When I began teaching I never thought I’d be writing a blog post on the intersection between education and the law. However, legal issues relating to the teacher-student and employer-employee relationships are pertinent to all educators. For education and law, it is important to remember the overriding principle that teachers are judged on what would be considered ‘reasonable’ action. Therefore teachers who act sensibly and plan thoroughly should not be anxious about legalities in their work place. But it is still important to be well informed on matters relating to education and law. I have chosen six spheres within education where teachers should be particularly attentive and proactive in matters relating to the law.
Duty of Care
Duty of care is related negligence. A plaintiff can claim negligence if they can demonstrate that the defendant owed or breached a duty of care, the risk of injury was foreseeable or the risk was likely to happen. A school’s duty of care cannot be delegated to anyone else. Therefore if an injury was due to a teacher’s inattention, the school is liable. Below are some steps to take in order to ensure duty of care:
- Be conscious of possible risks in the classroom, playground and when playing sport.
- School approval and parental consent must be obtained before any out of school activity. School consent necessitates a risk assessment and parental consent requires a permission letter (or supplementary information letter if parents sign a generic permission slip at the beginning of each term).
- Always be prompt and attentive on playground duty and take responsibility for any incident in the playground regardless of whether you are on duty.
- Ensure student to teacher ratios must be adhered to. Greater level of supervision is necessary for younger students and higher risk activities.
- If an incident occurs, take detailed notes immediately and record names and statements from witnesses.
- If a student is injured, immediate medical attention must be provided. If the injury was due to student carelessness, courts can reduce the amount of compensation. Apologising when an incident occurs in an act of sorrow, regret or sympathy does not in itself result in admission of liability.
Excursions and Camps
Duty of care must be applied for excursions and camps. This does not mean staff must stay awake supervising students while they sleep. However, it involves understanding the risks and making every effort to fulfil a duty of care such as:
- Conducting a thorough risk assessment prior to an excursion or camp.
- Knowing the location and being fully informed of potential risks.
- Being satisfied that equipment provided by external providers is safe.
- Informing parents of activities and obtaining written consent.
- Understanding the skill level of students.
- Bringing student medical details, emergency contact details, individualised medication (such as an EipPen or ventolin) and first aid kit.
- Only using your own car to transport student when duty of care prevails.
Physical Contact and Sexual Assault
Tactile encouragement is a natural part of everyday interaction for people, not only in schools but also in every day life. Touching a student in a non-sexual nature will only lead to assault if a student has not consented. Therefore unless a school has a policy that prohibits physical contact, teachers are able to display moderate encouraging and supportive touch. However, there are clear boundaries which teachers must adhere to with regards to physical contact, these are described below:
- No touch of a sexual nature is permissible (even if consensual) and is likely to be a criminal offence.
- Students under the age of 18 are not to engage in sexting (sending nude or semi nude photos). Sexing is a criminal offence and is categorised as child pornography.
- It is important to be proactive in avoiding allegations regarding physical contact. Legal advise is best practice if allegations are made.
- Avoid strong emotional relationships with students.
- It is advisable not to make connections with students on any social media.
Bullying
Bullying is the repeated or intentional abuse of power in order to hurt, intimidate or oppress another person or group. It can be physical, verbal, social, psychological or cyber. Bullying does not include mutual disagreements or fights, as there is no power imbalance. Bullying can be a repeated behaviour or a significant one off incident. To avoid legal action regarding bullying schools must:
- Have a clear anti-bullying policy that is adhered to by staff and students.
- Actively stop bullying through adequate supervision, reasonable protection and suitable consequences.
- Take action on cyber bullying through education and disciplinary procedures. An ‘Acceptable Use of Technology’ agreement is important in preventing cyber bullying.
Confidentiality
Generally teachers should not disclose confidential information about their students to others. The exception to this would be risk of abuse, compromised safety and giving evidence in court. The following are key guidelines for confidential information:
- Privacy laws mean that personal information received about a student (such as an IQ test or OT report) can only be disclosed if in line with the purpose that it was received or with parental consent. For example information relating to a learning difficulty should only be passed on to teachers who are responsible for that student.
- Schools must have a system that ensures confidential information is collected, retained, managed, disclosed and destroyed in a compliant manner.
- Cloud data storage is generally less secure and can leave a school liable to leakage.
- All documents, including formal reports, telephone messages, emails, written notes, minutes of meetings and digitally stored information, are subject to the Freedom of Information Act (FOI). This means that a FOI request prohibits teachers from destroying any documents or records relating to students.
Child Abuse
In NSW all teachers are mandatory reporters for suspected child abuse. Reasonable grounds for reporting abuse does not require proof or evidence. In fact teachers are prohibited from investigating suspected abuse, but must report to the principal or staff member in charge of student welfare. When taking notes in relation to suspected abuse, it is important to record the facts and not to include opinions.
I would like to acknowledge the work of Vivien Millane a barrister and teacher in her book Teachers, Students and the Law. This book is the source of authority and key concepts described in my blog post.
