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Analyzing the Duty of Care Policy in Western Australia

By Janvier12 Oct 26, 2011 1687 Words
Introduction
The reason of this report is to not only analyse the Duty of Care for students’ policy (Department of Education and Training, Western Australia, 2007) but to also illustrate how this policy applies to a local primary school. The policy was put in place to ensure that all children were protected against any foreseeable injuries and explains both the ethical and legal responsibilities to insure the students’ safety while in the care of the school. It is a legal duty to take reasonable actions in order to protect the students from any potential risks of injury or harm that could be considered reasonably foreseeable (DETWA, 2007 p.3). This report will address three different scenarios in relation to the duty of care policy in schools. Students have been arriving to school early and have had little to no supervision; a teacher recruits students to his community football team during school hours and refers to the team by the school’s name; a student teacher is left to supervise a class even though she feels she is not competent enough to do so.

Discussion
According to the Department of Education and Training, Western Australia (2007), duty of care is a duty imposed by common law to minimise the risk of harm to others, in this case, it is the teachers duty of care to ensure that the children are reasonably protected from any foreseeable injuries in the school environment. The policy explains: who is responsible, the need for qualification when working with children, who owes a duty of care to the students, and who may be liable if that duty of care is neglected.

The policy
The policy was written to ensure that all children would be protected from any foreseeable risks or injuries. “The policy is important as it gives responsibility to the teachers in that they must protect the students from any ‘reasonable foreseeable injuries’” (Whitton. Et al., 2010, p54). To insure that the children are protected, the teachers must first pass ‘working with children’ checks and a ‘police check’. This is so that anyone who may be seen as a risk to, or not ‘fit’ to work with, children may not work in a school environment and letting them do so breaches the schools duty of care to the students.

This policy is important in primary schools as young children may not be able to see the possible risks that adults would. More duty of care would be taken in relation to a primary school than a secondary school. It aims to protect students from any risks of harm that are reasonably foreseeable; this means that teachers must take reasonable measures to ensure they are being protected. This requires protection from not only known hazards that could arise in that situation, but also protection from any harm that may “foresee-ably arise and against which preventative measures can be taken” (DETWA, 2007, p.3)

The Duty of Care policy affects not only teaching staff, but also any non-teaching staff (school nurses, librarians and librarian assistants etc), volunteers (parents/guardians, community members, student teachers etc) and external providers (businesses/individuals who are paid by the school to provide a venue, service and/or expertise appropriate to a certain activity) (DETWA, 2007, p. 9). If a member of the teaching staff requests a volunteer, non-teaching staff member, or an external provider to personally care for students without them or any other teaching staff present, they must know that they can refuse at any time, but if they do agree to do so they will owe the “same duty of care to those students as the duty owed by the teaching staff” (DETWA, 2007, p. 8). However, the teacher’s actions must be reasonable in that they ensured that they were fit and agreed to look after the students’. Ignoring to do this is a breach in the duty of care. (DETWA, 2007, p.6)

Scenarios
Scenario One
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.

It is the schools duty of care to ensure that all students are adequately supervised for a reasonable amount of time before and after school and knowingly failing to do so is considered a breach of that duty of care, “A refusal to acknowledge the presence of students will not provide a defence against liability” (WADOC, 2007 p11). Without staff or parental supervision, this would be an ideal setting for bullying to occur. Bullying can affect the children in many ways including mentally, emotionally and physically. If a child is hurt through bullying, the school may become liable as they had no supervision during these hours even though they acknowledged the fact children arrived at these times. If the children had sufficient supervision, physical injuries could have been avoided easily.

Members of the teaching staff should agree on a certain time before normal school hours for a teacher to supervise any children on school grounds. Once a time and rotational roster have been agreed upon, the school should notify the parents/guardians by newsletter and independent notes on what time their children will have supervision at school and that any child at school before this time will not be the schools responsibility. Any parent who fails to comply with these times should be contacted by members of staff and/or the principal so that if an accident does occur outside of these supervision hours, the school will not be held responsible as they have done all that was reasonable in the situation to ensure the safety of the students.

Scenario Two
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.

As the team is considered to be a ‘community’ football team and not a ‘school provided’ team or on school grounds, means that the school itself does not have duty of care. Even though the team has adopted the school colours and name, it is not directly associated with the school. Parents and guardians should be notified as soon as possible, if an injury does occur they should know that it in no way associates with the schools duty of care. According to the WADOC policy (2007), “If an activity is not an authorised school activity, the staff member will be acting in a private capacity and the principle of vicarious liability will not apply” (p. 13). The school will not be held responsible for ensuring reasonable care is taken by the supervising/coaching teacher as the team is seen as independent from the school and rather the parents/guardians must allow their children to participate in the activity ‘at their own risk’. The school itself is not responsible should the teacher’s supervision be found insufficient or if reasonable care is not taken, unless there is considerable proof that the school was aware and approved the activity and the naming of the team.

Scenario Three
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.

Before leaving the classroom, it appears the teacher did not give the student teacher enough time to either agree or refuse the request, meaning the teacher did not take reasonable actions in deciding whether or not the student teacher was capable enough to look after the class before leaving (DETWA, 2007, p.6). However, if the student teacher did agree, they would be breaking a duty of care as they do not feel competent in looking after the class especially with disruptive children, “If a volunteer, non-teaching staff member, or an external provider agree...they owe the same duty of care to those students as the duty owed by teaching staff” (DETWA, 2007, p.8). Many implications may arise from leaving students with someone who did not feel competent. In many schools there are designated ‘sick-bays’ where sick children are able to go to wait for parents. They are adequately supervised and the teacher does not have to leave the classroom in order to call parents as the receptionist in the schools office would be given that role. The teacher could have asked the student teacher to walk the 50 metres to the front office with the child, instead of leaving the students with someone who lacked adequate skills in managing the class.

Conclusion
The Duty of Care for Students policy (Department of Education and Training, Western Australia, 2007) was put in place to ensure the protection of all children against reasonably foreseeable risks or injuries. It explains the ethical and legal responsibilities of teachers and schools to insure the safety of the students while in the schools care. It is a legal duty to take reasonable actions in order to protect the students from any potential risks of injury or harm that could be considered reasonably foreseeable (DETWA, 2007 p.3) 

References
Curriculum Materials Information Services, (2009). Duty of Care. School Library Support. Retrieved from: http://cts.curtin.edu.au/education/cmis/LibrarySupport/dutyofcare.htm

Western Australia Department of Education (2007). Duty of Care for Students. Perth: The Government of Western Australia. Retrieved from: http://www.det.wa.edu.au/policies/detcms/policy-planning-and-accountability/policies-framework/policies/duty-of-care-for-students.en?oid=au.edu.wa.det.cms.contenttypes.Policy-id-3783072

Whitton, D., Barker, K., Nosworthy, Sinclair, C., Nanlohy, P. (2010). Learning for Teaching: Teaching for Learning. South Melbourne: Cengage Learning.

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