What are the legal implications of greater collaborative working between education and health care professionals, asks Amelia Newbold
Schools are evolving rapidly — in terms of services offered and integration into the community. In February 2007, management consultants PricewaterhouseCoopers published its Independent Study into School Leadership. This proposes legal changes that will turn schools into multi-agency organisations combining education, health and social care.
The study envisages teachers and other professionals working together from the same site as part of reformed school leadership teams designed to protect pupil standards and welfare. A number of ground-breaking initiatives already place health and education professionals together in close working partnerships.
Every Child Matters
The driver for such changes is the Government's Every Child Matters agenda, which places schools at the heart of the community, offering a wide range of services.
The development and management of such ‘extended services’ was the single most important training requirement named by headteachers in study carried out by PricewaterhouseCoopers.
This article will place the PricewaterhouseCoopers proposals in context, and examine how they are likely to affect schools. It will also look at the associated legal implications.
The heart of the matter
Extended schools are at the heart of achieving the Every Child Matters objectives for children and families. As service providers, schools have the most contact with children — both those of school age and, increasingly, children using early-years provision.
Just the beginning
In September 2006, over 2,500 schools were, in partnership with local authorities and local providers, offering families these services. The Government has said that all schools should be able to offer these core services by 2010.
The core offer is designed to ensure a minimum of services and activities for families. It is envisaged, however, that the specific services available in an area will vary depending on the needs of pupils, parents and the wider community.
An extended school delivers a multi-agency approach to children's services through closer collaboration with other schools, social services, health care professionals and the police. These agencies work together to provide core services, including:
- wrap-around child care all year round (in primary schools)
- parenting and family support
- a varied programme of activities, including study support, sport and music clubs
- common use of facilities, including adult and family learning and ICT
- swift and easy referral to specialist services such as health and social care
On-site health care
Child welfare calls for swift and easy referral to specialist services such as health and social care where required. To facilitate this, schools will offer a wider range of specialist support services including: speech and language therapy; community and mental health services; family support services; behaviour support and sexual health services for young people.
Some of these services will be delivered off-site, but many schools are looking to establish on-site health services. This raises a number of legal issues.
There is no prescription for school-based health services. The nature and scope of services is for schools to determine in consultation with parents, teachers and pupils. In some schools, it will be appropriate for GPs to run on-site drop-in centres. In others, there might be a team of professionals such as a sexual health nurse, a counsellor and/or a mental health specialist based on the school site who will be able to provide a holistic service to pupils and their families.
Where on-site provision is not possible, schools will be required
to develop strong referral systems to mainstream services in the community.
Given the leeway afforded to schools, a model for partnership is useful. One such model is the National Healthy School Standard.
The National Healthy School Standard
The DfES healthy schools programme, launched in October 1999, has for some time been providing a model of partnership between the health services and schools. The programme aims to promote a coherent, holistic message about the importance of a healthy lifestyle. It has been very successful.
Scope of the programme
The National Healthy School Standard is a tool for schools and communities to help raise achievement and promote social inclusion.
- healthy eating
- personal, social health and education
- drug education (including tobacco and alcohol)
- emotional health and well-being (including bullying)
- physical activity
- sex and relationship education
Every local authority in England has adopted the National Healthy School Standard, working in partnership with primary care trusts to help schools become healthy through a nationally accredited programme. Studies show that the programme has made schools more healthy places.
The White Paper
The government set out its vision for a more effective health and social care service in the White Paper Our Health, Our Care, Our Say: a New Direction for Community Services.
The White Paper identifies five areas of change:
- more personalised care
- services close to people's homes
- better coordination with local councils
- increased patient choice
- focus on prevention as much as cure
Schools — ideally placed to help
Schools are already providing innovative and responsive health services within the local community. They are therefore well placed to improve access to health services tailored to young patients and their families. Schools have an important role to play in tackling health inequality
and targeting unmet health needs.
Teenage Health Demonstration Sites
The White Paper makes it clear that schools will be required to provide direct access to health care. The Teenage Health Demonstration Sites programme is one such initiative now underway. THDS started in November 2006. It is a two-year project running in Northumberland, Portsmouth, Bolton and Hackney. Schools and primary care trusts work in close partnership to provide information, services and counselling on
high-profile health issues such as teenage pregnancy, obesity, and drug and alcohol abuse.
Capital investment under the programme is used to:
- enhance facilities;
- build drop-in centres for pupils to seek confidential help and advice;
- train parents and staff; and improve provision for peer counselling.
The Teenage Health Demonstration Sites initiative is just one example of how schools will provide direct health services in the future. Health services will diversify and schools will help pupils access other community support services.
The proposed changes are to be welcomed if they can give children and their families easier access to a wide range of services. But if the changes are to be implemented successfully, there will need to be a change in working practices between health and education professionals.
