This is the first part of a two part series on permission notes. The first part deals with the purpose of permission notes, types of notes and key information that should be included. The second part will deal with the use of risk warnings, exclusion clauses and indemnities, problems that arise with excursion contractors, insurance issues and archiving.
Every school probably has a room somewhere where boxes of permission slips are stored. Mostly the slips contain the signature of a parent agreeing to allow the child to attend an excursion or activity. Unfortunately the box probably doesn’t contain the information that was on the rest of the note that went home which set out what the activity was and what the parent had agreed to.
Permission notes are a problem for schools. They are problematic in the sense that:
- students lose the notes
- even when the notes do make it home, the parent does not sign the permission until the day of the excursion or not at all
- parents often don’t read them and instead ring the school to find out about the excursion rather than read the note
- as mentioned, schools don’t know if they should keep the notes and for how long (part two of this series will address this issue in more detail).
The Greater the Range of Excursions, the Greater the Risks
Many schools have attempted to resolve these issues by moving to an electronic permission system. There are a number of products on the market that assist both schools and parents by providing an electronic system for parents to view the excursion information and then consent to it. Despite the apparent efficiency and effectiveness of these systems there are still a number of problems that can arise.
There are a range of different types of excursions that schools manage where permission notes are used. Permission notes are also used for many internal events (often called “incursions’) and for a range of sporting activities.
For sporting activities, many schools would have a parent sign a note only once in a term allowing the child to participate in a particular weekly sport for the duration of the activity. Other sporting activities might be ‘one-off’ activities such as a multi-day extra competition or gala day, sporting trips interstate or overseas or other one off sports excursions. For these one-off activities schools will usually arrange for a separate permission note to be signed.
Apart from sport activities, the range of extra curricular and curricular activities for which a permission note is required is ever growing. For many independent schools the number and complexity of the extra offerings and opportunities and experiences they provide to their students are a strong attraction to prospective parents. This includes everything from overseas mission trips to NASA space school, to the medieval group providing real life sword fighting and chain mail to try on. The list is endless in terms of the types of activities and the destinations.
One school staff member recently said that one of the key risks in the school was the sheer number and complexity of activities that had to be properly risk-managed.
Why Have Permission Notes?
Permission notes are an essential element of good risk management. Permission notes should be thought of as a form of two-way communication. The school provides details of the excursion and the parent both agrees to the excursion and provides information to the school to assist the school in caring for the child. This may include medical information such as current short-term medications the child is taking or current injuries that may impact on the child’s participation in the activity. It may also include information on any particular sensitivity or family cultural issues that must be considered by the organisers – such as appropriate viewing/TV programs.
The worst thing that can happen after an excursion is for a parent to ring the school and say that they never would have agreed to the excursion if they had known that their child was going to do a particular activity. The number one key message for schools with permission notes is that they must seek and receive informed and genuine consent from a parent. This means that the parent must be fully informed of all the key details about the activities that will take place. The items that should be included in a permission note include: date, location, cost, external contractors to be used, a full list of activities including night time activities such as movie or TV watching, parent communication methods whilst on the excursion, video and photography, food requirements or purchasing, spending money and lastly something to indicate that the excursion may change at short notice or even be cancelled if the Principal deems it necessary. This last item is often overlooked but allows for parents to be forewarned that factors can intervene such as weather or other safety or external or internal factors.
Unfortunately for schools there are no words that can be included in a permission note that will automatically reduce the liability of a school should things go badly wrong. One can only imagine how a parent would react to a school putting wording on a permission note to say that the school would not be liable in the event of accident or injury to a student even if caused by the negligence of the school staff. Many parents would go and find a different school.
Schools have a well-established non-delegable duty of care. This means that schools cannot contract out of their duty with third party operators and ‘pass the liability football’ to them. On the other hand every state/territory has civil liability laws in one form or other that allows for some potential relief in situations where the injury that occurred to a person was the materialisation of an obvious risk. One example of this was where an eye injury occurred to a player at an indoor cricket centre. The court held that the risk of eye injury from a cricket ball was an obvious risk and did not require any specific warning to be given. Where the risk is not obvious, the law also allows operators to provide participants with a risk warning of the specific risks associated with the activities and therefore reduce or avoid liability. We would all be familiar with these warnings, waivers and disclaimers that contractors frequently require participants to sign prior to engaging in adventure activities.
This warning of the specific risks associated with an activity is often included by schools in the permission note information provided to parents in an attempt to reduce or absolve them of liability in relation to that identified risk. A recent ‘straw poll’ suggested the number of schools including risk warnings may be as high as 50% of all schools in the independent school sector. Clearly these schools have probably obtained their own legal advice in relation to these matters. All legal advice would no doubt start with the comment that the best way to avoid liability is to not have a problem or injury in the first place.
One of the obvious problems with risk warnings is that they are read and sometimes specifically acknowledged by the parents of the child. The law would take a very careful and considered view on whether the parent by receiving a risk warning could have the effect of preventing the child who was injured from claiming damages from the school in the event of serious injury.
Issue of Consent
Another issue that arises from time to time regarding permission notes is the question of whether a child can consent to participate in an activity. For example, this issue can arise in circumstances where a young person is living in out-of-home care without a parent or guardian. These arrangements do occur with the consent of government welfare from time to time particularly where the student is aged 16 or 17. Most schools will deal with this by establishing internal policies and procedures where this situation arises. There is no doubt that the law does recognise the ability of young people even as young as 13 or 14 to be able to consent to their own medical treatment for their benefit. The law does recognise that young people can enter into contracts where they are for the benefit of the young person. States and territories vary on the exact wording of these provisions but the effect is similar. Excursions of all sorts would usually pass the test of being for the benefit of the young person.
Electronic or online permissions and consents are a well-established form of consent and one that most people are increasingly familiar with. The legislature supports this form of consent through legislation such as the Electronic Transactions Act 1999 (Cth) which provides statutory validity for online permission systems. It will be a legally valid agreement if the agreement can be accessed by both parties after ‘signing’ and there has been consent by both parties to the transaction to receive the information electronically. The pitfalls for schools in these types of transactions include the potential access by some students of their parents' email accounts, incorrect email addresses being used for the communications etc. Some of the advantages of online systems include the ease in which extra information can be included with the electronic communication without concern about the number of pages going home in the schoolbag next to the uneaten vegemite sandwiches.
Other things to consider with online permissions relate to the provider of the systems. There are obvious issues should a data breach occur, and schools need to ensure that security systems are robust, privacy legislation is complied with and data is stored such that it is accessible and archived for future access should the need arise.
In summary, for any activity requiring a permission slip:
- Genuine and informed consent is required.
- Make sure sufficient information is included on all aspects of the excursion.
- Blanket permissions are an appropriate form of permission for recurring events such as weekly sport.
- Risk warnings can be included – obtain your own legal advice as to what should be included and the efficacy of the warnings.
- Electronic permissions are a valid form of permission provided the conditions under legislation are met.
- Conduct due diligence on your contractor providing electronic permissions platforms and software to make sure they meet the requirements of privacy legislatin, find out where data is stored, security of storage, for how long it will be kept, and whether it is accessible should the need arise.
- Seek advice as to how long permissions and consents should be kept (see part two next week).