Bulletin 52 - Students at risk of anaphylaxis
Legal Issues Bulletin 52 - Students at risk of anaphylaxis
Legal Issues Bulletin 52 - Students at risk of anaphylaxis
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The principal of a school attended by a student who is at risk of anaphylaxis needs to be aware of the need to comply with legal obligations to the student imposed by the duty of care and under civil liability, discrimination, privacy, child protection and work health and safety legislation.
Principals should be aware that it is mandatory to comply with the Anaphylaxis Procedures for Schools 2012. They are advised to complete the checklists set out in those Procedures and to refer to the checklists at the end of this Bulletin in order to be satisfied that legal obligations to the student have been met.
An EpiPen® or Anapen® should be administered and an ambulance must be called. It is important, if possible, to maintain line of sight with the student when calling an ambulance so current information can be given to the dispatcher who can provide advice about any further assistance that should be provided to the student. A mobile phone, including a personal mobile phone, can be used for this purpose.
If the student has been diagnosed as being at risk of anaphylaxis the steps set out in their ASCIA Action Plan for Anaphylaxis must be followed.
If the student has not been diagnosed as being at risk of anaphylaxis but appears to be having an anaphylactic reaction an EpiPen® or Anapen® should still be administered even if it belongs to another student. The symptoms of anaphylaxis and the emergency response to be provided are set out in the relevant ASCIA Action Plan for Anaphylaxis (general) should be followed and an ambulance called following the same process as outlined above.
More information about the emergency response to anaphylaxis is found in Safety Alerts 35, 40 and 54.
ASCIA advises that no serious or permanent harm is likely to occur from mistakenly administering adrenaline to an individual who is not experiencing anaphylaxis. On the other hand, failure to receive adrenaline in such an emergency can lead to death.
Any staff member who provides an emergency response to a student who is having a presumed anaphylactic reaction is acting in the course of their employment.
In the unlikely event a staff member is sued for negligence as a consequence of administering an EpiPen ®or Anapen® to a student, the department will defend the claim at no expense to the staff member and pay any damages, unless the staff member has committed an act of serious or wilful misconduct.
For an act to be considered “serious and wilful misconduct” there would need to be some degree of intent to harm the student or an act of extreme recklessness.
Carelessness, inadvertence, negligence or a simple mistake does not amount to serious and wilful misconduct. Parliament has also protected ‘good samaritans’ (such as volunteers) from any personal liability arising from genuine attempts to help someone in an emergency.
More information about the legal liability and rights of staff is found in Legal Issues Bulletin No. 19 – Legal Liability and Rights of Staff in Relation to Serious Incidents.
The department has a common law duty of care to take reasonable steps to keep students safe from foreseeable risk of harm while they are at school and engaged in school related activities. The department meets its duty of care obligations through the actions of its staff.
When a student is diagnosed as being at risk of anaphylaxis the exercise of the duty of care requires the development of an individual health care plan (including risk minimisation strategies and the student’s individual ASCIA Action Plan for Anaphylaxis that has been signed and dated by their doctor and provided to the school by the student’s parent). All staff are expected to follow the student’s ASCIA Action Plan for Anaphylaxis and administer an EpiPen® or Anapen® to the student if required in an emergency.
Students at risk of anaphylaxis could also be subjected to bullying behaviour. As part of their Anti-bullying Plan, schools should maintain a climate of respectful relationships where bullying is less likely to occur. They should also develop and implement programs for bullying prevention, provide support for any student who is at risk of being bullied and empower the whole school community to recognise and respond appropriately to bullying and behave as responsible bystanders. A link to further information about this issue is in the checklists at the end of this Bulletin.
The steps set out in Safety Alert No. 40 and 54 must be followed.
A decision has been made that each government school should have a general use adrenaline autoinjector in its first aid kit. More information about this requirement can be found in Safety Alert No. 40 and 54 and the department’s First Aid Procedures
The Civil Liability Act 2002 requires the department to take steps to prevent risk of harm to students where the risk is foreseeable, significant and where (having regard to the circumstances) a reasonable person would have taken those precautions. It supplements obligations under the common law duty of care.
The department is legally obliged so far as it is reasonably practicable to ensure the health and safety of all students who attend its schools. This requires considering a range of relevant matters including the likelihood of a hazard or risk occurring, the degree of harm that might result from the hazard or risk and the availability of ways to eliminate or minimise the risk.
Principals are advised to review the resources that have been developed by the department’s Health and Safety directorate to assist schools to support students who are at risk of anaphylaxis. A link to these resources is set out in the checklist at the end of this Bulletin.
