18 ways to keep your legal footing

4th March 2005 at 00:00
You are responsible for your pupils, but what does 'duty of care' mean? Dorothy Lepkowska reports

1. You're in charge

Every nursery and reception teacher gets used to being called "mum", even when he's a sir, but even if you're a teacher in charge of 15-year-olds, you have a common law duty of care in loco parentis (in the place of the parent). Broadly, this means that you have to do what is reasonably practicable to ensure you care for your pupils as any reasonable parent would.

2. Common sense counts

If it comes to the worst and you find yourself facing complaints or allegations about standard of care, courts are likely to apply the test of what is reasonably foreseeable when determining negligence. Accidents do happen, but if you're found to have acted in an uncaring or reckless way towards a pupil, or have exposed them to danger, you could find yourself in trouble.

3. Weigh up the risk factor

Be aware of any potential hazards during the school day. When you plan and deliver lessons, take into account children's skills, physical strength, sensory perceptions and environment. Make sure that no one is out of their depth or likely to cause themselves harm, and that everyone knows what they should be doing.

4. Don't trip up on school trips

You are required to comply with health and safety legislation, which applies in all workplaces. Know your local authority's procedures and follow them, take reasonable care over everyone's safety and carry out activities in accordance with training and instruction. Your school must have a policy that explains this.

5. You're the boss

If you organise a school trip, it's up to you to carry out a risk assessment looking at potential hazards: who might be affected, what safety measures need to be in place and what steps should be taken in an emergency. Do a dummy run if you can - it'll help you to see potential pitfalls, check journey times and find toilets and spots to stop for lunch.

Give every adult going on the trip a copy of your risk assessment so they know what is expected of them.

6. Leave child abuse worries to the professionals

If anyone is going to notice a bruise on a child, it's you. But while you are well placed to spot signs of abuse, you are not responsible for investigating it. Any worries should be reported to the teacher designated to liaise with child protection agencies. Co-operate with the school, local authority and any other agency.

7. Mind your language

Take care when asking questions about potential abuse, or when interpreting responses, since the way you talk to a child can affect the evidence in any subsequent criminal proceedings. Do not ask leading questions. Leave that to the authorities trained to do this.

8. It's not illegal to touch a child

Since the Children Act 1989, teachers often mistakenly believe any physical contact with a child is unlawful.

Common sense dictates that in some instances you need to prevent a pupil from falling, and use restraint (see 17). Your school might have a particular policy though, so abide by that.

9. Something gone missing?

According to guidance from the Department for Education and Skills random searches of pupils by teachers are prohibited, and school management can only do so with the child's permission. There may be exceptions where others are in danger, or to prevent disorder. For example, if you suspect a child is carrying a weapon. If that ever happens, call the police.

10. What do you know about first aid?

Your conditions of employment do not require you to give first aid, but a common law of duty means that teachers are expected to use their best endeavours, particularly in an emergency, to care for pupils who have hurt themselves. Make sure you know who the designated first aider is in your school.

11. You're not obliged to supervise medicine

A child turns up with antibiotics one morning. You have no contractual duty to administer medicines nor to supervise a pupil taking medication. Some teaching unions and some school policies advise not to get involved, so check what the practice is in your school. In some instances, such as an emergency, you might have to - remember your common law of duty to provide assistance.

12. Extra work for sick pupils

Where a child cannot attend lessons for medical reasons, expect to be asked to prepare work for them to do at home, if they're up to it, of course. But over and above this, there is no requirement for you to organise any separate arrangements for the child's education.

13. Differentiation isn't an option

You have three responsibilities when delivering the curriculum: setting suitable challenges during lessons, responding to pupils' diverse learning needs, and overcoming barriers to learning for individuals and groups of children.

14. Bullying: could you be liable?

The Human Rights Act 1998 requires that no one should be subject to degrading or inhuman treatment, so a lawyer could have a field day against a school. Be aware of what kind of pupil behaviour constitutes bullying and the forms it can take. Be familiar with your school's policy on tackling bullying. A recently-published independent review into the death of a 14-year-old stabbed through the heart by a fellow pupil, recommended closer co-operation between schools, police and other agencies.

15. You can keep them after school

There was a time when you could have been accused of unlawful imprisonment for keeping a child in detention. However, the 1997 Education Act now safeguards teachers from prosecution. It means a secondary child can been kept behind on disciplinary charges irrespective of parental consent. Keep to school policy though - don't invent your own detention practices and make sure that you always notify parents of your intention to keep their child behind. Be aware that some children may be responsible for looking after their younger siblings after school.

16. Restraint of violent pupils

This is one of the most confusing aspects of law for teachers, but here are the facts. Since September 1, 1998 (when section 550A of the Education Act came in), teachers can intervene to use such force as is reasonable in all the circumstances to prevent a pupil from committing a criminal offence, injuring themselves or others, causing damage to property or behaving in a way that could cause disorder in the school. There is no definition of reasonable force, however, so you have to use your professional judgment, and be clear about your school's policy. If you can't avoid physical intervention, ensure that another teacher is called to assist you as soon as possible.

17. Don't manage EBD pupils alone

Many children can lose their temper. Pupils with emotional and behavioural difficulties were once taught in special schools, but they are now increasingly likely to be in mainstream schools.

They have far less control over their emotional responses and need to be handled a bit differently. Even when behaviour is aggressive, disruptive or violent, adhere to school guidance about how, when and whether to use reasonable force. Only intervene when you are likely to succeed, and in the presence of another adult.

18. Corporal punishment

No, no, no.

We cribbed from "The Bristol Guide to Teachers' Legal Liabilities and Responsibilities". See www.bristol.ac.ukeducationenterprisedocsumguide for more information

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