Panel consideration - cancellation and anonymity application - Teacher C
Definitions
- ‘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 Meeting was arranged to consider the following:
- Application for Case Cancellation, submitted by the Presenting Officer.
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:
- Application for Case Cancellation, dated 18 September 2024, with appendices
- List of Allegations
- Teacher’s Response to application and accompanying documentation, dated 25 September 2024:
- Statement of Witnesses who will not or are unable to attend
[redacted] - Statements as to the Teacher’s practice/character since 2017, and during employment prior to that
[redacted] - Teacher’s application for a private hearing and accompanying documents
Application (page 62-71) [redacted]
- Statement of Witnesses who will not or are unable to attend
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, the Panel considered that a procedural hearing was not necessary. Therefore, the Panel proceeded to consider the matter on the papers.
Consideration
The allegations in this case are that the Teacher behaved inappropriately and unprofessionally towards four pupils and two professional colleagues in the classroom between 2014 and 2017.
The Teacher had been employed as a teacher by [redacted]. Following receipt of a referral following a parental complaint, GTC Scotland conducted an investigation regarding the allegations (set out below) and produced its Final Investigation Report on 21 August 2020.
At a Panel Meeting on 26 January 2022, it was determined that the case would proceed to a full Fitness to Teach hearing in terms of Rule 2.3.2(f), and that the hearing would take place virtually. Following the referral at the panel consideration stage for hearing proceedings, GTC Scotland instructed an external Presenting Officer to act for it in those proceedings.
The Panel understood that a Fitness to Teach Full Hearing had been due to take place across ten non-consecutive days from [redacted]. The Full Hearing did not proceed at this time. New dates for the Full Hearing have not yet been identified at the time of the present Application.
The allegations that were drafted for the proposed virtual Full Hearing were as follows:
Between in or around the 2014/2015 academic year and on or around 31 March 2017, while employed as a Teacher by [redacted], [redacted] and during the course of your employment you did:
- On or around 10 March 2016, in relation to Pupil A who was lying in position on an adjustable multi-positional learning station (Acheeva):
(a) shout at her, stating:
i. ‘you are lying doing nothing, do something, I’m sick of this,’ or words to that effect,
ii. ‘Get your work done! You are not going anywhere if you do not complete your work!,’ or words to that effect
(b) instruct Colleague A to leave when she went to comfort Pupil A;
(c) shout at Colleague A ‘Is this you trying to look big in front of the girls,’ or words to that effect, in the presence of pupils; and,
(d) fail to comfort Pupil A after she began crying.
- During the 2016/2017 academic year, in regards to Pupil B:
(a) scream ‘get her out,’ or words to that effect;
(b) on one occasion shout ’I’m going to kill you [Pupil B];’
(c) state, in the presence of Pupil B, ‘Can you just take her away? I am fed up with her,’ or words to that effect;
(d) state, in the presence of Pupil B, ‘Can someone take her away and entertain her? She does not know what she is doing!’, or words to that effect;
(e) on multiple occasions, push Pupil B in her wheelchair across the classroom towards the door in an aggressive manner with no one to receive her; and
(f) after pushing her chair into the corridor leave Pupil B unattended.
- In or around May 2016 after Pupil C asked if they could show their communication passport to a visitor, state to Pupil C that he was ‘pathetic’, or words to that effect.
- On or around 3 March 2016, in relation to Pupil C, who used an electronic communication aid to communicate (a ‘talker’):
(a) speak to him in a threatening manner, in that you did state to him ‘I am not backing down, you won’t win,’ or words to that effect;
(b) take his ‘talker’ away from him, without having good cause to do so;
(c) shout at him; and
(d) direct other staff and pupils to leave the classroom, leaving Pupil C isolated following the Teacher’s actions at allegations 4. (a), 4. (b) and 4. (c).
- On an unknown number of occasions, in respect of Pupil C:
(a) remove the ‘talker’ from Pupil C without having good cause to do so, when Pupil C repeatedly asked the same question;
(b) in the presence of Pupil C shout ‘I am fed up with him! Just take his talker away!,’ or words to that effect; and Ask Colleague G, to remove words or phrases from Pupil C’s ‘talker.’
- On or around 17 November 2015, in regards to Pupil D who was showing other children her new wheelchair:
(a) shout at her and Colleague E, who was accompanying Pupil D, ‘Take her out and come in properly,’ or words to that effect.
(b) when asked by Colleague E whether the Teacher had seen Pupil D’s new wheelchair, respond by stating ‘I don’t care. Take her out and come in properly,’ or words to that effect.
(c) Your actions at allegations 6. (a) and 6. (b) caused Pupil D distress.
