The General Teaching Council for Scotland

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Procedural Hearing - 28 February 2017

Procedural Hearing

28 February 2017

 Teacher  XXXXXXXX
&npsp;Registration Number XXXXXXXX
 Registration category XXXXXXXX
 Panel  John Kilpatrick (Convener), Miriam Zziwa, Arthur Stewart
 Legal Assessor  Bryan Heaney
 Servicing Officer  Dani Tovey
 Presenting Officer  Gary Burton, Anderson Strathern LLP
 Respondent's representative  Gregor Rolfe, Clyde & Co

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:

  1. An application by the Respondent for the Full Hearing to take place in private

Evidence

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

PH1    Procedural Hearing Form - Applications for the Respondent and enclosures:

  • Report by Dr A dated 16 January 2017
  • Report by Dr B dated 18 March 2016

PH2    Procedural Hearing Form for the Presenting Officer and enclosures:

  • Notice of Presenting Officer's Case Form
  • Notice of Respondent's Case Form
  • Statement of the Respondent
  • Employment Appeal Tribunal Judgement dated 11 May 2016

Preliminary matters

Given the nature of the application being made, the Panel decided that the Procedural Hearing should take place in private so that the private hearing application could be fully and openly made and so as not to frustrate the purpose of any privacy granted in respect of the Full Hearing.

No members of the press or public were in attendance at the hearing and the Panel’s Procedural Hearing decision regarding the private hearing application would be issued publicly on the GTCS website, satisfying the public interest and the need for transparency in GTCS proceedings. 

Respondent’s submissions

The Respondent’s representative submitted that his application was to have the Full Hearing in private under the broad umbrella of health. Within that, there were two key factors. First, that there would be a detrimental impact on the Respondent if the Full Hearing took place in public. Second, that the hearing should take place in private in order to protect sensitive and private details regarding the Respondent’s health from becoming public.

The Respondent’s representative submitted that, if the Panel did not agree with his primary position, his secondary position was that the Respondent’s evidence should be in private.

In Dr B’s report, dated 18 March 2016, the Respondent’s representative highlighted that the Respondent had been dealing with health issues related to his employment since 2005. The Respondent’s treatment was ongoing at the time of that report and was described in it. Dr B described the Respondent’s demeanour and presentation during the examination. Dr B also referred to relevant sections of notes from the Respondent’s medical history. The Respondent’s representative told the Panel the questions that gave rise to Dr B’s summary and conclusions.

The Respondent’s representative similarly highlighted sections of Dr A’s report, dated 16 January 2017. The report had been requested in relation to whether the forthcoming Full Hearing should be held in private. The report contained a description of the Respondent’s past medical history and the difficulties the Respondent had experienced during his employment. The report referred to the Respondent’s current medication. The report described the Respondent’s demeanour and presentation on examination. The report also contained Dr A’s opinion regarding the Respondent’s previous health and how this related to the allegations, the Respondent’s present health as well as the impact of attending a public hearing on the Respondent.

The Respondent’s representative highlighted the overriding objective of the Rules. The Respondent’s representative submitted that, taking into account Dr A’s evidence, holding the Full Hearing in public would adversely affect the Respondent’s ability to participate. His ability to communicate and participate would be impaired as would his ability to properly instruct his legal team.

The Respondent’s representative highlighted Rules 1.7.3 (a) and (b). The Respondent’s representative submitted that the administration of justice would be prejudiced where the Respondent was required to participate in public against the background of evidence that it would detriment his ability to participate and exacerbate his ill health. Where a public hearing would adversely affect the health of the Respondent, the Panel should consider that as an interest to be protected in terms of Rule 1.7.3 (b). The Respondent’s representative submitted that there were reasons engaging both relevant exceptions.

