The General Teaching Council for Scotland

General Teaching Council for Scotland Fitness to Teach Panel Outcome

Conditional Registration Order Review Hearing

27 May 2020

 Teacher  Liam MacIntyre (not present - not represented)
 Registration Number  065194
 Registration category  Secondary Education - Mathematics
 Panel  Kathleen McCormick (Convener), Michelle Farrell and Brian Feeney
 Legal Assessor  James Mulgrew
 Servicing Officer  Kirsty McIntosh
 Presenting Officer  Gary Burton (Anderson Strathern)
 Teacher's representative  Darren Wapplington

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
  • the "Rules" (and any related expression) means the GTCS Fitness to Teach and Appeals Rules 2012 or refers to a provision (or provisions) within them
  • the ‘Register’ means the GTCS register of teachers.
  • "CRO" means Conditional Registration Order

Preliminary Issues

Application for Private Hearing

The Teacher applied for the Conditional Registration Order Review Hearing to be held in private. The Hearing was taking place during the Covid-19 pandemic. The proceedings were to take place via video-link with parties participating through that medium. Further, members of the public could view proceedings remotely by video-link organised via GTCS. A web-notice was placed on the GTCS website in relation to this. In order for a member of the public to view proceedings, they required to contact GTCS 24 hours prior to the hearing. Thereafter, the member of the public would be e-mailed by GTCS with a link to the virtual hearing. In relation to this hearing, one member of the public had responded to the web notice and asked to view proceedings. That member of the public was a GTCS registered teacher. Their interest in the proceedings was understood to be general and was borne through a desire to learn more about the Fitness to Teach process and proceedings should they require to attend a hearing in the future. The member of the public had no connection to the Teacher nor had any involvement in the original referral or proceedings.

The Teacher’s Representative submitted that given the public could access the proceedings virtually then it was necessary for the Panel to consider all of the implications from a point of principle in relation to the conduct of such remote or virtual hearing. The Teacher’s Representative noted the manner in which Fitness to Teach Hearings would ordinarily take place, which would usually be at a specific physical location during the working week on days when schools were open to pupils and staff. It was submitted that the combination of the virtual nature of the proceedings and the impact of the Covid-19 pandemic may result in voyeuristic attendance by members of the public who may misuse information. The Teacher’s Representative contended that such a change in practice to a public broadcast should only follow detailed consultation to allow all aspects of the procedure to be considered including safeguards to ensure the fairness and reasonableness of proceedings. The fact that members of the public would not be physically in front of the Panel resulted in the Panel’s ability to control proceedings and members of the public being diminished. It was further submitted that the procedure would also allow a member of the public to potentially record proceedings in some manner. Further, such a recording would be made without the consent of the participants in the hearing. This impacted upon the duty of care owed by a participant’s employer towards that participant. The Teacher’s Representative also highlighted that the manner in which witness testimony would be given may inhibit a witness in their responses knowing that they are being viewed by what was contended as an unlimited number of people and that the testimony given could be manipulated and misused to misrepresent the content and sense of the testimony. The Teacher’s Representative acknowledged that the proceedings were to be conducted during extraordinary times and that flexibilities in practice may be required. However, it was contended that the need for flexibility required to be balanced against the potential adverse consequences and precedent that may be set.

The Presenting Officer opposed the application for a private hearing. He contended that the ease with which and thus a greater likelihood of members of the public attending virtually was not a basis to permit a hearing to be held in private. The Presenting Officer also submitted that the medical evidence offered as part of the Teacher’s case was not sufficient to support a privacy application. The Presenting Officer did not accept that the Panel would be unable to control any member of the public who attends the hearing virtually. Inappropriate behaviour by a member of the public could be dealt with as it would at a physical hearing with the member of the public being removed from the hearing. The Presenting Officer highlighted that the submissions made on behalf of the Teacher were based on principle rather than actual concern about the circumstances of the present hearing. Finally, the Presenting Officer identified the importance of the default position that hearings are held in public in light of the overarching principles of openness, transparency and fairness. That resulted in a high bar being set in relation to privacy applications and that it was rare that such applications are granted.

