Section F - Barring and restricting employment on medical grounds
F.1. Barring - Secretary of State's powers
F.1.1 The Secretary of State has power to make Directions barring a person from 'relevant employment', or imposing restrictions on a person's employment, on medical grounds. (Regulation 10 of the Teachers Regulations)
F.1.2 Relevant employment in this context is explained in paragraphs A.2.3 to A.2.4, and in the context of the Secretary of State's barring powers includes employment in independent schools.
F.1.3 A "worker with children or young persons" is someone, other than a teacher, whose employment brings him or her regularly into contact with anyone who is under 19 years old, e.g. a school caretaker, a care worker in a special or residential school, or a youth worker in the youth service.
F.1.4 A Direction has the force of law, and takes effect immediately it is made. It remains in force until it is withdrawn by the Secretary of State. It applies to employers, as well as the person barred, but its effect is confined to relevant employment. It does not restrict a person's employment as a teacher in adult or higher education, in administrative work which does not bring the person regularly into contact with children or young people under 19 years old, or in any other capacity which falls outside the definition of relevant employment set out in paragraphs A.2.3 and A.2.4.
F.1.5 A Direction can be made about someone who is not currently in relevant employment, for example because they have been dismissed or have retired, or about someone who has never been in relevant employment, for example a trainee on, or applying for a place on, a teacher training course.
F.1.6 The Secretary of State has the power to bar a person on medical grounds, but the power is discretionary. It is not possible to set out an exhaustive list of the medical conditions that can lead to a bar being imposed on a person's
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employment. However, broadly speaking barring will only be considered in cases where a person is suffering from an illness that implies a risk or potential risk to the safety and welfare of pupils and colleagues. It is most likely to be considered for a person suffering from mental illness who has displayed psychotic or manic symptoms, and in cases of severe alcohol or drug misuse.
F.1.7 When the Secretary of State decides to impose a bar, he will always suggest a review period after which he may be prepared to consider reviewing the decision. The review process is not performed automatically, but only at the request of the barred individual. When the Secretary of State undertakes a review, he will decide if the criteria laid out at paragraph F.3.1 have been met. It does not follow that simply due to a review period having elapsed the Secretary of State will withdraw, or vary, a previous Direction.
F.1.8 There is no provision in the Teachers Regulations for an appeal against the Secretary of State's decision. However, decisions can be challenged in the courts through judicial review on grounds of illegality, irrationality or procedural impropriety. A decision by the Secretary of State not to undertake a review, or not to withdraw or vary a Direction after review, could also be challenged through the judicial review procedure.
F.2. Barring - procedures
F.2.1 A medical adviser who believes there may be medical grounds for barring an employee, trainee teacher or prospective trainee teacher, from relevant employment, must consult the Department's Medical Adviser first.
F.2.2 If the Department decides to consider barring or restricting the person's employment, the person is informed of that and invited to make any representations, including submitting any medical evidence and any other material, for example testimonials from people whose knowledge or opinions may be relevant.
F.2.3 Usually the Department will also require a medical report from the consultant responsible for the person's treatment. The Department's Medical Adviser will refer the person to an appropriate consultant, and the Department will pay the consultant's fee. The person may voluntarily provide medical evidence as part of his or her representations, if he or she believes that would be helpful, regardless of whether the Department requires a medical report. The Department cannot pay for medical reports which are provided voluntarily.
F.2.4 Sometimes, from that report and a person's written representations, it is clear that it is unnecessary, or inappropriate, to give further consideration to barring or restricting the person's employment. The person will be told of this in writing.
F.2.5 When further consideration is necessary, the Department allows a person to make oral as well as written representations where practicable, by attending an interview at the Department. At interview the person may be accompanied by a "friend" of his or her choice, such as a legal representative, an official of a professional association, a former colleague, or a member of his or her family. Interviews are normally held in the Department's Darlington offices.
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F.2.6 It is for the individual to decide whether to make representations, and what information and reports to include. The Department cannot:
- require a person to make representations;
- dictate the form and content of representation;
- seek testimonials on the person's behalf;
- meet the cost of making representations, including costs involved in attending an interview.
F.2.7 When the representations are complete, all the papers about the case are passed to the Minister for decision. The person is informed of the decision in writing and given a copy of any Direction made by the Secretary of State.
F.2.8 It is not possible to set a timescale for concluding cases, because progress depends on the Department receiving information from several independent sources. However, the Department aims to settle a case within 3 months of receiving all necessary information, including any representations made orally at interview.