Every Child Matters has already altered the legal framework in which such professionals work — but even greater collaboration will be required in future. Information sharing and compensations claims are two areas of particular note.
In the past, education, health and social care professionals have not worked together effectively. They have not shared expertise and information, and families have not been well served.
Improved information sharing will be key to delivery of the core services — in particular to swift and easy referrals.
There are, however, two areas of concern:
- restrictions on information sharing in data protection legislation
The Data Protection Act
The Data Protection Act 1998 has had a bad press: people are uncertain about what information can be shared between professional agencies — and in what circumstances sharing is allowed.
The Government's guidance, Information Sharing: Practitioners' Guide, which came out in April 2006, gives practical advice about the circumstances in which information can — and in some cases must — be shared.
The guidance defines confidential information as: information of some sensitivity not in the public domain which has been shared in a relationship where the person sharing understood that it would not be shared with others.
Confidence is breached where sharing of the confidential information is not authorised by the person who provided it, or by the person to whom it relates.
The easiest way to lawfully share such information is therefore to obtain consent to share it.
Sharing without consent
Confidential information can be lawfully shared without consent if it
is in the public interest to do so. A key factor in considering this will be proportionality — that is, whether the public interest in sharing the information overrides the public interest in maintaining the confidence.
Even where the public interest does not merit sharing confidential information, sharing without consent will be justified when there is evidence that the child is at risk, or in order to establish whether there is evidence that a child is at risk.
Safeguarding vs. confidentiality
This is all well and good in those cases where it is clear that it is in the public interest to share certain information or where it is clear a child is at risk. But Every Child Matters has made it clear that those working with children now have a broader duty to safeguard and promote their welfare.
'Child protection' is no longer restricted to children considered to be at harm or at risk of harm. The duty to safeguard and protect has a broader remit including, for example, recognising children who are not developing their potential.
Whether information sharing is appropriate in these circumstances may be less clear cut.
But if professionals are to safeguard and promote the welfare of children, and if the proposals for greater collaborative working are to be successful, education, health and social care professionals must feel confident about sharing a broader range of information.
In order to achieve this, it will be vital that education, health and social care professionals find a common framework and a vocabulary in which they can work together and share appropriate information across different agencies.
Health professionals have long faced compensation claims arising from allegations of negligence. The law on ‘educational negligence’ has, however, evolved only recently.
‘Failure to educate’
Before July 2000, when the House of Lords delivered its judgment in the case of Pamela Phelps v LB Hillingdon, educators faced legal challenges mainly over pupils’ physical welfare. But in Phelps, the existence of a new duty owed by educators was confirmed: the duty to identify, assess and ameliorate special educational needs. Phelps heralded the start of the 'failure to educate claims' era — allowing pupils to claim compensation where those responsible for their education fell below acceptable standards of care.
Who is making claims?
Legal challenges to the suitability of education provided have focused on special educational needs, and typically the identification of, and provision for, dyslexia.
But in line with the Government's inclusion agenda, as mainstream schools develop the expertise to deal with a wider range of special educational needs, claims have extended to the provision for autism, asperger's syndrome, dyspraxia, ADHD, and hearing and speech impairments.
The law on professional negligence provides that a member of a profession discharges his or her duty of care by conforming to the standards of a reasonably competent member of the profession at the relevant date. The question for the court in deciding negligence will be whether a professional acted in a manner that no competent professional of his or her discipline could have acted.
The courts will have to take into account working practices at the relevant time. The changes to the roles and responsibilities of those working in schools are therefore significant — since they will deliver a wider range of services, and there will be a growing interface between education and health services.
Change to best practice
The proposals will raise the quality of services, with earlier intervention where necessary, and will mean that a wider range of services are on offer — many of which will operate on the school site. This will call for significant changes to the everyday practices of both education and health professionals.
There is likely to be an adaptation period, during which service levels in different schools will vary, with professionals learning how to work together. But as the process unfolds, education and health professionals will develop their knowledge and share their expertise.
In some circumstances, the boundaries between different responsibilities will blur. Where, previously, educators may not have had to make a referral, they may leave themselves open to negligence claims if they now fail to do so where appropriate.
There has already been a considerable shift towards greater collaborative working between health and education professionals — but there will certainly be further changes in the way health services are delivered through schools over the coming years.
Awareness from the outset
It is difficult to predict the full legal impact of these changes. As schools evolve at differing rates, there will be differing degrees of awareness about the legal challenges posed — and of the practical effect these may have on education and health professionals.
What does seem clear is that both education and health care professionals will have to recognise the potential effect of the changes so that they can tackle them from the outset.
This awareness will allow schools to share their experiences as they evolve — and will allow them to develop their resources to deliver a wide range of health and social care services.
Amelia Newbold is a solicitor at Browne Jacobson, specialising in education and health law.