Panel Consideration Meeting - Virtual Hearing/Hearsay/Privacy/Anonymity Applications - Teacher C

Definitions

Fitness to Teach Panel Decision

Any reference in this decision to:

• ‘GTC Scotland’ means the General Teaching Council for Scotland;
• the ‘Panel’ means the Fitness to Teach Panel considering the case; and
• the ‘Rules’ (and any related expression) means the GTC Scotland Fitness to Teach Rules 2017 or refers to a provision (or provisions) within them.

Background

The Procedural Meeting was arranged to consider the following: Applications made by the Presenting Officer for:

• The full hearing to be held virtually by way of Microsoft Teams.
• For certain evidence to be admitted as hearsay.

Applications made by the Teacher’s Representative for:

• The full hearing to be held in private.
• The Teacher’s name to be anonymised in any subsequent written decision.

Evidence

In accordance with Rule 1.7.17, the Panel admitted all the documents and statements listed below as evidence for the purposes of the hearing:

1. Virtual Hearing application and response, finalised 24 January 2024 with appendices including:
   
   • Appendix B
   • Panel Consideration papers
2. Hearsay application and response, finalised 24 January 2025 with appendices including:
   
   • Panel Consideration papers
   • File Notes of GTC Scotland contact with Person B
3. Privacy and anonymity application and response, finalised 7 February 2025 with appendices including:
   
   • Report from Dr [redacted], dated 6 January 2024

Preliminary Matters

The Panel carefully considered the terms of Rule 2.5.1:

At any stage of proceedings, a Panel of its own volition, on the Convener’s direction or upon the application of a party (in such form as may be specified by the Servicing Officer), may:

(a) determine any interim or preliminary matter that has arisen in the case;

(b) resolve any issues of law; or

(c) consider an application for a case to be cancelled.

Unless a party has (in the relevant application) requested that a procedural hearing be held or a Panel considers that such a hearing is necessary in the particular circumstances, the above matters will be considered by a Panel at a meeting based on the written representations made by the parties in compliance with case management directions set for this purpose.

The Panel noted that neither of the parties requested a procedural hearing in the submissions made. Further to this, the Panel considered that a procedural hearing was not necessary. Therefore, the Panel considered the matter on the papers.

Hearsay Application

The Presenting Officer applied for the following documents to be admitted for consideration by the Panel as hearsay evidence in accordance with Rule 1.7.17 of the GTC Scotland Fitness to Teach Rules 2017:

• (i) For the Police Scotland Witness Statement of Person B to be admitted into evidence.

The Presenting Officer outlined the legal framework, case law and key principles governing the admissibility of hearsay evidence. He submitted reasonable attempts had been made to secure Person B’s engagement. Seeking an order to compel her attendance was not proportionate. The statement was not sole or decisive evidence. It was relevant and ought to be admitted to test the credibility and reliability of Person A and the account provided by the Teacher. The statement was an account contemporaneous with the allegations. Any prejudice to the Teacher was outweighed by the need for the Panel to consider all relevant evidence available to it.

The Teacher’s Representative opposed the admission of the statement. He considered the legal principles. He contended the statement was not relevant: no allegation related to the date covered in the statement and thus it does not relate to any of the allegations. If the statement linked to allegation 6, its relevance was limited at best. The content of the statement was prejudicial to the Teacher and should not be admitted.

Legal Advice on Hearsay

The Legal Assessor advised the Panel on Rule 1.7.17 and the Fact Finding and Fitness to Teach Conduct Cases and Witnesses and Hearsay Evidence practice statements.

Decision

The Panel considered the parties’ submissions and the material within the papers. Further, the Panel had regard to the guidance provided by the Legal Assessor. The Panel considered the Rules and guidance provided within the practice statements. The Witnesses and Hearsay Evidence Practice Statement included a non-exhaustive list of factors to be considered when assessing the admissibility of hearsay evidence. The Presenting Officer had taken steps to secure the attendance of Person B. The statement was not sole or decisive. The allegations were serious and were disputed. The statement was not anonymous. There were reasons for Person B’s non-engagement. The Teacher will attend the full hearing. He is represented. Both the nature and quality of the statement were sound having been noted by a police officer. The Panel assessed various factors and determined that the evidence was relevant. There was evidence that it related to one of the allegations. The Panel considered the fairness of the evidence which had to be considered as had the public interest and public protection. The Panel decided to admit the statement and noted a full hearing Panel would consider the weight to be applied to it when considering all the evidence and submissions.

