This report provides teachers with an analysis of the Western Australia Department of Education, (WA DoE) Duty of Care (DOC) for Students policy 2012.
The report provides background, aims, rationale, significance of the policy, and interprets the key policy issues in the current teaching context.
PART 1: Document Analysis
1.1 Background and aims of the WA DoE DOC for Students policy:
WA DoE compiled DOC Policy. It aims to provide a safe learning environment for all children at school. The term used for this is Duty of Care.
The policy defines duty of care as legal principles that originated in the common law by the courts (WA DoE, 2012). In contexts to schools, the policy states that it,
“attempts to explain, in plain English, what “duty of care” means, how teaching staff may discharge their duty of care to students, and the circumstances in which non-teaching staff, external providers and volunteers may owe students a duty of care” (WA DoE, 2012, pg.3).
The policy is written for and governs those in the school community in contact with children. Teaching staff, non-teaching staff, volunteers and external providers are all subject to the policy’s requirements.
1.2 Rationale for the WA DoE DOC for Studentspolicy.
The School Education Act 1999 (WA) states it is compulsory for all children to attend school.
A report, compiled by Balfour (2001a), from State Schools Teachers’ Union of WA (SSTUWA) states, that if there was no compulsory requirement for children to attend school, then they would be under the supervision of their parents. It is this requirement of attendance by Government, that there is responsibility towards the care of these children by those charged with their education.
1.3 Significance of the policy.
Society’s expectations have changed over time (Sleigh, 2009), and the teaching profession in the 21stcentury is much more legally aware of its responsibilities. Parents are also aware of their rights and more willing to pursue those rights through the process of litigation to recover compensation (Newham, 2000).
Negligence in duty of care responsibilities could result in, compensation being awarded to student, and damage to a school’s image or to a teacher’s reputation (Newham, 2000).
Such a policy, in the current teaching context, is important as it provides guidelines for schools and teachers of what is acceptable and unacceptable practice (Newham, 2000).
1.4 Issues and key points covered in the WA DoE DOC for Students policy.
The WA DoE DOC policy raises several issues and key points that are relevant for teachers in a teaching environment:
· The policy refers to duty of care as law (WA DoE, 2012, p.9, 5.2). WA DoE (Education Circular June 1994, p.69) states that breaching duty of care brings teachers into the common law world of torts. The teacher also owes a duty of care towards other teachers and visitors to the school. A teacher may be responsible for injuries to people outside the school premises if caused by the activities of children while under their care (SSTUWA, 2001a).
· Non-teaching staff, volunteers or external providers cannot legally take over the responsibilities of teachers unless they agreeto do so (WA DoE, 2012, p.3, 1.3).
· The policy discusses meaning of reasonable care (WA DoE, 2012, p.3, 3.1). WA DoE (Education Circular June 1994, p.69) states it is not a duty to ensure that no harm will ever occur. Rather, it is a duty to take reasonable care to avoid harm being suffered. In other words, the duty of care will vary according to circumstances.
· The policy highlights that duty of care requires professional judgement from teachers (WA DoE, 2012).
· Schools/teacher’s planning school activities must assess all risks that could occur (WA DoE, 2012, p.3, 3.2).
· The policy discusses that teachers must care or provide care whilst students are participating in school-related activities (WA DoE, 2012, p.4, 3.3).
· Those working with children must have applied for or hold a valid Working with Children’s Card (WA DoE, 2012, p.6, 3.3).
· The WA DoE DOC policy in appendix A, discusses that “authority is not confined to the classroom nor is it restricted to the hours of formal instruction. It extends to those situations where the good name of the school is served by teacher involvement” (St Bede’s Primary School, p.1).
PART 2: Action Plans
SCENARIO 1: A student is consistently interrupting other students during a classroom lesson. In dealing with this student’s interruptions, the teacher sends the student out of the classroom for ‘time out’. The teacher tells the student to wait outside the classroom door until asked to return to the room. This reprimanded student is no longer in the teacher’s view.
There are two issues related to duty of care in scenario one.
FIRST ISSUE: The teacher has shown inadequate supervision by telling the student to wait outside who is no longer in view. An action in negligence against the teacher or damage to the school’s image could possibly result if the reprimanded student suffered damage.
