You are here: Home > Regulation > Outcomes > Decisions > Procedural Hearing Procedural Hearing Procedural Hearing 29 January 2018 Teacher XXXXX Registration number XXXXX Registration category Secondary, Technological Panel Kerr Wilson (Convener), Lynda Dalziel, Peter Hempsey Legal Assessor Julie Mckinlay Servicing Officer Dani Tovey Presenting Officer Gary Burton, Anderson Strathern Respondent's representative Darren Wapplington, NASUWT 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 on behalf of the Teacher under Rule 2.5.1(c) for the case to be cancelled; An application on behalf of the Teacher under Rule 1.7.29 (b) that the Teacher be treated as a vulnerable witness and for special measures to be adopted; and An application on behalf of the Teacher under Rules 1.7.3 and 1.7.5 for an order to be made by the panel preventing the public disclosure of all aspects of proceedings, including the hearing being held in private 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: PH1 Teacher application and documents PH2 Presenting Officer submissions and documents Preliminary matters Late paper The Teacher’s representative asked the Panel to accept two further letters regarding the Teacher’s health dated 23 and 24 January 2018. The application was not opposed by the Presenting Officer. In accordance with Rule 1.1.17 of the Rules, the Panel may admit documentary evidence subject to the requirements of relevance and fairness. The Panel considered that the papers were relevant being further medical evidence and that it was fair, on the basis that the Presenting Officer was not opposed to the papers being received into evidence, to allow the late papers. Private hearing The Teacher’s representative asked the Panel to conduct the Procedural Hearing in private which was not opposed. The Panel decided to allow the applications to be made in private because it considered that to do otherwise would frustrate the purpose of making those applications. The Panel was also mindful that the basis of the applications concerned the health of the Teacher. The Panel heard oral submissions from each of the parties and considered all of the documentary evidence produced in reaching their decision. Decision Application 1 – cancellation The Panel decided that the proceedings should not be cancelled in terms of Rule 2.5.1 (c). The Panel had regard to the principal aims of the GTCS as set out at Article 5 of The Public Services Reform (General Teaching Council for Scotland) Order 2011, namely (a) to contribute to improving the quality of teaching and learning; and (b) to maintain and improve teachers’ professional standards. In doing so, the GTCS must have regard to the interests of the public when performing its functions. The GTCS must exercise its functions in a way that is proportionate, accountable, transparent and consistent. It must also perform its functions in a way which is targeted only where action is needed. The Panel also had regard to the General Objective as set out in the Rules at Rule 1.3.7. The Rules have as their general objective enabling cases to be dealt with fairly and justly and this should be given effect to by the Panel when exercising their power under the rules. In particular, dealing with cases fairly and justly includes dealing with cases in ways which are proportionate to the complexity of the issues and which ensure that parties are able to participate fully in proceedings and which avoid delay. The Panel considered that, against that background, it required to balance the need to maintain the public interest and protect the public, against the interests of the Teacher. In considering the interests of the Teacher, the Panel had particular regard to the medical evidence produced in support of the application. The Panel considered the GTCS Practice Statement on Health Matters and Medical Evidence. This practice statement details the requirements of the medical evidence provided in support of any applications. It states that the medical evidence should set out (i) a specific diagnosis; (ii) the severity of the conditions(s); (iii)a specific explanation of how the condition(s) impact upon the attendance at the hearing and/or engagement with the hearing process (as well as any recommendations as treasonable adjustments that could or should be made to facilitate attendance/engagement);(iv) what the treatment is; and (v) what the prognosis is. The Practice Statement continues that the strength and quality of medical evidence must correspond to the level and seriousness of the matter at issue. Any medical evidence before the Panel should be considered in accordance with the Practice Statement and the Panel should balance the strength and quality of medical evidence against the seriousness of the matter and the application being sought. It was clear that the Teacher had a history of health issues. The most recent medical evidence produced identified that the Teacher did have a specific diagnosis. Whilst there was no specifier to the severity, the evidence was that the symptoms have been significant and impacted on the Teacher’s occupational and social functioning. Despite this, the Teacher had attended the Procedural Hearing and, whilst it was clear from the medical evidence that there was support for any hearing proceeding in private, there was no specific consideration as to the impact on the Teacher of the proceedings continuing to a Full Hearing. In particular, Dr RXXXX stated that he could not comment on this matter beyond supporting a private hearing. The prognosis was such that Dr Rxxxx had a hope and expectation that once the proceedings had been resolved, the Teacher would be able to make a steady recovery. As such, the medical evidence did not provide support for the conclusion that proceeding to the Full Hearing would have a significant impact on the Teacher such that would justify cancellation. The Panel was of the view that in circumstances where the Panel was being invited to take the significant step of cancelling proceedings, that the medical evidence in support of such a step should be clear and of the upmost quality in supporting such a step. The Panel considered that the allegations were of a serious nature and, if proved, involved the honesty of the Teacher in dealings with the SQA. It was clear that the Teacher denied the allegations and that there was potentially evidence which the Teacher would wish to place before the Panel to address the allegations and the issue his fitness to teach. The assessment of that evidence would be made by a Panel at a Full Hearing and, in the view of the Panel, it is part of maintaining the public interest in proceedings to ensure that the evidence is considered in full and in an open and transparent manner. The Panel could not make any findings in fact in relation to the allegations nor assess the risk to pupils or the public, or the likelihood of recurrence at the Procedural Hearing and, as such, the Panel considered that the matter should be addressed at a Full Hearing without further delay. In weighing the interests of the Teacher against the interests of the public in any allegations being addressed properly at a Full Hearing, on balance, the Panel favoured the case proceeding to a Full Hearing. The cancellation application should accordingly be refused. Application 2 – vulnerable witness and special measures The Panel considered