General Teaching Council for Scotland Fitness to Teach Panel Outcome. Full Hearing 11 February 2015

Transcription

1 ANNEX General Teaching Council for Scotland Fitness to Teach Panel Outcome Full Hearing 11 February 2015 Respondent Paul Webley Registration number Registration category (Secondary Education) Art and Design Panel Members Donald MacKay, Cathy Monteith, Bernadette Sanderson Legal Assessor Christopher Smith Servicing Officer Dani Robertson Presenting Officer Gillian Sim Respondent s Representative Alastair Milne 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; and the Register means the GTCS register of teachers Preliminary issues Early start Both parties and the Panel were in attendance early and agreed to start at the earlier time of 9:45 am. Late lodging of evidence At the start of the hearing, the Respondent s representative asked for a fax from the Respondent s GP, Dr Dawn Philip, dated 10 February 2015, detailing blood test results which demonstrated that the Respondent s Gamma GT/Liver function test results fell within normal bands; results from a dip and read drug test dated 5 February 2015; and a signed version of the statement of Matthew Derby to be admitted late He explained that it would assist the Panel to have up-to-date medical test results and it was appropriate for the Panel to have the signed witness statement. The Presenting Officer indicated that she had no objection to the Panel receiving these documents. The Panel decided that it would admit these documents. Complaint The complaint against the Respondent considered at the hearing was as follows: 1. On 22 July 2013 at Dumfries Sheriff Court, you were convicted of the following offences on summary complaint: On 20 July 2013 on a road or other public place, namely Lockerbie Road near to the Peel Centre, Dumfries you did drive a motor vehicle, namely motor car registered number SB53 OOC after consuming so much alcohol that the proportion of it in your breath was 142 1

2 microgrammes of alcohol in 100 millilitres of breath which exceeded the prescribed limit, namely 35 microgrammes of alcohol in 100 millilitres of breath; CONTRARY to the Road Traffic Act 1988, Section 5(1)(a) On 20 July 2013 at Loreburn Street Police Station, Loreburn Street, Dumfries you did have in your possession a controlled drug or drugs, namely a compound or compounds of the type specified in Paragraph 1(c) of Part I of Schedule 2 to the aftermentioned Act, said compound or compounds being commonly known as Ecstasy a Class A drug in terms of said Act in contravention of Section 5(1) of said Act; CONTRARY to the Misuse of Drugs Act 1971, Section 5 (2) And in respect of the above offences you were on 29 January 2014 sentenced to a fine of 540 and disqualified from driving for a period of 16 months and a fine of 170 respectively And in light of the above it is alleged that your fitness to teach is impaired and you are unfit to teach as a result of breaching Part 1, Section 1.3,1.4 and 1.6 of the General Teaching Council for Scotland s Code of Professionalism and Conduct 2012 Respondent s admissions Through his representative, the Respondent confirmed that he admitted that he was convicted as described in the complaint and that his fitness to teach was impaired. He did not admit that he was unfit to teach. List of evidence The following is a list of the evidence submitted by the Presenting Officer for consideration by the Panel: (a) Extract Conviction from Dumfries Sheriff Court dated 14 July 2014 (b) Copy complaint in the case of Procurator Fiscal Dumfries against Paul Lionel Webley The following is a list of the evidence submitted by the Respondent for consideration by the Panel: (a) The Respondent s CV (b) Blood test results (c) Dip and read drug test results The following is a list of witnesses for the Respondent: (a) The Respondent (attended the hearing and gave evidence in person) (b) Matthew Derby (did not attend the hearing) (c) Maureen Smith (did not attend the hearing) Findings of fact on the complaint The Presenting Officer had produced a copy of the complaint and a copy of the extract conviction for the Panel. Accordingly, having regard to the provisions of Rules and and the fact that the Respondent, through his representative, had admitted that he was the person named in the extract conviction, the Panel found that the facts set out in the complaint were proved. 2

