Education professionals must now justify themselves in the eyes of the law, says Rachel Coventry.
Teachers and local authority education managers are increasingly finding themselves in court facing allegations that they have breached their duty to educate children. Few people doubt their commitment to delivering the best possible education in their schools. But an ever-more litigious society is increasingly prepared to challenge the competence of teachers and other educationists - often years down the road.
Phelps v Hillingdon LBC was a recent landmark case in which Pamela Phelps, a former pupil in the borough, claimed that her employment prospects had been damaged by the failure of an educational psychologist to diagnose her dyslexia when she was at school, and the local education authority's resultant failure to provide her with the required special needs education. She sued, claiming that the local authority owed her a duty of care, that the psychological assessment had been negligent and so breached this duty and, as a result, she had been unable to get the type of job she had envisaged and would suffer financially throughout her working life.
The House of Lords agreed and awarded her pound;46,650 damages for negligence. In ruling on this and three related cases at the end of July last year, the Lords held that educational psychologists and teachers are under a duty of care to ensure that children receive education appropriate to their needs. Even though LEAs cannot be sued for a direct breach of their duties, they may still be liable for their employees' negligence. The standard of care provided by a teacher or other educational professional should be judged against the ordinary skill expected of any reasonably competent practitioner in his or profession.
But the impact of the legal process is not limited to special needs assessments. Much recent discussion has centred on the legal implications of excluding disruptive pupils from school. One case involves a claim that the current exclusion system breaches Article 6 - the right to a fair trial - of the Human Rights Act, which came into force last October. If the case proceeds, it will be the first to test the exclusion process against the Act.
Some argue that the use of the courts to challenge a public education system, dedicated to providing children with the best possible schooling, will use up time and money that could be better spent in the classroom. Even in the notoriously litigious United States, the courts have argued against getting involved in classroom issues.
But, whatever the objections, recent rulings and new legislation will certainly lead to cases that challenge the competence of teachers and educational psychologists. Schools should be prepared for this.
Mot important is that they review their policies for retaining documents relating to each child's education - school reports and records of complaints and concerns. If any cases are brought, it is essential that these records be retrieved. This will allow the school to prepare a defence and present it to the court, showing what measures were taken.
While few teachers will welcome the requirement to maintain more records, the alternative of being hauled back off retirement to appear in court and recall the education of a single pupil is a worse prospect. And for local authorities, if adequate records to defend cases are lacking, money allocated to education budgets may have to be used to meet claims instead.
These procedures also pose questions for those involved in the drive to increase the private sector's involvement in education. What happens where an educational contractor is running a school but, when a claim is made years later, that same school is being run by someone else? The likely answer is that the LEA will find itself defending the case as the statutory authority. Authorities may be able to lessen this problem through careful scrutiny of contracts and assessments of contractors' financial status. But, there is always a risk that the statutory provider of the service will find itself picking up the pieces.
A careful review of all procedures for special needs assessments and provision, and of policies regarding exclusions, bullying and harassment, would be prudent in the current climate. A few minor changes now could save a lot of time, money and anxiety in the future.
It is unlikely that all future claims can be avoided. The decision in the Phelps case clearly exposes educational establishments to the possibility of more claims. But the law lords appeared conscious of the potential for their judgment to lead to a flood of claims.
Recognising this, two of the lords took care to stress that "the duty of care owed by teachers (and educational pychologists) should not be regarded as a basis for the mounting of generalised 'educational malpractice' claims". One of them added that there was a world of difference between claims for manifest incompetence and those involving a general allegation that a child had not been taught properly, indicating his belief that a child's poor performance at school could be attributed to a variety of reasons.
These comments show that there is no desire to turn the education system into a cheap meal ticket for lawyers. So long as this attitude is maintained, teachers and the education system should continue to be protected by the courts from hopeless claims that, nevertheless, can waste time and resources.
Rachel Coventry is education manager at school insurer Zurich Municipal