Duty of Care for Students Policy - Case Study Example

Running head: Document analysis Name Course Lecturer Date The law is increasingly becoming entrenched in all sector of an economy. As such, the legal system has witnessed increases in litigation with professional being held more accountable for their actions. The education sector has not been left out in this trend. This is partly due to increased awareness amongst parents and students with reference to laws and provided rights (Newnham, 2000). Essentially, there is an implied legal and ethical contract between teachers on side, and parents and students on the other. Teachers owe students a duty of care. Duty of care and tort law is enshrined in the common law to oversee concerns of negligence and the subsequent actions (Imber & Geel, 2011). According to the Western Australia Department of Education (WADE), teachers owe duty of care to students under their care, supervision and control for their safety needs. With such a background, this paper attempts to discuss and apply the WADE Duty of Care Policy to teachers. It is imperative for teachers to understand the laws of negligence owing to the increasing litigation. This knowledge is vital in avoiding negligent actions, as well as for purposes of defence in case of a legal action. Duty of Care for Students Policy The policy is applicable to both teaching and non-teaching staff in a school system and defines the duty of care owed to a student whilst in the school environment. The policy entrenches three key aspects. Firstly, it provides for duty of care toward all students involved or present in a school activity. Teachers and non-teaching staff should take reasonable measures to protect the students from risks thar are reasonably foreseen. This is against all possible and foreseeable preventable harms. Secondly, the policy requires teachers to exercise professional judgement as the basis for discharging the duty. This judgement should ensure students’ independence and learning maximization is balanced with their safety concerns. Thirdly, this policy also charges non-teaching staff, volunteers in schools and external provides with a duty of care for students. They ought to take reasonable measures that protect students from harm (Imber & Geel, 2011). The policy also sets forth procedures and guidelines to determine the reasonableness of duty of care, how the guidelines affect the school staff and how to make risk assessments. The policy is a guideline for the education sector staff and service providers to follow in discharging the duty of care owed. There is a proliferation of law and policy on rights and entitlements of children. This is both in the Australian and global situations which have witnessed subsequently increased lawsuits. Children and students need care and supervision. If they were not needed to attend school, the obligation of care and supervision would lie entirely with the parents and guardians. However, the law requires them to attend school, thereby limiting the extent of parents’ and guardians’ obligations. In Geyer v Downs [1977], J Stephen ruled that teachers must provide duty of care since parents cannot be effective with children away from home. As such, teachers assume the responsibility of ensuring that no avoidable harm occurs. With regard to this they become automatically liable to the law of torts and negligence. Negligence civil actions have to meet a threshold of four elements. In case of a suit, a plaintiff’s claim must establish that the threshold is met. Firstly, the plaintiff must prove that there was duty of care existing (Roger, 2007). This refers to a legal obligation to take reasonable measures protecting another person. Secondly, the plaintiff must prove that the duty was breached, implying an act of negligence on part of the defendant. This may be an act of omission or commission which falls below standards of reasonable care leading to or increasing harm (Imber & Geel, 2011). Thirdly, the breached duty must lead to damage on the plaintiff. Proving that damage or harm occurred is the gist of a negligence of case. Fourthly, the plaintiff must prove the component of causation directly linking the act of negligence to the damage. To the teacher and education supporting staff, this policy sets the standards of professionalism and care. It set the requirements for caring in pedagogical and classroom management strategies (O'Conno, 2008). In addition, it entrenches requirements for the teacher-student relationship outside classroom settings within a broader social context. An understanding of this policy enables the teachers to pursue professionalism and an identity in the school system. They are also able to develop their professional roles. In Rogers (2008), literature indicates that the policy guidelines for duty of care are vital in discipline planning. This is based on consistency in the discharging of the duty and a commitment. Whether teachers are in an activity or not, they should carry an active duty of care commitment. According to Rogers (2008), this translates into an influence on students to develop a high sense of social probity and behaviour awareness. Active commitment also leads to relaxed vigilance with a focus on proximity, support and behaviour change. Applying duty of care to scenarios Scenario 1 By the policy statement, a teacher is expected to exercise professional judgement that facilitates a balance between the duty of care and optimizing learning and safety. The scenario of a disruptive student who is sent out of the class as sanction is a duty-of-care dilemma to the teacher. Essentially, the teacher owes a duty of care to all the students, equal to the undisciplined student. As such, imposing discipline is a welcome response to the student’s misconduct, especially in a preventative approach. However, this is a complex dilemma because of the legal context which may result in civil actions for the teacher and school administration in case of an inappropriate response (Butler & Matthews, 2007). The student on a time out sanction may suffer harm, and even if he/she is not in the view of the teacher, the teacher may be held liable for resulting damage. As such, the teacher’s response of a time-out may expose the student to risk resulting in harm, and thus may amount to contributory negligence. The