3 Evidence and submissions in relation to fitness to teach Given that the Panel found that all of the allegations set out in the complaint were proved, the Panel invited the parties to lead evidence and make submissions in relation to the Respondent s fitness to teach. The Presenting Officer did not adduce any evidence at the fitness to teach stage. She noted that the Respondent had accepted that his conduct had fallen short of the standards expected of a Registered teacher and accordingly had breached Part 1 Sections 1.3, 1.4 and 1.6 of the GTCS Code of Professionalism and Conduct 2012 ( COPAC ). The Presenting Officer referred the Panel to Part A of the GTCS Indicative Outcomes Guidance and to the definition of unfitness to teach. She said that the Panel must use its judgement to decide whether the Respondent has not just fallen short, which he had accepted, but had fallen significantly short of the standards expected. The Presenting Officer submitted that the Panel should give careful consideration to the fact that the fitness to teach test was a current one and consider the insight, remorse and remediation shown by the Respondent; and the Panel must also have regard to the public interest as set out in Council for Healthcare and Regulatory Excellence v Nursing and Midwifery Council (Paula Grant) EWJC 927 (Admin). The Presenting Officer concluded that as the Respondent had admitted impairment, the only issue for the Panel to determine was the extent to which the Respondent had fallen short. If the Panel concluded that the Respondent fell significantly short, then the Respondent must be found to be unfit to teach. The Respondent s representative led oral evidence from the Respondent and read aloud the signed witness statements of Matthew Derby and Maureen Smith. The Respondent The Respondent attended the hearing and gave evidence in person. He read aloud his witness statement and answered questions put to him by his representative at various points throughout the reading of his statement; he also answered questions put to him by the Presenting Officer and by the Panel. The Respondent was 62 years of age and had worked at Maxwelltown High School as a behavioural support teacher for 3 years. The Respondent described the role of a behavioural support teacher as working to support the school inclusion policy using various strategies to support positive behaviour with pupils who experience difficulties. The difficulties faced by pupils could stem from diagnosed conditions or from damaging social circumstances. After observing pupils, the Respondent would suggest measures to support behaviour such as working in small groups or one to one with the idea of giving pupils a better orientation towards a positive future and resuming normal mainstream classes. The Respondent also had some subject teaching classes. Before training as a teacher, he worked in industry. The Respondent said that he was neither a user nor abuser of recreational drugs. In the period since September 2010 he had consumed alcohol to an unhealthy extent, but had addressed that problem and now consumed alcohol moderately and occasionally. The Respondent told the Panel that his alcohol consumption had increased as a result of difficult personal and family circumstances. He discovered that his wife of 25 years had been having an affair. In February 2011 his eldest daughter had been diagnosed with cancer and subsequently died in August His relationship with his youngest daughter broke down and his separation and divorce from his wife had been difficult. 3

4 After this difficult period, the Respondent spent a weekend with his friend and his partner. His friend gave him a pill and the Respondent put it in his wallet. He said it remained in his wallet for two years and must have worked its way into the tightest corner of the wallet as when he had gone to throw it away he could not find it and assumed that it must have fallen out. He told the Panel that he should not have accepted it and after accepting it, he should have disposed of it. He could not explain why he did not. In November 2011 the Respondent began a relationship with his present partner which drew abuse and harassment from his partner s ex husband. At a particularly low point, the Respondent drank to excess and drove his vehicle. The Respondent told the Panel that this was the only time he had ever driven under the influence of alcohol. Whilst driving, he got a flat tyre. The police approached to offer assistance and he was arrested and charged as described in the complaint. The Respondent pled guilty to the charges. Since then, the Respondent had undertaken counselling and had had regular appointments to check his liver function. The Respondent told the Panel that he had no continuing problems with either alcohol or drugs and that he regretted the conduct. The Respondent told the Panel that he was a committed and effective teacher. Despite the difficulties in his personal life, he had maintained his professional standards and wanted to pursue the career he loved. The Respondent confirmed that he had at no time ever consumed or had any issue with illegal drugs. The Respondent s representative referred the respondent to the dip and read test results for which the Respondent had tested negative against a number of drugs. The Respondent indicated that he would be prepared to undertake any testing going forward as drugs had never been an issue for him and would not be in future. The Respondent understood that there were concerns arising from the drugs conviction. He acknowledged the impact on his ability to be a role model for pupils to aspire to. He said he felt guilt and anguish in that he had let the children down. The Respondent s representative referred to the drink driving conviction. The Respondent had held a driving licence for 35 years and had had no endorsements or points up until the conviction, and had nothing outstanding. The Respondent viewed drink driving in the same way as the drugs conviction, but added that in relation to this conviction there had been a risk to the general public, including potentially pupils. He explained that he took that risk without real caution or thought and he was thankful that nothing worse had happened. The fact that he had taken such a risk made him feel pretty sick. The Respondent s representative referred the Respondent to the report from his GP. The Respondent indicated that his current alcohol consumption was moderate. He told the Panel that he was a member of a wine club and once a month consumed 5 units of alcohol, but that other than that he consumed virtually none. The Respondent told the Panel that he would be more than willing to provide any test results going forward in order to provide assurances to the Panel. The Respondent told the Panel that his career was very important to him and that it had kept him going throughout stressful periods. He said he had enjoyed some successes with pupils, which provided a good feeling. The processes and techniques used in his role were being developed and hopefully he would achieve greater success in the future. The Respondent was undertaking training in various techniques and bringing in new resources for use in school. He was also currently training additional support staff to have a greater specialisation in relation to behaviour. The Presenting Officer asked the Respondent about the drink driving conviction which described him being four times over the legal limit. The Respondent accepted that it had not been a miscalculation on his part and described it as being a piece of sheer madness. 4

