To the greatest extent possible, all schools and colleges should provide health care appropriate to their 'duty of care' towards students. For most students it is adequate to take routine precautions, such as recording health details, ensuring a means of emergency contact for parents, and planning for unexpected medical emergencies.

However, in some schools there is a small group of students who have intensive or complex health care requirements. These students require more detailed planning to ensure their health and safety. They do not form a very homogeneous group and can range from students with multiple disabilities who require ongoing medical supervision, to students who have a known allergic reaction, which may never actually occur while they are at school.

Schools must actively plan to meet the health requirements of all these students.

Most students with health care requirements are successfully catered for in regular schools. Some students with serious or acute medical needs may, at times, need to access Distance Education Tasmania which provides teaching in hospitals and in students' homes. Decisions about appropriate provisions for health and safety are made on an individual basis, involving consultation between the school, Learning SErvices Support Team, parents/carers and appropriate medical personnel. Medical Action Plans form the basis of planning to meet students' health care requirements.

The purpose of these guidelines is to assist schools by providing:

• guidelines covering all students' health care requirements, the responsibilities of school staff and professional and legal implications
• guidelines for processes to be followed in enrolling students with intensive health care needs and/or in developing Medical Action Plans to accommodate these students, and
• procedures for particular interventions and specific medical conditions.

The Student's Health Care Requirements Guidelines were developed in consultation with members of medical, legal and paramedical professions, teachers, parents, and unions concerned with the professional role and protection of both teachers and medical care workers. 

Duty of care

The role of protecting a student's health and safety is normally undertaken by their parents or guardians, but specific aspects of parental obligations can be passed on to principals and teachers while the student is in their care.

The statutory removal of children from the care and control of their parents for the purposes of compulsory education, coupled with a student's need for care and supervision, results in school staff incurring a 'duty of care' towards their students. This means that staff are required to take reasonable care of all students while the students are at school, or engaged in activities conducted by the school.

A student's need for protection is the key factor underlying the 'duty of care' obligation of Department of Education employees and this requirement will vary according to factors such as the student's age, intellectual development, health and physical ability, as well as the nature of the activity, and the size of the group.

'Duty of care' must, because of the close and dependent nature of the teacher/student relationship, extend to the provision of essential medical care.

This means that in operating its schools, the State has a duty to secure whatever medical attention is needed to ensure the immediate health and care of students. Schools must therefore do what is reasonably necessary to make sure that basic medical care and precautions are provided for their students.

In most situations, staff within the school will be able to do all that is necessary. In other circumstances, because of certain factors (eg the number of children requiring medical care, the nature of the conditions involved, the skills and dispositions of available teachers, and the distance from outside help), the only reasonable course of action is to employ staff specifically trained for the purpose. Occasionally school principals may arrange for parents to provide the care themselves.

It is necessary to consider the level of care that it is reasonable for a staff member to provide. Responsibility for the medical care of a student may be a very routine matter or it may involve special knowledge and expertise.

There are some processes that it is reasonable to expect appropriately trained and supervised school staff members to have the competence to undertake. There are other processes that may require the intervention of a fully-trained health care professional. It is obviously unreasonable to expect school staff to have the same skills as medical practitioners or nurses. However, it may be reasonable to expect school staff to take the same precautions and undertake the same level of intervention as parents, in specific instances where intervention is likely to be required in the school setting.

The extent of an individual staff member's 'duty of care' to provide, (as distinct from procure), necessary medical attention for a student will depend upon the circumstances and upon the terms (expressed and implied) of the staff member's contract of service.

Legal advice suggests that it is an implied term of any teacher's contract of service that the staff member will procure necessary medical attention if the situation warrants it. The staff member may only have to personally provide such attention where they have sufficient skills to do so, and when for instance:

• there is insufficient opportunity to obtain help from elsewhere because of an emergency or distance from outside help, or
• it is a requirement of his/her contract.

However, some staff members will be unwilling or unable to assume any kind of routine medical support role, despite the availability of training and support. The competence and confidence of a staff member to undertake a routine process of health care is critical, as are the circumstances and disposition of the particular person. In all cases, adequate planning and training are required before a staff member can assume any kind of support role.

Staff should never be pressured or coerced into accepting a support role for a student with intensive health care requirements if they do not feel competent to perform such tasks.

A corollary of this is that the Department must provide appropriate training for its staff if they are to carry out such tasks themselves, rather than procuring services from elsewhere.

Except in an emergency, therefore, staff should not undertake any medical or paramedical procedure unless they feel confident that they are capable of doing so with a sufficient degree of safety. In an emergency a staff member may have a duty to personally carry out such a procedure to safeguard the wellbeing of a student in his or her care, but will in that event be less likely than otherwise to have been found to have been negligent if the student suffers harm by reason of the intervention. Attention is drawn here to Section 144(1) of the Criminal Code, which imposes a duty upon "every person having charge of another person, where that person "is unable by reason of age, sickness, unsoundness of mind, detention, or any other cause to withdraw himself from such charge, and ..... is unable to provide those necessaries of life" to provide those necessities of life for that person. The phrase "necessities of life" is defined in the Code to include medical aid and medicine.

Concern is sometimes expressed that if a teacher or another employee provides health care which resulted in injury or death to a student that they will be personally liable for the consequences. This is extremely unlikely, as indemnity is usually only refused on the ground of wilful misconduct. Generally speaking the State provides indemnity for any employee who has acted responsibly in the course of their duties. However, indemnity cannot be absolutely guaranteed as decisions are made on a case-by-case basis on the advice of an interagency committee which includes the Solicitor-General and the head of the relevant Department.

Although it is easy to imagine circumstances where a staff member, and therefore the State, would be found negligent for failing to ensure appropriate health care, reasonable and appropriate measures are usually not difficult to ensure.

The question of negligence is less likely if there is adherence to safeguards, protocols and approved guidelines that are well planned and developed. 

In summary:

• a staff member should do what is reasonable in the circumstances with due consideration to their 'duty of care'
• in cases of routine care, appropriate planning to provide or procure necessary medical attention should be undertaken
• if circumstances permit, the teacher should always seek help from someone who is sufficiently competent
• when this cannot be done, for example, when in an emergency something must be done instantly to save a child's life, the teacher should, acting reasonably, do what is possible, given the circumstances.

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