My anecdotal observation is that the school community in Australia is relatively well-informed upon the subject of managing critical incidents (CIs) and there is a significant volume of relevant literature 1. I have approached the subject upon the basis that most schools will have a solid appreciation of the typical elements of a Critical Incident Management Plan (CIMP) for implementation in the school environment and will have documented and implemented at least some aspects of a CIMP appropriate for their circumstances.
For those interested I have attached, in 0, a checklist of many of the subjects for consideration in the development of a comprehensive CIMP in the school environment but, otherwise, do not propose discuss the matter generally.
Rather, this paper is confined to the basics of what needs to be known and what needs to be done when a CI occurs, with an emphasis upon legal, rather than "people focused", issues. In the school CIMPs that I have seen – and this is no criticism – there is usually a focus on more substantive response and recovery issues rather than much, if any, consideration of some of the legal issues that might arise out of CIs. Occasionally there is a reference to the seeking of "legal advice" when that is thought to be desirable, but no guidance about when, or in relation to what, legal advice might be desirable. Nevertheless, the legal issues are important.
The other consideration is that a short presentation like this one cannot do justice to the process for preparation for management of CIs. In any enterprise involving more than a handful of people and a limited number of assets, that process will be a significant one.
So the following discussion assumes:
- an understanding of the risk management process;
- that there is a comprehensive Risk Management Plan (RMP) in place dealing with relevant risks in, and appropriate for, your school, including various CI management processes if not a self-contained CIMP.
What follows is also more relevant to incidents that might occur on or in close proximity to the physical school environment and not generally to incidents that might occur elsewhere eg such as a traffic accident or some other incident off-site. While these must be accommodated in the RMP/CIMP, legal issues arising out of them are, at some levels, less intensive than in the case of CIs that occur on or close to school premises.
For schools, their RMPs must include an effective CIMP if they are to properly discharge their common law (ie the duty to take care) and statutory workplace health and safety obligations. It is also important to realise, as I think most school workplace health and safety practitioners will realise, that the CIMP does not stand alone but is supported by a range of other WH&S tools that should also feature in a school's RMP. Related tools, as examples, include:
- staff well being programs – upon the basis that CI management will go better when there is a good working relationship (high morale) between those responsible for implementation of the CIMP, during all phases, including preparation, response and recovery;
- if not part of the CIMP itself - procedures for evacuation and invacuation or lockdown;
- policies relating to the performance management of school workers – particularly where performance issues might follow a CI and might, eg, be due to ongoing trauma issues;
- for the same reason - policies for the management of workplace bullying and other "harassment" activity;
- even family law protocols – particularly those for dealing with parents and the other care givers of children in highly conflicted disputes about students in the school. For example, what processes do you have in place to guard against child abductions (particularly, but not exclusively, by the parents or guardians of children of broken down partnerships) or to respond to abductions if they occur?
- policies for the rehabilitation of injured workers, particularly those returning to work after suffering from psychological or psychiatric injuries following a CI.
What is a Critical Incident?
There are various definitions. The common theme is that a CI is any event or series of events that is sudden, overwhelming, threatening or protracted. Typically it lies outside of the range of ordinary day to day living experiences and is of such nature that it would create significant stress to anyone involved in the relevant events whether as a victim, relationship to a victim, bystander to relevant events or participant in the response/recovery processes.
Examples of critical incidents that might occur in schools include:
- natural disaster, eg fires, floods and people made emergencies eg chemical spills and industrial accidents;
- accidents at the school or on excursions;
- serious illness or death of students, staff, family or community members;
- threats, assaults, violent incidents, abduction;
- violent events in the community, world events; and
- other incidents or emergencies which produce a strong reaction.
The management of critical incidents includes the activities that take place prior to, during and following a traumatic event. Respectively these are commonly referred as the three stages of a CIMP involving "preparation", "response" and "recovery". My focus here is more on what should be taken into account in the preparation and recovery processes more than on the immediate "hands-on" processes associated with the initial response to a CI.
