Panel Meeting – Privacy/Anonymity/Virtual Hearing – Kirsten Macneil

Definitions

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:

• An application from the Presenting Officer for the Full Hearing to be held virtually
• An application from the Teacher for the part of the Full Hearing relating to the Teacher’s health to be held in private, and for the details relating to health to be redacted from the Full Hearing decision.

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 meeting:

1. Virtual hearing application by the Presenting Officer, dated 3 August 2022, with appendix B
2. The Teacher’s response to the application, dated 8 August 2022
3. Privacy application by the Teacher, dated 8 August 2022
4. The Presenting Officer’s response to the application, dated 8 August 2022
5. Email from the Presenting Officer, dated 15 September 2022, confirming the content of his application.

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 and having reflected upon the matter, the Panel considered that a procedural hearing was not necessary. Therefore, the Panel proceeded to consider the applications on the papers and written representations made by the parties.

Virtual Hearing

The Presenting Officer applied for the Full Hearing in this matter to held virtually.

By default, GTC Scotland conducts all its fitness to teach hearings in person in its dedicated Hearings Suite at its office in Edinburgh. However, a Fitness to Teach Panel may order that all or any part of a hearing may be conducted by the use of 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’. The relevant procedure and criteria for determining such applications are set out in the Use of Electronic Communications in Hearings Practice Statement.

• Is the Teacher represented?

The Teacher is represented by a solicitor.

• Does the Teacher have any particular needs or vulnerabilities?

The Teacher is not understood to have any particular needs or vulnerabilities.

• How will the Teacher and Representative, if any, communicate during the hearing?

They will communicate in a manner agreed between the parties.

• The nature of the proceedings and issues to be determined at the hearing?

The proceedings will be a Fitness to Teach full hearing to determine allegations relating to the Teacher’s alleged conduct which may bear upon her fitness to teach. All stages of the Fitness to Teach process may potentially be determined.

• The estimated length of the hearing?

The hearing is expected to last 7 to 8 days.

• The extent and complexity of the issues in dispute?

There is a factual dispute that will require to be determined at the full hearing. However, the issues are not understood to be complex.

• Will the hearing take place in public or (partly) in private?

The hearing by default will take place in public. However, the Teacher has made an application for part of the full hearing to be in private.

• The volume of documentation to be referred to during the hearing and how documentation will be provided to witnesses for reference, if required?

The combined hearing papers extends to 351 pages. An individual bundle of papers from the hearing papers will be prepared for each witness and sent to that witness shortly prior to when they are to give their evidence.

• The nature of witnesses to give evidence at the hearing?

The 9 witnesses to be called by the Presenting Officer are a mix of lay and professional witnesses.

• How long is each witness estimated to give evidence?

It is anticipated that each witness will give evidence for no longer than 2 hours.

• Do any of the witnesses have particular needs or vulnerabilities?

No witness is understood to have any particular needs or vulnerabilities.

• What confidence is there that each witness will be able to follow questions easily and any documents being referred to?

There is great confidence that the witnesses will be able to follow questions easily and any documents being referred to.

• How will witnesses be provided with hearing documentation?

An individual bundle of papers from the hearing papers will be prepared for each witness and sent to that witness shortly prior to when they are to give their evidence.

• Will all participants at the hearing have access to a suitable electronic device?

Yes.

• Will  all  participants  have  a  suitable  internet  connection  capable  of  coping  with  the requirements of a virtual hearing?

Yes.

• Will all participants have an appropriate location from where they can participate alone and undisturbed?

Yes.

The Teacher consented to the application.

The issue of the assessment of the credibility and reliability of witnesses at a virtual hearing was considered. It was considered that it will be possible for a Panel to assess credibility and reliability because of a number of virtual hearings have taken place and there has been no issue of this nature.

Privacy/Anonymity

The Teacher appliedfor the part of the Full Hearing relating to her health to be held in private, and for the details relating to her health to be redacted from the Full Hearing decision.

The Teacher’s Representative submitted that part of the evidence to be presented at the Full Hearing  would refer to the Teacher’s health [redacted]. The Representative sought that those elements of the Teacher’s hearing to be dealt with in private on the basis that matters of her health are sensitive, private and confidential. In addition those matters should be redacted from any subsequent published determination. The Representative highlighted that the applications related to limited parts of the hearing and that it would be reasonable, proportionate and in the public interest for the Panel to grant the applications.

The Presenting Officer did not oppose the applications.

Decision

Virtual Hearing

The Panel appreciated that it should balance all of the relevant factors outlined above, the interests of the parties and the public interest in deciding whether or not to grant the application.

The Panel carefully considered the proposal 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 decided that the balance of the various factors and interests to be assessed in determining the application weighed in favour of allowing the hearing to be held virtually.

The Panel did not consider that there were any personal, evidential, practical or technical reasons to refuse the application. In addition, the Panel observed that the Teacher consented to the application.

Privacy/ Anonymity

The Panel had careful regard to the application, the written and oral submissions made by both parties and the supporting papers. The Panel also took account of the provisions within the Rules and guidance provided by GTC Scotland practice statements, in particular the Privacy and Anonymity practice statement, the Health Matters and Medical Evidence practice statement and the Fitness to Teach Publication Policy.

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 practice statement sets out that the default position is influenced by the Human Rights Act 1988 and Article 6(1) of the European Convention on Human Rights (“ECHR”). Further, by reference to Article 6 and Article 8 of ECHR which protects an individual’s right to respect for their private and family life, the practice statement identifies what may amount to circumstances that justify exceptions to the general rule. A potential reason narrated includes “where the protection of the private life of the parties so require”. The practice statement thereafter provides some examples of when a private hearing may be appropriate and one example relates to an individual’s health. The practice statement narrates;

“Where intimate or sensitive details of the physical or mental health of a Teacher or witness are to be raised as part of a case, this may justify holding part or all of a hearing in private/granting anonymity in order to protect the privacy of the individual concerned, as might the impact of a public hearing on the Teacher’s health and ability to participate.”

The Panel concluded, for the reasons set out above in the Teacher’s Representative’s submission, that there were compelling reasons in the particular circumstances of this case to justify the Panel exercising its discretion to restrict the public disclosure of certain aspects of the proceedings relating to the Teacher’s health to be held in private. The Panel refused the Teacher’s application for the details relating to her health to be redacted from the Full Hearing decision as it considered the application unnecessary. The Panel noted that the Publication Policy stipulates that GTC Scotland does not publish certain details in decisions. This includes information about a teacher’s health or other personal circumstances that would create a risk of breaching their Article 8 right to privacy and family life. This means that in this case such details would not appear in the public version of the decision.