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Digested Case Law: AD v General Teaching Council Scotland [2019] CSIH 18

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Teachers Defence Service represents teachers in General Teaching Council for Scotland (GTCS) Professional Conduct Inquiries.

Below we summarise the main elements of the case ofAD v General Teaching Council Scotland [2019] CSIH 18 This case is relevant to Scotland but may be of interest to teachers across the UK.

Case Summary

A teacher challenged the decision of the Fitness to Teach Panel’s decision to impose an order of removal from the register, following a finding of impairment for misconduct. The Court considered that the word ‘misconduct’ was irrelevant and should not be a consideration as the wording of the Order giverning the GTCS does not mention the word ‘misconduct’ expressly. It only refers to ‘conduct’ (as set out above) that falls short of the standards expected of a registered teacher. 

Case Digest

AD was a teacher who was charged by the GTCS of allegations comprising of three separate elements: discussing sensitive information with a vulnerable pupil, making unfounded allegations about other members of staff and refusing to attend a meeting with the Head Teacher.

The Panel of the Fitness to Teach Panel found all the charges proved, that the teacher was unfit to teach and removed her name from the register with a direction that she be prohibited from making an application for re-registration for a period of 2 years.

The teacher appealed the decision to the Court of Session under article 24 of The Public Service Reform (General Teaching Council for Scotland) Order 2011, ‘The Order,’ on the grounds that the findings were wrong. 

The appellant’s grounds were that the conduct described in the charges, whether considered individually or as a whole, was not sufficiently serious to constitute misconduct, let alone support a finding that the appellant was ‘unfit to teach.’ The Panel did not have a factual basis for concluding that the appellant’s behaviour over a number of months ‘was so serious and concerning that it fell significantly short of what was to be expected of a registered teacher,’ its findings were only of isolated incidents of differing kinds and that the finding in respect of the appellant’s behaviour had caused harm to a vulnerable pupil, was not justified in fact. The decision to impose the maximum period of two years before the appellant could apply for re-registration was excessive and disproportionate, [paragraph 40].

The Court, Paton, LJ, Malcolm LJ and Glennie, analysed the law relating to the appeal, in particular, ‘The Order’. It concluded that The Order 2011 required the GTCS to remove from the register any registered teacher whom it subsequently considers to be [unfit to teach’: article 18(2)(b). There is a definition of ‘unfit to teach’ in article 18(3): a person is ‘unfit to teach’ for the purposes of the 2011 Order if the GTCS considers that his or her conduct or professional competence ‘falls significantly short of the standards expected of a registered teacher.’ There is no reference in article 18 to a teacher’s fitness to teach being ‘impaired,’ an expression used in the Indicative Outcomes Guidance and in the decision of the Panel in this case. Nonetheless, paragraph 1 of Schedule 4 to the 2011 Order appears to contemplate that an investigation into an individual’s ‘fitness to teach’ may reveal something, falling short of ‘unfitness to teach,’ which justifies the GTCS in imposing conditions on that individual’s registration or recording a reprimand. 

The court emphasised that this is something falling short of ‘unfitness to teach,’ since if the finding was that the teacher was ‘unfit to teach’ the teacher would be removed from the register under article 18(2)(b) and there would be no scope for the imposition of conditions or the recording of a reprimand [paragraph 49].

The sanction of removal from the register cannot be applied to an individual in respect of whom there is a finding that his or her fitness to teach ‘is impaired’, without it also being found that he or she is ‘unfit to teach.’ The Court pointed out that in the Indicative Outcomes Guidance the sanction of ‘removal of registration’ is available to the Panel if it has decided that a teacher’s fitness to teach is impaired. This suggests an element of discretion where, on a proper understanding of the 2011 Order, there is none [paragraph 49].

