The objective of this presentation is to provide you with an understanding of: - What is your ‘Duty of Care’; - How it impacts on your work; - How risks can arise personally and professionally; - How conflicts of interest arise; and - How to manage it.

1. LawSense Conference 2015
DUTY OF CARE FOR SCHOOL COUNSELLORS
& GUIDANCE OFFICERS
Brett Wilson
Partner
22 July 2015

2. Objective …….
To provide an understanding of:
• What is your ‘Duty of Care’;
• How it impacts on your work;
• How risks can arise personally and professionally;
• How conflicts of interest arise; and
• How to manage it.

3. Duty of Care …….
• Limits of a Guidance Officers duty of care to:
• The Student;
• Other students;
• The School;
• The Parent; and
• Other teachers.
• Relationship between the School and the
Guidance Officer

4. Duty of Care …….
Identifying your duty of care in managing:
• Diagnosed mental illness; and
• Undiagnosed mental illness
in students and teachers.

5. Duty of Care …….
• Consequences of breaching your duty of
care:
• Vicariously;
• Professionally; and
• Personally.

6. Duty of Care …….
• Conflict of Interest:
• What;
• How; and
• Managing it on a daily basis.

7. What is your ‘Duty of Care’ …..
A legal obligation which is imposed on an individual
requiring a standard of reasonable care, whilst doing
something that may have an impact on others.
Tort of Negligence
If a person suffers injury as a result of another’s
negligence the sufferer is entitled to compensation
from the negligent party.

8. Duty of Care …..
If you identify or are informed of a risk, your duty of
care increases to the extent of your knowledge of
the risk.
That is unless a court determines that a reasonable
person in the circumstances should have been
aware of the risk.

9. Duty of Care …..
Due to the nature of the work that a Guidance
Officer or Counsellor does, there is a greater
exposure to issues, risks and a need to be mindful of
your duty of care
Reasonable Foreseeability

10. Duty of Care …..
Reasonable Foreseeability
In your work if you perceive that a risk exists or may
arise as a result of a decision you make do
something to manage that risk.

11. Duty of Care …..
There are three elements of the tort of negligence
A duty of care to the plaintiff
A breach of that duty of care
Actual Damage suffered by the plaintiff

12. Duty of Care …..
As a Guidance Officer or School Counsellor do I have
duty of care and a higher duty of care?
Why am I different from any other teacher or school
administrator?

13. Duty of Care …..
The law would say
YES
The title Guidance Officer or Counsellor
implies responsibility and acceptance of it and a skill
set beyond that of a teacher

14. Duty of Care – The Student …..
Duty arises in numerous ways:
• Advising on courses and careers
• Learning environment and outcomes
• The students welfare in the school environment
• The students welfare in the ‘home’ environment
• Bullying
• Discrimination

15. Duty of Care – The Student …..
Primary obligation:
• Who is your client?
• Due to age and life experience a greater duty to a
student than others
• If you are guiding the student and advising them,
if wrong or the student is injured you and the
school may be liable

16. Duty of Care – The Student - Case Study
Case Study A
• Star Student advised of subject choices, and
advised and permitted to change subjects in Year
11, quite late in term.
• Changed School, new school advised that due to
late start in subject could not be credited.
• Had to repeat year

17. Duty of Care – The Student - Case Study
Case Study A
• Student through parent sought damages for
incorrect advice
• Potential argument of damage being one years
lost income as a professional - doctor
• Claim lodged
• Settled with refund of years fees and expenses

18. Duty of Care – The Student
Extent of your obligation to the student:
• High expectations
• Expected to analyse students entire
circumstances
• Legal expectation that the students health and
well being before all else
• Physical risk must be primary consideration

19. Duty of Care – Other Students
Extent of your obligation to other students:
• Assess the risk to other students from a student
or a teacher
• If a risk exists manage that risk and keep
stakeholders informed
• Remove the risk as soon as possible where
physical danger may be involved