The Legal Assessor intervened following the submissions to remind the Teacher’s Representative that  an application to postpone or adjourn a hearing could be made if a witness were to feel inhibited in giving evidence and if there was a concern that that inhibition would affect the witness’ testimony. It was understood that the Teacher would be the only witness to give evidence at the hearing. The Teacher’s Representative indicated that no application to adjourn would be made. The Teacher wished to have proceedings dealt with rather than having the prospect of a hearing hanging over him for a further period of time.

The Panel had careful regard to the application made, 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 GTCS 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 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. Further, by reference to article 6, the practice statement identifies what may amount to circumstances that justify exceptions to the general rule. One potential reason narrated is ‘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 in order to protect an individual’s private life.’

Another potential reason for privacy narrated in the practice statement refers to occasions when special circumstances existed where publicity would prejudice the interests of justice. The expression ‘special circumstances’ was said to be narrow in scope and that it is for a panel to determine whether they apply. Special circumstances were said to potentially exist in cases involving national security issues, a risk of public disorder or where there is a genuine need to protect the identity of witnesses.

The Panel decided to refuse the privacy application. The Panel observed that the way in which the proceedings would be conducted by the participants and viewed by the public did not equate with a public broadcast or live streaming. The Panel did not identify major differences in the procedure that would be followed in the hearing than there would be if the hearing were conducted at a specific physical location. Communication was possible between the participants and between the Panel and the member of the public. The Panel considered that the potential ability of a greater number of members of the public to view proceedings and the manner in which they could view proceedings were irrelevant. The Panel was not satisfied that there would be a risk to the interests of justice or the fairness of the proceedings were it to take place in public within the virtual setting. The manner in which it was to proceed had been communicated and discussed with the parties. The Panel also noted that the Teacher did not wish there to be any further delay. The Teacher’s Representative had made a number of separate points which he said derived from a point of principle. The likelihood of the potential concerns that he raised manifesting themselves in the present case was very low. Further, the Panel’s view was that it was very unlikely that those issues would impact upon the present hearing and it assessed the risk that those issues caused to the fairness of proceedings to be very low. The Panel was comforted by the procedures that were in place for a member of the public to seek to view the proceedings as had been set out in the web notice in relation to the hearing. Prior to permission being granted to a member of the public to view proceedings, the member of the public required to provide their name and an e-mail address for login details to be delivered to them. The Panel also noted that a warning had been given to participants in the web notice regarding their conduct. The Panel was further comforted in the present case given that they understood that the member of the public who had sought to view proceedings was a GTCS Registered Teacher with a general interest in Fitness to Teach proceedings. Prior to the hearing, the Servicing Officer verified that the individual was on the GTCS Register of teachers. Accordingly, for those reasons, the Teacher’s application for a private hearing was refused.

However, the Panel noted that parts of the evidence which may be led or part of the submissions made by either of the parties may touch upon sensitive details in the Teacher’s private life and from his medical background. For that reason, the Panel determined that the detail of personal or medical information relating to the Teacher was private and that parts of the hearing when evidence would be led or submissions made about such matters would be held in private.

History and Allegation

The Panel convened to consider the application made by the Presenting Officer for a review of the Conditional Registration Order (CRO) that the Teacher was made subject to following a Fitness to Teach Full Hearing held on 18 to 21 February 2019. The Full Hearing had determined allegations in relation to the Teacher’s conduct. Some of those allegations had been admitted and/or found proved. The Full Hearing Panel determined that at the date of the Full Hearing the Teacher’s fitness to teach was impaired.

The Full Hearing Panel determined that the appropriate disposal at that time in relation to the Teacher was a CRO and a Reprimand for a duration of 12 months. The relevant condition insofar as the review application was concerned was worded as follows:

‘1. You must identify and engage with suitable professional support, for example a psychologist, counsellor or mindfulness practitioner for 12 months, and provide evidence of attendance at the conclusion of each school term.’

