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Speed v Secretary of State for Education And Skills [2002] EWCST 0078(PC) (26 March 2003)
DOMINIC JAMES SPEED
-v-
SECRETARY OF STATE FOR EDUCATION AND SKILLS
[2002]0078 PC
Before
Mrs Rosemary Hughes (Chairman)
Mrs Linda Elliot
Mr John Williams
Hearing in Kingston upon Hull
on 19 and 20 March 2003
The Applicant appeals under Regulation
13(1)(a) of the Education (Restriction of Employment) Regulations
2000 against the direction of the Secretary of State for Education
and Skills taken on 21st March 2002 to include his name
on the list of those barred from ‘relevant employment as a teacher
or as a worker with children or young persons’ pursuant to powers
under s218 (6ZA) of the Education Reform Act 1988.
Pre-Hearing Matters
Directions were given by the President of the
Care Standards Tribunal, Judge David Pearl, on a number of occasions
before the hearing. Many of these related to the timetable for the
exchange of documents and witness statements but the following should
be noted:
i. On 11 December 2002 –
- an Order was made under Regulation 14(3)
of the Protection of Children and Vulnerable Adults and Care Standards
Tribunal Regulations 2002 (the Regulations) excluding the report
of Mr J. John-Kamen, Consultant Forensic Psychologist, of January
2002 or of any other report of his or of any other expert, save
for those reports before the Secretary of State on 21 March 2002.
This Order to include exclusion of any evidence at the hearing
relating to such reports.
- witnesses for the parties were identified
and the parties were reminded that applications for witness summons
must be made in good time. A Direction was made that the necessary
expenses of attendance should be paid or tendered by the party
requesting attendance.
- the hearing date for the appeal was set for
19, 20 and 21 March in Kingston upon Hull.
- a restricted reporting order under Regulation
18 of the Regulations was made up until the commencement of the
hearing on 19 March 2003.
ii. The Applicant sought witness summons for
Mr John-Kamen and Dr E. Mendelson, Consultant Forensic Psychiatrist,
and these were duly issued by the President on 7 March 2003.
At the hearing before us, the Applicant was
not represented and appeared in person for the morning of 19 March
only. The Respondent was represented by Mr Martin Chamberlain of
Counsel, instructed by Ms Nicola Griffiths of the Treasury Solicitor’s
Office.
Preliminary Matters
- The Tribunal considered the question of a
restricted reporting order. The Applicant wanted it to be continued;
Mr Chamberlain made no representations.
We decided that the order under Regulation
18 should be continued in respect of the publication of any matter
likely to lead members of the public to identify any child involved
in the case. We made no order under Regulation 19.
- Mr Speed asked for the hearing to be adjourned;
he had been unable to obtain legal representation and wished to
pursue this further. In addition, his witness Mr John-Kamen was
on holiday and unable to attend. Mr Chamberlain opposed the application
on the ground that the date of the hearing had been known since
11 December 2002 and Mr Speed had had ample time both to obtain
legal representation and check the availability of his witness.
We considered the application very carefully
and decided not to agree to the adjournment; we agreed with Mr
Chamberlain that there had been plenty of time for these matters
to be arranged. It was explained to Mr Speed that if he chose
to withdraw from the hearing then it would continue without him
and be determined in his absence. Mr Speed did so withdraw, protesting
that his human rights had been violated by the refusal to adjourn
and he did not recognise the court.
- The Tribunal was concerned that in the absence
of Mr Speed, Dr Mendelson should still attend and give evidence;
accordingly it undertook to pay his expenses.
- Mr J. Cohen, a specialist member of the Care
Standards Tribunal, attended the hearing on 20 March 2003 as an
Observer. He took no part in the making of the decision.
Facts
- Mr Speed qualified as a teacher in 1994 and
taught in several schools, latterly at South Hunsley School. Inspection
reports submitted by the Respondent included a 1998 profile of
Mr Speed’s teaching which was described as Satisfactory or Good
in both Business Studies and Economics. It was accepted that there
was no history of offending or inappropriate behaviour towards
pupils.