The vast majority of parents or carers work cooperatively with schools and support the school’s efforts to safely provide students with learning and support. On rare occasions, a parent’s response to their child being diagnosed with anaphylaxis or to the strategies that the school has developed to provide a student with learning and support may give rise to a reasonable suspicion that the student is at risk of significant harm.
In many cases the concerns may relate to the parent or carer’s apparent neglect of their child’s medical care needs but other risk factors may also be present. School staff should inform their principal of any concerns about a student who may be at risk of significant harm.
Principals need to consider whether a report to DCJ or contact with the department’s Child Wellbeing unit is required. If in doubt or assistance is required the Child Wellbeing unit can be contacted on telephone number (02) 9269 9400.
School staff should also consider whether sharing information with other organisations would help in developing and implementing individual health care plans for the student diagnosed at risk of anaphylaxis.
For example, the local public hospital may be able to assist in developing a student’s health care plan by providing information about the student. It may also be possible for the school to work collaboratively with other organisations when developing learning and support plans for students. For example, Ageing, Disability and Home Care might be able to assist the school in developing a communication strategy for a student with anaphylaxis who also has an intellectual disability to better enable the student to alert the school if he or she comes into contact with an allergen. A link to further resources dealing with this issue is found in the checklist at the end of this Bulletin.
Yes. Section 4 of the Commonwealth Disability Discrimination Act 1992 (DDA) defines disability broadly including as the presence in the body of organisms causing or capable of causing illness or disease. Section 4 of the NSW Anti-Discrimination Act 1977 (ADA) defines disability in the same way.
An education authority may not unlawfully discriminate against a student at enrolment, by denying the student access to a benefit, expelling the student or subjecting them to any detriment or developing curricula that limit the student’s access to the curriculum. For conduct to be unlawfully discriminatory it needs to fit within the definition of direct or indirect discrimination. Information about direct and indirect discrimination can be found on the Discrimination page on the Legal Services website.
If a student with anaphylaxis seeks to enrol at or subsequently attends a school, consideration must be given to what reasonable adjustments can be made for the student. It is of key importance to consult with the student’s parents or carers and the student (where practicable) about those adjustments.
A practical example of this could be where a student who is allergic to peanuts and nuts wishes to study food technology. It may be a reasonable adjustment in these circumstances to amend a recipe or provide the student with an oven and utensils that were specifically designated for that student’s use. Given the range of potential allergies, it would be less practicable to provide “allergen free” recipes, ovens and utensils to students.
An added benefit is that the reasonable adjustments implemented by schools will often also serve as the risk minimisation strategies that need to be put in place to satisfy the requirements of work health and safety legislation and the duty of care.
The Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 places limitations on a school’s collection, use and disclosure of personal and health information. It is important to note that using or disclosing information in compliance with the duty of care, work health and safety and child protection obligations will not breach privacy legislation. Duty of care or work health and safety obligations may also make it necessary to provide information to other parents or carers and students. Again there is no breach of privacy legislation in these circumstances.
Where it is necessary to provide information to staff, other parents or carers or students, the parent or caregiver and/or the affected student (where appropriate) should be informed of this beforehand where practicable. Principals should remind people who are provided with personal information about a student that it must be dealt sensitively, confidentially and for the reason, the information has been collected.
NSW Government preschools should follow the Anaphylaxis Procedures for Schools 2012. Further, from January 2013 all preschools are also required to comply under the National Quality Framework for Early Childhood Education and Care and are subject to mandatory training requirements set out in the Education and Care Services National Regulations.
ASCIA e-training and ASCIA face to face anaphylaxis training are approved training under this requirement. Face to face training for childcare is offered through the NSW Anaphylaxis Education Program though there are other accredited providers. department preschools are advised to follow the training advice for NSW government schools.
Preschools are also directed to the Education and Care Services National Law and Regulations.
A first aid kit, including a general use adrenaline autoinjector and the relevant ASCIA action plan must be taken on all overseas excursions. Principals should check any requirements that countries visited may have in relation to this medication being brought into the country. This can be done by sending an email to that country’s embassy. A copy of any response received should be retained with the general use adrenaline autoinjector.
Inquiries should also be made of the airline carrier to confirm whether the adrenaline autoinjector can be carried onto the plane as part of hand luggage.
Further advice is available from your local WHS consultant and at:
It is critically important to maintain appropriate official records when supporting students with anaphylaxis in accordance with any legislative requirements. These include records of:
Schools must observe any requirements imposed by privacy legislation with most records other than the emergency response plan being kept secure and accessible only to those staff who need to see them.
Staff should contact the Records Management Centre of Expertise (CoE) if they have specific records-related queries.