Other conditions of the CRO related to the Teacher’s ongoing engagement with a school-based mentor and submission of reflective pieces relating to the Teacher’s ability to communicate and work effectively with colleagues. The Teacher had provided sufficient evidence in relation to conditions 2 and 3, and this Panel was only required to consider whether the Teacher had breached condition 1.

During the currency of the CRO, GTCS received evidence that the Teacher had attended counselling services for 5 months, between June and October 2019 and not for the 12 months stipulated in the condition.

The Presenting Officer’s application for a review of the CRO identified that the assessment of the Teacher’s compliance with it was not an administrative matter that could be dealt with by GTCS and required to be determined by a Panel.

Teacher’s Admissions

The Teacher’s position was that he had fully complied with the spirit and intentions of the CRO.

Hearing Papers

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:

Presenting Officer’s Hearing Papers

P1   Application by Presenting Officer for Review of Conditional Registration Order
P2   Appendices to Presenting Officer Application, including:
(i) Full Hearing Decision, dated February 2019
(ii) Emails between former Servicing Officer and Teacher’s Representative, dated March 2019
(iii) Email from Teacher’s Representative to GTCS, dated 22 January 2020
(iv) Letter from [redacted], dated 2 September 2019
(v) Letter from [redacted], dated 31 October 2019
(vi) Signed Conditional Registration Order, dated 27 March 2019

Teacher’s Hearing Papers

 
T1   Submissions by Teacher’s Representative, dated March 2020
T2   Appendices to Teacher submissions, including:
(i) Email from Teacher regarding counselling, dated 12 March 2020
(ii) Email from Teacher regarding counselling, dated 3 March 2020
(iii) Email from Teacher regarding counselling, dated 20 February 2020
(iv) Email from Teacher’s representative to GTCS, dated 22 January 2020
(v) Documents submitted by Teacher to Representative, dated August 2019
(vi) Notes of mentor meetings, dated May-June 2019
(vii) Term 1 reflections
(viii) Term 2 reflections
(ix) Notes of mentor meetings, dated August-October 2019
(x) Letter from [redacted], dated 31 October 2019
(xi) Term 3 reflections
(xii) Notes of mentor meetings, dated October-December 2019
(xiii) Term 4 reflections, dated 4 April 2020
(xiv) Term 4 mentor meeting notes, dated January-March 2020
(xv) Letter from GP, dated 20 March 2020
(xvi) Letter from [redacted], dated 14 May 2020

Servicing Officer’s Hearing Papers

S1 CRO Review Hearing Notice, dated 12 May 2020, with delivery/read receipts
 

Summary of Evidence

The Panel had been provided with the papers listed above. The papers included detailed submissions from the Presenting Officer and the Teacher’s Representative. The Panel also heard oral evidence from the Teacher. Thereafter, both the Presenting Officer and Teacher’s Representative made some additional submissions to the Panel.

The Presenting Officer’s position was outlined in the Application for Review of the CRO. During the currency of the CRO, GTCS received evidence that the Teacher had attended counselling services for 5 months, between June and October 2019 and not for the 12 months stipulated in the condition. The Teacher submitted a letter to GTCS by e-mail on 1 November 2019. The letter was from [redacted] and was dated 31 October 2019. The letter confirmed the Teacher had completed eight sessions on dates ranging from 20 June 2019 until 23 October 2019. Eight sessions were the maximum number that the Teacher could receive within that service. The Teacher had not chosen to end treatment nor decline ongoing treatment. The service included an option for the Teacher to re-refer himself after a period of 3 months from 23 October 2019 if he considered that he would benefit from further treatment. The letter indicated that the Teacher would have agreed goals, behaviours and actions to continue to work on after the conclusion of the eight sessions. The Teacher’s Representative had liaised with GTCS in relation to that evidence and the terms of the condition in January 2020. There was ongoing communication between GTCS and the Teacher’s Representative around that time relating to the wording of and practical implications of condition 1. The Teacher’s Representative had also highlighted to GTCS that the Teacher was very anxious about complying with the CRO.

