GTC Scotland

The General Teaching Council for Scotland

Comhairle Choitcheann Teagaisg na h-Alba

General Teaching Council for Scotland Fitness to Teach Panel Outcome

Procedural Hearing - 26 May 2020 (by remote link)

 

 Teacher Teacher A
 Registration Number XXXXXX
 Registration category Primary
 Panel Susan McDade (Convenor), Pauline McClellan and Joanne Sharp
 Legal Assessor Robert Frazer
 Servicing Officer Isobel Allan
 Presenting Officer Gary Burton, Anderson Strathern LLP
 Teacher's representative Alastair Milne, 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 2017 or refers to a provision (or provisions) within them; and
  • 'COPAC' means the General Teaching Council for Scotland Code of Professionalism and Conduct 2012 or any provision contained therein.

Background

The Procedural Hearing was arranged to consider the following:

An application by the Teacher for the case to be cancelled and to otherwise hold the hearing in private and confer anonymity on the Teacher in any published 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 hearing:

  • Final Investigation Report by GTCS dated 5 February 2019 with appendices including:
    • Statement of Witness 2, Deputy Head Teacher at School A
    • Statement of Witness 1, Teaching Support Assistant at School A
    • Log of attempted contact with Colleague 1
    • Investigation report from School A with appendices
      • Appendix 1 – Witness 1 Statement 1
      • Appendix 2 – Colleague 1 Statement 1
      • Appendix 3 – Email from The Teacher to Head Teacher (Colleague 2)
      •  Appendix 4 – Colleague 3 email to Colleague 4
      • Appendix 5 – Notes of Suspension Meeting
      • Appendix 6 – Email Colleague 5 to Witness 2/Head Teacher
      • Appendix 7 – Email from The Teacher to Head Teacher
      •  Appendix 8 – Email Colleague 5 to Witness 2/Head Teacher
      • Appendix 9 – Witness 1 Statement 2 Additional notes
      • Appendix 10 – Colleague 6 Statement
      • Appendix 11 – Colleague 1 Statement 2 additional notes
      • Appendix 12 – The Teacher email to Head Teacher
      • Appendix 13 – The Teacher email to Head Teacher
      • Appendix 14 – Letter to The Teacher confirming suspension
      • Appendix 15 – Colleague 1 Statement 3
      • Appendix 16 – Witness 1 Statement 3
      • Appendix 17 – Minutes of Investigative Meeting with additional notes
      • Appendix 18 – Interview Colleague 7 and Colleague 5
      • Appendix 19 – Interview Colleague 7 and Witness 2
      • Appendix 20 – Telephone interview Colleague 7 and Colleague 8
      •  Appendix 21 – Post Investigative meeting Colleague 7 and Witness 1
      • Appendix 22 – Expert witness interview Colleague 7 and Colleague 9
      • Appendix 23 – School Behaviour and Discipline Policy
      • Appendix 24 – CALM information sheet
      • Appendix 25 – Behaviour Support plan for pupil
      • Appendix 26 – Individual Risk Assessment for pupil
      • Appendix 27 – The Teacher Job Application
      • Appendix 28 – Notes of Probation Meeting the Teacher
      • Appendix 29 – Email trail from Colleague 8
      • Appendix 30 – Colleague 4 email to the Teacher
      • Appendix 31 – LBS Disciplinary Policy
      • Appendix 32 – Email from the Teacher re minutes of meeting
      • Appendix 33 – Department of Education Teachers’ Standards
    • Response by the Teacher to Notice of Investigation letter dated 30 January 2018
    • Character references
    • Additional information by the Teacher dated 3 March 2018
    • Response to Interim Report dated 28 January 2019
  • Response to Notice of Panel Consideration dated 23 September 2019
  • Panel Consideration Decision dated 29 April 2019
  • Panel Consideration Decision dated 30 October 2019
  • Notice of Investigation dated 17 January 2018
  • Notice of Panel Consideration dated 13 September 2019
  • Submissions by Teacher (including reports from Wellbeing Practitioner 1, Psychological Well-Being, dated 14 February 2020; Medical Practitioner 1, Chartered Psychologist dated 25 April 2020; Teacher Regulation Agency Decision dated 18 April 2018; Teacher Regulatory Authority Teacher Misconduct Disciplinary Procedures for the Teaching Profession dated April 2018; list of authorities)
  • Submissions by Presenting Officer.

 

Preliminary Matters

None.

 

Submissions by Teacher’s Representative

(i) Application to Cancel

The Teacher’s Representative, on behalf of the Teacher, firstly made an application under Rule 2.5.1 for the Full Hearing (for which a date is yet to be fixed) to be cancelled. He did so on the following basis:

The Teacher’s Representative submitted that the case should be cancelled as a decision had been made by the Teaching Regulation Agency in England (TRA) on 18 April 2018 to take no further action against the Teacher on allegations that she ‘disrupted Pupil A’s learning, thereby causing Pupil A to react badly, and subsequently held them (sic) inappropriately in disregard of the agreed strategies’.

