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In brief - Schools should be aware of latest guidelines for pain relief and use of EpiPens

Schools need to have policies which set out procedures for administering medication to students and regularly train staff in these policies.

School policies should address who can administer medication, when and how

A school and its teachers owe a non-delegable a duty of care to their students to provide a safe environment and to take reasonable care for their safety. As part of this, teachers are obliged to attempt to assist children who are injured or sick.

From time to time schools need to administer medication to their students, be they prescription only substances or over the counter pain relief, and occasionally schools are called upon to administer emergency medical assistance.

Schools face a delicate balancing act in this regard. Care must be taken when administering medication and schools should ensure that policies are in place addressing who can administer medication, when and how. Training of staff on those policies is also a must.

Two examples of areas in which issues may arise are the administering of painkillers, such as Panadeine, which contain codeine and are subject to strict requirements regarding their use, and the treatment of anaphylaxis using EpiPens.

Duty of care and what is "reasonable" under the circumstances

The obligations imposed by the Work Health and Safety Act (NSW) 2011 to take reasonable care for the health and safety of people who are at the place of work extends, in the case of schools, not only to staff but also to students.

The duty of care is complied with if the teacher does what a reasonable person would have done under the circumstances. What is reasonable is a question of fact in each case. Two points are worth noting though.

First, there is no duty to guard against risks to a student who has a particular susceptibility to injury if the school did not know of the student's condition. Reasonable care must be exercised having regard to the information actually or constructively known to the school. (See Australian Capital Territory Schools Authority v El Sheik [2000] FCA 931.)

Secondly, in New South Wales, Part 5 of the Civil Liability Act (NSW) 2002 provides for a certain limit on the duty of care of a "public or other authority", with respect to the financial and other resources reasonably available. Private schools are included within the definition of "public or other authorities" by virtue of the Civil Liability Regulation (NSW) 2009. Essentially, in determining whether a school has breached its duty of care, the court will have regard to the resources available to the school. The impact this has will depend upon the particular fact situation.

Students who self-administer medication or perform health care procedures

As regarding the administering of medication, generally schools must assist with administering prescribed medication where necessary within school hours, where it cannot reasonably wait to be dealt with by parents or carers outside school hours. The school's duties in this regard do not extend to administering medication and/or health care procedures to students who are able to administer this medication or carry out this procedure themselves.

If, however, a student self-administers prescribed medication and/or health care procedures, the school has a duty to take reasonable steps to ensure that the self-administering is carried out safely.

What about, however, the administering of non-prescribed medication? An example is cold medication containing codeine.

Administering medication containing codeine

The NSW Poisons List 2013 includes various medications in Schedules 1 through 8 (2 being least poisonous, 8 being most poisonous). Schedule 1 refers to "unscheduled medication", which can be purchased over the counter from a pharmacy or supermarket. The Poisons List includes codeine in various forms in Schedules 2, 3, 4 and 8. Schedule 2 codeine is defined as:

Sch Substance

2  CODEINE in preparations for the treatment of coughs and colds when:

(a) not combined with any other opiate substance;

(b) compounded with one or more other therapeutically active substances, of which at least one is phenylephrine and not more than one is an analgesic substance:

(i) in divided preparations containing 10 mg or less of codeine per dosage units; or

(ii) in undivided preparations containing 0.25 per cent of [sic] less of codeine;

(c) labelled with a recommended daily dose not exceeding 60 mg of codeine; and

(d) in packs containing not more than 6 days of supply at the maximum dose recommended on the label

Common medications containing codeine such as Panamax, Dymadon, Panadeine, Nurofen Plus, Disprin, Aspalgin, Codis and Mersyndol appear to fall within Schedule 2. It is worth noting though, that pain relief given to a student for purposes other than the treatment of coughs and colds (for example, back ache) may fall into Schedule 3, potentially requiring a greater level of care in its administration.

Written parental authorisation and involvement of trained medical professionals

Almost all guidance available in relation to public and private schools advises the exercise of care and the involvement of trained medical professionals in the administering of codeine.

For example, the Catholic Education Commission NSW (CEC) publication Student Health Guidelines uses the NSW Poisons List as the standard in assessing the suitability of certain medications including codeine. It states:

...the nature and degree of supervision from a school for the administration of medication is influenced by the Schedule of the medication being administered. The higher the Schedule on the NSW Poisons List (example: Schedule 8), the greater the level of supervision that will be required. The school's assessment of the potential risk(s) involved should guide its management of the risk(s). (Emphasis added.)

The CEC publication says that for day schools, Schedule 2 medications may only be supplied by a parent. For boarding schools, the medications can only be administered to boarding students by registered nurses who are authorised in the NSW Government Gazette No. 61, 21 May 1999 (Poisons and Therapeutic Goods Act 1994, Authority to Supply Schedule 2 Substances).

The CEC publication also states:

School awareness and parent authorisation

Staff should not administer any medication to students that has not been authorised in writing by parents, or could be reasonably assumed to have been authorised in an emergency when the parents could not be contacted.

Although parents are usually required by schools to sign medical consent information forms for their children, parents (and therefore the school) may not be aware their child is allergic to codeine prior to its consumption.

A prudent approach for schools is to require parent permission to be obtained first unless not reasonably possible, and then require Schedule 2 medications only be provided to students by appropriate individuals such as registered nurses.

Students with allergies and use of EpiPens

The duty of care of schools to provide a safe environment for the students under their care extends to strategies required to deal with students who inform the school that they suffer from severe allergies. Schools can be held liable for supplying, or failing to restrict the supply, of certain foods to students with allergies. (See Comcare v Commonwealth (2007) 163 FCR 207.)

More leeway is given to schools and teachers in the case of an emergency such as an allergic reaction, although this does not negate the duty of care.

Taking the case of anaphylaxis, most education-related guidance supports the use of EpiPens by teachers (whether they are trained or untrained) in situations of suspected severe allergic reactions, notwithstanding that EpiPens, and other products such as Anapen, are prescription only adrenaline auto-injectors listed in Schedule 4 of the NSW Poisons List.

Requirement for teachers to undergo anaphylaxis training

The NSW government provides mandatory guidelines for public schools in relation to anaphylaxis, including the implementation of policies, the obtaining of detailed information from parents or carers and development of an individual action plan where there is a known risk to a student of anaphylaxis. (Please see the NSW Public Schools website for more information.)

All permanent, temporary and casual employees (including student teachers) who work in schools are required to complete anaphylaxis e-training. This training must be repeated at least once every two years and does not replace pre-existing face-to-face training that is required when a student with anaphylaxis enrols in a school.

The guidelines note that:

... Any school staff member must, when necessary, reasonably assist in an emergency… It is important to know which students have anaphylaxis and where their adrenaline auto-injector is located. Anaphylaxis always requires an emergency response. You should administer the adrenaline autoinjector and call an ambulance.

School policies and training should conform with current guidelines for administering medication

Schools have a duty to take care for the safety of their students, including providing such medical attention as is reasonably required. The prudent approach is to:

• Remain aware of the latest guidelines, for example regarding the administering of codeine and the use of EpiPens

• Maintain and regularly update policies for the provision of medical and emergency care

• Ensure both staff and parents are aware of those policies and that staff are regularly trained in them

• Utilise the assistance of medically trained staff wherever possible

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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