The Teacher’s Representative position was outlined in his detailed written submission supplemented by oral submission. He submitted that the Teacher had complied with the spirit and intention of the CRO. The Teacher and his Representative had shared some concerns following the Full Hearing in relation to the wording of condition 1. However, notwithstanding those concerns, no submissions were made at that time, nor was a review sought at an earlier stage in relation to the wording of the condition. It was felt that such a submission or review may give the wrong impression of unwillingness on the part of the Teacher to accept the CRO and of a lack of motivation on the Teacher’s part to comply with it. The Teacher’s Representative reflected that it may have been better if a review of the CRO was sought on the Teacher’s behalf at an earlier stage.

The Teacher’s Representative highlighted that the Teacher had complied with the other conditions of the CRO. Condition 1 had been more difficult to comply with. The Teacher’s Representative highlighted that no counselling model exists which provides twelve appointments on a monthly basis from the outset of treatment. Following the imposition of the CRO, the Teacher had visited his GP for a referral to a counselling service. The Teacher was referred to [redacted]. Letters from [redacted] had been submitted to GTCS and were provided to the Panel. The Teacher had attended the full eight sessions provided by [redacted] up to 23 October 2019. Thereafter, the Teacher continued to work on the agreed goals, behaviours and actions following his final session. The Teacher had submitted the [redacted] letter dated 31 October 2019 to GTCS by e-mail on 1 November 2019. That was not submitted at the end of term in December 2019 but was at the conclusion of his physical attendance at [redacted]. The Teacher did not receive any feedback from GTCS. The Teacher contacted his Representative about his compliance with the CRO. Thereafter, the Teacher’s Representative contacted GTCS on 22 January 2020 in relation to the issue. On 28 February 2020, the Teacher’s Representative received correspondence from GTCS advising an Application for Review would be submitted by the Presenting Officer. Since then, the Teacher had gone back to [redacted] to seek further counselling. A further letter from [redacted] had been provided dated 14 May 2020 which confirmed that the Teacher had completed a further five counselling sessions from 26 March 2020 until 23 April 2020. The letter also stated that the Teacher had booked himself into a group therapy course and had attended sessions on 16 and 23 March 2020. However, that group had been cancelled due to low levels of participation. The letter indicated that the Teacher’s therapist had not identified the need for him to be referred to a more specialised service or to engage further with an ongoing block of therapy sessions. Again, there was an option available to the Teacher to re-refer himself after a 12 week period should the Teacher feel that to be beneficial.

The Teacher answered questions from his Representative and from the Panel. The Teacher indicated that he had evolved prior to, during and after the fitness to teach process. In particular, listening to a colleague at the Full Hearing talk about how his conduct had affected the colleague had flicked a switch in him. He explained that allowed him to reflect not only on the detail of what had happened but also the impact of his behaviour on others. He now viewed himself as a far more considered person when he communicates. He has changed how he looks at communication and approached communication in a different manner. The Teacher described the process as having been on an emotional rollercoaster but that his mind was clearer now as to how he could avoid similar situations going forward. There had also been a positive impact on him by being given the opportunity to continue to teach which he described as a vocation. The Teacher described the work that had gone on during the sessions with [redacted]. He also described steps that he took out with the sessions including practising mindfulness, breathing, yoga and reading articles online. He also utilised an app on his phone called ‘Headspace’ which he found useful. In order to ensure that he could demonstrate that he had complied with the CRO he returned to see his GP and had also been re-referred to [redacted]. He had now completed more sessions with them and continues with mindfulness. His view was that had helped him with communication in every aspect of life and he also felt in a better place. His relationships had improved and were more positive at work.

