Panel Meeting – Case Cancellation Application – Teacher G

Definitions

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; and
• the ‘Rules’ (and any related expression) means the GTCS Fitness to Teach Rules 2017 or refers to a provision (or provisions) within them.

Background

The Procedural Hearing was arranged to consider the following:

• An application by the Teacher for the current procedural hearing to be held wholly in private;
• An application by the Teacher that her fitness to teach case be cancelled in terms of Rule 2.5.1(c); and
• An application by the Teacher for her name to be anonymised in any published decision following the procedural hearing.

Evidence

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

Teacher’s Papers

1. Teacher’s case cancellation application, dated 3 March 2023, with appendices:
   • Signed request from the Teacher to be removed from the Register, dated 29 August 2020
   • Letter from Teacher’s [redacted], dated 20 May 2020
   • [redacted], dated 5 June 2020
   • Notice of Presenting Officer’s case form, dated 22 October 2020
   • Statement of the Teacher, dated 19 May 2020
   • [redacted], dated 27 November 2020
   • [redacted], dated 9 December 2021
   • [redacted], dated 27 January 2023
   • Photographs of newspaper articles
   • Copies of online news articles
   • Letter to Teacher from reporter [redacted], dated 24 January 2023
   • Panel Meeting Outcome, dated 24 February 2021
   • Panel Meeting Outcome, dated 25 February 2022
   • Copy of published procedural hearing decision in respect of Teacher LM
   • Evidence from papers of assault allegation

Presenting Officer’s Papers

1. Presenting Officer’s response to the Teacher’s case cancellation application, dated 14 March 2023

Servicing Officer’s Papers

1. Notice of Procedural Hearing, dated 1 September 2023 with cover email and acknowledgement
2. Email from Teacher’s Representative, dated 5 July 2023, re. procedural hearing being held virtually
3. Email from Presenting Officer, dated 17 July 2023, re. procedural hearing being held virtually

Preliminary Matters

Virtual Hearing

Prior to the hearing commencing, the Panel was asked to consider a proposal that the procedural hearing take place virtually via Microsoft Teams. The Panel had sight of representations from the Teacher’s Representative and Presenting Officer, dated 5 July 2023 and 17 July 2023 respectively, both of whom advised they were content for the procedural hearing to be held virtually. The Teacher’s Representative advised that he did not expect the Teacher to be personally present at the procedural hearing.

The Panel had regard to the representations from the parties, in addition to the Rules and the Use of Electronic Communications in Hearings Practice Statement. The Panel also had regard to the advice, as required, of the Legal Assessor and Servicing Officer.

The Panel determined that in terms of Rule 1.7.6 of the Rules, the parties had an opportunity to make representations on the matter, that the method to be used allowed the parties and the Panel to hear each other, and that it was just and equitable for electronic communications to be used. The Panel therefore decided that the hearing would proceed virtually.

Privacy and Anonymity

The Panel invited submissions on these matters together although they require separate decisions to be made. However, in the first instance, the Panel noted that procedural hearings by default are heard in public. Therefore, firstly, the Panel invited submissions from the parties on whether submissions on Privacy and Anonymity should be heard in private. The Teacher’s Representative and the Presenting Officer were of the view that the submissions should be heard in private.  Having heard the comments from the parties, and having regard to the legal advice provided, the Panel proceeded to hear submissions in private in line with Rule 1.7.3.

The Teacher’s Representative adopted what had already been stated in the written material submitted for the Teacher. He submitted that conducting the procedural hearing in public would be inconsistent with the previous decision to hear the Full Hearing in private. It was not practical in the present application to conduct the hearing partially in public and partially in private. Publicity posed a risk to the Teacher’s health. The submissions are the same in relation to anonymity. It was submitted that the terms of the practice statement are engaged, and the Teacher’s Representative therefore asked for the procedural hearing to be in private and any decision to be anonymised.

The Panel asked the Teacher’s Representative to clarify the details which he sought to be anonymised. The Teacher’s Representative stated that this would be any details in the decision which would lead to the identification of the Teacher, including her name and registration number.

The Presenting Officer stated that these applications were not opposed.

The Legal Assessor advised the Panel that the default was for public hearings, but that the Panel had the discretion to make privacy and anonymity orders.  The Panel should weigh up the competing interests. One relevant consideration was whether the hearing would involve a discussion of the Teacher’s health.  The Panel should consider whether that interest outweighs the presumption for open justice. The application only sought redaction of the Teacher’s name but the extended order sought following discussion appeared to be competent.

The Panel noted that the case cancellation application was predicated on health matters. This was an element of the Teacher’s private life. The Panel noted that the Full Hearing was to be in private, but was conscious to decide the present application on its own merits. The Panel noted the medical evidence, its source and recent nature. The Panel concluded that the evidence met the requirements of the practice statement on medical evidence. [redacted] and relevant points are dealt with.  The evidence indicated that publicity had contributed [redacted]. The Panel [redacted]. The Panel considered that disclosure of these proceedings was capable of having an [redacted] and that the interest in avoiding that outcome outweighed the presumption for open justice.  The Panel therefore determined that the proceedings should be held in private.