Privacy/Anonymity Application

The Teacher’s Representative applied for:

• (i) the full hearing to be held in private; and
• (ii) the Teacher’s name to be anonymised in any subsequent written decision.

The Teacher’s Representative outlined the legal principles, GTC Scotland Rules and practice statements, and medical evidence supporting the application. The application was based on the Teacher’s health. Dr [redacted], Chartered Clinical Psychologist had provided a report dated 6 January 2025 following his assessment of the Teacher on 23 December 2024. The Teacher’s Representative argued that the medical evidence met the criteria of the Health Matters and Medical Evidence practice statement. The Teacher had experienced mental health issues culminating in his being intercepted en route to a bridge for a suicide attempt. He had developed significant levels of depression and anxiety and symptoms of reactive stress. Dr [redacted]’s opinion was that in the event of publicity and press reporting there would be a heightened risk of the Teacher developing significant mental health pathology and would consider the Teacher to be a heightened risk to himself. Dr [redacted]’s view was that there were no measures short of granting the application that would adequately mitigate and safeguard against any risk of harm.

The Presenting Officer addressed the legal principles and the allegations, analysed the medical position and adopted a neutral position on the application.

Decision

The Panel considered the application, the submissions of the parties and the supporting papers. It also accepted the legal and procedural advice of the Legal Assessor and Servicing Officer. It took account of the provisions within the Rules and guidance provided by GTC Scotland practice statements, in particular the Privacy and Anonymity practice statement and the Health Matters and Medical Evidence practice statement.

The Privacy and Anonymity practice statement states:-

“The default position set out in the Fitness to Teach Rules (the “Rules”) is that fitness to teach hearings are held in public. However, Panels have a discretion to make orders with a view to preventing or restricting the public disclosure of any aspect of proceedings where certain criteria are met …”

The default position is influenced by Article 6(1) of the European Convention on Human Rights and the Human Rights Act 1988. By reference to Article 6, the practice statement identifies what may amount to circumstances that justify exceptions to the default. Potential reasons narrated include “where the protection of the private life of the parties so require”. The practice statement continues, “Panels must be satisfied that there is a compelling reason for granting such an application [for privacy and anonymity] in order to protect an individual’s private life.”

The Panel considered the medical evidence. Dr [redacted] opined that the Teacher was not suffering from any mental disorder currently. Around November 2022 he had developed clinically significant levels of depression and anxiety. He had been experiencing suicidal thinking. He was acquitted following a court case in February 2023 and his condition improved. He currently presented with reactive stress including significant worry. He will continue to experience that stress throughout the GTC Scotland proceedings. There was a heightened risk of him developing significant mental health pathology, including relapsing into clinically significant levels of depression and anxiety associated with the prospect of publicity and press reporting. Dr [redacted] links this to a heightened risk of self- harm. The Teacher would be able to participate in the proceedings. However, there were no measures short of granting the applications that would adequately mitigate and safeguard against the risk of any harm to his psychological health.

The Panel determined that the medical evidence fulfilled the criteria required by the Health Matters and Medical Evidence practice statement and that weight must be given to it. There was a specific diagnosis that was severe enough to warrant caution in the Teacher’s case. There was a significant risk of deteriorating mental health and self-harm if there was publicity or press reporting. However, the Panel also considered the public interest including the maintenance of the public’s confidence in teachers, the teaching profession and in GTC Scotland as a professional regulator. Furthermore, the public interest involved the deterrent effect that the determination of fitness to teach proceedings may have upon other teachers.

The Panel concluded, for the reasons set out in Dr [redacted]’s opinion and the Teacher’s submission, that there were compelling reasons to justify exercising its discretion to restrict the public disclosure of certain aspects of the proceedings. Firstly, the Panel ordered that the full hearing be held in private. No other type of procedure such as a hybrid hearing was appropriate. Secondly, the Panel directed that the Teacher’s name be anonymized in the published decision of the Fitness to Teach full hearing. The Panel’s view was that these measures were justified considering the medical evidence. They were measures that would hopefully reduce the risk of self-harm that the Teacher posed. A reasonably informed member of the public appraised of the relevant facts would assess the risk of harm as high. The Panel acknowledged the duty of care it had to teachers during Fitness to Teach proceedings. The public would expect GTC Scotland to comply with its duty of care in its processes.

The Panel observed that there may be other details included in a published decision beyond the Teacher’s name that ought to be anonymized. There is the potential for jigsaw identification that would undermine the Panel’s decision on anonymity. The Panel noted that a further anonymity application could be made and considered by the full hearing Panel when the risk posed by other details could be considered and addressed.