20. Duty of Care – Other Students
Can arise:
• A student with a physical or mental condition
that may pose a threat to other students
• A teacher that may not be coping and may be a
threat to students
• A student that may require treatment at school
with medication or a device that may pose a
threat to other students

21. Duty of Care – The School …..
Duty arises in numerous ways:
• Interaction with School Management, do as you
are told
• Obligations to protect the school, damage to
reputation
• Interaction with external agencies

22. Duty of Care – The School …..
• Duty to act in good faith in the interests of the
school, as the employer
• Duty to perform your duties with the requisite
skill and diligence, that is reasonable in the
circumstances
• Duty to obey lawful and reasonable directions
• Duty not to have conflicting interests

23. Duty of Care – The School – Case Study
Case Study B
• School Guidance Officer became aware of a
teacher not coping in the workplace, largely due
to perceived bullying by departmental head
• Guidance Officer found out indirectly of the
matter and due to allegiance to the perceived
‘bully’ took no action

24. Duty of Care – The School – Case Study
• The teacher felt that the Guidance Officer could
offer support once the issue was known
• Nothing was done and school management was
not advised
• Substantial workers compensation matter filed
• School perceived to have been aware of the risk

25. Duty of Care – The School – Case Study
• School vicariously liable for Guidance Officers
failure to report risk and prevent bullying
• Guidance Officer dismissed
• Unfair Dismissal Claim
• Settled at Mediation

26. Duty of Care – The School …..
• Know and understand your role
• Identify risks and manage them
• Advise School Management of any matter that
may impact on the schools risk profile
• Keep records
• Avoid conflicts of interest

27. Duty of Care – The Parent/s …..
Extent of the Duty of care:
• Almost contractual – I pay fees for you to care for
and educate my child
• Also a Common law duty in negligence
• Obligation to assess risk and keep informed of
risks
• Seek input when required

28. Duty of Care – The Parent/s …..
Duty of care arises:
• Keeping a students confidentiality
• Youth suicide, bullying, sexual preference, gender
• Assess quality of learning environment
• Keep parent/s informed of risks and issues
• Family Law matters and risk

29. Duty of Care – The Parent/s …..
Case Study C
• Guidance Officer aware of Family Law dispute
• Information came to guidance officer that one
parent intended to attend a school event with a
firearm where the student was taking part
• Did nothing about it as student embarrassed
• Nothing happened at the school event

30. Duty of Care – The Parent/s …..
Case Study C
• Other parent found out the information and the
fact that the Guidance Officer was advised
• Predominantly because of the Family Law
dispute it was raised in those proceedings and
with the police
• School and Guidance Officer criticised for not
informing the other parent and authorities

31. Guidance Officer and other teachers …..
How can my duty of care to other teachers arise:
• Schools are workplaces, obligations under Work
Health and Safety Act (2011)
• Anti Bullying regime under the Fair Work Act
(2009)
• General Protections actions under the Fair Work
Act (2009)
• Workers Compensation and Common Law Claims

32. Guidance Officer and other teachers …..
• Observe and assess your colleagues well being
• When appropriate assess performance
• Inform them of risks in their duties
• Report and address issues promptly and
consistently
• Consult in welfare, conduct and learning
outcomes

33. Guidance Officer and the School
• Employment Relationship
• Duty to act in good faith and with diligence
• Act in the interests of the School
• Duty to obey lawful and reasonable directions

34. Guidance Officer and the School
Student V School
A conflict between your duty to your employer to
act in their interest and to do something in the
interest of a student that may damage the school’s,
your employer, reputation or other interests
Do as you are told attitude

35. Guidance Officer and the School
Act in the interests of students and their parents to
achieve learning and wellbeing outcomes
That ultimately is what a Court would consider is
acting in the school’s interest

36. Duty of Care in Diagnosed Mental
Illness Matters
In circumstances where you are aware of a
diagnosed mental illness issue your duty of care:
• Increases where it is reasonably foreseeable that
a student or teacher may be a risk to others
• That risk must be addressed to avoid liability
• Your knowledge of the illness and the resultant
risk, increases your duty and potential liability

37. Duty of Care in Diagnosed Mental
Illness Matters
If you foresee a risk, or if a Court determines that a
reasonable person in the circumstances should have
perceived the risk, then you will have a duty of care
and potential for damages.