The Panel considered that the same considerations applied to the application for anonymity. The Panel therefore determined that the Teacher’s name, registration number and other information which would lead to the teacher’s identification, such as the relevant local authority and places of work to be anonymised in any decision to follow on the cancellation application.

Case Cancellation Application

The Teacher’s Representative adopted his written submission. He referred to a decision following a procedural hearing on 25 February 2022. In that decision, the Panel concluded that the risk to health of proceeding in public made private hearings necessary for the full hearing. The medical evidence indicated that the medical criteria for cancellation were met. There was no contradictory opinion. It was submitted that since that privacy decision, the response on the part of certain of the witnesses had been to go to the press. The Teacher was contacted by the [redacted]. She had also been telephoned. Her case was mentioned on the front page with a full report in the newspaper. There were various reports in the local press. The Teacher has also received letters from journalists. The discussions with the press by witnesses have been undertaken despite having been given legal advice that they should not do this. In terms of protecting the Teacher, GTC Scotland accepts that they cannot take formal steps to prevent this from witnesses.

In relation to the impact of these developments on the Teacher, these were submitted to be demonstrated in the more recent medical evidence. [redacted]. The medical evidence included an assessment of the Teacher’s ability to participate in the proceedings. [redacted]. It was submitted that the Panel has a clear indication that [redacted]. The prospect of publicity cannot be avoided. [redacted].

It was submitted that the [redacted] and there is clear evidence that she will not resume teaching. Her stated position is that she has no intention of doing so. In that respect, one of the situations where cancellation may justified, as described in the relevant practice statement, was met. The question was then whether the Panel should proceed regardless. It was submitted that the Panel should not do so. The Teacher offered to remove herself from the register voluntarily in 2020. Three years on and six years from the latest of the allegations, there were no dates for a hearing and no sign of them at this stage. The investigation was in 2018. A full Fitness to Teach Panel hearing within 6 years from that time was unlikely. It was submitted that there was no risk to the public in cancellation. The Teacher’s health prevents her from returning to teaching and it is her intention not to do so. It was also submitted to be relevant that there was no temporary restriction order, and no application for one was ever made. Seriousness is for the Panel to assess, but it was submitted that the allegations were not of the most serious nature, having regard to how Police Scotland and [redacted], plus GTCS in relation to a TRO, have dealt with matters. Reference was also made to another case cancellation and the case of LM. This was said to bear a number of similarities to the present case. In that case, the Panel was satisfied that the public interest was served by investigation and referral for a full hearing. It was submitted that the public interest can so be served here. It was accepted that the decision made in the case of LM was not binding for this Panel, as the GTCS fitness to teach process does not operate under the principle that a decision made in one case then means that all similar subsequent cases must follow that decision. It was said that best regulatory practice brings about a need for consistency. The Teacher’s Representative submitted that there was no reason not to follow the same course here, and the Panel was accordingly invited to grant the application.

The Presenting Officer stated that the application was opposed. He adopted his written submissions. He directed the Panel to the allegations and the case cancellation application. Case cancellation should be considered on its own merits. The practice statement sets out a list of circumstances where cancellation may be considered. Health is one such circumstance. The Panel will have to consider health evidence and give consideration to the health matters practice statement. It was accepted that the evidence provided meets the criteria of the practice statement on medical evidence. However, the strength and quality of the evidence should be weighed against the seriousness of the allegations. Cancellation was a high bar, and it was submitted that the allegations were at the higher end of the scale of seriousness, involving pupil assault. Based on the seriousness of the allegations, the Panel was invited to reject the case cancellation application.

The Legal Assessor advised the Panel that in order to cancel the case under rule 2.10.9, the Panel must be satisfied that it is in accordance with the general objective, and in the public interest, to do so. The practice statement on case cancellation envisages that the prognosis as evidenced by a medical practitioner is so serious that the teacher would be unlikely to ever teach again. The practice statement also suggests that even that prognosis would not be determinative, but would be required to be considered alongside all other relevant factors, such as the seriousness of the allegations. The Teacher’s written submission made representations in relation to Article 8 ECHR. The Legal Assessor explained this concept to the Panel and its application to the present case. Proportionality in any context was for the Panel to determine. The Panel should consider whether to accept the medical evidence that the prospect of the Teacher returning to teaching at any point was negligible. Whether case cancellation was appropriate is a matter for the Panel to determine in all the circumstances of the case. The nature of the allegations is a relevant consideration, as was the passage of time and the procedural history of the case. The Panel should take into account the Teacher’s ability to participate in the proceedings, and whether and how participation might be facilitated, should the matter proceed to a full hearing. The Panel should consider whether a fair hearing is possible. The Panel should consider the aims of the GTCS in seeking to insist in these proceedings, against the position of the teacher.

