Western Australian Duty of Care Policy from the Department of Education

EDP120 Assignment 1- Document Analysis

Introduction

The policy that will be analysed is the Western Australian Duty of Care for Students policy from the Department of Education. “Duty of care is a legal concept that has its origins in the common law. The common law is a collection of legal principles that have been established over time by the courts. The duty of care principle not only underpins, but to a large extent drives most school policies and practices”. (Western Australian Department of Education, 2007, 2.1) (WADoE)

The purpose of this report is to examine the policy and show the apparent need for such policies. There will be three scenarios used to give examples of how the policy is relevant and how it should be implemented in regards to local primary schools. The first scenario is in regard to students who arrive early on school grounds. The second scenario tells of a teacher who privately recruits students for a sports team, using the school colours and name. The third scenario shows an inexperienced student teacher who is asked to watch a class with disruptive students.

Discussion

The Policy

A policy is a statement of intent that aims to promote all who are subject to the policy perform in a consistent way that meets the standard in which the policy is intended. In the Western Australian Duty of Care for Students policy this applies to teaching staff, non-teaching staff, external providers and volunteers. The fundamental reason for writing the policy is for the safety and welfare of students in our schools. Without such a policy, teachers will be acting based on their own decision making regarding what is right and wrong. Not all teachers would have the same approach in doing so, leaving schools and/or teachers finding themselves in legal situations caused by failing to uphold their duty of care. It is important that all schools and teachers understand and implement the Duty of Care for Students policy for such reasons.

The said policy helps to give a clear understanding of what duty of care means, what it is to carry out duty of care, when duty of care is applicable and who is liable within the policy’s conditions, if the conditions are not met.

The following topics are covered in the policy to help gain an understanding of duty of care;

1. Reasonable care - A duty to take appropriate care to avoid harm being suffered. When implementing duty of care a number of elements will come into play such as students age, experience, capabilities, physical and intellectual impairment, medical conditions, behavioural characteristics, type of school activity and environment in which an activity is performed. (WADoE, 2007, 3.1) 2. Assessing risks - It is important to exercise professional judgement to ensure the balance between learning and avoiding harm from potential risk. When assessing risk you must take into account the likelihood of such risk, size of risk and what would need to be done to remove the risk. (WADoE, 2007, 3.2) 3. Teaching staff - A duty of care is automatically presumed out of the teacher-student relationship. A duty of care should be exercised when a student is on school grounds or is attending an activity in relationship to their school. Even if the student does not attend the same school as the teaching staff and the students are put in their care, they will still owe a duty of care example, Cross county finals. Teachers have a duty to provide suitable supervision, taking action against bullying, seeking medical help when needed, safety on school premises/grounds and using school equipment. (WADoE, 2007, 3.3) 4. Non-teaching staff, volunteers, external providers and the discharge of duty of care - External providers, non-teaching staff and volunteers are not subject to the same duty of care unless a member of teaching staff has requested them to do so and the request is accepted. Teaching staff must give the person an opportunity to refuse a request. If the person requested agrees, they must take on the same level of duty of care towards the students as they are now liable if anything were to happen. When discharging a duty of care teaching staff have a responsibility to make sure the person is suitable to the task assigned. (WADoE, 2007, 3.4) 5. Liability- If a student has suffered an injury and it is proven the person who owes a duty of care was seen as negligent in applying reasonable care and assessing risks, the state of Western Australia may be sued by the injured party, as the employer is vicariously liable for the acts of negligence of teaching staff and non-teaching staff (WADoE, 2007, p15). If the person being sued was not acting within their teaching role and duty of care did not apply they will not be covered by vicarious liability.

Some of the issues that the policy covers are who is responsible in regards to duty of care and when, the safety of students on school grounds before and after school, school sports on school grounds and students leaving school grounds in school hours. These issues are everyday issues that schools and teachers deal with, they are included in the policy to guide teachers in their decision making and show them when, how and why to implement the above topics; reasonable care, assessing and managing risks, teaching staff , non-teaching staff and liability.

The above discussion and the Western Australian Duty of Care for Students policy make it clear why the three scenarios below could be a problem and what can be done in regards to solving the issues.

