This question comes from a private provider of first aid services. He says:
An employed first aider was working solo at a local private school sport day in NSW. One of the visiting schools brought their own physiotherapist to help look after their boys. On two occasions when visiting boys were injured the visiting physio refused to allow the first aider to treat the injured boys even though the “mechanism of injury” (bashing heads or heads/other body parts) was consistent with a high likelihood of concussion. On one occasion a boy had been unconscious which according to Australian Rugby Union guidelines required “medical advice” and possibly a hospital visit. On the other occasion the boy was unsure if he had been unconscious but it appeared to observers that he had before the first aider was on the scene. Other parents and a doctor who was a bystander attempted to intervene to allow the first aider to treat one of the injured boys but were refused by the visiting physio.
My questions are:
Who has responsibility for the welfare of boys from visiting schools if they are injured on the grounds of the “home” school?
Does the presence of a physiotherapist from a visiting school release the home school and the first aider from any obligations or duty of care to the visiting students?
Is the home school or first aider exposed to litigation if they are aware of what they believe to be treatment that contravenes the concussion guidelines particularly if this leads to further injury or litigation by the child or his parents?
As I’ve noted before what is written here is written for the general information of the emergency services community and cannot be relied upon as specific legal advice. The discussion will be in general terms only and assumes that the story as I’ve been given it is correct. No doubt if legal proceedings did follow different people would have different versions of the events. With that limitation in mind –
We have probably all heard that a school stands ‘in loco parentis’ vis-à-vis its students. (‘In loco parentis’ is defined as ‘in the place of a parent’ by Merriam-Webster online, http://www.merriam-webster.com/dictionary/in%20loco%20parentis). In Commonwealth v Introvigne (1982) 150 CLR 258, Murphy J said ‘The notion that a school teacher is in loco parentis does not fully state the legal responsibility of a school, which in many respects goes beyond that of a parent’. Even if a school owes a duty to a child that a parent does not, he did not doubt the basic premises that the school has the care of a child in the place of the parent. (See also Ramsay v Larsen (1964) 111 CLR 16 and New South Wales v Lepore (2003) 212 CLR 511).
A school stands ‘in loco parentis’ to the students enrolled at the school, not all students. In this context it means that the ‘visiting’ school had the parental responsibility for its children, which it must exercise via its staff. In this case I assume the ‘staff’ included the physiotherapist but it really makes no difference if the physio was employed or a volunteer – perhaps a parent of one of the boys etc. If the school entrusted him ‘to help look after their boys’ he was exercising the school’s obligations in loco parentis.
The way to look at this scenario, then, is to ask what is the duty of the first aid provider if a parent refuses to consent to treatment. Put in that context the answers are not difficult.
- Who has responsibility for the welfare of boys from visiting schools if they are injured on the grounds of the “home” school?
It’s not an all or nothing issue. Both schools have ‘responsibility for the welfare of boys from visiting schools’ but it’s not ‘joint and several’ that is they are not both responsible for everything. The schools are responsible for that which they provide – the home school has responsibility for example of ensuring the grounds are safe and maintained so if the visitor was injured because of a hole in the football oval, or because the toilets collapsed, that would be the responsibility of the ‘home’ school. If the first aider was allowed to treat the ‘visitor’ but did so negligently then responsibility might be shared between the home school and the first aid company depending on all the circumstances. The visiting school on the other hand is responsible, along with the parents, for ensuring that its students are fit to play, have proper kit, perhaps don’t trash the ‘home’ schools facilities.
The answer is then that both have responsibility for the welfare of boys from visiting schools but exactly what part of their welfare they are responsible for will depend on all the facts including agreements between the schools as to who will provide what.
- Does the presence of a physiotherapist from a visiting school release the home school and the first aider from any obligations or duty of care to the visiting students?
No, but the refusal of consent may. Let us assume that it is agreed that the ‘home’ school will ensure that there are first aid services provided and they meet that obligation by contracting with my correspondent. They are indeed providing a service, but they cannot insist that others use that service. As we know people can refuse consent to first aid services and where children are involved, it is their parent who may refuse. Here the ‘visiting’ school is in the place of the parent so they, via their staff, can refuse consent. The ‘home’ school has acted reasonably and in accordance with the (assumed) agreement by ensuring that the service is there. What more can they do?