The Teacher’s Representative submitted that this decision amounted to ‘res judicata’; the Latin maxim and legal term which states that the matter in issue has already been determined by an equivalent forum. For the principle to apply it was a matter of agreement between parties that the following required to be made out:

  1. There must be an earlier determination before a competent court or tribunal;
  2. The original decree requires to be in foro contentiosio;
  3. The subject matter requires to be the same;
  4. The media concludendi between parties requires to be the same;
  5. Both litigations required to be between the same parties.

In support of his submission, the Teacher’s Reprsentative founded on the written representations he had provided in advance of the hearing, as well as the oral submissions he made on the day. He submitted that when everything was taken into account, the decision of the GTCS to proceed to a Full Hearing in respect of the allegations against the Teacher was fundamentally unfair. In doing so the decision to proceed  conflicted with Rule 1.3.7 which placed a requirement on the GTCS, Convenors and Panels to deal with cases fairly and justly, which included a requirement to ensure proportionality and to also avoid delay in the proper consideration of the issues (Rule 1.3.8). He further submitted that the decision conflicted with Article 8 of the Public Services Reform (General Teaching Council for Scotland) Order 2011 which requires consistency with principles that represent best regulatory practice.

The Teacher’s Representative further submitted that the decision of the TRA appeared not to have been considered at the Panel Consideration meeting of 30 October 2019. No mention of it was made in that Panel’s written decision. For that reason, the Teacher’s Representative submitted, it could not be said to have been considered. He submitted that if today’s Panel was not with him in relation to his application to cancel then the matter could be remitted to another Panel Consideration meeting for the TRA decision to be properly considered.

The Teacher’s Representative further referred the Panel to a number of reported cases which, he submitted, supported the position that the matter was ‘res judicata’.

In particular, he referred the Panel to R (Coke-Wallis) v ICA [2011] 2 AC 146 where the Supreme Court determined that a second complaint made on the same set of facts to the same regulator should have been dismissed as a clear example of ‘res judicata’. This followed the ruling in Thrashyvoulou v Sec of State [1990] 2 AC 273 which established that the principle applied in regulatory proceedings.

In addition, he referred the Panel to British Airways v Boyce 2001 SLT 75 and R (Mandic-Bozic) v BACP & UKPC [2016] EWHC 3134. In Boyce he submitted that the decision of the Employment Appeal Tribunal to refuse the respondent’s original application was an example of the doctrine which, the court concluded, should have then been applied in relation to a second application to the Office of Industrial Tribunals on the same subject matter. In Mandic-Bozic a similar ruling was made where the appellant was a voluntary member of two separate regulatory bodies for psychotherapists and the subject matter, which formed the basis of the separate complaints, was the same. In such circumstances, any decision made by the BACP, as the second regulator, would be ‘res judicata’ given the decision already made by UKCP, as the first regulator.

In summary, the Teacher’s Representative submitted that the decision to proceed against the Teacher to a Full Hearing was manifestly unfair as the same issue had already been determined by the TRA, the equivalent regulator in England to GTCS, and the doctrine of ‘res judicata’ therefore applied.

(ii) Application for Privacy & Anonymity

The Teacher’s Representative then moved to his second application to request that, if required, the Full Hearing should be held in private. He did so with regard to Rule 1.7.3 and invited the Panel to determine that such an order was necessary in relation to the interests of justice and, that the Teacher’s own interests outweighed the public interest in the hearing being in public.

In support of his submission, the Teacher’s Representative founded on the two medical reports prepared by Wellbeing Practitioner 1 and Medical Practitioner 1 which showed that the Teacher was suffering from a [redacted] health condition and that she displayed symptoms of [redacted]. In particular he highlighted that both reports made reference to [redacted] and, in the opinion of Medical Practitioner 1, the prospect of the Full Hearing being in public and potentially the subject of press reporting substantially increased the risk to the Teacher’s health.

Response by Presenting Officer

In his short response, the Presenting Officer, on behalf of GTCS, adopted his written submissions which had been presented in advance.

He opposed the application to cancel on the basis that the strict requirements for the doctrine of ‘res judicata’ had not been met. In particular, he submitted that the decision of the TRA Determination Committee did not amount to ‘a decree in foro contentioso’ as it had been determined in the absence of witnesses (including the Teacher) and without oral evidence. In addition, he submitted that the two matters were not between the same parties as the TRA was a different regulator to GTCS and governed by different statutory regulations in a different jurisdiction. As the regulatory body for Scotland, it was appropriate for GTCS to conduct its own investigation into the allegations against the Teacher and form its own view as to whether, if proved, they amount to misconduct and potential impairment of fitness to teach.