The WA DoE DOC policy would be relevant to the parent and teacher in this situation. The parent could use the policy to take action against the teacher if the reprimanded student suffered injury. The parent could show the courts that the teacher did not take, reasonable measures to protect the student “from harm that could foreseeable arise and against which preventative measures could be taken” (WA DoE, 2012, 1.1).
For the teacher to meet the policy requirements, the student could be sent to another classroom to be adequately supervised where the student could be seen. This would have ensured the teacher was following policy guidelines (WA DoE, 2012, 3.3). Some schools have supervised “time-out” room to support children and teachers (St. Gerard’s, 2012).
SECOND ISSUE: The welfare of the other students in the classroom was compromised due to the student consistently interrupting. The teacher did not take reasonable care for the welfare of other students. For the teacher to meet the duty of care the policy, the teacher could have withdrawn privileges from the student. The student’s behaviour interfered with the “rights of other students to learn or the capacity of the teacher to teach a class” (Coatesville Primary School, 2009, p.17). The WA DoE DOC policy, section 4.1 has lists of DoE policies such as Behaviour Management in Schools that may have assisted the teacher to meet the duty of care responsibility. Due to the behavioural characteristics of the student, the WA DoE DOC policy in section 3.1 states an increased level of care is required of students who are known to behave in a manner that increases the risk of injury. In this scenario, it is likely this student required an increased level of care.
The teacher, in this scenario could use the policy as guidance making sure no action in negligence can be taken by the parents. This could be avoided if the policy was referred to by the teacher and used as material for ongoing professional development.
SCENARIO 2: A first year student teacher accompanies a supervising teacher out on duty at lunchtime. While on playground duty an incident occurs that requires the supervising teacher to accompany a student to the administration block, which is not within the supervision area. The supervising teacher asks the student teacher to remain on duty for her as she tends to the dilemma. This would mean the student teacher would be the only teacher supervising the designated play area at this time.
There are two issues related to duty of care in scenario two.
FIRST ISSUE: The supervising teacher was correct in asking the student teacher to remain on duty whilst the supervising teacher tended to the dilemma, provided the student teacher agreed to do so.
The student teacher cannot legally take over the supervising teacher’s responsibilities without stating that she/he is willing to do so. According to the policy, “when non-teaching staff, volunteers or external providers agreeto perform tasks that require them to personally care for students (in the absence of a member of the teaching staff), they also owe a duty to take such measures as are reasonable in all the circumstances to protect students from risks of harm that reasonably ought to be foreseen” (WA DoE, 2012, p.3, 1.3).
Assuming the student teacher agreed to legally take over the responsibility, the student teacher then has a responsibility to take reasonable care for the safety of the students. This means that the student teacher must respond to all elements of foreseeable risk, and take reasonable steps to ensure pupils do not risk injury and the health of the pupils are not put at risk (WA DoE, 2012).
If so, then the supervising teacher could have accompanied the injured student to the administration block.
Assuming the student teacher did not agree to take responsibility of playground duty and/or, was not satisfied with assigning the student teacher to take the injured student to the administration block, the supervising teacher should then have considered the following options:
· Contacted another staff member for assistance.
· Continue supervising the playground area and take the injured student to the administration block, provided the supervising teacher was satisfied in that the student teacher was suitable for the task being assigned as discussed in section 3.3 of the WA DoE DOC policy.
SECOND ISSUE: If the supervising teacher assumedthat the student teacher will remain on duty, then the supervising teacher is liable in the event of a child being injured in the designated play area.
If the supervising teacher assumed the student teacher will remain on duty, without the student teacher agreeing to the responsibility, then common law claims can be brought against the supervising teacher if a student suffered damage or injury in the designated play area.
In both circumstances, it would have to be shown in court that the supervising teacher or the student teacher, was negligent in performing the duty and that the negligence caused or contributed to the injury in the designated play area (Balfour, 2001b). The WA DoE DOC policy would be relevant in such a case as it can be easily determined which party was negligent. If such a policy did not exist, it would be unclear who would be held responsible.
In order for the supervising teacher to meet the requirements of the WA DoE DOC policy, the supervising teacher would need to, ask the student teacher if she/he is willing to legally take over responsibility of playground duty.
In order for the student teacher to meet the requirements of the WA DoE DOC policy, he/she would need to agree to take over responsibility.
For the school to meet the requirement of the WA DoE DOC policy, the school would need to ensure all staff are informed of guidelines, procedures, and participate in duty of care related professional development.