Virtual Hearing Application

The Panel Meeting was also arranged to consider the following:

• An application made by the Presenting Officer for the use of video-link or teleconference to allow a virtual Full Hearing.

By default, GTC Scotland conducts all its fitness to teach hearings in person in its dedicated Hearings Suite at its office in Edinburgh. However, in line with Rule 1.7.6, a Fitness to Teach Panel may order that all or any part of a hearing may be conducted using electronic communications provided the method adopted allows the parties, the Panel and any witnesses to attend remotely, and, where the hearing is in public, allows the public to view proceedings.

Electronic communications are commonly used for witnesses to give evidence by participating from a remote location. In addition, an entire hearing may be conducted via electronic communication. Such a hearing is described as a ‘virtual hearing’.

An application for use of electronic communications in relation to a participant taking part in a hearing from a remote location or for a virtual hearing is made by the party who wants to use electronic communication. In certain cases, a proposal is made by GTC Scotland. The relevant procedure and criteria for determining such applications are set out in the Use of Electronic Communications in Hearings Practice Statement.

On 24 December 2024 the Presenting Officer applied for the use of video-link or teleconference to allow a virtual full hearing. The Panel considered the application and submissions made in response which addressed the following factors:

• Is the Teacher represented?
  
  • The Teacher is represented.
• The nature of the issues to be determined e.g. procedural or final outcome?
  
  • The application relates to a full hearing and all stages of procedure may be involved.
• The length of the hearing
  
  • The hearing is estimated to last 8 days.
• The extent and complexity of the issues remaining in dispute
  
  • The issue in the hearing will be the factual dispute on the alleged conduct of the Teacher. The combined papers were 191 pages long. A tailored bundle of papers could be prepared for each remote witness. The case will turn on the credibility and reliability of witnesses.
• The length of time witnesses are expected to give evidence for
  
  • Each witness was expected to give evidence for 2 hours.
• Nature of the witnesses (vulnerable; professional; expert); and the needs of those witnesses
  
  • The were no vulnerable witnesses. Neither the Presenting Officer’s case form nor Teacher’s response form identified any specific needs.
• Do all participants:
  
  • Have access to a suitable electronic device?
    
    • Yes
  • Have suitable internet connection? Wi-Fi strength and bandwidth should be capable of coping with the requirements for a virtual hearing.
    
    • Yes
  • Have an appropriate location from where they can participate alone and undisturbed?
    
    • Yes

The Panel had earlier decided that the full hearing would take place in private.

The Presenting Officer invited the Panel to grant his application. He highlighted the number of professional regulators who conduct virtual hearings. The quality of evidence is not diminished using a virtual platform. There were challenges in scheduling hearings efficiently in a reasonable timescale and virtual hearings permit cases to be assigned expeditiously. Virtual hearings were comfortable for witnesses. The general objective is to deal with cases fairly and justly. A virtual hearing will allow the full hearing to be fixed swiftly mitigating the risk of the quality of evidence diminishing and reducing any risk of the hearing not being within a reasonable time.

The Teacher’s Representative opposed the application. The Teacher preferred the hearing to take place in person. The Teacher’s Representative addressed the relevant Rules, practice statement and caselaw. He relied on the default position that hearings be held in person. He highlighted that the best form of evidence was given in person at a hearing. The witnesses were from the central belt of Scotland and so could attend a hearing in person without difficulty. The Teacher wished to give the best evidence he could to a full hearing Panel. There was no clear and cogent reason for the application and it should be refused which would be consistent with the general objectives of the Rules.

Decision

The Panel carefully considered the application and submissions made in response to it. The Panel had regard to the Rules and to the Use of Electronic Communications in Hearings Practice Statement as well as the advice, as required, of the Legal Assessor and Servicing Officer. The Panel appreciated that it should balance all the relevant factors, the interests of the parties and the public interest in deciding whether to grant the application.

Having carefully considered all the available information, the Panel decided that the balance of the various factors and interests to be assessed weighed in favour of granting the application. It was in the public interest and the Teacher’s interests to have the matter dealt with expeditiously and a virtual hearing will assist with a full hearing being assigned swiftly. There have been many virtual hearings in GTC Scotland proceedings. Panels can manage issues that arise and assess the credibility and reliability of witnesses. Remote participants can engage well in a virtual hearing. The Panel noted the Teacher’s preference for an in person hearing but considered that his ability to engage in the full hearing and give evidence would not be compromised by the virtual platform.