In relation to the application for privacy the Presenting Officer referred the Panel to his written submissions and the relevant GTCS Practice Statements on Privacy and Anonymity and Health Matters and Medical Evidence. He submitted that the GTCS position was neutral on the application and that it was entirely a matter for the Panel to exercise its collective professional skill and judgement in determining the issue.

Decision

(i) Application to Cancel

The Panel had careful regard to the parties written and oral submissions. It took account of the advice provided by the Legal Assessor. It noted that the overriding objectives of GTCS are to ensure public protection and, in particular, young persons, as well as recognition of the wider public interest. It noted the need to ensure that the Rules are applied fairly and justly with regard to Rules 1.3.7 and 1.3.8.

The Legal Assessor advised the Panel on the definitions of the Latin maxims in the following terms:

• Res judicata – the exact same matter has already been adjudicated upon
• Decree in foro contentioso – a court order where a defence has been entered and contested
• Media concludendi – the steps in an argument.

The Panel also took account of the GTCS allegation against the Teacher in these proceedings which reads:

‘On 11 May 2017, whilst employed at School A, you did use inappropriate and unnecessary restraint on a pupil, Pupil A, then aged 6 years, in that you did grab him by the wrist, shake and pull him roughly.’

The Panel noted that this differed from the allegations described in the TRA letter of 18 April 2018 that, the Teacher, ‘disrupted Pupil A’s learning causing Pupil A to react badly, and subsequently held them (sic) inappropriately in disregard of agreed strategies.’

The Panel considered that the allegations considered by the Determination Committee of the TRA suggested a disruption of Pupil A’s learning which in causing him to react badly resulted in the Teacher holding him inappropriately in disregard of an agreed strategy or policy. In contrast, the GTCS allegation was much more specific in that the allegation was one of inappropriate and unnecessary restraint by grabbing the pupil by the wrist and then shaking and pulling him roughly. The Panel considered that this allegation was therefore more serious and suggested the use of greater force by grabbing, shaking and pulling the pupil roughly, as opposed to the TRA allegation of ‘holding inappropriately’ which went against agreed strategies.

The Panel noted that it was a matter of agreement between parties that the five parts of the criteria for the test of res judicata required to be made out for the doctrine to apply. The Panel accepted that the cases referred to made clear that the doctrine could apply in regulatory proceedings, subject to this criteria. The Panel therefore went on to look at each of the five parts individually:

  1. Earlier determination before a competent court

    The Panel accepted that the TRA was to be regarded as a competent forum, albeit in a different jurisdiction of the United Kingdom. The Panel noted that the 2011 Order provides GTCS with the statutory power to regulate registered teachers in Scotland. It considered that power should not be fettered by a decision of another regulator in a different part of the UK where teachers are not subject to the same code of practice as applicable to teachers in Scotland.
  2. Original decree requires to be in foro contentioso

    The Panel considered that the Determination Committee of the TRA had considered the allegations before it based on the papers only. Whilst this included a response from the Teacher the Committee had not heard oral evidence on the matter or assessed the reliability or credibility of such evidence. The GTCS allegation had been the subject of a case investigation report which had concluded that there was a case for the Teacher to answer. That decision was endorsed by the Panel Consideration Meeting of 30 October 2019 which concluded that the allegation amounted to relevant conduct (Rule 2.3.2) and should therefore be referred to a Full Hearing in order that witnesses, including the Teacher, could give oral evidence. In these circumstances the Panel was not satisfied that the matter had been properly contested and assessed by the Determination Committee in the same way as expected by the panel of the GTCS at a Full Hearing, once it is fixed.
  3. The subject matter of the two litigations requires to be the same

    Whilst the Panel accepted that the two complaints arose out of the same incident it was not satisfied, for the reasons given above, that the allegations before the TRA and GTCS were the same. The Panel considered that the GTCS allegations were more specific and more serious as they suggested the use of excessive force which caused the pupil harm. Such an allegation, if proved, would conflict with certain parts of Part 1 of COPAC, which was a different code than that applicable to members of the TRA.
  4. The media concludendi as points of controversy between the parties must be the same

    The Panel accepted that the issues in dispute between the parties were the same in the sense that the Teacher denied any wrongdoing in relation to each of the allegations and maintained that she had acted appropriately at all times.
  5. Both litigations require to be between the same parties

    For the reasons already given the Panel did not consider that the two complaints (allegations) were between the same parties. TRA and GTCS are different regulators, constituted by different statutes in different jurisdictions in the UK.

In making these decisions the Panel considered that the cases of British Airways v Boyce and Mandic-Bozic v BACP & Another, as referred to by the Teacher’s Representative, could be distinguished. In Boyce the Panel noted that the two separate complaints were virtually identical and, in these circumstances, the original decision of the Employment Appeal Tribunal prevented further consideration by a subsequent tribunal. In Mandic-Bozic the same allegation had been made to two separate regulators of the same professions in the same jurisdiction. The Panel considered that the circumstances surrounding the present case differed. Firstly the respective allegations, as framed,  are different and, secondly, the respective regulators are in different jurisdictions and governed by different statutory regulations and rules.