Scenario 1 - A number of students arrive early to school at about 7:40 am each morning. The first teachers usually arrive about thirty minutes later. Most teachers are aware of the fact that students do arrive early at the school and have been doing so for a long time

Implications:

As cited in the discussed policy, students arriving on school grounds before school, if known by staff, need to be provided with sufficient care and supervision as the school is responsible for duty of care. To claim to not be aware of the situation will not protect the school against liability, in a case where a student is hurt or injured on school grounds during in this time (WADoE, 2007, p11). The subjects covered in the policy and stated above (liability and reasonable care) help to maintain and create a plan of action. This will ensure the children are safe and a duty of care is upheld.

Action plan:

Teaching staff and P&C should develop a roster, deciding on an appropriate time for teachers to start supervision. This will be determined by how many students are known to arrive early. Once a time has been determined this should be let known to parents by newsletter, it must also be stated that there will be no supervision before the decided time and the school will not take any responsibility for students before this time. Students who are early to school will be supervised in a decided area. If the parent insists on bringing their child to school before the determined time they must be approached privately and asked to find an alternative for their child during this period (WADoE, 2007, p11).

This may not remove the problem but it will allow the school to protect themselves if an accident occurred and the school was required to defend itself. It shows the school has done everything possible to protect the children. (WADoE, 2007, p11)

Scenario 2 - A teacher privately recruits some of his students for his community football team to play at a near - by oval after school. The team consists of many students from the teacher 's school, so they decide to wear school colours and refer to the team by the school 's name in general discussions.

Implications:

“As it is not an authorised school activity the teacher is acting in a private capacity and the principle of vicarious liability will not apply. The department’s public liability insurance cover will not extend to privately arranged, sporting activities” (WADoE, 2007, p13). The teacher student relationship does not apply here because they are not on the school grounds or in attendance for a school activity, however, as they are using the school name and colours, parents may be under the false assumption it is a school activity. The policy helps to state who in this scenario is not liable and to help guide teaching staff in informing parents of this vital information. Without this information parents may blame the school for any issues that arise.

Action plan:

“The principle and teacher involved should advise parents and guardians that the school assumes no responsibilities for the supervision and for any aspect such as the coaching” (WADoE, 2007, p13). This can be done by newsletter or privately talking to each parent. Although the student teacher relationship does not apply, it is still wise to use the basic notion of duty of care to uphold the safety of the activity. Action should be taken to send out a note to parents to sign stating; the coach is not responsible for accidents that might occur, that it is not a school activity and asking permission for the child to play. If the parent does not sign, it is reasonable for the coach to not allow children to play.

Scenario 3 - A student teacher in her first school experience is asked to watch the class while the class teacher goes to the office approximately 50 metres away to phone a parent about a sick child in the room. There are known to be certain disruptive children in the class and the student teacher has not demonstrated competence in managing this class.

Implications:

“When deciding whether non-teaching staff, an external provider or a volunteer might personally care for students (without a member being present) teaching staff must satisfy themselves that the person is suitable for the task being assigned” (WADoE, 2007, 3.3). “Teachers may not be able to discharge their duty of care in some circumstances for example: where a group of students are very immature and are known to ‘play up’ when supervised by anyone other than a member of teaching staff” (WADoE, 2007, 3.3). As the student teacher has not demonstrated competence, as shown above this would be a breach of duty of care by the teaching staff and will be liable if anything were to happen. In this instance if the policy was not in place the teaching staff could have left the class without reasonable care increasing the risk of harm to the students.

Action Plan:

The class teacher should not discharge their duty of care to the student teacher, as a few of the children are known to be disruptive and the student teacher has not demonstrated competence. To leave the students would be a breach of a duty of care for towards the students. The teaching staff could send the student teacher to the office to explain the situation so they can follow the schools own procedures. The office staff or the student teacher may call the child’s parents and wait with the child until the parents pick the child up. Another option is sending the sick child down to sick bay with a note and another student or student teacher.

Conclusion

The above three scenarios make it easy to see why the duty of care policy is appropriate and needed in the primary school education system. It is shown above that it is in place to keep schools and staff aware of their responsibilities and rights in regards to their duty of care. The policy gives clear and concise guidelines to follow in everyday instances. As long as these guidelines are followed than a school and or teacher should never find themselves in an unpleasant legal situation and the safety and welfare of the students will be upheld.

References

Western Australian Department of Education. (2007). Duty of Care for Students. Perth: Government of Western Australia. Retrieved from http://det.wa.edu.au/

References: Western Australian Department of Education. (2007). Duty of Care for Students. Perth: Government of Western Australia. Retrieved from http://det.wa.edu.au/