Transcript Legal Liabilities - Graduate School of Education

HEALTH AND SAFETY AT
WORK ACT 1974
Produced as part of the Partnership Development Schools (PDS) Strategy Phase 3 200809 (Lead PDS: The Park Community School. Contact Chris Ley
([email protected])
DUTIES OF SCHOOLS
• Produce a health and safety policy
• Appoint a health and safety officer (this
may be head)
• Provide facilities for union health and
safety representatives
• Assess risks identified and reported, and
act accordingly
SCHOOL HEALTH AND
SAFETY POLICY
• general law and aims
• responsibilities of
LEA, Governors and
head
• names of H&S Officer
and representatives
• duties of teachers and
other staff
• expectations of pupils
• emergency
procedures
• security issues
• accident reporting and
recording procedures
• school visits
• intruders and assaults
• medical facilities and
arrangements
• monitor and review
DUTIES OF EMPLOYEES
• To take reasonable care
– for their own safety
– for the safety of others
• Co-operate with those who have duties
under the Act
• Unlawful to misuse anything provided for
the purposes of health or safety
DUTIES OF TEACHERS
• Duty of care and duties under Act
correspond
• Must be familiar with the school’s Health
and Safety policy
DUTY OF CARE
• Statutory - by legislation
• Contractual - by contract
• Pastoral - inherent in the role of teacher
“REASONABLE”
• NO firm definition
• Each case would be assessed to see if
teacher was negligent
NEGLIGENCE
• An action which could reasonably have
been expected to contribute, directly or
indirectly, to causing harm to a pupil
• A failure to take action to prevent
reasonably foreseeable harm to a pupil
RECOGNITION OF RISK
• Continuous risk assessment
EXERCISING THE DUTY OF
CARE
• Recognition of risk
• Removal of hazards
– animate hazards (children)
– inanimate hazards (things)
• Clear warning of danger
DUTY OF CARE OFF-SITE
DUTY OF CARE OFF-SITE
• Contractual duties of care same on-site
and off-site
• Higher duty of care where greater level of
risk
• Still applies when shared with activity
instructor (overarching duty of care)
HAZARDS
• Four children lost when swept out to sea at Land’s
End
• Four children died when they slipped over a
precipice in Austria
• Three children and a teacher died when Greek ferry
sank
• Four sixth form pupils drowned on canoeing trip off
Lyme Regis
• Twelve children and teacher died when minibus
crashed on M40
• Pupil raped and murdered in French hostel
“R.O.S.E.”
Research
Organisation
Supervision
Enjoyment
ENJOYMENT
•
•
•
•
Break from routine
New and exciting environment
Challenging activities
Learning new skills
RESEARCH
• Suitability of activity
– age
– sex
– aptitude
– special needs
– educational value
RESEARCH
• Level of supervision required
– age, sex, special needs
– level of risk in activity
– qualification and/or training necessary
RESEARCH
• Needs of pupils
– equipment
– training
– clothing
RESEARCH
• Residential considerations
– fire safety
•
•
•
•
exits
appliances
evacuation procedures
availability and training of staff
– security
• keeping children in
• keeping intruders out
RESEARCH
• Activities
– commercial licence
– quality of equipment
– training and number of staff
– first aid and emergency procedures
RESEARCH
• Site and environmental assessment
– risk assessment
– advanced planning
ORGANISATION
• Parents
– information for parents
– parental consent, inc. relevant medical
information (especially allergies/Epipens)
– code of conduct
– passports, where appropriate
ORGANISATION
• Insurance
– public liability
– third party liability
– personal accident to pupils, staff, helpers
– medical treatment
– emergency transport and accommodation
– cancellation/delay compensation
– loss/damage to luggage/equipment
ORGANISATION
• Emergency procedures
ORGANISATION
• Transport
– Coach hire
•
•
•
•
suitability
seating
insurance
back-up
ORGANISATION
• Transport
– School minibus
•
•
•
•
•
•
•
maintenance
tax
insurance
MOT
road worthiness
legal responsibilities of the driver
seats and seat belts
SUPERVISION
Police clearance of helpers
• gender balance
• briefing of helpers
SUPERVISION
• Delegation of responsibility
– helpers
– activity centre staff
• Nature of children
ENJOYMENT
•
•
•
•
Break from routine
New and exciting environment
Challenging activities
Learning new skills
NO CONTRACTUAL
OBLIGATION TO DO IT!
