An inside look into the Disciplinary Tribunal

For nearly a decade barrister John Hannan has served as a deputy chair on the NZ Teachers Disciplinary Tribunal. The Tribunal is an independent body and panels made up of a lawyer, teacher and lay person consider cases of serious teacher misconduct. This year his term of appointment ends after contributing the maximum number of years.

What motivated you to be a part of the DT and what kept you interested in the role for nine years?

I have for a long time had an interest in Education LawI have a strong belief in the importance of education, best summarised by the words of Kofi Annan "Education is the premise of progress, in every society, in every family" 

So, this was a way of making a contribution to the education system with my legal skills.  

The Tribunal’s primary mission is to make correct and fair decisions that contribute to maintaining high professional standards, ensuring the safety of students and others in the education sector, and dealing with conduct that may adversely affect the reputation of the teaching profession. 

Decisions of the Disciplinary Tribunal can impact the careers and lives of teachers very adversely, so I had a heavy sense of responsibility and a great desire to ensure that decisions were made on proper evidence and were made fairly and with compassion.  I know some teachers on the receiving end of decisions might not think so, but the Tribunal is always very conscious of the impact its decisions will have.  If it finds misconduct established, it looks to apply the "least punitive sanction which is appropriate in the circumstances".  If there are prospects for rehabilitation of the teacher, the Tribunal will place a heavy emphasis on an outcome promoting rehabilitation. Many of the teachers who come before the Tribunal are in very difficult and sad situationsOften problems in the classroom emerge from or at least are related to problems in their personal livesThe Tribunal tries to respond in a supportive way, but this has to be consistent with its main mission. 

What did you learn from being part of the DT? 

I was constantly noticing the way that teachers come from hugely diverse backgrounds and have a hugely diverse range of skills and attitudes and capabilitiesThis can all be reflected in their practice provided they understand and apply the professional standards set out in the Code of Professional Responsibility and Standards for the Teaching Profession. Unfortunately, there are teachers who for whatever reason have not got to grips with important aspects of the CodeThe Code has to be the core of good teaching practiceTeachers with a good appreciation of the Code are unlikely to get into trouble with the disciplinary system. 

One particular problemwhich often results in difficulties especially for relatively new teachers, is maintaining appropriate professional boundariesI sometimes wondered whether there is enough content and emphasis in teacher training on developing awareness and skill in this areaThe Tribunal regularly deals with cases where teachers have developed emotional interdependencies with students which are potentially risky and damaging both for students and for the teacherIn the cases where we heard from the teacher it regularly seemed they didn't have the tools to recognise and avoid the development of problematic situationsIf a teacher gets into this sort of difficulty then issues of fitness to practice and student safety arise, and the disciplinary system has to respondThis is particularly a risk for teachers in the early part of their careers. 

What advice would you give to someone considering joining the panel/becoming chair? 

Be prepared to maintain objectivity and compassion in the face of what sometimes seems an unending procession of matters where teachers have engaged in stupid, fecklessincompetent, or just plain bad behaviourSome of these cases will be quite sadIt's easy to become cynical or casehardenedBut there is a real human being in every case, with their own real human problemsThere are not many cases where the teacher has quite deliberately acted badly or irresponsiblyYou are dealing with human shortcomings and frailty, in a context where your decision can have a very adverse impact by way of ending a teacher's career, and by imposing what can be quite large costs orders on people who are in relatively modest financial circumstancesThe definition of serious misconduct in the Education Act 1989 can result in sad outcomes where after a long and good teaching career a single slip by a teacher results in them exiting the profession in humiliating and unhappy circumstancesI felt very sorry for teachers in this situation. 

Having said all that, the primary mission of the Tribunal is to uphold professional standards. That is the primary task at all times. 

How did you work with other panel members in your decision-making? 

I learned a great deal from the teaching professional members of the Disciplinary Tribunal panelsThe Tribunal usually sits in panels of 3, with a lawyer as chair, and 2 teaching professionals as the other membersTheir practical insights into what happens in schools and in early childhood education centres, and what constitutes good practice and bad practice, were always enormously valuable and educative for me. They were often tougher on the teacher than I would have been. I listened to them carefully and changed my assessment of quite a few situations as a result. Usually the Chair writes the decision but that doesn’t mean the teacher members don’t have a very major input into the outcome. 

What are the major changes you’ve seen over time while sitting on the panel? 

There were 2 big changes, the effects of which are interrelated.

First, the change to the Education Act requiring that the Complaints Assessment Committee sends every case where it thinks the teacher's behaviour “may possibly constitute serious misconduct” to the Disciplinary TribunalThis resulted in a very significant increase in the number of cases coming before the Disciplinary TribunalPreviously, the Complaints Assessment Committee could itself deal with matters which might or might not be serious misconduct and wasn’t compelled to send such matters to the Tribunal for a full disciplinary proceeding. 

The second major change was the series of legislative and rules changes on physical restraint, seclusion, and corporal punishmentThe ban on corporal punishment was in place long before I became a Tribunal Deputy ChairBut the new rules on physical restraint and seclusion meant that a lot of physical interaction with students which wasn't corporal punishment now became, potentially, serious misconductAnd because anything that might be serious misconduct must go to a Disciplinary Tribunal hearing, a lot of what we've been doing over the last few years has been about teachers who have allegedly touched or tapped or held or grabbed or  "hit" studentsWinnowing out the cases where there is an incidental touching or holding to guide students or to get their attention from those where the physical contact amounts to an inappropriate restraint or to an improper application of force can be very difficult 

Often these situations arise where teachers are faced by very difficult or challenging behaviour by studentsThis arises in all settings, early childhood, primary and secondaryIn early childhood education, children have meltdowns or tantrumsSome children may hit or bite other childrenIn secondary education there can be some very obnoxious behaviour towards teachers by studentsTeachers face a very challenging task in managing these behavioursAn ill-judged or annoyed spontaneous response involving physical contact can result in a disciplinary proceeding for serious misconductThere are regularly cases where a teacher's conduct is only just over the line of the legal definition of serious misconduct and so results in an adverse disciplinary finding but isn't really all that serious in the larger pictureIf the matter could have been dealt with at the Complaints Assessment Committee stage, there would have been no need for a Disciplinary Tribunal hearing. 

The changes which the new Education and Training Act has just made to the test for justifying the use of physical restraint will, I think, help in reducing the number of cases found to be serious misconduct. Previouslyteachers could only use reasonable and proportionate physical restraint if there is a “serious and imminent risk” to the safety of the student or any other personThe "Guidelines" indicated this must be a risk to physical safetyUnder the new Act teachers are able to use restraint if there is imminent risk not just of physical harm, but of general “harm to well-being,” including "significant emotional distress"The word "serious" has goneI know there are criticisms of this change, and there are still aspects which will be problematic, but it is better than it was in avoiding scooping up behaviours which only marginally justify formal professional discipline processes.  

What did you feel you were giving or contributing to the teaching profession/public by being part of the DT?  

Lawyers are trained to work with, understand, and precisely apply legal rules and principles, and to assess evidence and make factual findings which are as accurate as may beThose skills are important in running a professional discipline system that identifies and deals with professional misconduct in a fair and reasoned and principled wayI hope I brought those skills to my role as Deputy chairIn particular I hope that those teachers who received disciplinary outcomes in decisions I was involved in feel they had a fair hearing and understand the reasons why things went against them. 

 

Image CAPTCHA
Enter the characters shown in the image.