Home > Regulation > Outcomes > Decision - Michael Gaffney General Teaching Council for Scotland Fitness to Teach Panel Outcome Conditional Registration Order Review Hearing 31 July 2020 Teacher Michael Gaffney (present and represented) Registration Number 910323 Registration category Secondary Education - History Panel Brian Feeney (Convener), Pauline McClellan and Joanne Sharp Legal Assessor James Mulgrew Servicing Officer Kirsty McIntosh Presenting Officer Gary Burton (Anderson Strathern) Teacher's representative Jamie Foulis (Balfour + Manson LLP) 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 ‘CRO' means Conditional Registration Order the 'IOG' means the Fitness to Teach Conduct Cases - Indicative Outcomes Guidance Practice Statement; and the 'Register' means the GTCS Register of Teachers Preliminary Issues No preliminary matters were raised by either party. Background The Panel considered the application made by the Presenting Officer for a review of the CRO signed by the Teacher on 23 July 2019. The Teacher had originally been made the subject of a CRO at a Full Hearing held on 11, 18 and 19 December 2017. The Full Hearing had determined an allegation in relation to the Teacher’s conduct following his conviction for a criminal offence. The Teacher had admitted the allegation and admitted that his fitness to teach was impaired. The Full Hearing Panel determined that the Teacher’s Fitness to Teach was impaired and that the appropriate disposal was a CRO and Reprimand to be imposed for a duration of 18 months. That CRO was amended at a Fitness to Teach Panel Meeting on 17 July 2019 following an application by the Teacher to review the original CRO. The Panel extended the CRO by a period of 6 months. The amended CRO was signed by the Teacher on 23 July 2019. The relevant condition of the CRO for the purposes of the present hearing reads as follows: ‘5. You must submit [redacted]. You must obtain a report of such testing, which supports the hypothesis that you have not [redacted] at any time in the 6 months prior to the report. You must submit the report of the results of such tests to the GTCS Regulation and Legal Services Team within 7 days of receipt by you, and within 6 months of this order being signed.’ The basis of the review was that by 23 January 2020, which was 6 months after the CRO had been signed and the date the CRO expired, no evidence had been provided to GTCS in satisfaction of that condition. Teacher’s Admissions The Teacher accepted that he had failed to comply with condition 5 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: Joint Inventory P1 Application by Presenting Officer for Review of Conditional Registration Order, dated 13 March 2020 with appendices including: (i) Full Hearing Decision, dated December 2017 (ii) Signed Conditional Registration Order, dated 18 January 2018 (iii) Panel Meeting Decision, dated 17 July 2019 (iv) Signed Conditional Registration Order, dated 18 January 2018 T1 Submissions by Teacher’s representative, dated 19 June 2020 with appendices to Teacher including: (i) Statement of Michael Gaffney, undated (ii) Expert Witness Statement of Medical Professional 1, dated 12 June 2020 (iii) Letter from [redacted], dated 8 June 2020 (iv) [redacted], dated 29 May 2020 (v) Statement of Testimonial 1, undated (vi) Statement of Testimonial 1, dated 18 September 2017 (vii) Statement of Testimonial 2, undated (viii) Statement of Testimonial 2, dated 7 July 2017 (ix) Statement of Testimonial 3, undated (x) Statement of Testimonial 4, undated (xi) Verification of all unsigned statements. Servicing Officer’s Hearing Papers S1 Notice of Full Hearing, dated 3 July 2020 S2 Email delivery/read receipts S3 Completed Response Form, dated 7 July 2020. 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 Teacher’s Representative had provided detailed submissions including supporting evidence. There was no factual dispute in the evidence presented. No submissions were made which sought to undermine the credibility, reliability or weight of the evidence presented for the Teacher. The Teacher admitted that he had failed to comply with the condition. The explanation for that was that he had been unable to finance the testing during the timeframe specified. He had been unemployed since 2016. However, the Teacher had since obtained funding from his union. He had submitted [redacted] on 3 June 2020. The [redacted] results were reported to be within normal ranges. The [redacted] and were said not to contradict [redacted] by the Teacher. The Teacher’s Representative’s submissions in this regard were supported by the [redacted] and expert witness statement produced. In addition, the Teacher’s Representative highlighted that the Teacher’s GP indicated that there were no findings of any ongoing issues with [redacted]. A copy of a letter from the GP was produced. Finally, the Teacher’s Representative referred to the statements lodged from two of the Teacher’s family members, both of whom were GTCS registered teachers and who spoke of the Teacher’s improved health, their regular contact with him and their view that they had no cause to believe that the Teacher had [redacted] at any time since his original hearing. The Teacher answered questions from his Representative, and from the Panel. The Teacher had ongoing financial difficulties and had limited funds in his bank account currently. He explained that his [redacted] health had deteriorated following the loss of his job, personal issues and his criminal conviction. Thereafter, due to a vicious circle of having no work and no funds to pay for the [redacted], his [redacted] health deteriorated further. He described having given up on everything and that this state of mind had also impacted upon his non-compliance. The Teacher explained his association with [redacted] and the steps he had taken to address the problematic [redacted]. He did not have [redacted] and did not believe that he still had a problem with [redacted]. The Teacher indicated that his [redacted] health had improved over the past 18 months. He had returned to doing a lot of sport and had contact with his close family. He was confident of managing the demands of a return to employment. He described