- During 1998 and 1999 Mr Speed became clinically
depressed. He had married in 1995 and a son was born in 1998.
Marital difficulties eventually resulted in his wife leaving him
in the summer of 1999 and refusing him access to their child.
Mr Speed had a history of alcohol abuse over many years but from
August 1999 he stopped drinking and attended Alcoholics Anonymous.
There was no evidence that he had abused alcohol since that time.
- Mr Speed was in trouble with the police during
the time that he was severely depressed. He had been the subject
of bullying by a gang of local youths since 1996 and in May 1999,
after his car tyres had been slashed and he had been subjected
to verbal abuse and broken windows, he chased after the youths
in his car and clipped one of their bicycles. This resulted in
a charge of careless driving. He was also in a minor road-rage
dispute with another motorist which brought a conviction for failing
to stop after an accident. A Probation Order was made for these
offences. He attempted to take his son away after a dispute with
his wife about access; he caused criminal damage at the police
station thereafter and was fined. In December 1999, after a boy
had thrown a stone at his window he rushed out to chase him and
when the boy fell to the ground he kicked him. A conviction of
assault carried a further Probation Order.
- In view of his very depressed state, Mr Speed
was initially signed off from work in September 1999 following
consultations with the Occupational Health Adviser. He voluntarily
returned to work in November 1999 but was suspended in December
1999 when his criminal convictions became known to the authorities.
In June 2000, Mr John-Kamen was instructed by the Beverley Magistrates
Court ‘to assess Mr Speed and prepare a psychological report addressing
the areas relevant to the prevailing concerns around risk, it’s
(sic) management and mental health issues’. This report was before
the Court when Mr Speed was sentenced to a Probation Order for
the various offences detailed above. Mr Speed had received psychiatric
help and medication when he first became depressed but had been
anxious to wean himself off the medication as he did not welcome
the side effects.
- As a result of Mr John-Kamen’s report becoming
known to the Local Authority, Dr D. Ernaelsteen, Consultant Medical
Adviser to the Department of Education and Skills (DfES), became
involved in an investigation into Mr Speed’s suitability to continue
employment as a teacher. She instructed Dr Mendelson to prepare
a report which was dated 9 April 2001. Subsequently Dr Ernaelsteen
attended an interview on 24 October 2001 with Mr Speed, Mr C.
Allen, his Union Representative and Mrs A. Hunter of the Teachers’
Misconduct Team of the DfES. Following that meeting, Mr Speed
received a letter from Mrs Hunter dated 21 March 2002 informing
him that he had been barred from relevant employment on medical
grounds.
- Mr Speed’s main ground of appeal was that
his illness did not make him ‘an improper person to have contact
with young people’. He was particularly upset at the use made
by the DfES of Mr John-Kamen’s report, although there was no evidence
to show that it had been used incorrectly or without permission.
Mr John-Kamen had stated that Mr Speed presented ‘with a significant
degree of depression (dysthymia), agitation and anxiety manifesting
to the extent warranting a clinical diagnosis’. He also identified
‘personality features in the amounts and density which warranted
a diagnosis of Dependent Personality Disorder.’ Mr John-Kamen
put Mr Speed’s risk of re-offending at a ‘significant’ category.
He made no reference, however, to Mr Speed’s form of employment
and noted no aggression or hostility in Mr Speed’s attitude in
interview. He did find him to be ‘an extremely demoralised, helpless,
hopeless and emotionally unstable, labile and fragile individual
who felt that life had been rough and showed very poor coping
skills.’
- Dr Ernaelsteen reported in October 2000 that
Mr John-Kamen’s report raised ‘very serious issues’ and ‘indicated
that Mr Speed should be barred from teaching.’ She referred in
her oral evidence to a number of telephone calls from the Occupational
Health Adviser and ‘a high level of anxiety’ about Mr Speed although
there was no evidence put before us of those concerns.