5 The Presenting Officer asked the Respondent what reassurance he could provide to the Panel that there would be no repetition and he said that he was far more in control of his life. He realised that the consumption of alcohol did not help with his problems and he was very careful about what he consumed. He did not believe he would do it again. The Presenting Officer asked the Respondent about his 6 monthly check ups with his GP. He explained that he had been doing that since before his conviction and that he attended a well man clinic and has continued to attend since the date of the convictions. The clinic did not always carry out liver function checks. He reiterated that he would be more than happy to undergo any further testing going forward. The Respondent accepted that the convictions were very serious and accepted the public risk to life associated with drink driving. The Panel asked the Respondent about his drinking and whether his conviction fitted in to a pattern of drinking. The Respondent explained that as he had been confronted by unusually stressful situations he began drinking more than he would have normally and more than was healthy. On the day of the incident, he had received the decision of a civil action that was not the decision he had hoped for. This aggravated the situation. It was a unique one off occurrence which should not have happened. He said it was as if all reason had gone out of the window on that day. He told the Panel that he had worked hard to address the way he dealt with and managed stress. The Panel asked the Respondent about the counselling that he undertook after his conviction. He explained that it was part of the alcohol and drugs advisory service, which he had referred himself to. They talked to him about reducing the amount of alcohol he took. He had found it beneficial and found it useful to talk to someone. The Respondent said that he had a supportive management and staff at his school and he was able to discuss problems with colleagues at his school. He had not planned any more formal counselling going forward, but if problems arose in future he would receive additional counselling. The Respondent told the Panel that as a result of his conviction his employer had suspended him for 7 days. He then attended a disciplinary hearing and received a final written warning on his record, which would remain until the end of this month. The Panel asked the Respondent how this had impacted on his capacity as a role model. The Respondent said the impact had been negligible as no pupils or staff members had discussed it with him and no parents had been involved as far as he was aware. However, he felt a terrible sense of failure, not just to the professional body, but to the pupils with whom he worked. He explained that he was now far more aware of being and being seen to be a role model. Matthew Derby Matthew Derby did not attend the hearing to give evidence in person; his statement was read aloud for the record. Mr Derby had been the principal teacher of curriculum at Maxwelltown High School for 10 years and line managed the Respondent. His statement spoke highly of the Respondent s teaching abilities and success in his role. Mr Derby was unreservedly positive about the Respondent s abilities as a teacher. The statement provided Mr Derby s view that the Respondent was a fit and proper person to be registered and confirmed that Mr Derby had formed his view in the full knowledge of the circumstances of the complaint. Maureen Smith Maureen Smith did not attend the hearing to give evidence in person; her statement was read aloud for the record. Ms Smith had been the Head Teacher at Maxwelltown High School since 2010 and saw the Respondent most days. She provided her statement in full knowledge of the complaint. 5