The Respondent’s representative accepted that it was for the party seeking privacy to satisfy the Panel that the hearing should be in private. He submitted that the problems which were likely to manifest themselves if the Full Hearing was in public would be far more than the embarrassment or awkwardness endured by any respondent. There was evidence of a detrimental effect on the Respondent’s health and a public hearing would harm the Respondent’s ability to participate. Those factors ought to satisfy the Panel that the Full Hearing should be held in private. The Respondent’s representative drew the Panel’s attention to Article 6 of the European Convention on Human Rights (ECHR) which requires a fair and public hearing. Publicity does not trump fairness and, in the particular circumstances of the case, the Full Hearing should be held in private. 

In response to the written response to the application that had been provided by the Presenting Officer, the Respondent’s representative submitted that the rarity of a hearing being held in private was irrelevant. The power was in the Rules and ought to be exercised. The protection of the Respondent’s private life was not the sole basis for the application: both Rules 1.7.3 (a) and (b) were relevant. In terms of Rule 1.7.3 (b), the Respondent’s health was an “other interest” that requires to be protected and, as a result of the Respondent’s health, his ability to participate in proceedings will be impacted and prejudice the administration of justice.

The Respondent’s Employment Tribunal and Employment Appeal Tribunal proceedings were held in public, the Respondent’s representative submitted that what may or may not have occurred in another tribunal was irrelevant as the Panel must only deal with the proceedings before it and had a responsibility to uphold the Respondent’s ECHR Article 6 rights in the GTCS proceedings. The Employment Appeal Tribunal dealt with a narrow issue of law in terms of whether an Employment Tribunal had jurisdiction to set aside a settlement agreement. The level of information regarding the Respondent’s health detailed in the Employment Appeal Tribunal decision was a far cry from the level of detail required for the purposes of the Full Hearing.

To conclude, the Respondent’s representative asked for the Full Hearing to take place in private, failing which, for the Respondent’s evidence be taken in private. 

Presenting Officer’s submissions

The Presenting Officer opposed the application for the Full Hearing to take place in private. He agreed that sensitive evidence about the Respondent’s health and the Respondent’s own evidence could be heard in private as a result of the medical evidence about the Respondent’s ability to participate in the hearing.

The Presenting Officer highlighted Rule 1.7.2 to show that the default position was that hearings would be in public. The Presenting Officer acknowledged that the overriding objective of the Rules would apply, however, it was for the Respondent to convince the Panel that the default position should be set aside. The Presenting Officer also highlighted the GTCS Conducting Hearings in Private Practice Statement which was framed to ensure compliance with ECHR Article 6 so that the Respondent’s interests in a fair and public hearing were protected. The Presenting Officer highlighted ECHR Article 10 and submitted that open justice and public hearings with fair and accurate reporting should not be prevented. This approach was primarily to protect the interests of the Respondent.

The Presenting Officer accepted that the Rules did permit all of part of the hearing taking place in private and highlighted his response to the application contained within the hearing papers.

The Presenting Officer submitted that it would be possible to hold the evidence relating to the Respondent’s health in private and the rest of hearing in public. There would be no difficulty in structuring the hearing in that way and ensuring minimal disruption.

The Respondent’s position in relation to the allegations was denial. As a result, there did not appear to be any correlation between his health and the conduct alleged in the complaint. The Respondent’s witness statement extended beyond the period of the complaint.

The Presenting Officer accepted the Respondent’s representative’s point in relation to the information available publicly as a result of the Respondent’s Employment Appeal Tribunal decision. The detail contained within that decision was not to the same extent of the medical reports before the Panel, but there was reference to a “lack of capacity” already in the public domain.

The Presenting Officer submitted that it would be possible to differentiate evidence about conduct and health in order to protect the GTCS’ commitment to carrying out its functions openly and transparently in considering serious allegations and to ensure that confidence in GTCS as a regulator was maintained. 

Decision

The Panel carefully considered the submissions of both parties as well as all of the information contained within the hearing papers. In reaching its decision, the Panel had regard to the overriding objective of the Rules, to Rules 1.7.2 to 1.7.4, and to the GTCS Conducting Hearings in Private Practice Statement.

