Ill health and remorse in conduct cases

The decision in Woolfenden v Secretary of State for Education [2021] EWHC 3397 (Admin) illustrates the 'balancing act' performed by decision makers, when considering whether to impose a prohibition order on a teacher for unacceptable professional conduct. 

This involves, as it does when sanctioning in any professional regulatory regime, taking into account the interests of both the public and the teacher, whilst upholding the key principle of proportionality.  In this case there was an impact on the teacher's ill health pension entitlement.

In addition, the case considered the teacher's brain-injury, which meant she could no longer recall or, importantly show remorse for, the events that led to her prohibition from the teaching profession.

Background

After a hearing the TRA's Professional Conduct Panel made a recommendation to the Secretary of State for Education to impose a prohibition order against Mrs Woolfenden, in respect of the following proven allegations, which it considered amounted to unacceptable professional conduct and conduct that may bring the profession into disrepute:

1. On 10 July 2018 the claimant brought alcohol on to the school premises, namely a bottle of vodka. 
2. On 10 July 2018 the claimant consumed alcohol on the school premises, namely vodka. 
3. By her conduct aforesaid she failed to maintain high standards of behaviour.

 The Decision Maker on behalf of the Secretary of State, accepted the panel's recommendations and imposed a Prohibition Order on the 6 May 2021 with the possibility of a review after three years.  The decision document recorded a number of important considerations:

1. Whether the imposition of a prohibition order is proportionate and in public interest.

In doing so, the decision maker considered the overall aim to protect pupils and maintain public confidence in the profession and whether or not prohibiting Mrs Woolfenden and the impact it will have on her is proportionate and in the public interest.

2. The extent to which the prohibition order would protect children.
3. The insight and remorse of Mrs Woolfenden.
4. The Public's high expectations of the professional standards of all teachers.

 The decision maker placed considerable weight on the findings of the panel in relation to Mrs Woolfenden bringing and consuming alcohol on school premises and concluded that in light of these circumstances and the fact that the teacher had failed to show remorse a prohibition order was necessary to maintain public confidence in the profession.

Mrs Woolfenden appealed the decision on two grounds. Firstly, that it was unrealistic for the Secretary of State to expect that the teacher could now show remorse for something of which she had no memory due to a brain injury she sustained shortly after the incident and secondly, that the Prohibition Order had a serious impact on her ability to successfully apply for an ill-health Teacher’s pension and that this was discriminatory.

Decision of the High Court

In addressing the first ground of appeal, the Court held that Mrs Woolfenden's lack of remorse or insight gave rise to concerns that conduct could be repeated, which was the decisive factor in imposing the Prohibition Order. Therefore, the issue of whether or not Mrs Woolfenden was to blame for lacking remorse or insight was irrelevant and the panel's decision was deemed rational.

In relation to the second ground of appeal, the Court was not persuaded that the impact of Mrs Woolfenden being deprived of the right to apply for an ill health pension should have altered the outcome of imposing the Prohibition Order. The Court noted the importance of the balance that the Secretary of State struck in order to protect the interests of the public including the protection of pupils and confidence in the profession and considered the order proportionate and appropriate.

The Court was satisfied that without a prohibition order there was an unacceptable risk that Mrs Woolfenden might return to teaching, notwithstanding the medical evidence that she was not fit to do so. The Court did not resolve whether the provisions that meant she might lose her ill health pension breached human rights provision but noted Mrs Woolfenden had had other pension entitlements, including early retirement, and her rights of appeal against any pension decision had not yet been exercised.

This article was co-authored by Ella Thornton.