- Dr Mendelson saw Mr Speed in March 2001 for
a psychiatric assessment and described him as ‘still very emotionally
labile, prone to outbursts of tears and minor tirades relating
to the injustices of his predicament’. ‘The impression was one
of persisting clinical depression’ although many of the symptoms
had abated. Dr Mendelson considered from what Mr Speed told him
that he had been much more profoundly depressed in 1999 when his
criminal offences took place. Without the depression ‘he may well
have avoided offending’ and been able to cope with the provocation
offered. Dr Mendelson had not found evidence of any other mental
illness.
- Dr Mendelson did not consider that it would
be valid to judge Mr Speed’s potential competency as a teacher
on his behaviour while he was clinically depressed. In his then
condition, Mr Speed would be unable to sustain the demands of
secondary school teaching. ‘There would be a risk, albeit not
great, of him responding inappropriately aggressively to challenging
pupils because of his poor tolerance of frustration secondary
to the emotional lability of his depression’. Dr Mendelson regarded
any judgement about Mr Speed’s teaching career at that stage to
be unfairly premature given the potential for him to make a recovery
of his depression and return to his former level of functioning.
He concluded that it seemed ‘only likely that he will act aggressively
to children when he is clinically depressed and less than able
to control or ride his emotions’.
- In his oral evidence, Dr Mendelson was asked
about Mr John-Kamen’s diagnosis of Dependent Personality Disorder.
He explained that it referred to one of a group of personality
disorders where the main elements were weak will, undue dependence
and the active avoidance of stress. In his view, depression could
mask a personality disorder but it would be wrong to make a diagnosis
while the depression persisted; he himself would not make such
a diagnosis in the presence of a mental illness. He would not
expect that someone with a Dependent Personality Disorder would
be aggressive, nor did he think such a person would be capable
of qualifying as a teacher.
- Dr Mendelson had said in his report that
he would want to reassess Mr Speed before making a judgement on
his suitability to return to teaching; he considered that six
months of vigorous community treatment would result in significant
improvement. He was not asked to reassess Mr Speed. Dr Mendelson
explained that most teachers suffering from depression would be
treated for that illness; he had never experienced a case like
Mr Speed’s where a decision was taken to bar him on medical grounds.
The risk of aggression towards a pupil could remain if relevant
personality characteristics continued after the depression had
been treated. However, if Mr Speed had previously functioned satisfactorily
as a teacher then there was no reason why he should not be helped
and restored to that level.
- Dr Mendelson was dismissive of the label
of Dependent Personality Disorder that
Mr John-Kamen had diagnosed in his report. He felt that insufficient
account had been taken of Mr Speed’s mental illness. In terms
of risk of relapse, Dr Mendelson agreed that there was always
a possible risk, both of further depression and alcohol abuse,
but that any onset would be gradual and apparent to those who
worked with Mr Speed. Appropriate action could then be taken before
the condition became acute. If Mr Speed had not been inclined
to act aggressively before his mental illness then, in Dr Mendelson’s
view, he was less likely to re-offend. Mr Speed had attended an
anger management programme in August 2001 but Dr Mendleson did
not think it would have addressed his depression. If he had not
been treated by a Consultant Psychiatrist as Dr Mendelson recommended
in his report in April 2001 then, according to Dr Ernaelsteen’s
description of Mr Speed at the interview in October 2001, it was
likely that he was still in a depressed state.
- Mrs Hunter confirmed to the Tribunal the
process whereby Dr Ernaelsteen was contacted by the Local Authority.
She made her initial assessment in May 2001 following Dr Mendelson’s
commissioned report and on the basis of her analysis the interview
took place in October 2001. Mr Speed had brought with him to that
interview a letter from Mr John-Kamen which referred to the anger
management programme.
- Dr Ernaelsteen confirmed that she had only
met Mr Speed at the interview when she
found him to be a very vulnerable and sad man. He was unstable
emotionally with bouts of crying and seemed very dependent upon
his Union Representative. She told us that she had selected Dr
Mendelson to make a report because of his kind and sympathetic
attitude; she thought other psychiatrists would have been tougher.
She had felt that it would be cruel for a vulnerable person like
Mr Speed to be allowed back into teaching with all the stresses
of that profession. Dr Ernaelsteen had been impressed by Mr John-Kamen’s
report of June 2000 and found his risk assessment to be relevant
and useful in deciding whether or not to bar Mr Speed from teaching.