In relation to the other cases referred to by the Teacher’s Representative in his written submissions the Panel considered the following to be distinctions from the present case.

Thomas v The Law Society of Scotland was authority for the fact that a finding of no case to answer in a criminal trial did not prevent the regulator from proceeding in a different disciplinary tribunal, governed by different rules. In Coke-Wallis v ICA the two matters (one conviction; the other conduct) had been determined by the same regulator who was bound by the original decision. In R (B) v NMC the regulator had no authority to set aside an earlier decision of its investigating committee to conclude there was no case to answer. A similar decision was made in the case of Brabazon-Drenning v NMC.

The Panel was satisfied that none of these cases advanced the argument that res judicata applied for the reasons identified in the criteria listed above.

The Panel therefore concluded that for all of the above reasons the doctrine of res judicata had not been made out and did not apply to the present case and its particular circumstances.

The Panel was also not persuaded that this matter should be returned to a Panel for a further Panel Consideration Meeting based on the lack of mention of the TRA decision in the Panel Consideration Outcome of 30 October 2019. In reaching this decision the Panel had regard to Rule 2.3 generally and in particular to the GTCS Case Cancellation Practice Statement. This makes clear that once a decision has been made at Panel Consideration stage to refer matters to a Full Hearing it should not be referred back for further Panel Consideration where, with reference to Rule 2.5.1, an application to cancel has been made. With regard to Rule 2.5.1 an application to cancel can be made, at any stage, to determine an interim or preliminary matter and/or resolve any issues of law.

The Panel therefore determined that it was best placed and able to resolve the issue of law in this case (the doctrine of res judicata) and had taken full account of all the information provided by the parties, including the TRA decision. There was therefore no need or requirement for it to be referred back to a Panel Consideration Meeting which would simply cause delay and serve no useful purpose.

(ii) Application for Privacy & Anonymity

The Panel had careful regard to the parties’ written and oral submissions. It took account of the legal advice provided with reference to Rule 1.7.3 and the relevant GTCS Practice Statements on Privacy and Anonymity and Health Matters and Medical Evidence.

In relation to Rule 1.7.3, the Panel noted that the default position was that a Full Hearing should
be in public (Rule 1.7.2) unless the Panel considered it necessary that the hearing (in whole
or in part) be in private based on the particular circumstances of the case outweighing the public interest in the hearing being held in public.

The Panel noted that the application was based entirely on the Teacher’s current health with
particular reference to the recent medical reports of Wellbeing Practitioner 1 and Medical Practitioner 1. The Panel considered that both medical reports made clear that the Teacher is experiencing [redacted]. She is currently undergoing [redacted] as treatment for these conditions. Both reports indicated a concern of [redacted] which were exacerbated by the ongoing GTCS proceedings.

Having regard to the Health Matters and Medical Evidence Practice Statement, the Panel noted the need for any decision to be made based evidence of:

  • Specific diagnosis
  • Severity of the condition
  • Specific explanation of the impact of the condition on attendance and/or engagement at a hearing
  • Treatment
  • Prognosis.

The Panel noted that in this case the Teacher was diagnosed by Medical Practitioner 1 as fulfilling the criteria for [redacted]. The Panel considered that the severity of the condition was evidenced by the fact that she had been suffering from this condition for approximately 3 years and Medical Practitioner 1 assessed her as being in the ‘severe’ range. Medical Practitioner 1 highlighted that, in his opinion, the prospect of the Full Hearing being in public was likely to adversely impact on the Teacher’s ability to attend and/or properly engage and participate in the proceedings. This would include the possibility [redacted] She is currently undergoing [redacted] and if successfully continued, her condition and [redacted] health generally is likely to improve.

In all these circumstances, the Panel was satisfied that the Teacher is suffering from a medical condition which will adversely affect her ability to attend and properly participate in these proceedings. There is a risk that her health may be significantly affected if steps are not taken to address these concerns.

In all the circumstances, the Panel concluded that the Teacher’s application for the Full Hearing to be in private was made out and that her interests outweighed the public interest in the hearing being in public.

It was therefore in the interests of justice for the application to be granted.

In relation to the application for anonymity, the Panel considered that this matter was better left to the Full Panel to determine. It would have the advantage of seeing and hearing from the Teacher and other witnesses. For these reasons such a decision would be better made at that time. It therefore determined to continue this part of the application to the Full Hearing.

Finally, and for the avoidance of doubt, the Panel determined that given the nature of the application and the information provided in support of it, today’s hearing would also be wholly in private for the same reasons as already stated.