6 In Ms Smith s statement she explained that since the allegations, the Respondent s attendance at school had been very good. Ms Smith has had no reason to speak with the Respondent in a disciplinary capacity and the Respondent had been very open with her about any issues. Ms Smith described the Respondent s role as a support teacher in the school and her statement said that he had responded well to being managed and challenged and she found the Respondent to be flexible in his approach. The Respondent s representative referred the Panel to the GTCS Indicative Outcomes Guidance. He told the Panel that it was accepted that the conduct fell short of the standards expected. The Panel must consider whether the shortfall is a significant one. He submitted that this was an experienced teacher with an extensive period in industry and 20 years of teaching. He reminded the Panel that there had been no question about his competence as a teacher. The Respondent s representative commended the manner in which the Respondent had engaged with the Panel and gave his evidence. He invited the Panel to accept that the Respondent was insightful into the events and circumstances giving rise to the complaint. In his evidence he had demonstrated not only an understanding of the significance of the matters, but also his understanding and determination to avoid similar situations arising in future. The Respondent s representative submitted that there was evidence that steps had been taken to remediate the conduct. There was not a continuing drugs issue and there was a willingness to cooperate in any regime to provide comfort and assurance that there would be no issues going forward. He described the Respondent s circumstances leading to the convictions as a perfect storm of difficult and stressful experiences. He submitted that there had been insight and understanding, that remediation had taken place, and offered a degree of assurance that there would be no future repetition to the Panel. The Respondent s representative submitted that there was not a pattern of conduct evident. He submitted that the proportionate view was that the Respondent had fallen short, but not significantly short, of the standards expected of a Registered Teacher when considered in the context of an otherwise exemplary career with no other convictions The Respondent s representative reminded the Panel that this was a prospective test and that there was clear evidence of solid performance including a positive assessment by his line manager. The Respondent was clear in his evidence that he was committed, interested in his pupils and passionate about making a difference. He submitted that today, looking forward, it would be inappropriate to make a finding of unfitness when all of the indicators suggest that that was very far from the case. Findings on fitness to teach The Panel gave careful consideration to all of the evidence presented and submissions made by the parties in relation to the Respondent s fitness to teach. The Panel addressed the relevant considerations in relation to the Respondent s fitness to teach, as outlined in the GTCS Indicative Outcomes Guidance. It had already been found that the Respondent s fitness to teach was impaired as he had admitted that at the start of the hearing. What remained to be determined by the Panel was the extent to which the Respondent had fallen short of the standards expected of a Registered Teacher and whether or not the Respondent is currently unfit to teach. The Panel considered that the Respondent s conduct and behaviour fell short of the standard expected of a Registered Teacher and constituted a breach of COPAC and in particular sections 1.3, 1.4 and 1.6 of the Code. The behaviour for which the Respondent had been convicted demonstrated that the Respondent had: 6