the application that the Teacher be treated as a vulnerable witness in accordance with Rule 1.7.29. Rule 1.7.29 provides: “A Panel may, of its own volition or on the application of any party, treat as vulnerable: Any witness under the age of 18; Any witness whose quality of evidence is likely to be diminished for any of the following reasons: He/she has a mental disorder; He/she has a significant impairment of intelligence and/or social functioning; The allegation(s) is/are of a sexual and/or violent nature, and he/she is an alleged victim; or Fear or distress in connection with giving evidence.” The Presenting Officer opposed the application for the Teacher to be treated as a vulnerable witness on the basis that, in his view, the medical evidence in support of such an application was insufficient. The Panel considered that the Teacher should be treated as vulnerable. In the view of the Panel, the quality of evidence was likely to be diminished as the Panel was satisfied that the Teacher has a mental disorder and, in addition, is likely to suffer distress in connection with giving evidence. The Panel reached this conclusion for the following reasons. The Teacher attended the Procedural Hearing and was clearly in a distressed state. This was so even although the hearing was in private, was relatively short and was a hearing at which he was not required to speak. The Teacher required a break to compose himself during proceedings. It was apparent to the Panel that the Teacher was likely to be distressed at any Full Hearing at which he was to give evidence. The Teacher’s representative had indicated that he had been distressed at previous hearings in relation to the disciplinary proceedings with his employer. In addition, the Panel had regard to the medical evidence. The letter from Dr Rxxxx dated 23 January 2018 indicates that the Teacher is experiencing an Adjustment Disorder (ICD-10). Dr Ruxxxx expressed the view that the symptoms have been significant and impacted on the Teacher’s occupational functioning as well as his social functioning. The Teacher had also experienced suicidal ideation, significant anxiety and low mood. The Panel accordingly concluded that the Teacher has a mental disorder for the purposes of Rule 1.7.29. Having determined that the Teacher is a vulnerable witness, the Panel considered the submissions made by the parties in respect of the measures which might be considered necessary in accordance with rule 1.7.30. The Panel was of the view that, whilst they did not consider that the proceedings should be cancelled, the general objective required that the Panel should ensure that where possible the parties are able to participate fully in proceedings. The Teacher’s representative proposed a number of potential measures. In particular, he considered that the Teacher would be more comfortable giving evidence at the NASUWT Scotland Centre with which the Teacher was familiar and that consideration should be given to the Full Hearing being relocated. The Teacher’s representative also proposed that the Teacher give evidence in a day to be identified and before the GTCS had presented the case. These proposed measures were opposed by the Presenting Officer although the view was expressed that there may be other measures which would be appropriate and the Presenting Officer proposed that if the Full Hearing was to proceed that any measures be agreed at a Case Management Discussion held in advance of the Full Hearing. The Panel was not prepared to adopt a measure which required the evidence of the Teacher to be heard in advance of the case to be presented against him. The onus was on the GTCS to present its case and, having regard to the General Objective, the Panel did not consider that it would be fair and just to proceed to hear from the Teacher prior to the evidence against him being presented. It was not clear to the Panel in any event how that would assist the Teacher to give his evidence. Beyond that, the Panel was of the view that it was appropriate that the parties explore what measures would be appropriate at a Case Management Discussion. The Panel was not minded to prescribe what those measures might be but wished to make it clear that there ought to be no restriction (beyond what they have said as to the order in which the evidence is heard) as to what might be appropriate. In particular, the Panel considered that it ought to be possible to agree the day and precise time at which the evidence of the Teacher would begin to allow an element of certainty. The Panel was not opposed to the relocation of the hearing but, given that the Teacher had attended the Procedural Hearing, it may be that his fears have been allayed somewhat and that a further visit in advance of the Full hearing to Clerwood House might be of assistance. The parties may wish to consider inviting the Panel hearing the case to dispense with the need for the Teacher to read his witness statement and regular breaks could be easily accommodated. If a video link to allow the Teacher to hear the evidence against him away from the hearing room is required that too could be arranged. In summary, the Panel was of the view that sufficient flexibility should be given to allow the Teacher to give his evidence and to be an active participant in proceedings to the extent that this was possible within the rules. The Panel did consider that the Full Hearing should adopt the measure that the Full Hearing be held in private. In reaching this decision, the Panel had particular regard to the medical evidence provided. Dr Rxxxxx, Consultant Psychiatrist, was of the view that hearing be held in private. Dr Qxxxx, Chartered Clinical Psychologist, shared that view. It was apparent to the Panel that the Teacher had experienced a difficult childhood and, as a result (and according to the medical evidence), was particularly sensitive and vulnerable to any perceived negative evaluation. This is a trigger to disturbance of mood and functioning. The Teacher has experienced a significant lowering of mood with impaired functioning and suicidal ideation as a result of GTCS proceedings. Dr Qxxxx considered that a public professional hearing may be more distressing for him than for others and she would be concerned as to the impact on his mental health and wellbeing. Dr Rxxxxx advised that the Teacher expected the hearing to be a humiliating experience and that a public hearing would add significantly to the Teacher’s distress. The Panel was satisfied that in the particular circumstances of the Teacher and having regard to his background and life experiences as narrated in the medical evidence, that it would be appropriate to conduct the hearing in private. The Teacher should be given the opportunity to give his best evidence at any Full hearing and avoid, to the extent that it is possible, the additional stress which arises having regard to the Teachers’ particularly vulnerability, of a Full Hearing in public. Application 3 – privacy and anonymity As the Panel has decided that the Full Hearing should be heard in private and for the reasons already explained, it was unnecessary for the Panel to consider the application for privacy and anonymity as a separate application. For the avoidance of doubt the Panel was of the view that the identity of the Teacher should not be publicly disclosed in any publication of the Full Hearing or outcome.