Increases in the number of students with serious food and other allergies and chronic asthma, and a number of tragic student deaths, have heightened the need for schools to be vigilant and thorough in managing their students’ health needs. No school wants to find itself in a situation where a student becomes seriously ill, or dies as a result of a known health problem and the school is found responsible. But what are the legal obligations on schools and individual staff members? IEU VicTas Assistant Secretary Cathy Hickey looks at what you need to do to get it as right as possible
Essentially the obligations on schools derive from three areas of law – common law duty of care, work, health and safety laws and discrimination legislation. Privacy legislation is the fourth area that is often quoted by schools in relation to obligations around student health. However this is often misunderstood and incorrectly used in ways that can put schools at risk of not meeting their legal obligations.
Duty of care
Schools are all too familiar with the term ‘duty of care’. This area of common law requires schools to take reasonable steps to protect students from foreseeable risks of harm. Some states such as NSW add to the reasonableness criteria “and where a reasonable person would have taken those precautions”.
A school is required to undertake strategies that will minimise or eliminate the risks of harm, and this includes those related to complex or significant health needs. A failure to discharge the duty of care can result in student injury or death, and schools will find themselves the subject of civil litigation.
Work Health and Safety requirements
Similarly, schools are required under Work Health and Safety laws to as far as is reasonably practicable, ensure the health and safety of all their students and staff. Regardless of the specific WHS legislation in the various Australian states and territories, a school is required to identify risks of harm, undertake standard risk management assessments and put in place risk management plans.
It would be expected under this legislation that in respect to a student with a complex or significant health needs, there is a specific risk management plan for this student. This would need to cover all the circumstances when the student is under the care of the school, for example general classroom activities, sporting events, off-school site activities, staff training, expectations of volunteers etc.
Under the plan the staff and appropriate volunteer training would need be identified and delivered. Schools would also consider procedures and circumstances that might be appropriate to involve the student’s classmates in, and how teachers would raise awareness. Obviously discussion with the student’s parents and the student is important.
Serious and/or complex health needs are defined as a disability under the Commonwealth Disability Discrimination Act 1992 (the DDA) and therefore the obligations under this Act apply to the school in respect to these students.
This means that a school cannot unlawfully discriminate against a student at enrolment, nor deny them access to a benefit or service. The school must consider what reasonable adjustments can be made to enable the student to enrol and participate on the same basis as a student without the disability. Reasonable adjustments would include measures the school would need to take in respect to medication, medical intervention, the employment and level of training of staff required in respect to the various school activities and settings, and modifications to the physical environment and equipment.
It may be that a school is able to argue that the adjustment(s) required pose an unjustifiable hardship. However, schools would be advised to take specialist legal advice in respect to this.
Other specific health-related legislation
There are some other forms of legislation that deal with students’ health. In Victoria, for example, there is specific legislation under the Children’s Service’s Act 1996 outlining the management by school/children’s’ service of a student’s anaphylaxis, including policies, individual plans, training of relevant staff, and storage of anaphylaxis medication.
Schools are sometimes confused about what they see as conflicting obligations arising from different areas of law. There are limits imposed by privacy legislation on the collection, use and disclosure of a student’s personal and health information. However these do not prevent a school from using and disclosing personal and health information for the purposes of meeting requirements of other legislation.
Individual staff obligations
Staff often feel vulnerable about whether they will be sued if something goes wrong in relation to their dealing with a student with complex and/or significant health needs.
The requirements on staff under duty of care require them to essentially take reasonable steps to protect students from reasonably foreseeable risks of harm.
While an individual member of staff would be unlikely to be affected financially in litigation around failure to discharge the duty of care, no one would wish to be involved in such a case. The best remedy for schools of course is prevention.
The most common complaints to unions from their members are that they feel inadequately trained or individually carry an unreasonable (and unmanageable) degree of responsibility. In these circumstances is a directive from the principal reasonable?
Whether a direction by a principal to an employee to undertake specific duties is ‘reasonable’ relates to the inherent nature of the job they have contractually engaged in, the skills and knowledge that it is reasonably expected that a person undertaking that job would have, and the capacity of the employee to undertake the specific task safely and effectively. Teachers are employed to deliver an education program and have a duty to take reasonable measures to protect students from harm. They are not employed as medical officers.
It may be ‘reasonable’ to expect that a teacher would have the general skills and knowledge to administer a tablet at a set time to a specific student, but one might argue that a direction to undertake a specific medical intervention requiring a level of medical knowledge and skills beyond general first aid and basic instruction may not be.
Additionally, the level of responsibility placed on an individual staff member to monitor and medically intervene in managing the significant health issue of a student may be what is ‘unreasonable’. Teachers who may have a number of students with complex health needs and other special needs in their class at any given time, may be overloaded and believe they are unable to give the close medical-related attention to a student because of the interplay of circumstances going on in the average classroom day.
It is the school which bears the overall duty of care to have systems in place to manage the risks and this would include providing the training, time and resources for an employee to safely and effectively undertake the duties they are asked to undertake.
If a staff member believes they are not sufficiently trained, or are unable for any reason, to safely and effectively manage a health risk, it is important that they raise this with the employer in writing. There are a couple of reasons for this. Firstly, the school cannot put steps in place if they are unaware of the specific difficulties. If a teacher is not sufficiently trained, or has too many competing obligations to manage health risks, the school needs to know exactly what the problem is so they can address it. Teachers may be making themselves liable: a reasonable person would raise their concerns about health risks. Failing to do so could expose the teacher to a claim of negligence – and when it comes to proving it, an email is infinitely better than assertion about a discussion that cannot easily be proved.
If the employer fails to put in place effective mechanisms and training etc, one of the most immediate ways to deal with this is for the employee to contact the WHS Rep in their school and their union in respect to dealing with the issue as a Work Health and Safety problem. The WHS provisions will enable measures to be taken in respect to an employer’s refusal to manage the risks.