The Objectives in 'Managing' a Critical Incident
The general objective of a CIMP is to contain damage by proper preparation for potential CIs, followed by appropriate response and recovery mechanisms. Desirable outcomes include:
- Pre-empting or interrupting the development of a CI;
- Making a life saving difference in an emergency;
- Preparing workers and others likely to be affected strategically and psychologically;
- Developing a shared understanding, ownership and skill base to increase confidence in responding to CIs;
- Providing an opportunity for families and the school to clarify what processes will be used when a CI occurs;
- Minimising the risk of acute and/or chronic psychological impact on staff and students and reduce the risk of additional trauma;
- Minimising interruption to the school environment;
- Reducing the risk of adverse publicity;
- Minimising the risk of reduced productivity, absenteeism, diminished staff morale and damaged community reputation;
- Reducing risk of legal liability of the school and its staff;
- Clarifying statutory and legal requirements 2. As foreshadowed earlier, my emphasis here is associated with the clarification of some of the significant statutory and legal requirements relating to CIs.
Legal Risks to be Managed (Minimised or Avoided)
Workers' compensation orkers' claims for:
- Physical injuries (or further injuries);
- Stress/anxiety/depressive and other psychological reactions (a significant risk associated with CIs);
- Death. Public liability claims (generally claims for damages for negligence):
- By persons other than workers eg by students;
- Whether for personal injury, death or for damage to property.
In most cases these will be underwritten by private insurance arrangements (ie not a statutory scheme like the workers' compensation scheme). The RMP/CIMP needs to acknowledge the relevant requirements of private insurers and to ensure that insurance policy provisions are not inadvertently contravened eg by failure to notify the insurer of relevant events or by the making of admissions of liability.
Penalties under workplace health and safety legislation:
- As this audience will know, the legislation in Queensland imposes very significant monetary penalties for employers and others with obligations under the legislation, for failure to discharge those obligations;
- The penalty provisions extend to impose, potentially, personal liability upon individuals, both to fines and imprisonment, including:
- "executive officers" of corporate employers involved in contraventions, which includes anyone with managerial responsibility in an incorporated school 3;
- individuals directly involved in contraventions. Related penalty provisions, discussed further below, include provisions dealing with:
- failure to notify the regulator of certain workplace health and safety incidents;
- interfering with the scene of a notifiable incident without justification;
- interfering with or obstructing an investigation of a workplace health and safety incident by the authorities.
The Legislative framework in Queensland
While there is a range of legislation operating in Queensland in relation to workplace health and safety, in the schools environment in Queensland the two most particularly relevant pieces of legislation are:
- The Workplace Health and Safety Act 1995 (WHSA) (including the regulations attached to that Act and relevant codes of practice, especially the Risk Management Code of Practice 2007); and
- The Electrical Safety Act 2002 (and the regulations and other materials promulgated under that Act) (ESA).
As the name of the ESA suggests, it deals specifically with the concept of electrical safety, including electrical safety in the context of the workplace environment. Unless the ESA deals specifically with an electrical safety risk, relevant provisions of the WHSA in relation to workplace health and safety risks generally will continue to apply 4.
The regulatory regime imposed by both Acts in their respective areas of coverage are very similar. The only features of those regimes that I plan to elaborate on here are those that relate to:
- the statutory obligation to preserve the scenes of relevant CIs;
- the statutory obligation to notify those incidents to the regulators; and
- the powers of the regulators to investigate relevant CIs.
My observation is that most CIMPs in the school environment do not deal at all with these matters. There might be reasons for this eg because responsibility for and administration of them is taken up by a "higher authority" governing the applicable school system. For example it seems to be common for CIMPs in the State system to contemplate internal notification of incidents at schools to legal officers within the Education Department who, presumably, will attend to the discharge of statutory notification and related obligations. Nevertheless, even at a basic level, some knowledge of the statutory requirements is very desirable at individual school level and at least some recognition of those requirements should be made in school CIMPs.
I also want to make some mention of the requirements of the Privacy Act 1988 (Cth), which is Commonwealth legislation, in the context of the provisions of communication strategies contained in CIMPs. While these strategies are important in the management of CIs, during both the response and recovery stages, I have seen CIMPs which contemplate communications with stakeholders that might infringe the requirements of that Act.
Obligation to Notify and Record Critical Incidents
The regulations to both the WHSA and the ESA impose obligations upon employers (among others) to notify the authorities of certain CI events, including near misses or "dangerous events" 5. Failure to notify constitutes an offence 6. Notification can be made by phone, fax or online, using a form prescribed for both electrical and other events. A copy of the current form is attached in 0.