ENSURING THE WELFARE
OF CHILDREN
In Loco Parentis
(in the place of a parent)
• Usually used to describe
responsibilities of a teacher towards
the pupil
• Common law duty/responsibility
towards pupils
CHILDREN ACT 1989:
Section3(5)
States that a person who has care of a
child, e.g. Headteacher, may do what is
reasonable under all circumstances for
the purpose of safeguarding or promoting
the child's welfare
CHILDREN ACT 1989:
Section3(5)
• “A person who ………has a duty of care of
the child, may ….do what is reasonable
….for the purpose of safeguarding or
promoting the child’s welfare”
WHAT IS “REASONABLE”?
• As in Conditions of Service, Duty of Care,
this is not defined
• If teacher knows or suspects harm or
neglect
• Designated teacher
• School is not an investigation agency
DEPARTMENTAL
GUIDELINES
• DfEE - Circular 10/95- “Protecting Children
from Abuse”
• ‘Working Together to Safeguard Children’
– a guide to interagency working to
safeguard and promote the welfare of
children (1999)
WHAT IS ABUSE?
•
•
•
•
Physical abuse
Physical neglect
Emotional neglect
Sexual abuse
PHYSICAL ABUSE
• Actual injury - may involve:
– shaking, throwing, hitting, poisoning, burning
or scalding, drowning, suffocating or
otherwise causing physical harm to a child
• Likely injury
• Failure to prevent injury
PHYSICAL NEGLECT
• Persistent or severe:
– inadequate clothing
– poor growth
– hunger/malnutrition
EMOTIONAL NEGLECT
• Indicated by:
– excessive dependence
– attention seeking
EMOTIONAL NEGLECT
• Contributory factors:
– Family may be suffering multiple
disadvantages
– Poverty:
• children live in crowded or unsuitable
accommodation
• have poor diets
• lack ready access to good educational and leisure
opportunities
Sexual Abuse
Forcing or enticing a child or young person
to take part in sexual activities, whether or
not the child is aware of what is happening
SEXUAL ABUSE
• Physical signs
• Behaviour changes
– sexually provocative
– withdrawal
PROTECTION OF EVIDENCE
• Care when asking questions
– listen not lead
• Recording of evidence
• Referring case
• Confidentiality
ALLEGATIONS AGAINST
TEACHERS
• Refer to Head (if against Head, to Chair of
Governors)
• Three levels:
– evidence of serious abuse - child protection
agencies
– evidence of inappropriate behaviour - local
disciplinary procedures
– unfounded allegation
Relationships With Pupils
• Sexual Offences Amendment (2000)
Act
• Do not leave yourself vulnerable by:
– being alone with pupils
– give pupils lifts
– accept or give gifts to pupils
– send e mails or text messages
• Immediately discourage and report any
obvious crushes which are developing
• COMMON SENSE – BE AWARE!
FALSE ALLEGATIONS
COMPLAINTS
• The use of force can lead to:
–
–
–
–
disciplinary hearing
investigation under child protection procedures
criminal proceedings for assault
civil proceedings for damages
• In order to be able to respond to such
allegations:
– act only to prevent injury or damage
– know the school’s restraint policy
– act within the policy at all times
RELATED MATTERS
• School Policies
• Child Protection Register
• Children with SEN
PHYSICAL CONTACT WITH
PUPILS
WHAT IS APPROPRIATE
• Since the Children Act 1989 a myth has
arisen that any physical contact with pupils
is unlawful or unprofessional
• Some contact is unavoidable and, in some
cases, essential
• However, how this contact takes place is a
matter for some care as some actions can
be misinterpreted.