The Panel decided that the public would not be excluded from the Full Hearing. The fact that the Respondent suffered from unspecified ill-health was something which could be revealed in public whilst the specific detail of the Respondent’s health, symptoms and treatment could, if necessary, be dealt with in private. This would strike a balance between the Respondent's right to privacy under ECHR Article 8, which is a qualified right, and the demands of ECHR Articles 6 and 10. As for the submission that the Respondent's ECHR Article 6 right to a fair trial would be breached by having a hearing in public, the Panel considered that measures could be put in place to allow the Respondent to participate fully in the hearing and instruct his solicitor on the line of defence.

The Panel paid careful attention to the report provided by Dr A. Dr A said:

"In my opinion, if it would not be possible to separate … [hearing evidence about ill-health] at the hearing from … [the] remainder [of the evidence], then it would be appropriate for the entire hearing to be held in private. "

The Panel noted that the Respondents defence to the complaint was that he did not write or send the correspondence mentioned in the complaint. This was a simple defence. In the Panel’s view, it was difficult to see how this was inextricably bound up with his health in 2013 at the time of the alleged conduct. Even if it was, the Respondent was professionally represented and it should be possible for his representative and the Presenting Officer to separate the evidence out into chapters which discussed the detail of ill-health and other matters.

As for the submission that the Respondent would not be able to fully participate in a public hearing, the Panel rejected this submission as being a reason for excluding the public. What Dr A said was:

“I consider it likely, on the balance of probabilities, that the stress associated with being required to attend a public hearing would lead to an exacerbation of the teacher’s [ill health]. In addition, I consider it reasonable that the teacher’s anxiety about being required to attend a public hearing may impair his capacity to concentrate, communicate and participate optimally in the hearing.”

The Panel respected the opinion, but it was not dispositive. If there was some impact on the Respondent’s health or ability to participate it was outweighed by the desirability of holding the hearing in public consistent with Rule 1.7, and ECHR Articles 6 and 10. The GTCS was bound to the open justice principle and that of administrative transparency. The complaint was serious and it should, if possible, be dealt with at a public hearing. The Panel also had regard to the report of Dr B dated 18 March 2016 which concluded that the Respondent was, “fit enough to work as a supply teacher and… fit to attend a disciplinary hearing.” The Panel was not persuaded that any difficulty the Respondent might have in participating could not be overcome by his being professionally represented and being granted such breaks and other facilities as he needed to enable him to compose himself, take rest, and fully instruct his solicitor. The Panel was also of the view that such steps, as well as holding the parts of the hearing regarding the Respondent’s health in private, would sufficiently guard against any exacerbation in the Respondent’s ill health as a result of the proceedings.

The Panel was of the view that the existence of the Employment Appeal Tribunal decision in the public domain did not make it pointless to allow the Respondent privacy in the GTCS proceedings. The Panel noted that the information about the Respondent's health in the Employment Appeal Tribunal judgment was limited. The Panel's intention was that the information that would go into the public domain at the Full Hearing would, likewise, not go into detail about the Respondent's condition. In summary, in relation to the application under Rule 1.7,3(b), the Panel concluded that it was necessary for certain but the necessity only extended to the specifics of the condition. The general nature of the ill-health would have to be in the public domain for the public to understand the proceedings and the press to make a fair and accurate report. It was only to this extent that the default position would be innovated upon.

In relation to the application under Rule 1.7.3(a), the Panel did not consider that it was necessary for the Full Hearing to take place in private in its entirety or for the Respondent’s evidence to be given in private in its entirety. For the reasons set out above, the Panel was of the view that other measures could protect the Respondent’s health and facilitate his full participation in the proceedings. The Panel concluded that publicity would not prejudice the administration of justice and refused the application under Rule 1.7.3 (a).