Under the regulations to the WHSA the basic obligations are to notify the Queensland Department of Employment and Industrial Relations of "workplace incidents" that involve any:
- "serious bodily injury";
- "work caused illness"; or
- "dangerous event".
These are all defined terms which are largely self-evident, although "serious bodily injury" is defined to include injuries which cause death 7. Some of the more significant features of the definitions are that:
- "serious bodily injury", apart from death or major physical injury, includes any injury sufficient to cause a person to be absent from work for more than 4 days.
- "dangerous event" means, among other things, an event which involves, or could have involved, exposure of persons to risk to their health and safety because of eg:
- the failure of "specified high risk plant" (these are listed in Schedule 2 to the WHSA and include such things as air conditioning units, cooling towers, escalators, lifts and LPG gas cylinders)
- the collapse or failure of an excavation;
- the collapse of any structure; or
- a fall of any object from height.
Notification must be given within 24 hours after the notifier becomes aware of it. If a death is involved "prompt" notification is required eg by phone or fax.
A record of incidents must be kept (in the same form as the notification form). The record must be made within 3 days after the recorder becomes aware of the incident, and then retained for at least 1 year after it was made. Again, failure to comply constitutes an offence 8.
The notification and record-keeping regime under the ESA regulations is similar, except that the notification obligation arises in relation to defined "serious electrical incidents" or "dangerous electrical events" 9 and in relation to these the obligation to retain records extends for 3 years rather than 1 10.
These obligations should be accommodated in CIMPs.
Obligation not to Interfere With the Scene of Critical Incidents
Similar obligations are imposed in relation to both electrical and other CIs 11.
Where relevant incidents occur the statutory obligation is not to move or otherwise interfere with any thing connected with the injury, illness or event without the permission of an inspector appointed under the legislation or, if no inspector is available, a police officer. Contravention of the obligation is an offence except that no offence is committed if movement or interference is necessary to save someone's life, to relieve their suffering or to prevent personal injury or damage to property.
These obligations should be accommodated in CIMPs.
Some independent schools are, for now, wholly exempt or partly exempt from the application of the Commonwealth Privacy Act 1988 because of certain exemptions currently included in that legislation relating to "small business" and "employee records". However, this might change within the foreseeable future as the result of a recent review by the Australian Law Reform Commission of Australia's privacy laws. That review resulted in publication of a report on 11 August 2008. Among other things the report recommends removal of both of these exemptions. If they are removed, some schools will have to be much more concerned with privacy issues then they might have been in the past. For others, in the current context, there will be little change from their current obligations.
The scheme of the legislation is to prohibit the use and disclosure of "personal information" without legal justification including, for example, the consent of the person to whom the information relates. Contravention of the requirements can lead to various consequences including intervention by the Privacy Commissioner and, in some cases, liability to pay compensation to the person about whom personal information was improperly used or disclosed.
Under the statutory scheme "personal information" is any information from which an individual can be identified. So to release information about a person that is not in the public domain, whether by naming them or in some other way as to enable them to be identified, will amount to a contravention of the privacy prohibitions provided for in the legislation, where it applies, unless there is a legal justification for the use or disclosure in question.
These considerations are relevant in the context of communication strategies attached to CIMPs. The literature recommends that CIMPs include, among other things, strategies for keeping stakeholders in the management of the CI process informed about relevant events including, in the school context, members of the school community and, particularly, parents of children enrolled at the school. Communication of issues is important to the response and recovery processes following the occurrence of a CI.
In one CIMP I have reviewed recently there were attached to it sample forms of letters addressed to parties external to the school. For illustration purposes they described particular incidents involving injury to children involved at the school, naming those children and going on to describe details of their current medical conditions and prognoses for the immediate future.
For schools subject to the Privacy Act, communications of this nature run the very significant risk of contravening the requirements of the legislation relating to the use and disclosure of "personal information".
As I have said, external communication to stakeholders of relevant matters is an important part of the response and recovery processes in responding to a CI. My point is that communications need to be carefully constructed so that relevant information is conveyed without infringing the privacy of individuals concerned. Subject to implementation of the proposed reforms, the same considerations will apply to communications relating to students, employees at the school and others associated with the school involved in relevant incidents.