The Court then went on to examine the three stages of the fitness to teach process. The first stage or facts stage caused no concern however, the second stage, the impairment stage, the court considered that a finding of impairment or unfitness must apply to the teacher ‘currently,’ at the time the case is being considered and for the foreseeable future, rather than at the time that the facts found proved took place., [paragraph 53]. The third stage applied only if the Panel made a finding that fitness to teach is impaired. As noted above, there is no such decision to be made if the Panel finds that the teacher is ‘unfit to teach’ in such a case the sanction is laid down in article 18 of the 2011 Order; the teacher is removed from the register of teachers, [paragraph 54].

Unfitness to teach can be found in article 16 of the 2011 Order, emphasising that  ‘unfitness’ involves the teacher’s conduct or professional competence falling  significantly short of the standards expected of a registered teacher. The Guidance suggests that the proper approach for the Panel to take in determining ‘unfitness’ or ‘impairment’ should begin with a consideration of whether the facts found mean that the teacher has been guilty of ‘misconduct.’ The court questioned whether this was the correct approach.

The court considered that the introduction of a ‘misconduct’ test may be unnecessary, unhelpful and potentially misleading: unnecessary because article 18(3) of the 2011 Order itself provides the definition of what amounts to unfitness to teach (‘the individual’s conduct or professional competence falls significantly short of the standards expected of a registered teacher’). Impairment may simply be based upon a poor level of professional competence which is difficult to fit within any ordinary definition of ‘misconduct,’ [paragraph 55].

Having carefully analysed the law, the Court went on to examine the conclusions of the Panel.

Looking at the conduct described in the allegations it was to be noted that only the first of those allegations related directly to the appellant’s professional competence or, to put it another way, her conduct in relation to pupils at the school. The other matters reflect upon matters of discipline and the appellant’s ability to get on with other teachers at the school. The court considered that questions might be asked as to how these other matters could reasonably have led or contributed to a finding that the appellant’s fitness to teach was impaired, still less that she was unfit to teach, [paragraph 61].

The Panel concluded that each of the accusations that related to other teachers at the school were made ‘maliciously.’ However, the court considered that in their opinion, there were considerable misgivings about this finding that the accusations were made maliciously, for two reasons: first, because it formed no part of the formal allegations made against the appellant and notified to her in accordance with the GTCS rules that her accusations against the other members of staff were malicious; and, second, because there was no evidence before the Panel upon which the Panel could have reached that conclusion [paragraph 62].

The mere fact that an accusation is untrue does not mean that it was made maliciously. The Panel did not appear to have considered this possibility at all. Had it done it seemed unlikely that it would have arrived at a conclusion that in making these accusations against other members of staff the appellant was acting maliciously [paragraph 62].

The Panel’s assessment of whether the appellant was unfit to teach was affected by its conclusion that in this respect the appellant had acted maliciously. For this reason alone, the court concluded that the Panel’s decision on unfitness to teach could not stand [paragraph 63].

The court made a further point with regard to the allegation that the appellant had disclosed sensitive information to a vulnerable pupil with a history of self- harm. The appellant had spoken to a vulnerable pupil, during which conversation she (the appellant) had referred to another pupil who had recently committed suicide. 

The teacher/pupil relationship is at the heart of a teacher’s fitness to teach.  However, it was the opinion of the court that it was stretching matters somewhat to treat as falling under the description of disclosing confidential information contrary to paragraph 2.1 of the GTCS Code of Conduct. It is not at all clear from the evidence as to what it was that caused the pupil upset or harm, given that this pupil was already considering self-harm and was therefore already in an upset state. And there was nothing in the evidence to suggest that this was more than an isolated error of judgement. On that basis the court had some difficulty in understanding the Panel’s finding that on this ground the appellant was at the time of the hearing unfit to teach. 

Further, the allegation concerning the appellant’s refusal to attend a meeting with the Head Teacher, appeared to the court to be no more than a disciplinary matter [paragraph 64].

Given the age of the case, rather than remitting the case, the court decided that in all the circumstances it considered that the appropriate course was simply to set aside the decision of the Panel and dismiss the proceedings against the appellant.

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