The General Teaching Council for Scotland

Enhancing professionalism in education since 1965

Procedural Hearing Outcome

Procedural Hearing Outcome


Monday 20 November 2017

Teacher XXXXXX
Registration number XXXXXX
Registration category Primary
Panel John Kilpatrick (Convener), Maureen Anderson, David Tierney
Legal Assessor Robert Frazer
Servicing Officer Vivien Whyte
Presenting Officer Gary Burton, Anderson Strathern LLP
Teacher’s representative Alastair Milne, Balfour & Manson LLP

Definitions

Any reference in this outcome 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 Rules 2017 or refers to a provision (or provisions) within them;
  • the “Register” means the GTCS register of teachers;
  • “COPAC” means the GTCS Code of Professionalism and Conduct;

Background

The Procedural Hearing was arranged to consider the following applications made by the Teacher:

  1. For the Fitness to Teach Hearing to be conducted in private;
  2. For the name of the Teacher to be anonymised in the written decision issued at the conclusion of that Hearing

Preliminary matters

Mr Milne, on behalf of the Teacher, made an oral application for this Procedural Hearing to take place in private given that the application itself was for privacy and anonymity of the Teacher.

Mr Burton, on behalf of GTCS, did not oppose this application.

The Panel had regard to the GTCS Practice Statement on Conducting Hearings in Private and given the nature of the principal application determined that it was appropriate and in the interests of justice for the hearing to proceed in private in order that all matters could be considered fully.

Mr Milne also confirmed that he was not insisting on the application for anonymity at this stage and that he would intend to put that application to the Full Hearing Panel at the conclusion of the Full Hearing.

Evidence

In accordance with Rule 1.7.17 the Panel admitted all the documents listed below as evidence for the purposes of the Hearing:

  1. Letter from Dr XXXX XXXXXX, XXXXX XXXXXXX XXXXXXXX, dated 22 February 2017, enclosing medical records of the Teacher
  2. XXXXXX XXXXXXXXXX Report prepared by Dr H XXXXXX XXX, dated 13 July 2017
  3. Letter from Dr HXXXXXX XXXXXXX dated 11 September 2017
  4. Letter from Dr XXXX XXXXXX, XXXXXX XXXXXX XXXXX, dated 20 September 2017
  5. GTCS Procedural Hearing decision dated 11 December 2015
  6. Notice of Presenting Officer’s Case Form dated 24 April 2017

In addition, the Panel had before it the written submissions lodged, in advance of the Procedural Hearing, by Mr Milne and Mr Burton.

The Panel also heard oral evidence from Dr HXXXXX XXXXXXX XXXXXXXX XXXXXXXXXXX. She spoke to her report dated 13 July 2017 which followed her examination of the Teacher on 15 June 2017. She concluded that in her professional opinion the Teacher has developed X XXXXX XXXXXXXXXX XXXXXXX XXXX XXXXXXX which is likely to be heightened as the case progresses towards a Full Hearing. In her opinion, as expressed in her letter of 11 September 2017 to Balfour & Manson, she was concerned that he will be unable to participate fully in the Hearing if held in the public domain and that he might be unable to attend at all. She concluded by stating in her report; “with regards to the GP entry of January 2017 I would have concerns about the risk of XXXXXXXXX in the lead up to the hearing should it be held in public, including the risk of XXXXXXXXX XXXXXXX.”

Decision

The Panel considered all of the documentation noted above together with the oral evidence of Dr HXXXXX and the submissions of Mr Milne and Mr Burton. The Panel noted that Mr Burton, on behalf of GTCS, did not formally oppose the application but left it to the Panel to exercise its discretion in determining the application on its merits.

The Panel had careful regard to Mr Milne’s submissions, which were founded on the evidence of Dr HXXXXX together with the written medical evidence from the Teacher’s GP and accompanying medical records. It was his submission that, taken together, the evidence presented, was such as to justify a departure from the normal rule under 1.7.2 that the Hearing be in public. In particular, he submitted that the Teacher is suffering from a XXXXX XXXXXXXXXX XXXXXXX which is likely to be worsened as the case proceeds towards a Full Hearing. He submitted that, in the event of the application being refused, there was a real prospect that the Teacher would not attend or be able to properly participate and his XXXXXX health was likely to be adversely affected.