She did not find his letter of 23 October 2001 to be strong enough
to avoid that decision. She agreed that the letter had referred
to ‘steady progress’, ‘good motivation’ and ‘sustained positive
changes’. There had not been a repeat of the kind of acute state
displayed the previous year; Mr Speed was a ‘much settled and
calmer person’ and Mr John-Kamen was hopeful that the changes
would continue.
- Dr Ernaelsteen stressed the Secretary of
State’s priority relating to the protection
and welfare of children. The Occupational Health Adviser had been
anxious that Mr Speed should not continue teaching and Mr Speed
had not put forward any additional evidence; it was his responsibility
to seek any further assessment that might have assisted his case.
Although she was a paediatrician and not a psychiatrist, Dr Ernaelsteen
had not found Mr Speed to be depressed at the interview. He seemed
to be leading a fairly active life but she felt that his personality
characteristics were more apparent. These were extreme dependency,
emotional instability, sensitivity to criticism and passivity.
Dr Ernaelsteen had concluded as a result of the interview that
there was a high risk of relapse and that pupils would be at possible
risk due to Mr Speed’s potential to lose control and act out his
emotions impulsively when clinically depressed and suffering anxiety
and stress.
Conclusions with reasons
- We appreciated Dr Ernaelsteen’s concern
for the protection of children in school but we were also conscious
of Mr Speed’s right to employment and that he should not be unnecessarily
or unfairly deprived of the right to work as a teacher. We took
into account both the written evidence that we had received and
the oral evidence given at the hearing. In order for us to uphold
the decision made by the Secetary of State on 21 March 2002, we
had to be satisfied on a balance of probabilities that she was
justified in making that decision on the evidence before her at
that time.
- The main reasons for the decision to bar
Mr Speed from teaching were given by Dr Ernaelsteen as Mr John-Kamen’s
June 2000 report, the caution expressed by Dr Mendelson in his
report and her own observations of him at the interview together
with the concerns of the Occupational Health Adviser. These are
considered below.
- In our view, Mr John-Kamen’s report should be put firmly in
the context of when it was made and the purpose for which it was
made. He was a Forensic Psychologist who was called in by the
Magistrates’ Court to assess the risk of Mr Speed re-offending.
Mr Speed had experienced a long period of depressive illness,
compounded by marital breakdown and consequent loss of access
to his son. He had been drinking very heavily until August 1999
and suffered real provocation on the occasions when he committed
criminal offences involving the youths who had been tormenting
him. That is not to excuse his offending in any way but it clearly
occurred at a time, and only at a time, when he was mentally ill.
There was no previous history of aggression and his teaching had
been satisfactory.
- Mr Chamberlain drew our attention to violent
behaviours which had occurred between Mr Speed, his ex-wife and
his ex-mother-in-law. We did not consider that this could be relevant
to our deliberations; we had no evidence about the domestic situation;
it all happened when Mr Speed was very depressed and no criminal
charges ensued. Mr Chamberlain also referred to the circumstances
of the charge of assault on an 11 year old boy which had occurred
when Mr Speed had temporarily returned to work on a ‘lighter’
timetable and was receiving psychiatric help. His argument was
that there must be a serious risk of harm to a pupil when such
loss of control was manifest outside school hours. We were inclined
to agree with Dr Mendelson on this point i.e. that Mr Speed had
not recovered from his depression at that time; he was able to
cope during the working day but was then tired and frustrated and
unable to withstand further provocation.
- We were not convinced by Dr Ernaelsteen
that the conclusions drawn by MrJohn-Kamen could fairly be transferred
to the way Mr Speed functioned in his employment as a teacher.
Mr John-Kamen’s report was never intended to support barring Mr
Speed from teaching and we were persuaded by Dr Mendelson that
the label of Dependent Personality Disorder was probably incorrect
and led to assumptions that were not supported by evidence. The
aggression displayed to the youths who provoked Mr Speed at a
time when he was severely depressed was a natural, albeit uncontrolled,
reaction, but there was no evidence of targetting children or
young people.
