The following article first appeared on Mrs W's blog: Clinically Fed Up


In loco parentis (By any other name)

It’s not easy to pin down a straightforward definition of “duty of care” at common law, unless you’re talking about the environment or dogs! My two personal favourites are from an Australian agriculture website and English tort Law which between them state four criteria that need to be met before a failure of Duty if Care has occurred.
  1. Was it foreseeable that the action of a particular person or organisation would expose another party to harm or damage?
  2. Is there a relationship of ‘proximity’ between the two parties?
  3. Is the action or inaction of one party the cause of the other party’s damage or loss?
  4. Is it “fair, just and reasonable” to impose liability?

California has another 20 or so but they can be reasonably ignored for my purposes. I looked all this up because, as a parent, I chucked “duty of care” at my son’s primary school on more than one occasion and needed a rudimentary understanding of what I was accusing them of. In those instances it was with regard to bullying and I long believed that they failed in their duty of care as the steps they took prevent the bullying once they had been made aware of it, were inadequate. However, according to the NUT..
“There is a proviso that if it can be shown that the professional acted in accordance with the views of a reputable body of opinion within their profession, the duty of care will have been discharged even though others may disagree with them.”
It doesn’t matter what a parent thinks of the bullying policy at a school, if they have an approved policy and then follow it they have not failed in their duty of care.

Mr W asked me if my understanding of duty of care could be applied to internet usage in schools, in particular when it is used as a reason to deny teachers access to online resources. My initial “Nah no way” didn’t satisfy him much! Having given it a bit more thought I do believe that whilst internet abuse in schools could lead to a charge of failure to provide duty of care, it would have little to do with the internet itself and more to do with the level and quality of supervision.
Take 30 pupils in a gym. If the class are clearly told what rules are in place to maximise their safety (i.e. use of crash mats, maximum users on a piece of equipment) and they break those rules resulting in injury, has the teacher failed in their duty of care? What if the teacher leaves the children unsupervised in the gym and injury occurs? In the second scenario no one would claim that any failure to meet care standards is a result of the inherent danger of the gym equipment!
Take the same 30 pupils using computers. If the class are clearly told what rules are in place to maximise their safety (i.e. never share your password, no cyberbullying, no searching for inappropriate material) and they break those rules resulting in injury, has the teacher failed in their duty of care? Again, what if the teacher leaves the pupils unsupervised and injury occurs? How can it be suggested that any failure to meet care standards is down to the inherent danger of the internet anymore than my first example was the fault of the gym equipment?

I strongly suspect that my children are inadequately supervised during some of their internet use at school. They are often allowed to spend free time at the end of a lesson, online, doing whatever they please, their safety abdicated to the draconian filtering the school imposes on staff and pupils alike. This would be more unacceptable to me if I didn’t personally take responsibility for teaching them about online safety.

external image Chemistry_4.jpgBut I whinge again, the question was can duty of care ever be a reasonable excuse for not allowing a teacher access to any website, let’s say YouTube? Would education authorities deny a PE teacher access to trampolines citing “duty of care”? Would they deny a Chemistry teacher access to sulphuric acid citing “duty of care”? Would they deny a Modern Studies teacher access to (often) harrowing material on human rights abuses citing “duty of care”? Of course not, so why should these same professionals be deemed incapable of making a professional judgement when it comes to accessing online resources?

Resources are requested by teachers to be used in lessons on the understanding that they will be used appropriately and to the advantage of pupils. All except the internet. The only difference with the internet is that it isn’t an artefact, it can’t be picked up and taken from you and it can’t be locked in a cupboard. However, unlike sulphuric acid, most pupils already use it every day.

Filtering, teacher supervision and the repetition of online safety rules are absolutely necessary, but at that point I believe the duty of care has been met as reasonable steps have been taken to ensure pupil safety. Given that pupils usually sign some form of user agreement stating that they will not knowingly abuse their internet access or use it to threaten or bully other users and they are not similarly required to sign anything binding with regard to trampolines, jars of acid or jumping off the dinner hall roof for that matter, I think schools are more than adequately covered. If a pupil circumvents security and accesses inappropriate material online using the school network it should be treated exactly the same as it would had the pupil brought inappropriate printed material to school and used it in class, or broken any other rule in place to ensure their safety and well being.

If local authorities are happy to give teachers access to the chemical cupboard, why not the internet? Why does granting a teacher access to YouTube endanger a pupil? I could throw up scenario after scenario here but ultimately only a person can fail to provide duty of care and if a person cannot be trusted why are they employed in teaching? I give the last word on the subject to the ever sense making NUT…

“As long as teachers apply their professional judgement, training and experience to a situation in a reasonable manner, seeking to promote the best interests of the pupils in their care, their obligations will have been met”