an assurance in his own teaching ability and in having a positive relationship with pupils. The parties then made closing submissions. The Presenting Officer submitted that the application for review had to be made as it had not been open to him to determine the Teacher’s compliance with the condition administratively. The Presenting Officer did not make any positive submission in relation to disposal; however, he did observe that it appeared that the Teacher had made very good progress. The Teacher’s Representative contended that the Teacher had complied with the fundamental spirit and purpose of the condition which was to ensure that he did not return to [redacted]. The failure to comply had not been wilful. A clear and consistent body of evidence had been presented which demonstrated that the Teacher was not [redacted]. The Teacher’s Representative invited the Panel to simply allow the CRO to remain expired or to revoke the CRO. 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. In approaching the task before it, the Panel reflected on the various separate but related matters that it required to consider. The Panel’s task was similar to that faced by a Full Hearing Panel. Firstly, the Panel required to assess what facts it found proved in relation to the failure to comply. Secondly, depending on the facts found proved, whether the Teacher’s fitness to teach is impaired or whether the Teacher is unfit to Teach. Finally, if the Panel decided that the Teacher’s fitness to teach is impaired or that he is unfit to teach, the Panel would require to determine the appropriate sanction or disposal. The Panel had regard to the Rules and the IOG. Part A of the IOG guides a Panel on how to approach making a decision about whether a Teacher’s fitness to teach is impaired or whether a Teacher is unfit to teach. The IOG identifies that fitness to teach is a current test at the time a case is being considered and also for the foreseeable future as opposed to when original allegations were said to have occurred. The IOG also guides a Panel to approach a fitness to teach assessment holistically, taking account of: (i) the way in which the Teacher has acted or failed to act; (ii) any information available as to where the Teacher is now with regards to his fitness to teach and how he is likely to behave or perform in the future; and (iii) wider public interest considerations. The IOG identifies a number of considerations that will be involved in a Panel’s assessment of the public interest, including the protection of members of the public in the teaching setting and beyond, the maintenance of the public’s confidence in teachers and the teaching profession and the maintenance of the public’s confidence in GTC Scotland as a professional regulator. The Panel also considered the relevant Rules in relation to conditional registration orders and review of them which are contained in Rule 2.9 and 2.10. The Panel acknowledged that the Rules highlighted the importance of a review of a CRO as an important stage in the fitness to teach process. Rule 2.9.2 offered a Teacher the opportunity to consent to removal from the Register where it is alleged that a teacher has failed to comply with a CRO. Otherwise, a Panel may order that a CRO be reviewed, revoked or revised. The Panel also reflected upon the earlier Panel decisions. Further, the Panel considered Part B of the IOG which set out the range of outcomes available where a determination has been made that a teacher’s fitness to teach is impaired and also provided general principles and factors that a Panel should consider when determining the appropriate outcome in any given case. This assisted the Panel in its understanding of what earlier Panels had decided and the basis of those decisions. The Panel reminded itself that a failure to comply with a CRO was a serious matter. Further, this had been the second occasion when a review of the CRO had been applied for due to non-compliance. The Panel was also mindful of the public interest in maintaining the public’s confidence in teachers and in GTCS as a professional regulator. The Panel reflected on the fitness to teach processes that the Teacher had been involved in. There had been a Full Hearing which resulted in the imposition of the CRO. GTCS had supervised the Teacher’s compliance with that CRO. The Teacher himself sought a review of the CRO which resulted in another Panel amending the CRO. The amended CRO had again been supervised by GTCS and, as a result, the Presenting Officer had made the current application to review. The Panel considered that the procedural history evidenced robust, vigilant and reactive fitness to teach processes. In this particular case, the Panel found the Teacher to be a credible and reliable witness. He had given evidence in an honest and straightforward manner. The Panel found his explanation for non-compliance to be genuine and reasonable and accepted that the failure was not wilful or deliberate. His explanation and his evidence generally were wholly consistent with the expert medical and [redacted] evidence and the evidence from his family. The Panel also noted the open and candid way in which the Teacher had discussed his personal situation, his association with [redacted] and his [redacted] health. The Panel was also impressed by the steps taken by the Teacher to improve his situation, in particular, taking regular exercise and his contact with a supportive family. Taking all of those factors into account in a holistic assessment the Panel’s view is that the Teacher is currently fit to teach. Notwithstanding the admitted non-compliance with the CRO, the Panel accepted the very strong mitigation that had been evidenced and well presented by the Teacher and by his Representative. Further, the Panel noted that [redacted] results had now been submitted to GTC Scotland which confirmed that the Teacher had not [redacted], and that the purpose of the amended condition had been achieved. Decision In the particular circumstances of this case, the Panel decided to make no positive order in relation to the application to review the CRO. On that basis and given that the CRO had expired on 23 January 2020, the Panel made no further order.