The Teacher also explained and gave examples of the work and action plan that he had been given by the therapist. The Teacher described anxiety following work situations where he may not have spoken up when he felt something was wrong. He gave a particular example and explained how he reacted to that. He drafted an e-mail that allowed him to vent how he was feeling, but then did not send the e-mail. He then returned to the e-mail 24 hours later, read it again and reflected on the matters raised and how the e-mail should be worded. The Teacher also explained how he has coped with communication during the Covid-19 pandemic. The Teacher explained that communication with colleagues had been via a WhatsApp group and using the Zoom video conferencing facility. He had found those methods of communication as better than e-mails. In particular, the ability to use emojis in a WhatsApp group helped him to ensure that he conveyed the correct mood in his communication.

The parties then made closing submissions. The Presenting Officer submitted that it was unfortunate that the wording of the condition was open to differing interpretations. He submitted that the Application for Review had to be made as it had not been open to him or GTCS to determine the Teacher’s compliance with the condition administratively. The Presenting Officer advised the Panel that he had been involved in part of the Full Hearing. He described a difference in the Teacher now than he had observed previously at the Full Hearing. The Presenting Officer indicated that was to the Teacher’s credit. The Presenting Officer identified that the Teacher had benefited from sessions that he had been involved in and highlighted how the Teacher now focusses on the impact of his actions on his colleagues. The Presenting Officer distinguished this application from others where GTCS make a positive assertion that a teacher has failed to comply with a condition. It had never been the position of GTCS that the Teacher had failed to comply with the condition. Finally, the Presenting Officer submitted that any residual concerns that may have existed in relation to the Teacher’ compliance with condition 1 appear to have been satisfied following the evidence given by the Teacher at this Conditional Registration Order Review Hearing.

The Teacher’s Representative thanked the Presenting Officer for his submissions. The Teacher’s Representative thereafter submitted that the Teacher’s intention and actions throughout had always been to seek to comply with the condition. It was submitted that the Teacher had sought to comply with that condition in a responsible and conscientious manner. The Teacher’s Representative contended that the Teacher had complied with the clear spirit and intention of the condition.

Findings of Fact

The Panel gave careful consideration to all of the evidence presented and submissions made by the parties in making its findings of fact on the application for review.

The Panel had in mind that the burden of proof rested on the Presenting Officer and that the standard of proof required is that used in civil proceedings, namely the balance of probabilities.

The Panel found the Teacher to be a credible and reliable witness. The Panel considered the Teacher to have given his evidence honestly. Explanations that he had provided in response to Panel questioning matched the detail of paperwork that had been submitted in advance which bolstered his reliability. The Panel also considered the Teacher’s evidence to have been quite reflective. He had reflected on personal experiences. He also had reflected on professional experiences. The examples that he gave of issues that had arisen at school demonstrated that the Teacher had sought to implement the guidance he had been given during therapy sessions.

The application for the review of the CRO had been necessary due to the wording of the CRO and the manner in which the Teacher had evidenced his compliance with it. The Panel recognised the importance of the interests of the Teacher in the framing of conditions. However, the Panel also reminded itself of the importance of satisfying the public interest when conditions are framed and when compliance with conditions is assessed. It was unfortunate that perhaps the wording of condition 1 was not perfectly translatable with, or did not clearly mirror the manner in which a medical professional would deal with an issue that the condition was designed to address. The Panel noted that may not be possible in every case. In any event, the Panel was satisfied in this case that the Teacher had complied with the condition given the written and oral evidence presented by him and given the submissions of the Presenting Officer and the Teacher’s Representative. Furthermore, the Panel was pleased that the Teacher appeared to have benefitted from the measures that the CRO required him to take as well as benefitted from his own endeavours.

Decision

The Panel ultimately determined that the Teacher had not breached condition 1 of the CRO, but had in fact complied with it to the best of his ability based on the recommendations of the professional who was overseeing his treatment. As the CRO was considered to have been complied with, the Panel was  not of the view that the CRO required to be extended or amended in any way, and since the CRO expired on 27 March 2020 the Panel was content that this would cease to appear on the Teacher’s Register entry, and no further order should be made.