A Canadian province has moved to enshrine the requirement to have an asthma policy in legislation. In 2013 we wrote an article about a proposed law in Ontario, Canada, which was aimed to force school boards to have standardised asthma management plans following the death of a student.

The law was proposed in response to the death of a 12-year-old student, Ryan Gibbons, from a severe asthma attack during recess after no one could get to his inhaler which was locked in the school principal’s office. The school’s policy was to keep inhalers under lock and key and the student had previously had some of his inhalers confiscated.

On 5 May 2015, Ryan's Law (Ensuring Asthma Friendly Schools)('Ryan's Law') received Royal Asset and came into force.

What does Ryan's Law do?

Prior to Ryan's Law, schools commonly ensured that asthma medication was stored securely away from student access, to prevent misuse.

Now, students under the age of 16 are permitted to carry inhalers if they have parent/guardian permission. Students 16 and over can carry inhalers without parent/guardian permission.

Other new legal requirements for Ontario schools include that:

• every school district board or authority must establish and maintain an asthma policy;
•  the asthma policy must provide that school principals:
  • develop an individual plan for each student with asthma - with the assistance of their health care provider;
  • inform employees and others in direct contact on a regular basis with a pupil with asthma about the contents of that student's asthma plan;
  • ensure that, upon registration, parents, guardians and pupils supply asthma information;
  • maintain a file of current treatment and other information for each student with asthma;
• employees may administer medication, or supervise a student while they take medication, in response to an asthma exacerbation, with parent/guardian or student consent;
• employees may administer asthma medication to a student in an emergency situation, even if there is no pre-authorisation to do so.

Importantly, the laws create a new duty for school principals to develop an individual plan for each student with asthma. In this sense, the law clarifies an aspect of a school's common law duty of care owed to students by specifying how to manage students with asthma.

There is also a new 'immunity' provision which means that an employee can't be subject to litigation, or be sued for damages, for an act or omission done in good faith while discharging their duties under Ryan's Law.

This should offer some comfort to school employees who may be fearful of the consequences of attempting to help a student with asthma if things don't go to plan.

What is the legal situation in Australia?

Like Australia, Canada's federal system of parliament means that schools across Canada are subject to different laws depending on the parliament of the province or territory in which they are located.

Here, no State or Territory has enacted laws on asthma management in schools. Legislation does exist for the management of anaphylaxis in some States and Territories.

That being said most education departments have some form of child safety policy, including asthma management, which prescribes policies and procedures for public schools.

Non-government schools can also be guided by those policies and procedures to ensure they manage student health conditions in line with their common law duty of care to ensure the safety of students.

In the absence of legislation prescribing the exact content of such guidance, schools and education departments can refer to national asthma information, such as that provided by Asthma Australia, for more information.

One piece of the puzzle

Ryan's Law is intended to be the first piece of a new regulatory puzzle which will provide for great administration and management of student health conditions in schools.

The Ontario Ministry of Education has announced that 'the ministry remains committed to moving forward with a comprehensive approach to address prevalent medical conditions including asthma, diabetes, anaphylaxis and epilepsy in Ontario schools'.

While this new approach is commendable and also necessary to protect the health of students at school, some Canadian commentators have critcised how change has come about. The different laws relating to schools across Australian States and Territories can create frustration which is shared by other federally structured countries like Canada.

Andre Picard, writing in The Globe and Mail asks 'why do we need laws to enforce common sense?'. Mr Picard comments: 'while the Ontario initiatives are well-intentioned, this type of piecemeal response is not enough. Across the country there is a patchwork of policies that varies between provinces, school boards and even within individual schools... there has to be some recognition that educators are in an unenviable position. Go into any school office and there will likely be a wall of photos of children, identified by their medical condition, and a box of asthma inhalers, EpiPens and a dizzying array of pills that students take each day...As inconvenient as it may be, schools have to manage this new reality. And it is the safety of students that must be paramount, not the convenience of administrators.'

Mr Picard's observation about the difficulty schools face in relation to upholding their responsibilities to students when managing medical conditions should resonate with principals and staff in all Australian schools.  It is a pity however that regulatory action is typically reactive and often 'over the top' creating additional administrative burdens on schools.