- On or around 28 October 2016 make a remark of a sexually suggestive nature towards Colleague B in respect of a T-Roll she was carrying, in that the Teacher did suggest that it looked like a penis, or words to that effect, in the presence of pupils.
- On multiple occasions shout at Colleague C ’[Colleague C]! Are you stupid?’ or words to that effect in the presence of pupils.
- State during a student council meeting in respect of Colleague C, and in the presence of staff and pupils, ’I do not know how anyone can miss someone the size of [Colleague C]’”.
- State to Colleague D, in response to him commenting on a bad smell in the room ‘Oh, this must be [Colleague C]’s period,’ or words to that effect.
- In respect of Pupil B:
(a) told Colleague E and Colleague F not to assist Pupil B to go to the bathroom; and
(b) state in the presence of Pupil B ‘No, you are not going! [Pupil B] does not know what she wants! She does not know whether she needs to go to the toilet or not. She can just sit there. She just wants to get out of the classroom to use her iPad!,’ or words to that effect.
- In or around October 2014, in the presence of pupils, shout at Colleague A, in relation to fraction sheets which you had asked Colleague A to complete on the computer, that she did not know what she was doing and did not know how to do her job, or words to that effect.
And in light of the above it is alleged that the Teacher’s Fitness to Teach is impaired and she is unfit to teach as a result of breaching parts 1.2, 1.3, 1.4, 1.6, 2.3, 2.5, 4.1, 4.2 and 5.1.
The Presenting Officer made this Case Cancellation Application under Rule 2.10.9.
Case Cancellation
The application to cancel the case under Rule 2.5.1(c) was made with reference to:
- the 2017 Rules relating to fact finding,
- the Fact Finding in Fitness to Teach Conduct Cases Practice Statement and
- the Case Cancellation Practice Statement.
An application of this nature may competently be considered for cancellation by the Panel, provided:
- that it has been referred to a Full Hearing (GTCS Case Cancellation Practice Statement para 3.1.1)
- but that Full Hearing has not yet begun (Practice Statement para 4.1)
Fact finding
In accordance with Rule 1.7.15, the burden of proof rests always with the GTC Scotland Presenting Officer. The standard of proof is the balance of probabilities, unless admitted by the Teacher. A determination on whether a Teacher is unfit to teach depends on proof of sufficient facts to the necessary standard, if the facts can be proved on the balance of probabilities.
The Fact Finding in Fitness to Teach Conduct Cases Practice Statement, in this regard, provides helpful guidance on how panels should assess evidence. It emphasises that the weight to be accorded to the evidence, individually or taken as a whole on any issue, is a matter of balance and judgement, influenced by its relative value in deciding the truth of the allegations. Hearsay evidence necessarily weighs less than direct testimony which has been tested by cross-examination. The weight of evidence is therefore tied to the Panel’s assessment of its relative reliability rather than the credibility of the witness.
Missing witnesses and Impairment
The Presenting Officer explained in the written cancellation application that the twelve allegations are now somewhat historic, with the first allegation dating to October 2014 and the most recent dating to 31 March 2017. The Presenting Officer reminded the Panel that impairment of Fitness to Teach is a matter of judgement for the Panel based on whether the Teacher’s Fitness to Teach ‘is’ impaired at the date of the decision. A teacher cannot be found to be unfit to teach based solely on past unfitness.
Accordingly, the Presenting Officer explained, the alleged conduct, if proved, must adversely impact the Teacher’s current Fitness to Teach now. The significant period of time that has elapsed since the last alleged misconduct has had an important impact on both aspects of the determination process referred to above; finding of facts and judgement on current impairment of Fitness to Teach.
The Presenting Officer informed the Panel that many of the witnesses, whose direct evidence or witness statements are intended to be relied upon by GTC Scotland no longer work at [redacted] or indeed in the education sector at all.
The Presenting Officer emphasised that delays of this magnitude raise potential concerns about the reliability of the evidence to be presented. The first alleged incident (allegation 12) occurred a decade ago. The latitude of time set out in the recital before the numbered allegations establishes an end point ‘…on or around 31 March 2017’. In these circumstances, the Presenting Officer explained that the length of time which has passed raises questions about the ability of the evidence to attract the necessary degree of reliability after this passage of time.
Further, GTC Scotland has had difficulty in locating its witnesses. Some now cannot be located. Others are no longer willing to attend due to having either retired or have left the teaching profession. Potential character testimonials from the witnesses which might have assisted the Teacher’s case are therefore unavailable. This is potentially prejudicial to the Teacher. The response by the Teacher’s representative explored this point further.