DfEE CIRCULAR 10/95
• “…unrealistic to suggest that teachers
should touch pupils only in an
emergency…”
• “….it is inevitable……. Particularly with
younger pupils”
APPROPRIATE CONTACT
•
•
•
•
support during PE
comfort when distressed
first aid
positioning hands on musical or craft
instruments
• children with physical special needs
• children in danger of causing harm to
themselves, others or property
PHYSICAL RESTRAINT OF
PUPILS
• Section 4, 1997 Education Act added new
section 550A to 1996 Education Act
• Defines circumstances where
“reasonable” force may be used to stop or
prevent violent behaviour
INCIDENT MANAGEMENT
• Consider alternative strategies - use force only if
immediate risk
• Tell pupil to stop and warn of consequences
• Do not use contact which could be construed as
indecent
• Tell pupil that force will cease when pupil
complies with instruction
• Keep calm and do not display aggression
INCIDENT MANAGEMENT
• Act on your own only in dire emergency
• Isolate offending pupil or remove other pupils
from area of risk
• Send for assistance
WHEN RESTRAINT CAN BE
USED
• To stop or prevent
– committing a criminal offence
– injuring themselves or others
– causing damage to property including their
own
– engaging in conduct prejudicial to good order
and discipline in the school
• This applies in school and during
authorised out of school activities
WHAT IS “REASONABLE”
FORCE?
• There is no definition of what is
reasonable
• Force must:
– be warranted by the nature of the incident
– relate to the seriousness of the offence
and possible consequences
– take account of the age and gender of
pupil
– not be used as a form of corporal
punishment for the offence
SITUATIONS WHERE FORCE
MAY BE APPROPRIATE
• Fighting
• Deliberate damage or vandalism
• Accidental injury or damage through
misbehaviour
• Serious disruption
• Absconding from class or school and pupil
would be at risk
FORMS OF PHYSICAL
INTERVENTION
• Shepherding a pupil away by placing a hand in
the centre of the back
• Standing between pupil and object of aggression
• Hold, pull, push or lead by the hand or arm
• Guiding away by hand in centre of back
• Blocking a pupils path
FORMS OF PHYSICAL
INTERVENTION
• You should never:
– hold around neck or by the collar or restrict
breathing
– slap, punch, kick, trip or force limbs against a
joint
– hold by or pull by the hair or ear
– hold a pupil face down on the ground
REPORTING INCIDENTS
• Seek immediate advice of union representative
• Make prompt oral report to Head/line manager
• Written report as soon as possible
WRITTEN REPORTS
• Report to include:
–
–
–
–
–
–
name of pupil involved
witnesses - both staff and pupils
reason for the use of force
how the incident began and progressed
pupil’s response
details of any injury to pupil, other pupils, self,
damage to property
• Keep a copy and give one to Union Rep.
COMPLAINTS
• The use of force can lead to:
–
–
–
–
disciplinary hearing
investigation under child protection procedures
criminal proceedings for assault
civil proceedings for damages
• In order to be able to respond to such
allegations:
– act only to prevent injury or damage
– know the school’s restraint policy
– act within the policy at all times
• 158 allegations against NASUWT
members in 2002 which required police
interview
• National network of Investigation and
Referral Support co-ordinators
• Meredith-v-Bournemouth Borough Council
Advice
• Although it is not obligatory you are strongly advised to
join one of the teaching unions:
• ATL (Association of Teachers and Lecturers
• NASUWT (National Union Of School Masters/Union of
Women Teachers)
• NUT (national Union of Teachers
• In addition there are various subject specific associations
which you can find on
www.teachernet.gov.uk/professionaldevelopment/profes
sionalassociations/subjectassociations