England and Wales Care Standards Tribunal

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Cite as: [2002] EWCST 78(PC), [2002] EWCST 0078(PC)

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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 21^st 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 21^st 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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