4. Legal obligations for schools in relation to anaphylaxis
Education and Training Reform Act 2006 (Vic)
Section 4.3.1(6)(c) of the Education and Training Reform Act 2006 requires a school which has enrolled a student in circumstances where the school knows, or ought reasonably to know, that the student has been diagnosed as being at risk of anaphylaxis, to develop an anaphylaxis management policy which contains all of the matters required by the Order.
Ministerial Order 706
Ministerial Order 706 is made under sections 4.3.1, 5.2.12, 5.10.4 of, and clause 11 of Schedule 6 to the Act. A copy of the Order is included in the Resources tab.
The purpose of the Order is to specify the matters that schools must include in their anaphylaxis management policy for the purposes of section 4.3.1(6)(c) of the Act.
In 2015 the Secretary to the Department approved the ASCIA Anaphylaxis e-training for Victorian Schools (online training course) as an anaphylaxis management training course for the purposes of the Order. The Order was subsequently amended in 2015 to incorporate changes made to the staff training requirements due to the approval of the online training course.
Duty of care
All schools have a legal duty to take reasonable steps to protect their students from reasonably foreseeable risks of injury. In some circumstances, school volunteers engaged in school activities also have a duty of care to students, for example, where volunteers have a direct supervision role with a student at risk of anaphylaxis, and where there are no school teachers present.
In relation to anaphylaxis management, a school’s obligations extend to whether it knows or ‘ought reasonably to know’ that an enrolled student has been diagnosed as being at risk of anaphylaxis.
The school and its staff have a duty to take reasonable steps to inform themselves as to whether an enrolled student is at risk of anaphylaxis.
When determining what actions or steps need to be undertaken to comply with their obligations under the Act, the Order and these Guidelines as well as the school’s anaphylaxis management policy, school staff should ask themselves what a reasonable person would do in all the circumstances.
One of the best ways to do this is through the enrolment process, by asking parents to specify, in a clearly defined section of the student enrolment form, ‘yes’ or ‘no’ as to whether their child has an allergy. Schools should proactively and promptly follow up parents if this question is not answered, and should do so repeatedly until a parental response has been received.
If the answer is ‘yes’, the school should ensure that sufficient information is provided by the parents (either in the enrolment form or by way of separate correspondence), including an appropriate ASCIA Action Plan for Anaphylaxis, or ASCIA Action Plan for Allergic Reactions if the student has not been diagnosed as being at risk of anaphylaxis. If sufficient information is not provided by the parents, schools should again follow this up until adequate information is provided. All efforts made by the school to follow up parents for information should be appropriately documented and saved for future reference if required.
Another way for schools to be kept informed of enrolled students at risk of anaphylaxis is to routinely remind parents and students to advise the school of any change in their circumstances, including any relevant changes in the diagnosis and treatment of medical conditions. This should be done periodically (for example, once or twice per year in addition to the annual student enrolment form) and can be done via newsletters or other regular communications to the school community.
From time to time, schools could also discuss allergy and anaphylaxis issues at school assemblies and/or remind students to ensure that their health information is accurate and up to date. The effectiveness of this particular method of information gathering will of course depend significantly on the age of the students, and should not be relied on as the sole means of schools being kept informed.
Having clearly defined, robust procedures in place on enrolment and regular reminder communications to the school community should enable schools to obtain the information required to meet their duty of care to students.
In addition, it is essential that schools develop a comprehensive school anaphylaxis management policy in accordance with these Guidelines and the Order. This will greatly assist schools to adequately discharge their duty of care to students at risk of anaphylaxis. The policy should be readily accessible to all staff, parents and students, for example on the school’s website.
Disability discrimination legislation
Anaphylaxis falls within the definition of disability for the purposes of both the Equal Opportunity Act 2010 and the Disability Discrimination Act 1992 . This means that schools must ensure that they do not unlawfully discriminate, either directly or indirectly, against students with anaphylaxis.
Direct discrimination could occur when a student is treated unfavourably because of their anaphylaxis, for example, not being allowed to attend a camp because they have anaphylaxis. Indirect discrimination may occur where a school has imposed a requirement on all students which disadvantages anaphylactic students. For example, setting an assessment task which requires all students in a food technology class to prepare the same meal, where that meal contains an allergen to which a specific student in the class is allergic, will impact on that student’s ability to participate in the class.
Under the Disability Standards for Education 2005 , schools have an obligation to make reasonable adjustments to accommodate students with disabilities. It is important to consult with a student’s parent on what reasonable adjustments are appropriate for a student with anaphylaxis. For example, a reasonable adjustment for a student with an allergy who is studying food technology could be that they are given a recipe free from potential allergens, and a cooking area and utensils specifically designated for that student. Making reasonable adjustments for students with anaphylaxis will also assist with minimising risk and would be considered a reasonable step towards adequately discharging a school’s duty of care.
Registration as a school
In order to obtain and maintain registration, a school must demonstrate that it meets the minimum requirements for registration, which are set out in section 4.3.1(6) of the Act. Paragraph (c) of section 4.3.1(6) sets out one of the prescribed minimum standards that a school must meet, and continue to meet, which is that it has a school anaphylaxis management policy if it has enrolled a student in circumstances where the school knows, or ought reasonably to know, that the student has been diagnosed as being at risk of anaphylaxis. The Order requires that the school must state in its policy that it will comply with the Order and these Guidelines.
The Victorian Registration and Qualifications Authority (VRQA) has various powers which enable it to determine whether or not a school complies, and continues to comply with those prescribed minimum standards for registration. The powers, set out in sections 4.3.2 to 4.3.5 of the Act, apply to all Victorian schools (that is, government, Catholic and independent). In accordance with its powers, the VRQA has authority to review and evaluate:
- whether a school has an adequate anaphylaxis management policy
- the school’s compliance with the policy.
As the school must state in its policy that it will comply with the Order and the Guidelines, the VRQA is empowered to review a school’s compliance with the Order and the Guidelines. In practice, for example, if the policy says that the principal will purchase an adrenaline autoinjector for general use, the VRQA may review whether the school has in fact purchased one or more as required.
Outside school hours care programs
The Order does NOT apply to outside school hours care (OSHC) programs, whether run by the school or an external provider.
The Education and Care Services National Law Act 2010 specifies that an ‘outside school hours service’ is an ‘education and care service’, and the requirements relating to the management of anaphylaxis are contained in Regulation 90(1)(a) of the Education and Care Services National Regulations.
Reviewed 08 February 2024