Legal Framework

A summary of the detailed legal provisions affecting schools’ responsibilities in relation to pupils’ medical needs is provided for reference at Appendix G click here.  Set out below is a general statement of the legal framework for the administration of medicines in schools, with particular reference to the liabilities of school staff.

School staff are under no general common law obligation to administer or supervise the administration of medicines to pupils.  In an emergency situation, staff acting in loco parentis would be required at common law to secure such help and take such action to assist a pupil as would a reasonably prudent parent.  No parental consent is necessary in such circumstances.  Even in an emergency, however, staff will not be expected to carry out complex or risky procedures for which he or she is not trained.

Although there is no statutory obligation on Local Authorities to provide for the medical treatment of pupils, Education Authorities do have a legal duty to co-operate with Health Boards in the exercise by Health Boards of their statutory duties to provide for the medical supervision and treatment of all pupils in attendance at schools.  As part of this co-operation, Education Authorities may ask school staff, with parental consent, to administer medicines or supervise their administration to pupils.

Certain school staff may, depending on the terms of their individual contracts, have contractual duties relating to the administration of medicines to pupils.  Teaching staff have no such contractual duty and thus act voluntarily if they undertake such duties.

In either case, staff undertaking these duties at the request of the Education Authority will be acting in the course of their employment and acting on behalf of the Education Authority.

In the case of school staff employed by The Moray Council, the Council’s Insurers, Zurich Municipal, have confirmed that liability insurance will be operative in the following circumstances:-

"The position that Zurich Municipal takes is that where an Employee of the Council, acting in the course of their employment, administers medication they will be indemnified by the Insured's liability insurance for a claim for negligence relating to injury or loss caused by their actions provided that they have received full training relevant to the medication being administered, have taken the necessary refresher training, used the protective equipment for that purpose and at all times acted in accordance with the individual's care plan as advised by the child's GP or other relevant health professional and in agreement with the child's parents/guardians."

Confidentiality

Duties towards Parents

There is no legal duty to tell a parent what a child has told you.  There is no legal necessity to get a parent’s consent before speaking to or counselling a child.  Parents have a legal duty of care for their children and it is preferable to work in partnership with parents but if children do not wish their parents to be involved or informed there is no legal requirement to do so.

Obligations in relation to Children

In general children should be regarded as having the same rights to confidentiality as adults have, at least where the child is mature enough to appreciate the nature and possible consequences of non-disclosure.  This is consistent with the approach taken to legal capacity and specifically to consent to medical treatment in the Age of Legal Capacity (Scotland) Act 1991.  The Act clearly states that the decision about the child’s maturity lies with the doctor.  Under Scots law young people under the age of 16 are able to consent to their own medical examination or treatment, if the doctor thinks they understand the nature and possible consequences of the treatment or examination.  The law is deliberately worded.