The Courier Mail reports that a former student has lodged a claim with the Queensland Civil and Administrative Tribunal (QCAT) alleging that a Brisbane school (School) engaged in discriminatory conduct based on the student’s mental health. The 17 year old student is seeking compensation for the emotional distress caused by the School’s actions, as well as the lost opportunity to complete her education at the School.

The facts

The student had attention deficit disorder when she began at the School in Year 8. She states in her claim that she was bullied extensively by girls in her house group, whose insults included calling her a ‘drug taker’ and telling her that she was ‘going to kill herself’. The School was informed and the student met with the School’s psychologist on many occasions.

The student then developed mental health problems and was hospitalised on at least two occasions.

A source of contention between the School and the student’s allegations relate to a meeting between the student’s mother and the School. The student’s mother alleges that she was informed that her daughter would have to be removed from the School.  The School denies the claim. In contrast, the School claims that no direct discrimination occurred and that several options were raised that would have enabled the student’s eventual return to the School.

This case raises important issues about how schools manage students with special needs and what legal and regulatory obligations apply.

Discrimination laws: How do they affect schools?

In addition to having a common law obligation to exercise a duty of care to all students, including students with a disability, schools are also subject to obligations under legislation and regulations.

Schools are subject to a number of Federal and State or Territory laws prohibiting discriminatory conduct against students and staff. A clear example is the prohibition of discrimination based on a student’s disability.

It is important to note that the Disability Discrimination Act 1992 (Cth) defines ‘disability’ to include “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”, which means that an effective anti-discrimination policy for students with a disability should also address how a school manages students with a mental health condition.

Mental health issues among students raise a variety of complex issues for schools to understand and manage, including the issue of disability discrimination and how a school exercises their duty of care towards such students.  It can be easy to forget that non-physical conditions, which may seem invisible, can also be disabilities which need to be recognised and managed by a school in the same way that physical conditions are managed.

A previous article discussed a case where a university was found to have discriminated against a student on the basis of their mental health disability by failing to grant an extension, which illustrates the level of adjustment expected of educational institutions.

Where a school is aware that a student has special needs, the duty of care which the school owes to that student requires them to take steps to accommodate their learning needs by providing them with special instruction.

Schools are also required to eliminate discrimination towards students by developing and implementing strategies to prevent harassment and victimisation of people with disability. Harassment means an action taken in relation to people with disability that is reasonably likely to humiliate, offend, intimidate or distress the person.  The development and implementation of an anti-bullying policy is on example of a strategy to help protect students.

If there is a circumstance in which a school genuinely cannot provide adequate care for a student with mental illness, they may be able to advise the student in question that they lack the facilities or expertise to provide support for the student. This requires the school to prove that the adjustments required will cause unjustifiable hardship, such as the cost to the school being unreasonably high given all the relevant circumstances.

Some issues that schools should consider to ensure that they are not discriminating against students with mental health issues include providing:

• support for students experiencing mental illness (e.g. are measures put in place to accommodate a student’s mental illness generally and in relation to events such as camps);
• safety and care plans for both on and off campus activities;
• curriculum support or differentiation; and
• support for legitimate absenteeism due to mental health.

Dealing with mental illness within a school

Mental illness is a complicated and sensitive issue which, as demonstrated by the QCAT claim, must be appropriately addressed by a school in order to fulfill its legal obligations. Given the range of mental illnesses and the different management strategies needed, schools should consider creating a range of policies to help staff and students effectively manage different mental illnesses.

The following examples are policies that may be developed and implemented to address mental health concerns:

• depression;
• eating disorders;
• anxiety;
• school refusal;
• trauma;
• addiction; or
• suicide/suicide ideation.

Can your school do more?

Mental health awareness is increasing as initiatives such as ‘R U OK? Day’ gain support and publicity. Despite these positive steps, there is still much to be done to overcome the stigma associated with mental illness.

Schools should be aware that their duty of care encompasses taking reasonable steps to assist students with mental illnesses, and that their disability policy/ies should encompass the full range of disabilities as defined by the Disability Discrimination Act 1992 (Cth). As many schools differentiate between a variety of different physical ailments in their policies, the wide range of mental health illnesses should also be acknowledged when developing a mental health or disability policy. This could enable schools help address the needs of students who are experiencing mental illness.

Support is available for anyone who may be interested in information on suicide prevention by phoning Lifeline 13 11 14; Mensline 1300 789 978; Kids Helpline 1800 551 800.