April 23, 2019

A lesson for the regulator

Most professional regulators use misconduct as a yardstick of fitness to practise. The General Teaching Council for Scotland was no different – until now. In AD v The General Teaching Council for Scotland [2019] CSIH 18, the Court of Session overturned a decision of a GTCS fitness to teach panel. The court called into question the appropriateness of a test of misconduct, despite that test featuring in the GTCS Indicative Outcomes Guidance. 

The Fitness to Teach proceedings

A Fitness of Teach panel heard allegations that AD had discussed sensitive information with a vulnerable pupil; made unfounded allegations about the attitudes and behaviours of other staff towards her; and refused to follow instructions to meet with her head teacher.

At the fact-finding stage, the panel found the allegations proved (stage one).  They then went on to consider the question of fitness to teach (stage two). They first considered whether the allegations proved amounted to misconduct. They were satisfied that they did. The panel then went on to consider whether AD's behaviour met the test of impaired fitness to teach. They concluded that she was unfit to teach and directed that her name be removed from the register (stage three).    

The appeal

On appeal the Inner House of the Court of Session held that the decision could not stand. They set aside the decision and dismissed the proceedings against AD. They found that the panel's conclusion that AD had acted maliciously could not stand, and in light of that their decision that she was unfit to teach must also fall. However the lasting impact of the decision lies elsewhere – in their discussion of the correct test for the panel to apply.

The court called into question the need to prove misconduct. The GTCS Indicative Outcomes Guidance sets out that once a panel has determined that the facts are proved, it needs to make a determination on the teacher's fitness to teach. The guidance states that the panel should consider whether the teacher has been guilty of misconduct. 

However, the panel's jurisdiction and powers come from the Public Service Reform (GTCS) Order 2011. That Order makes no reference to misconduct. Instead the question is whether a teacher's conduct falls significantly short of the standards to be expected. The court considered the introduction of a misconduct test may be unnecessary, unhelpful and potentially misleading such that "it may be better to avoid altogether any consideration of misconduct." 

This may well lower the bar for a finding of impaired fitness: a teacher may fail to meet an expected standard but still not have acted in a way amounting to misconduct. Phrases such as "serious professional misconduct" will cease to be relevant. Instead panels will look only to teaching standards and in particular the GTCS's Code of Practice and Conduct.

But the wider moral of the story is this: not all regulators are alike. Panels may apply an approach from another regulator without considering that the governing rules make that inappropriate. In this case there was success for AD, but perhaps at the cost of lowering the threshold for sanctioning other teachers in future.