- We found Dr Mendelson to be a credible witness
who was genuinely at a loss to understand why a man who had suffered,
and continued to suffer, in April 2001, from a depressive mental
illness, should be barred from teaching ‘for the foreseeable future’.
Dr Mendelson was very clear that any judgement as to Mr Speed’s
teaching would be ‘unfairly premature’ in April 2001 and yet the
Secretary of State did not request even a brief updated report
before Mr Speed’s interview. We regarded this as a serious omission;
Dr Mendelson had given six months as a likely improvement time
and was willing to make that reassessment. Dr Mendelson’s assessment
of the risk of relapse into depression or alcohol dependence was
a realistic one in our view, but it did take into account the
gradual nature of such a relapse and the degree of monitoring
that would be available from other members of staff. Dr Ernaelsteen
expressed her opinion that there were no safety nets in teaching
but our experience of appraisal and monitoring in that profession
did not accord with her opinion.
- We were surprised at the disparaging way
in which Dr Ernaelsteen referred to Dr Mendelson’s report. It
had been specially commissioned to assist the Secretary of State
and yet the conclusions and recommendations that did not support
an immediate bar on Mr Speed’s employment appeared to be dismissed
without regard. Dr Ernaelsteen told us twice that she thought
Mr Speed was a very vulnerable person and that it would be cruel
to expose him to the stresses of teaching in a secondary school.
We could not accept this as a valid reason for prohibiting him
from employment as a teacher. We were also surprised that she
did not take greater note of the progress made by Mr Speed and
reported by Mr John-Kamen in his letter of 23 October 2001.
- Dr Ernaelsteen wrote in her statement that
she felt Mr Speed’s depression had ‘resolved’ by October 2001.
In this instance, we preferred the advice of Dr Mendelson to the
effect that reports of Mr Speed’s demeanour at the time of the
interview indicated that he was still suffering some degree of
depressive illness. The interview must have been very stressful
for him and we were not surprised that he showed considerable
dependence on his Union Representative who would at least be familiar
with the process. In our view, the very fact of Mr Speed’s pursuit
of this appeal showed a degree of tenacity and assertiveness that
would not fit with Dr Mendelson’s description of a Dependent Personality
Disorder.
- We were aware of references to the Occupational
Health Adviser’s concerns but, apart from the letter from Dr A.
Innes to Dr Ernaelsteen, dated alternatively 25 August 2000 and
28 September 2000, we had no other evidence of these anxieties.
There was no record of medication being taken by Mr Speed at the
time of his interview and in spite of the explanations given for
the delay, we were not satisfied that efforts were made to issue
the final decision within the three months indicated at the end
of the interview. In our view, delay at this point contributed
to making the eventual decision unacceptable, based as it was
on evidence at least five months old.
- Overall, we were not satisfied that the evidence
before the Secretary of State in March 2002 justified the conclusion
that there was a real risk of Mr Speed harming pupils in his care.
We did not feel that sufficient weight had been given to Dr Mendelson’s
conclusions and that there were false assumptions made from Mr
John-Kamen’s 2000 report which was never intended for the purpose
to which it was applied. We found Dr Ernaelsteen’s evidence to
be contradictory in giving an incorrect reason for putting Mr
Speed’s name on the list of those prohibited from teaching, and
in some instances untrue, as in her assertion that Dr Mendelson
had referred to a five year review timetable for Mr Speed. We
were encouraged by Mr Chamberlain to take the view that there
could be a review at any time if Mr Speed so requested but we
considered that his name should never have been placed on the
list and we would therefore order the Secretary of State to remove
it forthwith.
The appeal is allowed. Our decision is unanimous.
Order
That the Secretary of State for the Department
of Education and Skills revoke the direction made on 21st
March 2002 that Dominic James Speed be prohibited from relevant
employment as a worker with children or young persons
Dated 26 March 2003
Rosemary Hughes
Linda Elliot
John Williams
Signed
Rosemary Hughes. Chairman.
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