[MUSIC] Welcome back to Course 7, Being a Professional. We're in week three, Legal and Administrative Responsibilities of a Teacher. And we're going to look at a very interesting area today, a coming area, called a duty to educate. I have a number of hypothetical situations for you, and I'd like you to read through these carefully, and note down any areas of concern. Ask yourself these questions. Is there a duty of care? Is there a breach of the duty of care? And does injury or damage result? Now, in the case of these hypotheticals, the injury or damage seems to be the fact that students learning has been affected. [MUSIC] The concept of a breach of the duty of care resulting in a failure to learn is a concept called educational malpractice, or educational negligence. It's a new area, although it's been talked about for some time. There are concerns about the concept of educational negligence or malpractice, as we'll see. Educational malpractice or negligence, occurs where a student incurs some fort of intellectual harm as a result of incompetent or negligent teaching and through failure to do things such as the following: adequately teach aspects of the curriculum. So, for example, students sit an examination, and the teacher concerned has not taught certain parts of the curriculum, therefore the students are disadvantaged when they do that examination. Evaluate and place students incorrectly. For example, categorising a student as a slow learner, or of low ability, when in actual fact that may well have a hearing problem, incorrectly diagnosing learning difficulties in various ways. Teachers who are not counselors or psychologists should be very, very careful about making judgments about whether a student has a particular syndrome, for example. Not providing appropriate and adequate remedial learning programs, where the teacher knows that the student has a learning difficulty. And in the case of this one, where a teacher doesn't feel they have the equipment or the knowledge or the skills to remediate the student, they have a duty to refer them to an appropriate professional who may well be able to help them. Educational malpractice or negligence is an American concept, and as we've noted, it's concerned with the failure of students to learn, or for their learning to be compromised in some way. Lawsuits in the USA for educational malpractice, or negligence, fall into two main classes. The first is where the student is able-bodied and able-minded, and is not taught certain skills and knowledge. The second is where there is some form of intellectual or physical disability and the student's needs have not been met through the school or the teacher. Even in the US, where there have been many cases in civil courts, around the concept of educational malpractice, the courts have largely refused to accept such claims. There are some obvious reasons for this. The first is that if one case was successful it would act as a powerful precedent for other cases. And it's very, very difficult to ascertain, in many cases, why a student fails to learn. Questions that we need to ask are, what responsibility does the parent or parents have in ensuring students do the work that's required of them for example. What about the student's own responsiblity to learn? No doubt there are cases where teachers actions or inactions can result in students not receiving adequate education, but it's difficult to ascertain whose responsibility this is. The fear is that once we have some successful cases, many, many other cases both legitimate and otherwise, will occur and it's possible that the whole issue becomes unworkable. I've given you one example of a case in the USA concerning educational malpractice. Read this particular article, and see what the issues were and what the court decided. Just because there had been no successful cases to date, or very few succesful cases for educational malpractice or negligence, doesn't mean we can be complacent. We need to know, for example, that we have addressed all the areas of the prescribed curriculum. We need to make sure that all our students' learning needs are accessed adequately. We need to ensure, for example, that if a student has a learning disability or a physical disability, and we can't accommodate them, we need to take the correct steps to alert our principal, and other authorities, so that the needs of these students can be met. There have been successful civil cases for example, where students have not been able to access all areas of the school, because they're in a wheelchair and schools had been forced under law, statute law and civil law, to remedy the situation by putting in, elevators and ramps and so forth. It's a growing area of concern, and we need to take our responsibility to educate very seriously, despite the fact that there have been relatively few successful cases. There is also a clear case of vicarious liability in this particular case. If you remember, vicarious liability is where the buck stops and in most schools responsibility stops with the principal. A principal who knows that they have an incompetent teacher or a teacher who is not following the curriculum or a teacher who is not teaching effectively or assessing students, has a duty of care and has a responsibility to act in that particular case. In our next lecture we're going to examine the rights and responsibilities of students, parents and teachers. [MUSIC]