inferred aspect of professional judgement implies that the teacher takes more caution. It is safer for the student to go for time-out within the view of the teacher. This may be just outside the door, but with a sense of reasonable proximity. Whether within or outside the classroom, the teacher owes the student the duty to the extent that the relationship between them exists and active. In H v Pennell and South Australia, the court ruled on the necessity of a balance between supervision and discipline on one side, and students’ independence on the other. Secondly, the teacher may take alternative responses to the indiscipline. This may include a discipline plan addressing classroom management in the long term. The teacher may also use language appropriately for corrective management (Roger, 2007). Such corrective management may incorporate descriptive cueing in order to raise behavioural awareness. Scenario 2 In scenario 2, the teacher on duty delegates her duty of care on the student teacher. Essentially, the standard of care owed to a student varies with circumstances. As such, the situation and status of the student and teacher will be considered in determining the negligence. There are two complexities in this case. Firstly, a teacher is prohibited from delegating the duty of care they owe to the students. In case this happens, this should be for short periods. This notwithstanding, the responsibility and duty of care totally lies with the supervising teacher. However, the duty of care policy places equal duty on non-teaching staff, volunteers and external providers. The teacher student may be classified as a volunteer. The policy defines a volunteer as an individual party offering school activity services with no compensation from the school. As such, if the student teacher agrees to take over supervision duties, he/she owes the students in his/her care similar duty as the teacher in charge. Hence, he/she has a full liability for any harm occurring while in charge (Department of Education and Children Services, 2007). This requires a quick play ground management plan that focuses on keeping all the students in close proximity and preventing any foreseeable harm from occurring. As such, the student should assume full duty of care delivering what a reasonable teacher would in a similar situation. Play-ground management places immense responsibility on the teacher given the students’ tendencies for littering, squabbles, teasing, fighting and silly play (Rogers, 2007). A quick management plan would begin with a quick assessment of the playground for any safety hazards within the environment and amongst students. This is followed by enhanced enhance vigilance, supervision and control. However, she may not need to develop her own plan as some schools have a play-ground management plan (Rogers, 2011; Butler & Matthews, 2007). Personal reflection The law has an impact on literally all aspects of human interaction. There are an increasing number of litigations against teachers and other professionals whose activities imply a legal contract with the client. The laws of negligence and torts are complex especially in establishing the four-fold threshold of duty of care, breach of duty, damage or harm and causation effect. In my case, I had not precedence this complexity especially given the rather silent nature of these laws. They are enshrined in the common law developed in courts of law, as well as policies and legislations. As such, I concur with indications on how important an understanding of the laws of negligence is vital to a teacher. With this understanding, I get to know what may be considered as negligence and how I may raise my defence in litigation. Secondly, it is vital for me given the complexity of the profession and varied abilities and behaviour tendencies of the students. I have to know how to avoid all pitfalls at my schools both within and without classroom. The policy of duty of care provides a tool for professional, ethical and legal management of pedagogical matters and my relationship with students. I owe my students a duty of care to the extent there is an active relationship between us. Any time I am within the school compound, I have an obligation to active commitment to the duty of care. However, I remain stuck with personally defining reasonable standards of actions. A court would weigh my actions against what a reasonable person would do in a similar situation as I. However, the element of standards is also subject to other determinants such age of students, their condition, behavioural characteristics and the environment. These determinants have direct influence on the risk of harm. In conclusion, the standard of care policy sets a limit for professional, legal and ethical standards for the teacher. It entrenches that teachers owe students duty of reasonable care which must be exercised within the context of professional judgement balancing between the care and learning optimization. It also charges other staff, officers and service providers with an obligation to provide standard reasonable care. Teachers should not delegate the duty of care to other school officers. However, in case a non-teaching staff member or a volunteer accepts the delegated duty, he/she owes the same duty as the teacher would owe. As such, the person would need to use the school’s duty of care plan or else make one for the situation. References Butler, D. & Matthews, B. (2007). Schools and the law. Annandale: Federation Press. Department of Education and Children Services, (2007). Duty if care: Duty of care owed by teachers, s.l.: Government of South Australia. Imber, M. & Geel, T., (2011). A Teacher's Guide to Education Law. 4th ed. New York: Routledge. Newnham, H., (2000). When is a teacher or school liable in negligence?. Australian Journal of teacher education, 25(1), pp. 1-15. O'Conno, K., (2008). “You choose to care”: Teachers, emotions and professional identity. Teachng and Teacher Educattion, 24(1), pp. 117-126. Rogers, B., (2007). Behaviour management : a whole-school approach. 2nd ed. London: Paul Chapman. Rogers, B., (2011). You know the fair rule : strategies for positive and effective behaviour management and discipline in schools. 3rd ed. Camberwell: ACER press. Geyer v Downs [1977] 138 CLR 91 H v Pennell and South Australia [1987] 46 SASR 158 Read More