7 Failed to avoid a situation which could be in breach of the criminal law for which he was convicted. Failed to uphold standards of personal and professional conduct by engaging in behaviour which reflected adversely on the Respondent s integrity and had the potential to damage the confidence which the public have in him as a teacher as well as confidence in the teaching profession. Failed to be a role model to pupils by engaging in conduct which resulted in a conviction. Having identified that the complaint represented serious breaches of COPAC, the Panel next considered the particular circumstances of the case and whether or not the conduct was remediable, had been remedied and was unlikely to reoccur. The Panel took account of what was said by the Respondent in his oral evidence; that his actions in driving his car when almost four times over the limit were sheer madness but that they were explained by the significant stresses which affected his life at the time. He explained that his behaviour on 20 July 2013 had to be seen in the context of his personal circumstances, including his marital and family situation and the death of his daughter as well as the adverse outcome of civil court proceedings of which he had been informed that day. He also explained that he had recognised that he was drinking too much at that time and had attended a local drug and alcohol advisory service for counselling. As a consequence, he had been able to reduce his consumption to modest levels. The Respondent told the Panel that his colleagues and management had all been very supportive and this too had assisted in developing better strategies for dealing with stress. As noted, the Respondent assured the Panel that the Ecstasy pill which was found in his possession by the Police was something which he had been given around two years previously and that he did not take, and never would take, any drugs. On the basis of the evidence presented to it, the Panel was satisfied that the particular difficulties encountered by the Respondent led to a build up of stress culminating in the convictions described in the complaint. The Panel accepted that, although serious, this was an isolated incident. Having had the benefit of seeing and hearing the Respondent give evidence at the hearing, the Panel was impressed by the insight and remorse shown by him and was satisfied that the steps taken by him sufficiently diminished any risk of reoccurrence. The Panel also considered the public interest including the need to protect the public and in particular pupils and the need for the public to have confidence in the Respondent as a teacher as well as a role model to pupils, the need to maintain confidence in the teaching profession as well as declare and uphold proper standards of conduct and behaviour. In this context, the Panel could only conclude that the Respondent s conduct had fallen below the standard expected of a registered teacher and that such a falling below was serious and in the absence of any matters in mitigation or remediation, may result in a finding of unfitness to teach. However, the Panel had accepted that the Respondent had shown a high degree of insight, genuine remorse and had already taken remedial steps. The Panel therefore concluded that, in the context of all of the matters which it had heard about the Respondent s personal and professional circumstances before and since his conviction occurred, the public interest in making a finding of unfitness to teach was outweighed. Although the Panel found that the Respondent is not unfit to teach for the purposes of the Rules, nevertheless it found that his conduct had fallen below the standards expected of a Registered Teacher for all the reasons set out above and accepted his admission that his fitness to teach is impaired. Submissions in relation to disposal Presenting Officer In terms of the appropriate sanction to be imposed the Presenting Officer advised the Panel that a sanction should be protective and not punitive and referred the Panel to the GTCS Indicative Outcomes Guidance, which sets out the factors to be taken into account. 7

8 The Presenting Officer explained the effect of no order and submitted that this would not be appropriate especially given that the root cause of the offending had been alcohol. No protection would be provided to the public nor would it represent to the public the seriousness of the matter. The Presenting Officer explained the effect of a reprimand and that it would not restrict or control the Respondent in any way. She referred to the factors in support of a reprimand as described in the GTCS Indicative Outcomes Guidance. She reminded the Panel that it had heard from the Respondent about the circumstances giving rise to the complaint and from his colleagues and head teacher. She accepted that there were a number of factors in support of a reprimand present in the case. However, although many factors were present the Panel should consider carefully whether a reprimand alone would sufficiently demonstrate to the public and the profession the seriousness of the matters at issue. In her submission, it would not. She submitted that the Panel could see from the sentences that the Court found the matters to be serious. She further submitted that, as a reprimand would not restrict or control the Respondent, it would not sufficiently protect the public. The Presenting Officer described the effect of a conditional registration order. The actual conditions to be imposed would solely be a matter for the Panel but she urged the Panel to ensure that any conditions would be effective and that it is clear how they would be monitored and what would amount to a breach. She submitted that there was a clear area of the Respondent s conduct at issue, namely his misuse of alcohol and as a result, she submitted, effective conditions could be focussed on this area. The Panel must consider carefully whether that would satisfy the public interest. The Presenting Officer reminded the Panel that it could impose a conditional registration order and a reprimand together, which, in her submission, would address the conduct at issue and indicate the seriousness of the matter. The Presenting Officer also referred the Panel to the factors for removal from the register set out in the GTCS Indicative Outcomes Guidance. Respondent s representative The Respondent s representative was largely in agreement with the Presenting Officer s analysis. He referred the Panel to the GTCS Indicative Outcomes Guidance and echoed the submissions of the Presenting Officer that the exercise must be protective and not punitive, and that the sanctions should be considered in ascending order. The Respondent s representative made no submission that no order would be appropriate. He referred to the test for a reprimand and indicated that a number of factors were present. He submitted that a reprimand may be sufficient in looking at the full circumstances of the case in their entirety; particularly against the background of a lengthy career with no pattern of offending. The Respondent s representative indicated that the Respondent was willing to cooperate fully in any regime of future drug testing as would be necessary in order to satisfy the Panel that the appropriate level of protection was secured. The Respondent s representative submitted that removal from the Register would not be proportionate. He submitted that this was a single instance against a significantly difficult background. The Respondent had demonstrated insight and a willingness to ensure that there would be no further incident. In the whole circumstances of the case, he submitted, it would be appropriate for the Panel to impose a reprimand or conditional registration order, or a combination of both. The Respondent s representative finally submitted that no grounds for PVG referral were met and that no referral should be made. 8

