential difficulties, is that the process should be anonymised.”

The Panel was aware that GTCS proceedings could be stressful to any respondent and that the associated publicity may cause distress and embarrassment. However, the Panel concluded that the Respondent’s mental health history and diagnosis distinguished his case from what would be generally experienced by someone subject to GTCS proceedings. Having accepted the medical reports regarding the risk to the Respondent’s health, the Panel concluded that the impact on him of publicity went significantly beyond distress or embarrassment. The Panel determined that compelling circumstances had been demonstrated justifying holding the hearing in private and anonymising the Respondent’s name.

The Panel required to balance the risk to the Respondent associated with publicity against the public interest and the interests of the Respondent in holding the hearing in public. Given the potential impact of publicity on the Respondent’s health, the Panel concluded that the interests of the Respondent in holding the hearing in public were outweighed.

In assessing the public interest, the Panel had regard to the complaint faced by the Respondent. The Panel acknowledged that the complaint was extremely serious. However, on balance, the Panel considered that the risk to the Respondent’s health outweighed the public interest in holding the hearing in public and in the Respondent’s name being published.

The Panel considered whether a private hearing was necessary if the Respondent’s name was anonymised. The Panel did not consider that conducting a public hearing with the Respondent’s name anonymised was an appropriate course of action. The Panel concluded that the concerns regarding publicity extended to other details beyond the Respondent’s name and in the conduct of the hearing itself. The Panel also considered that this would be an impractical and inappropriate way to conduct a hearing. In the Panel’s view, the risk that the Respondent may be inadvertently named during the course of the hearing was great and would undermine the purpose of granting anonymity to the Respondent. 

The Panel also considered whether holding part of the hearing in public would be appropriate. However, the Panel concluded that this would not sufficiently alleviate the concerns regarding the impact of publicity on the Respondent’s mental health. Accordingly, the Panel concluded that the Respondent’s name should be anonymised and the full hearing should take place entirely in private.

The Panel was of the view that the Panel at the full hearing would be better placed to determine what information should be placed on the GTCS website at the conclusion of proceedings. For the avoidance of doubt, the Panel directed that the Respondent should be anonymised in any public outcome for the reasons described above. The extent of the other information contained within the public hearing outcome will be a matter for the Panel at the conclusion of the full hearing.