Evidence and Witnesses
The majority of the evidence which is proposed to be advanced in the Full Hearing derives from a series of witness statements procured at the time of the GTCS Investigation. Throughout the proceedings, there has been well-documented and consistent difficulty in securing the attendance of key witnesses at the Fitness to Teach Full Hearing. The list of witnesses for GTCS has reduced in number from ten to five due to refusal or failure on the part of witnesses to engage with the proceedings.
Of the 12 allegations listed, allegations 3, 7, 10 and 11 are spoken to by only one witness, other than the Teacher herself.
The absence of several key witnesses from the process has resulted in detailed hearsay applications being made by both the Presenting Officer and on behalf of the Teacher. These applications have still to be considered and determined by a panel. At present, no fewer than seven witnesses’ testimony will only be available to the Full Hearing Panel by virtue of a hearsay application being granted, or upon the admission of a written witness statement that has not been approved by the witness.
The Presenting Officer, in his application, stressed that in accordance with paragraph 2.4 of the GTC Scotland Practice Statement on Case Cancellation, the concerns of the Presenting Officer regarding the quality and sufficiency of the evidence upon which both parties intend to rely, and the impact of that upon the fact finding capacity of the Panel, forms part of the basis of this Application.
No current evidence of unfitness.
The Presenting Officer’s application informed the Panel that the Teacher has been employed as a teacher elsewhere for a number of years since the incidents, apparently without any issues being raised about her conduct or her Fitness to Teach. There is no current information available to GTC Scotland to support the view that an alleged historic impairment of Fitness to Teach could be established by a reasonable Panel as support for current unfitness. The absence of any adverse reports from subsequent employers and in different school settings points in the opposite direction.
The Presenting Officer’s view was that the delay is such that the Panel may not be in a position to satisfy itself that there is current impairment on the part of the Teacher, notwithstanding any conclusions it may make in respect of the allegations.
Dealing with the public interest considerations, the Presenting Officer’s application made a number of points. First, there is no current concern regarding the Teacher’s Fitness to Teach as evidenced by no such reference or concerns raised since 2017. Accordingly, there is no public interest in a finding of impairment of Fitness the Teach (if one could be made). No reasonable and informed member of the public would have a real concern based on that current position. Further, no reasonable and informed member of the public would have a loss of confidence in the profession or its regulator because of a cancellation decision by this Panel. The matter had been investigated and pursued in the public interest as far as it reasonably could in the circumstances. Continuing further in the face of clear and foreseeable obstacles to proof of fact and of current impairment would not serve the public interest. It is not clear, the application stated, that continuing with the proceedings remains necessary for the protection of members of the public or to maintain the public’s confidence in the regulator.
The Presenting Officer invited the Panel to consider whether the considerable time which has elapsed since the last allegation creates a concern as to whether any hearing can be conducted in a way which is fair and just to the Teacher as is required by Rule 1.3.8.
Health Considerations
[redacted]
The Presenting Officer’s assessment in the application is that there is a risk that conducting the proceedings would constitute a failure to “ensure that parties are able to participate fully in proceedings” as mandated by Rule 1.3.8.
The Teacher’s Representative’s response 10 October 2024
The Teacher’s Representative supported the Presenting Officer’s application for cancellation.
The response was supported by a detailed chronology emphasising the procedural history of the case. In particular, that the case was considered by a Consideration Panel who issued a decision on 08 December 2020. The Teacher has been waiting for her case to be resolved by a Fitness to Teach Panel since then. The Response maintained that the span of time awaiting resolution of this matter with the additional difficulty of the loss of witnesses will adversely impact on the Teacher’s ability to challenge the case.
The Teacher’s Representative gave details of 6 GTC Scotland witnesses who would have been valuable for the Teacher’s case but are no longer willing or available to be witnesses. The Teacher’s case is prejudiced to that extent.
The Teacher’s Representative supported the Presenting Officer’s application submissions regarding the Teacher’s current health and ability to participate effectively in the Full Hearing.
Finally, the Teacher’s Representative endorsed the application in relation to the barriers to a Panel making findings of current impairment. The Response observed that evidence has been obtained from the Teacher’s professional colleagues with whom she has worked since departing from [redacted] in 2017. The evidence is wholly positive regarding her professional conduct and practice. This extends through a sustained period of more than seven years, from the beginning of the 2017/18 academic year up to the November 2023 when a statement was provided by the Teacher’s current head teacher. The statement includes that the Teacher has been “great,” “really nurturing with the children, and her interaction with them is really positive and appropriate” and “always positively engaged” with staff.
The Teacher’s Representative submitted that the Teacher has shown herself, in her professional performance during the pendency of these proceedings, to be an asset to the profession who cannot reasonably be deemed to represent a risk to service users, the broader public, or the profession and its reputation.
Public interest
The Teacher’s Representative agreed with the Presenting Officer that there is no continuing public interest in these proceedings.