The Panel took account of rule 1.7.2 which states a Hearing shall be in public and rule 1.7.3 which states, inter alia:

A Panel may, at any stage of the proceedings on its own volition or on application to it, make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings. A Panel may do this so far as it considers it necessary where it is satisfied … that it is in the interests of justice to do so and the particular circumstances of the case outweigh the interests of the Teacher and the public in the hearing being held in public…

Such orders may include (but will not be limited to) –

  1. An order that a hearing be conducted (in whole or in part) in private;
  2. An order that identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed at such proceedings to the public (by the use of anonymization or otherwise) and whether before, during or after those proceedings;..”

The Panel took account of the relevant Practice Statements and noted the examples provided of when it is considered appropriate to grant an application for privacy and anonymity. It noted that there must be strong and compelling evidence to support such an application. In relation to expert medical evidence it noted that the GTCS practice statement on Health Matters and Medical Evidence indicated that the following matters should be addressed:

  • A specific diagnosis of the condition or illness
  • The severity of the condition
  • A specific explanation of the impact on a teacher’s attendance or engagement
  • Whether reasonable adjustments can be made to address any concerns in attendance or engagement

The Panel carefully considered the evidence of Dr HXXXXX. It considered that a large part of her written report appeared to focus on her interpretation of the factual evidence surrounding the allegations. The Panel did not consider that this was something that was within her expertise and on which she should comment. The Panel also considered there was a contradiction within her evidence. In her written report she stated that she had been sufficiently concerned by the Teacher’s overall XXXX that she carried out a XXXX XXXXXXXXXX XXX XXXXXXX. Asked at the hearing what the outcome of that XXXXXXXXX was, Dr HXXXXX said that she was content, having carried out that XXXXXXXXXX, not to refer the Teacher to X XXXXXXXXXXX. However, in her oral evidence she indicated that there was a significant risk of a deterioration in the Teacher’s XXXXXX health and potential for XXXXXXXXX XXXXXX if the applications were not granted.

The Panel next considered the GTCS Practice Statement on Health Matters and Medical Evidence. Notwithstanding the concern expressed above, the Panel considered the position to be;

  • That the specific diagnosis of Dr HXXXXXX is that the Teacher has a XXXXX XXXXXXXXXX XXXXXXXX XXXX XXXXXXx;
  • That the severity of the condition is that the Teacher is XXXXXXXXXX XXXXXXXXX XXX XXXXXXX;
  • That in the absence of privacy/anonymity the Teacher will have difficulty in participating in the Hearing, which includes the possibility he will not attend and that his health will be adversely affected;
  • That it would be difficult to make adjustments to enable the Teacher to properly participate in the Hearing, even if his evidence alone were to be given in private, because of the nature of the allegations and evidence likely to be led

The Panel had regard to the letters from the GP and supporting medical records. It considered that these demonstrated that the Teacher has had XXXXXX health difficulties for some considerable time since the allegations were made against him. In the most recent letter from the GP the Panel noted that the Teacher had a high level of daily XXXXXX and that he had been prescribed XXXXXXXXXXXXXXX medication. It took into account that the strength of this medication had recently been increased from XXXXXXXXXXXXX to XXXX.

The Panel considered all matters carefully, including the GTCS objective that its processes be conducted with openness and transparency. It bore in mind that in terms of Article 6 of the European Convention on Human Rights (ECHR), an individual is entitled to a fair trial within a reasonable period of time. In terms of Article 8 an individual is entitled to a right of privacy and family life. Such rights, the Panel considered, must always be balanced against the right for such hearings to be conducted in public unless exceptional reasons exist for departing from this requirement.

In the circumstances, the Panel concluded that this was a case which fell within the ambit of rule 1.7.3 to justify the Hearing being held in private. It concluded that the Teacher has a XXXX XXXXXXXXXX XXXXXXX for which he is being prescribed medication. It concluded that in the absence of the Hearing taking place in private there was a strong possibility that he would not attend or be able to participate effectively. In addition, the Panel considered that if the Hearing were in public then there was a strong likelihood of his health deteriorating with the possibility of XXXXXXXXX XX XXXXXXXXX XXXXXX. In these circumstances the Panel was satisfied that there was strong and compelling evidence to justify departure from the normal rule that the Hearing be in public.

The Panel was therefore satisfied that it was in the interests of justice that the Hearing be held entirely in private. In doing so it considered that the Teacher’s own interests, in the particular circumstances of this case, outweighed the public interest in following the normal rule under 1.7.2. Accordingly, the Panel ordered that the Full Hearing in this case be held in private in its entirety.

Finally the Panel noted that the second part of the application for anonymity was not, at this stage, insisted upon and will be something for the Panel at the Full Hearing to consider, if requested to do so.