In both scenarios, in order for the students to take any action in negligence, they would not have to show there was foreseeability of harm. Rather, they would need to show that a teacher-student relationship existed (Crouch, 1996).
Student safety is a legal responsibility of the teachers and schools. The WA DoE DOC policy and analysis of the two scenarios demonstrates that teachers and schools must “act with caution, sensible leadership, and wise guidance” (Tronc, 1996, p.19). Teaching staff have a legal duty to “assess the foreseeable dangers, to guard against risk, to take reasonable precaution against injury and, above all, to generally behave as superior parents would be expected to act in the nurture and training of their own children” (Tronc, 1996, p.19). If there was an accident, the WA DoE DOC policy is there to determine if compensation is required.
PART 3: Reflection
Balfour (2001b) states, that the WA DoE DOC policy does not provide absolute guidelines that set clear boundaries for teaching and non-teaching staff when dealing with students in the context of duty of care. I believe that having comprehensive policy guidelines, covering as many possible situations is unrealistic. I would rather use common sense, and exercise my “professional judgement to achieve a balance between ensuring that students do not face an unreasonable risk of harm and encouraging students’ independence and maximizing learning opportunities” (WA DoE, 2012, 1.2).
Analysing the policy has made me aware of the impact and consequences my behaviour, actions, and judgements, can have. I was not aware that in order for students to take action in negligence, all they would need to show is that, a student-teacher relationship existed (Crouch 1996).
Specific sections of the policy that will impact the day-to-day running of my class:
· In the classroom and yard duty, reasonable care for the safety and welfare of students around the school premises would be needed (WA DoE, 2012, 1.1).
· Ensure safety considerations have been met when conducting class demonstrations (Marsh, 2008).
· Organising a school activity, I would need to assess the risks involved (WA DoE, 2012, 3.2). An example of this could be when organizing sporting and athletic activities. If an activity “is performed in a dangerous manner or in a dangerous place” (Balfour, 2001b), I may be liable “if steps are not taken to make the activity safe” (Balfour, 2001b).
· Supervising students outside the official school hours (WA DoE, 2012, appendix A). For example, a social function to celebrate graduation where teachers are present. If something goes wrong, courts may hold teachers liable as they were in the position of responsibility. In this case, schools could ensure that they cannot be held responsible for students at such functions (Balfour, 2001b).
· Working with non-teaching staff, where I may need to assess if they are able to perform tasks that require caring for students (WA DoE, 2012, 3.4).
· Dealing with students who have physical and intellectual impairments, where I must provide a higher level of care (WA DoE, 2012, 3.1).
· Dealing with student misbehaviour, where I may need to consider behaviour related policies either, department and/or school (WA DoE, 2012, 4.1).
It is assuring to know, that there are guidelines in the WA DoE DOC policy to help me to deal with and discharge my duty of care responsibilities professionally in a range of school scenarios.
The WA DoE DOC policy does not deter me from the teaching profession, but rather I see the policy as something, that I will refer to throughout my career and an area for ongoing professional development. I have learnt that litigation in every profession is ever increasing, and teaching in the 21st century, is no exception. Working competently, professionally, and with common sense will ensure that I don’t walk down that path (Crouch, 1996). However, it is something I must embrace and adapt to in an ever changing professional environment.
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Balfour, D. (2001b). Teachers and the Law: Teachers and the Duty of Care (2). Western Australia: State School's Teachers Union Western Australia (SSTUWA).
Crouch, R. H. (1996). School Sport and the Law. The Practising Administrator, Vol.3.
Louise Pearce, Steve Ingham. (2009). Student Engagement & Well-Being Policy. Melbourne: Coatesville Primary School.
Marsh, C. (2008). Becoming a teacher: knowledge skills and issues. Pearson Education Australia.
Newnham, H. (2000). "When is a teacher or school liable in negligence?", Australian Journal of Teacher Education, Vol.25: Iss.1, Article 5.
School Education Act (1999). Western Australia.
School, Saint Gerard's Primary. (2012). Positive Behaviour Strategy. Victoria.
Sleigh, D. (2009). Teaching and the Law: A Teacher's Duty of Care. Education Today.
Tronc, K. (1996). You, your school and the law. Fernfawn: Brisbane.
Western Australia Department of Education (DoE). (1994, June). Education Circular. Western Australia.
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