9 Decision on disposal As the Panel determined that the Respondent s fitness to teach is impaired, in accordance with the terms of Article 18(1)(b) of the Public Services Reform (General Teaching Council for Scotland) Order 2011, it went on to consider, in the light of its findings on impairment, what action, if any, should be taken on the respondent s registration. The Panel has determined to make a Conditional Registration Order and Reprimand. The Panel had carefully listened to the submissions of both parties and took account of the advice of the Legal Assessor. The Panel also had regard to the guidance and general principles contained in the GTCS Indicative Outcomes Guidance. The Panel took into account the public interest and the need to protect members of the public and to maintain public confidence in the teaching profession. The Panel considered that the matters for which the Respondent had been convicted were serious for a teacher. However, the Panel accepted that there were mitigating issues in this case in regard to the stresses in the Respondent s life at the material time. The Panel also accepted that this had been an isolated incident with a low risk of repetition. The Panel took into account that the Respondent had admitted the complaint. The Panel accepted that the Respondent had shown genuine remorse for his actions and that he had demonstrated insight into the effect of his conduct on his duty to be a role model to pupils as well as his professional standing with parents and colleagues. The Panel also accepted the evidence of Ms Smith and Mr Derby that the Respondent was a well-regarded teacher and of good character. Nevertheless, the Panel concluded that the Respondent s behaviour was in breach of the criminal law and called into question his integrity and his suitability to be a teacher. In reaching its decision, the Panel applied the principle of proportionality and reminded itself that it should take no action exceeding that which is necessary. The Panel has balanced the interests of the Respondent against those of the public including the need to protect pupils and members of the public as well as maintaining confidence in the teaching profession and GTCS as a regulator. The Panel considered the orders open to it in ascending order of severity. Firstly, the Panel considered whether to make no order. The Panel concluded that the matters for which the Respondent was convicted were too serious for no action to be taken. The Panel then considered whether to impose a reprimand. The Respondent s representative had urged on the Panel that a reprimand was the appropriate and proportionate order to make in this case. The Panel carefully considered that submission. However, the Panel had regard to the seriousness of the matter with reference to COPAC. The Panel could not overlook the fact that the matters for which the Respondent was convicted were serious. Driving a motor vehicle while around four times over the legal limit and the possession of a Class A drug, however explained, were very serious matters which fell below the standards expected of a Registered Teacher. The Panel considered that it was necessary in this case to send a strong message to the Respondent, the teaching profession and to the public generally that conduct of this kind is unacceptable for a Registered Teacher and concluded that a reprimand was not a sufficient order to make in this case in order to adequately protect the public interest. The Panel then considered whether to make a conditional registration order. The Panel concluded that there are identifiable areas of the Respondent s conduct which could be effectively, appropriately and practically controlled by imposing a conditional registration order. The Panel considered that the Respondent had shown the potential and willingness to respond to conditions. However, in order to reflect the seriousness of the matter, the Panel determined that a conditional registration order and reprimand was the appropriate and proportionate order to impose in this case. 9

10 The conditions identified by the Panel are set out in the attached conditional registration order. The conditional registration order and reprimand shall apply to the Respondent s registration for a period of one year (from the date of effect). Protection of Vulnerable Groups (Scotland) Act 2007 The Panel decided not to exercise its discretion to make a referral under section 8 of the Protection of Vulnerable Groups (Scotland) Act 2007 in that no referral grounds were met. Appeal The Respondent will receive written notice of this decision within 14 days and has the right to right to lodge an appeal with the Appeals Board within 28 days of the date of service of that written notice where he can show that there are grounds to ask for the decision to be reviewed in terms of the Fitness to Teach Panel having either: a) failed to act in accordance with the Fitness to Teach and Appeals Rules; or b) made an error in law or in fact, that has had a significant impact on the decision made. Notwithstanding the Respondent s right to appeal, the decision takes immediate effect. 10