The Panel considered the application with reference to the Rules and the relevant practice statements. The Panel had regard to the submissions by both representatives and the documentary material provided. The Panel noted that the proposed grounds for cancellation were that the [redacted] that the process should not proceed. The proceedings were said to be having a detrimental impact on her health, and it was submitted that the Teacher could not fully participate in proceedings. The Panel also noted the age of the allegations, and that it was argued that the Teacher has offered to de-register and that it was said that she is unlikely to ever teach again.

[redacted]

On the basis of the medical evidence [redacted], the Panel concluded that it was likely that these proceedings could be having a detrimental impact on the Teacher’s health. The Panel noted that there was no evidence indicating that the Teacher was likely to ever be able to return to teaching. The medical evidence, and her own evidence, was that the Teacher was unlikely ever to return to teaching. The Panel concluded, on the balance of probabilities, that this was the case.

In relation to the Teacher’s ability to participate in these proceedings, the only evidence for this was [redacted]. His view is that the Teacher is not capable of participating and would advise against that, although in the Panel’s view, this evidence was principally directed towards an in-person evidential hearing on fitness to teach, and there was no consideration of alternative ways of proceeding. There was no contradictory evidence. The Panel therefore concluded that it was unlikely that the Teacher would be able to fully participate in an in-person evidential hearing in relation to her fitness to teach.

The Panel considered whether steps could be taken to facilitate the Teacher’s participation in the fitness to teach process. The Panel considered whether the Teacher’s evidence might be provided by a written statement. Although [redacted] view was that the Teacher could not instruct a representative, it was noted that she presently has representation, presumably appropriately instructed, and that she has been represented throughout the procedure to date. The Panel however recognised that a full fitness to teach hearing would likely require more regular and direct participation and instruction by the Teacher in comparison to procedural hearings. Overall, the Panel was of the view that a fair hearing might be possible if procedural allowances were made for the Teacher’s difficulties, but that in the circumstances, achieving this would be more difficult than proceeding in the usual manner, and that it would not be possible to eliminate the possibility of detriment to the Teacher’s health.

The Panel considered the passage of time. It appeared to the Panel that delays had been caused by the Covid-19 public health crisis, and other procedural issues. The Panel noted that it had not been submitted that the passage of time prevented a fair hearing. The Panel did not consider that delay on its own justified the cancellation of the case.

The Panel considered the nature and seriousness of the allegations. In the Panel’s view, the allegations are serious. Certain of the allegations involve physical contact with children. They are numerous and involve several children and span over a period of around nine months. As a body of allegations, there is a high level of seriousness.

The Panel considered where the public interest lies. Having formed the view that it was unlikely that the Teacher would return to teaching based on the medical evidence, the Panel did not consider that there was a strong public protection argument. In the Panel’s view, it was in the public interest that the allegations were investigated. However, in the Panel’s view, the circumstances in this case suggest that the public interest has been served by the investigations that have already happened.

The Panel considered the public interest in confidence in registrants and in the integrity of the teaching profession, and in GTCS as a regulator. The Panel was of the view that cancelling could have a negative impact on the GTCS as a regulator, given the seriousness of the allegations. In the Panel’s view, a reasonably informed member of the public would consider that the GTCS would pursue a case of this nature to a full hearing, because of the seriousness of the allegations.

The Panel considered the public interest in the need to declare and maintain standards. The Panel noted that the Teacher largely denied or at least sought to explain the allegations. Overall, she denies misconduct. The Panel noted that a number of children were allegedly involved. Their parents are likely to want to know if what happened to their children fell below the standards. The Panel considered that the public interest in the need to maintain and declare standards was a relevant consideration in this case.

The Panel did not consider that cancellation of the proceedings in the particular circumstances of the case would have a particularly strong impact on the deterrent effect provided by the existence of the regulatory framework.

The Panel considered whether it was fair and just to continue the proceedings and whether it was the public interest to cancel or continue with the case. The medical evidence, which the Panel accepted, was that the Teacher [redacted]. On the other hand, the allegations were serious, and denied by the Teacher, and there was a public interest in further examination of these. The Panel considered that the case was a finely balanced one.

Ultimately, the Panel’s view was that the significant health issues of the Teacher and the potential of further risk to health outweighed the seriousness of the allegations and the public interest in proceeding to a full hearing. A key objective of fitness to teach proceedings is the protection of young people. The medical evidence indicated that the Teacher will not go back to teaching, and she has lodged a written letter asking for removal. That objective was likely served in the particular circumstances of the case. In the Panel’s view, the allegations were serious, and cancellation might be capable of having an effect on public confidence in the regulator but this possibility was outweighed by the consequences or possible consequences for the Teacher by the continuation of the proceedings, in the particular and somewhat extreme circumstances of the case.

The Panel therefore decided that the case cancellation application should be granted.

The Teacher made written submissions contending that refusal of the cancellation application would be a disproportionate interference with the Teacher’s rights under Article 8 ECHR. The Legal Assessor provided the Panel with detailed advice on the approach to a proportionality assessment in the ECHR context. Having made the decision that cancellation should be granted under the provisions of the Rules and the relevant practice statement, the Panel did not consider that separate consideration of this issue was required.