F.2.9 'List 99', held by the DfEE, contains the names, dates of birth and teacher reference numbers of people whose employment has been barred or restricted, either on grounds of misconduct or on medical grounds. If a person's employment is restricted, the entry shows the types of employment in which he or she is permitted to work. People barred on medical grounds are listed separately from those barred on misconduct grounds, but no details of the person's illness are given.
F.3. Barring - review
F.3.1 There is no provision in the Teachers Regulations for appeal against a decision by the Secretary of State. The Secretary of State does, however, have power to withdraw or vary a Direction and may do so where appropriate based on:
- information which he did not have at the time the Direction was made; and/or
- evidence of a material change in the person's circumstances since the Direction was made.
F.3.2 This is explained in the letter telling the person of the Direction made against him or her. The letter also states the period of time which the Secretary of State would expect to elapse in the particular case before a review might be appropriate. This will typically be between 2 and 5 years.
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Appendix 1 - Guidance to medical advisers
App.1.1 The purpose of the provider's declaration of health questionnaire is to decide a candidate's medical fitness for teaching and prospect of giving efficient service in a profession that is very demanding both physically and mentally. The provider's medical adviser should consider sympathetically the full facts of the case where there is an unfavourable medical history and particularly where a candidate is currently free from signs or symptoms of disease. Deformity or permanent disability should not of themselves make up medical reasons for rejection. Given reasonable adjustments by employers and/or changes by trainers similar to those falling within an employer's duty of reasonable adjustment, it may be possible for such individuals to carry out all their duties effectively.
App.1.2 If there are doubts about the medical fitness of a particular candidate to perform satisfactorily in the intended age phase or main subject in which the candidate intends to specialise, medical advisers should act as advised in sections C3-C4 of this Circular. For anyone who has a condition which may relapse and which may present a risk to children's safety or development, specialist advice should be sought before a decision is made about their fitness to enter training. Specialists should be asked to explicitly address prognosis, any likely aggravating or alleviating factors (including the effects of medication) and advise on suitable follow up in the occupational context.
App.1.3 Having considered the declaration of health (and evidence from a medical examination and specialist advice if necessary) the medical adviser should classify the candidate in one of three categories:
- Those who are in good health and free from conditions which might be likely to interfere with efficiency in teaching;
- Those who are in generally good health but who suffer from conditions which are likely to interfere to some extent with their efficiency in teaching either all subjects or certain specified subjects, though these conditions are not serious enough to make the candidate unfit for the teaching profession. This includes those whose disability could require employers to make reasonable adjustment to enable them to provide effective and efficient teaching; or
- Those whose condition is such as to make them unfit for the teaching profession. Candidates should not normally be included in this category unless they have a psychiatric or physical disorder likely to interfere seriously with regular and efficient teaching of either general subjects or the subject in which they intend to specialise e.g. PE or science subjects, or if they have an illness which may carry a risk to the safety or welfare of the pupils.
App.1.4 For candidates placed in category B, the medical adviser should help the provider identify any changes (similar to those which would constitute reasonable adjustments for employers) candidates might need to assist them in pursuing their course, though the provider does not have a duty under the DDA to make such adjustments. Candidates in this category may need to be reviewed by the provider's medical adviser throughout the period of their training.
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App.1.5 When reporting on candidates, medical advisers should take specific account of the age group and/or main subject in which the candidate intends to specialise, although it may also be necessary to consider the likelihood of candidates undertaking additional duties. It should also be borne in mind that teachers in mainstream schools and further education colleges are increasingly likely to have responsibility for pupils with special educational needs, some of whom may be profoundly disabled. It is not within the scope of this guidance to provide detailed assessment of the impact of all medical conditions on fitness to teach, but key considerations are:
- the prevention of abuse of children;
- the requirement for teachers to have sound judgement and insight, and
- the requirement for teachers to be able to respond to pupils' needs rapidly and effectively.
The latter makes it important for teachers to maintain continuous alertness especially with younger age group pupils, pupils with disabilities and medical needs and in certain subjects such as physical education, science and technology.
App.1.6 When considering the medical fitness of candidates providers' medical advisers should bear in mind employers' duty under the Disability Discrimination Act to make 'reasonable adjustment' to enable disabled persons to work (see paragraph B.3.5). A medical adviser cannot know the facilities available from, or adjustments which could be made by, all prospective employers. The medical adviser may however seek advice from the provider's admissions staff, who are likely to know (or can find out) whether the provider's partnership schools could accommodate a trainee with a particular disability.