For these reasons, I recommend that CIMP's recognise that external communications relating to individuals involved in CIs guard against the disclosure of personal information so to avoid contravention of the requirements of Australia's privacy laws.
What to Expect from the Regulator - Inspectors' Powers 12
Both the WHSA and the ESA provide for the appointment of inspectors with various powers to investigate CIs that involve events within their respective areas of responsibility 13. It is an offence to obstruct an inspector attempting to exercise their powers 14. Typical school based CIMPs that I have seen do not seem to contemplate post incident investigation by the regulators or how, in a practical sense, the exercise of investigatory powers should be accommodated at school level.
In general terms, investigators have statutory authority to:
- enter any workplace (which would include a school);
- interview relevant persons and compel them to answer questions (although persons are not obliged to answer questions if these would incriminate them eg in commission of an offence of the WHSA);
- take samples, or seize and have tested plant or equipment;
- take documents (other than those covered by legal professional privilege – see below); and
- give directions, including directions to leave a site undisturbed and issuing Improvement or Prohibition notices;
- prosecute for contraventions of the legislation.
Employers are, subject to the rules against self incrimination and legal professional privilege (discussed further below), usually required to provide whatever assistance is sought from them by the inspector. Failure to cooperate can amount to commission of an offence 15. However, seeking to obtain legal advice before answering questions or providing documents is unlikely to expose a person of interest to the regulator to prosecution for an offence. See the discussion below about "when and why to involve a legal advisor".
It is in the interests of an employer during the course of investigation of a CI to foster and maintain a positive working relationship with statutory inspectors. Nevertheless, it is important to remember that their enquiries, and information gathered during those enquiries, might be used as evidence for the purposes of prosecution for an offence against the requirements of safety legislation. Independently of this, it is also possible that documents generated during the course of and for the purposes of an investigation will be used for other purposes eg to support a civil claim for damages whether in the context of a workers' compensation type claim or public liability claim or both.
The point to take away is this. Although statutory inspectors have extensive powers and it is an offence to obstruct them in the performance of those powers this does not mean that employers should not consider and plan for how they will respond to an investigation or a visit from a statutory inspector. It is therefore appropriate in the preparation of a CIMP to think about and make provision for the following types of matters:
- who will be the primary point of contact between the regulator/inspector and the school?
- what resources will be made available eg a room for the purposes of conducting interviews;
- who will accompany the inspector during site visits;
- what briefing will be given to employees prior to them being interviewed;
- will legal advice be sought before interviews are conducted? Will employees be assisted by the provision of a solicitor to sit in during the course of an interview?
- what documents, if any, will be provided to the inspector. Is there a legal basis to withhold particular documents from an inspector? When and how should that issue be resolved.
Again, it would be helpful to include some reference to these matters in the CIMP.
When and why to involve legal adviser
Finally, I want to draw to your attention some "value" that can be added to the response and recovery process by a legal advisor.
As indicated earlier, apart from management of the human issues arising out of critical incidents, the process is directed to containing damage and avoiding or minimising exposure to various legal risks. If these risks crystallise they will result in the commencement of various formal processes against schools or individuals responsible for managing them. As already mentioned, potentially these could include prosecutions for criminal offences or claims for various kinds of civil relief seeking compensation.
At some point it is inevitable that schools and related individuals affected by these processes will seek legal advice and, of necessity, legal representation. However, there is some merit to seeking to involve a legal adviser much sooner than might otherwise be thought desirable. Relevant considerations include these:
The applicability of "legal professional privilege"
- The risk management process calls for a review of safety incidents after they have occurred in order to try and work out what went wrong and to prevent reoccurrences in the future. This will require some kind of investigation by the employer. If, before any investigation is commenced, a legal adviser is retained, it will be possible to keep some aspects of the investigation confidential as privileged communications between the school and their legal adviser.
- Similar considerations apply to documents produced in the course of an investigation. Generally, documents created for the purposes of taking confidential legal advice, or in contemplation of legal proceedings, are privileged from disclosure. This means that disclosure of the documents cannot be compelled in legal proceedings concerning their subject matter. Retention of a legal adviser to assist in an investigation will assist a school to conduct that investigation, and take advice about the issues raised in it, without worrying that the process itself will produce evidence against them in proceedings brought to establish some kind of liability, whether criminal or civil.