Even if a patient refuses consent that does not necessarily mean there is no obligation upon the first aiders, again it’s not ‘all or nothing’. A reasonable first aider might stress ‘I really think they need to go to hospital, look out for these symptoms … If they get worse ring triple zero’. Or they might, in this context, go past the physio and find a teacher from the visiting school. At the end of the day whether or not there is a duty to do any more and what might be done would depend on all the facts.
What you can’t say is that the refusal relieves the ‘home’ school, or its first aid provider from ‘any obligations or duty of care’ but it does limit what they can do. If they can’t examine or treat the person is there anything else they could or should reasonably do? If not then that’s the end of the matter.
- Is the home school or first aider exposed to litigation if they are aware of what they believe to be treatment that contravenes the concussion guidelines particularly if this leads to further injury or litigation by the child or his parents?
I’ll come back to ‘exposed to litigation’; what one really means is ‘will they be liable’. The answer is ‘no’. The ‘home’ school and their first aid provider has an obligation to act reasonably, not to rescue everyone from harm. They don’t ‘own’ the patient (see ‘Step aside – I’m a doctor’ (October 17, 2014)) and can only do what they can do.
Because the ‘visiting school’ is in locos parentis any failure in the care, described, would be the responsibility of the visiting school. In NSW v Lepore (2003) 212 CLR 511 Gummow and Hayne JJ said (at ):
The parents or guardians will have entrusted the children to the school, acting in loco parentis, on the assumption that they will be cared for, not abused. The common law does not usually disappoint legitimate and reasonable expectations in such matters.
That case was deciding whether a school was liable for the sexual assault of its student by a teacher, a case far removed from this one – here the issue is ‘care’, not ‘abuse’ – but the principle remains. If the child was injured because the physio, or any staff member, administered inappropriate treatment and/or refused to allow better qualified persons to render appropriate care, the liability will belong to that school, not the ‘home’ school.
Now what of exposure to litigation? Litigation is a dispute resolution process. Anyone can be exposed to litigation if one party thinks they have been wronged by another. The plaintiff’s case may fail but that does not mean they have not been exposed to litigation. In Lowns v Woods (1996) Aust Torts Reports 81-376 Dr Lowns was sued over his failure to attend an emergency when asked to do so. His defence was always that it never happened, he was never asked. We’ll never know the truth but the trial judge, considering all the evidence, preferred the evidence to the little girl who said she knocked on the doctor’s door and he was found liable to the tune of $3million. Assume the judge found that he was telling the truth and he was found not liable; he would still have been exposed to litigation for something that didn’t happen. So can the ‘home school’ be exposed to litigation? Well they could be just as they could be if the visiting school’s bus crashed on the way home. It’s unlikely, but nothing’s impossible.
Another reason why it is unlikely a case like this would lead to litigation.
There is another reason why a case like this won’t go to court. It would be very difficult to prove negligence here, certainly against the ‘home’ school, but why would one bother. As a school child engaged in school arranged sports, the child will be entitled to compensation under the Sporting Injuries Insurance Act 1978 (NSW) so would be better off seeking any remedy there. They might only sue if they are rendered seriously and permanently disabled but then they would have a problem showing it was the care they received, rather than the injury on the football field, that was the cause of their ongoing disability.
In conclusion the ‘home’ school and their first aid provider owe a duty of care to students from the visiting school, but it is not a duty to guarantee their safety, it is a duty to act reasonably in providing their contribution to the joint sporting activity. The ‘visiting school’, through its staff, stand in locos parentis vis-à-vis their students and like a parent can refuse care from the ‘home’ school’s provider. That does not mean there is no obligation upon the first aid provider, eg to try and stress the seriousness of the matter or to recommend ongoing care. What is reasonable has to be judged in all the circumstances.
In the circumstances described I don’t foresee any legal risk for the ‘home’ school. Any plaintiff has to show what more the defendant could have done and what more could the ‘home’ school have done here? If the child was seriously injured any action would be directed to the ‘visiting’ school as its obligation to care for its students is clear and stringent.