38. Duty of Care in Undiagnosed Mental
Illness Matters
In circumstances where you are not aware of a mental
illness issue your duty of care:
• Is limited to your actual knowledge
• Unless a court would consider that a reasonable
person in your position should have foreseen the
possible risk
• Therefore a lack of a diagnosed mental illness does
not exculpate a person from potential liability, but
may mitigate against liability

39. Consequences …. Personal
• Criticism
• Disciplinary action by your employer
• Suspension with or without pay
• Termination of Employment

40. Consequences ….. Professional
• Termination of employment and inability
to gain further work
• Cancellation of right to practice by
regulatory body
• Involvement in legal proceedings as a
witness in defending an action

41. Consequences ….. Legal
• Involvement in legal proceedings as a
Defendant
• Being required to pay damages and legal
costs to a Plaintiff as a Defendant
• Being required to indemnify your employer
for any damages payable to a Plaintiff

42. Conflict of Interest …..
A conflict of interest arises when a person is
placed in a situation where they have a duty
to one person or entity and also other
competing duties to one or a number of
other persons or entities

43. Conflict of Interest …..
The concept of who is my client?
• The person or entity who pays my wages
• The student
• The parents who pay the school fees
• My colleagues

44. Conflict of Interest …..
Student v School or Teacher
You are placed in a situation where you need
to protect the interests of a student which
will result in the school or a teacher’s
reputation being damaged. The School
management or the teacher pressures you to
ignore it and take no action.

45. Conflict of Interest …..
Student v Parent
You are placed in a situation where a student
has confided in you and the parent demands
that you inform the parent of the matter and
you are asked to breach a confidence which
the student has specifically asked you not to
do.

46. Conflict of Interest …..
Student v Other Students
You are placed in a situation where a student has
an issue that may be a risk to other students.
You are required to decide whether to act on
your knowledge and you know this will have a
severe consequence for the student, but you
must weigh up the possible risk if any to the
other students of doing nothing.

47. Managing Risk and Conflicts …..
• Identify your obligations in each matter.
• Who is my ‘Client’.
• Manage your risk profile by assessing the
foreseeable risk, advising stakeholders
promptly, impartially and consistently.
• Document all considerations.

48. Manage your Risk Profile …..
• Be consistent in your dealings
• Be prompt, address matters ASAP
• Be confidential when required
• Document the process, the reason why
• Seek advice when uncertain
• Use outside authorities to assist when
required

49. Always be Consistent …..
Apply standard practices consistently:
• Develop standard practices that exhibit
consistency and impartiality;
• Both personally; and
• Across the Organisation.

50. Always be Prompt …..
When an issue arises address it
• Promptly and in compliance with
‘natural justice’.
• Involve stakeholders at the earliest
opportunity.

51. Maintain Confidentiality …..
• Keep information confidential when asked
to.
• Only if someone may suffer damage
should you breach confidentiality or under
direction from an authority.
• Set out the terms of confidentiality at the
start with all stakeholders

52. Document as much as possible …..
• Document all decision making.
• Even when a decision is made
document why and your reasoning.
• Time and date and if significant have
another person countersign the
document.

53. Be proactive …..
• Consistent
• Prompt
• Confidential
• Document the process
• Seek advice
• Use external authorities to assist

54. DISCLAIMER
Please note that this Power Point and
Presentation is not legal advice and
the material has been altered to simplify
the presentation and should not be
relied upon in the provision of
legal advice or for any other purpose.