Privacy and anonymity
Both the Presenting Officer and the Teacher’s Representative appended a secondary application for privacy and anonymity.
Were the cancellation application to be granted without anonymity and privacy, the public would be provided with details of the untested and unadmitted allegations that have been made. This would have the effect of creating an adverse and unanswerable impression in the mind of the reader, who may know or work with the Teacher, or be parents of the Teacher’s current pupils. In addition, certain details relating to the Teacher’s health would become public, embarrassing her, and further damaging her professional reputation without the possibility of answer.
This would be especially unfair in circumstances where GTC Scotland acknowledges that a finding of current impairment is unlikely for the reasons stated. The impact on the Teacher’s professional and personal reputation would be unwarranted and disproportionate.
Accordingly, the Teacher’s name should be anonymised in the event that the cancellation application is granted.
The Panel had regard to Rule 2.10.9, which states that:
“A Panel may at any time following the referral of a case to it for a hearing decide to cancel a case (and dispose of it on that basis). Before making any such decision, a Panel must have heard from the parties on the matter and be satisfied that it is in accordance with the general objective and in the public interest to do so.”
The Panel observed that the Case Cancellation Practice Statement narrates that the case cancellation process ensures that, following the referral of a case for a Full Hearing, any developments or material issues arising which a party considers should lead to the cancellation of the case can be appropriately and fairly addressed.
The Panel also had regard to the Case Cancellation Practice Statement and the Health Matters and Medical Evidence Practice Statement, as well as the general objectives outlined at Rules 1.3.7 and 1.3.8.
The Panel noted that paragraph 2.4 of the Case Cancellation Practice Statement states that there is no prescribed list of circumstances under which cancellation of a case may be sought, but one of the examples provided is where ‘the allegations, if proved, cannot reasonably be said to amount to current impairment.’
The Panel had regard to the general objective as outlined at Rule 1.3.7, which is to deal with cases fairly and justly, and how this should be put into effect at Rule 1.3.8, namely dealing with a case in ways which:
- are proportionate to the complexity of the issues;
- seek informality and flexibility in proceedings;
- ensure that parties are able to participate fully in proceedings; and
- avoid delay, as far as compatible with the proper consideration of the issues.
Decision
The Panel accepted the Presenting Officer’s submissions that a finding of current impairment would now likely not be made when taking into consideration the age of the behaviour alongside other factors, such as the nature of the allegations and their seriousness, which in context, are not at the highest end of the spectrum. The Panel considered that as both parties are in agreement that it is unlikely that current impairment of Fitness to Teach will be found, and the cancellation application was being made by the Presenting Officer who was acting on behalf of GTC Scotland, it would not be proportionate to continue the case.
The Panel had before it medical evidence in the form of two reports and a supplementary email from a [redacted]. These dealt in detail with the ongoing impact of the Fitness to Teach process on the Teacher’s health. The Panel was satisfied that the report and letter met the criteria set out in the Health Matters and Medical Evidence Practice Statement and that these demonstrated that the Teacher’s ability to participate fully in proceedings would likely be significantly impacted.
The Panel determined that, although the health factors were not the dominant or prevailing features in considering cancellation of this this case, taken together with:
- the absence of the majority of witnesses,
- consequent reliance on hearsay evidence,
- the Teacher’s witnesses’ diminished ability to recall events and thus,
- to give evidence of adequate quality and reliability,
it would not be proportionate to continue the case.
The Panel considered the public interest. The Panel was satisfied that the public interest had been served as much as reasonably possible in these circumstances, by the case originally being admitted for investigation, fully investigated, and referred for a Full Hearing. The Panel considered that in all the circumstances, the public interest in continuing the case did not outweigh the reasons for cancellation.
For the reasons outlined above, having regard to the relevant Rules, the Case Cancellation Practice Statement, the importance of carrying out proceedings fairly, justly and in the public interest, the Panel granted the Presenting Officer’s application for the case to be cancelled.
Anonymity of any published outcome
The Panel decided to grant the application to anonymise the Teacher’s name in this case. The Panel accepted that the bar is set high for anonymity and privacy applications. Public trust and confidence in the profession and in the regulatory process is supported by the open justice principle. However, in this case, taking into account the circumstances in which the cancellation decision has been made, the Panel consider that it would be unfairly damaging to the Teacher, personally and professionally, to be identified at this stage without any real prospect of answering the case set out against her. The health concerns were particularly prominent in the Panel’s decision.
The Panel therefore directed that the following details be anonymised in the public reporting of this decision:
- The Teacher’s name and registration number.
- Reference to the Teacher’s school [redacted]
- All references to health and private life of the Teacher.
