A risk any professional must run?
No says David Hart
THE House of Lords' decision has sent shock waves through the system. Indeed, one of the Law Lords made it clear that negligence could apply if pupils followed the wrong syllabus. It does not take much imagination to see lawyers trying to apply this concept to poor teaching.
Then there is the Human Rights Act. Many exaggerated claims have been made for its implications for the education system. But it is clear that, in the spheres of exclusions, bullying and racialsexual harassment, claims for damages could be brought. Victims of violence, or other degrading treatment, would seek to hold schools to blame in the event of non-action.
So should these developments create consternation among the teaching profession? There is no justification for "ring fencing" teachers, or other education professionals, and exempting them from the sort of negligence claims that can be brought against other professions. But neither do we want to see the floodgates open and solicitors embark upon wholesale negligence, or human rights, claims. Solicitors, who represent pupils and their parents, are adept at bringing actions against local authorities and governors, in the hope that their insurers will "take fright" and settle, rather than see an expensive fight in court.
Nevertheless, if solicitors were to go down this road, they would be sadly mistaken. Certainly, I would advise heads and governors to fight such claims, largely because most will simply not "stack up". Children's rights lawyers might think they will have a field day. But a careful analysis of both the House of Lords' judgment, and the Human Rights Act, suggests otherwise.
Accordingly, teachers should not "take fright". The hurdles to be overcome by claimants are higher than some think, as the following examples show.
Failure to diagnose dyslexia, or any other special need, should be relatively rare, in the light of the new special educational needs code of practice. The same goes for any omission, deliberate or otherwise, to addressdiagnosed need. Even if there were negligence, the pupil has to show that they have suffered loss because of poorer academic qualifications than they would have otherwise achieved. Not an easy loss to prove.
Poor teaching can constitute negligence. But a clear link between the teaching of one or more teachers, and GCSE or A-level results, will be difficult to show. Often the student has made a contribution to their own misfortune.
Academic damage, or personal injury, caused by bullying or racialsexual harassment, might be easier to prove. Nevertheless, we are talking about serious bullying, real violence or a fairly lengthy campaign of harassment. Virtually all schools have anti-bullying and disciplinary policies that cover these acts of gross indiscipline. The latest government guidance on exclusion, and the advice issued by the National Association of Head Teachers, will give heads and governors more protection in this very difficult area.
Obviously there is no room for complacency. Nobody should underestimate the ingenuity of lawyers and their ability to find new ways of pursuing actions for damages. Children's rights appear to be "all the rage". Too little is heard about children's, and their parents' responsibilities. Lawyers are already "gumming up" exclusion procedures by attending governors' disciplinary committees and independent appeal panel meetings, turning them into confrontation hearings, rather than inquiries designed to meet the needs of both the individual pupil and the rest of the school community.
It would be easy to imagine these same lawyers trying to interfere with the running of schools by pursuing human rights and other like claims. But at the end of the day, the courts are here to "hold the ring". They will not want to make it difficult for heads to run complex institutions. They will wish to balance legal rights with a commonsense approach to modern management problems. Children's rights lawyers may think that the "sky's the limit" to legal claims in the wake of the House of Lords' judgment and the Human Rights Act. I think they will be mistaken.
David Hart is general secretary of the NAHT