- Arguably, availability of the legal professional privilege will facilitate a more robust and earnest self examination than might otherwise occur resulting in better preparation for the future. This is a reflection of why the law recognises legal professional privilege ie to encourage, on public interest grounds, full and frank disclosure by clients to their legal representatives.
- The alternative is that everything said and done in an internal investigation will be accessible to parties bringing proceedings against the school or individuals associated with the school, whether civil or criminal. Lawyers can assist in the investigative process An experienced safety lawyer can assist internal investigators to focus on material issues rather than those that might seem to be important but which are not in fact relevant to the risk management process. This is not to say that non-lawyers are incapable of investigating CIs. Rather, lawyers are generally trained in the conduct of, and reporting about, investigations and can assist internal investigators to focus on and develop outcomes appropriate to the risk management process with less difficulty than might otherwise occur.
Lawyers can assist in interactions with the regulators
- Lawyers can assist persons to be interviewed by the regulators in relation to CIs to prepare for participation in interviews. Again, the communication between the lawyer and the proposed interviewee will be privileged so that the interviewee can confidentially make full disclosure to their solicitor of all relevant issues and so take advice about the best way to conduct themselves in the course of an interview; what to disclose; what not to disclose and, indeed, whether to participate at all;
- In addition, people being interviewed by the regulator in the course of a statutory investigation into a CI will be entitled to be assisted at the interview by their legal adviser. In most such situations the retention of a legal advisor to assist is very desirable. Participants in interviews are not obliged to answer questions that might incriminate them and a solicitor with the appropriate experience will be able to steer an interviewee through the interview process including, where necessary, by advising the interviewee not to answer particular questions where the answers might tend to incriminate the interviewee in the commission of an offence.
Lastly, a lawyer can assist in the communication process between schools and external parties in the response and recovery phases following the occurrence of a CI. Refer above to the discussion of privacy issues. Apart from these, external communications also run the risk of documenting information, whether it is factual or not, that might later be used in evidence against the author of the communication or the school in legal proceedings. A legal advisor can vet or advise about the content of external communications, including those with the media, in order to minimise these risks.
Schedule 1- Checklist for inclusions in a Critical Incident Management Plan
- Formation of a crisis response team.
- Identification of the emergencies/incidents covered by the CIMP and cross reference to other school policies where that is appropriate.
- Assessment of relevant risks and hazards (both potential and actual).
- Procedures to secure safety of individuals and groups.
- Procedures for evacuation and invacuation.
- Site maps, floor plans, identification of assembly areas and alternative assembly areas.
- Tasks and roles to be fulfilled and the nominated position (rather than a specific person) to be responsible.
- How information will be gathered about any local threats (eg toxic fumes in the event of a fire).
- Identification of individuals with particular needs (eg those with mobility problems or the need for asthma medication) to be accommodated.
- Contact details for emergency, medical and other support personnel, relief staff and so on
- Contact details for parents and guardians.
- Rehearsal of emergency practices.
- Identification of relevant administrative supports.
- Communication strategy including the dissemination of information to students, staff, families and the regulators (including, particularly, legal notification requirements. Consider:
- privacy issues in connection with external communications about victims; and
- limiting the detail from a liability perspective.
- Procedures for the response to media interest.
- Emergency kit including eg phones, mobile radios, keys, batteries, torches and first aid materials.
- Measures to prevent or reduce the effects of crises.
- identification of recovery processes, including regular review of the plan and incidents after they have occurred 16 (consider whether legal advice should be sought in relation to post-incident reviews).
- Procedures for complying with regulatory record keeping requirements.
- Procedures for dealing with the authorities in connection with incident investigations and legal processes.
Schedule 2 - Incident Notification Form17
Click HERE to view the Incident Notification Form.
1 As an example of some of the materials available, see Crisis Management and the School Community, Mardie Whitla (ed), Acer Press, Melbourne, 2003.
2 This list is adapted from the critical incident material appearing on the South Australian Department of Education and Children's Services website at www.schools.sa.gov.au.
3 WHSA, s167.
4 WHSA, s3A
5 Workplace Health and Safety Regulation 2008 (WHSR), section 134; Electrical Safety Regulation 2002, (ESR), section 196
7 The definitions are contained in Schedule 3 to the WHSA.
8 ESR, Part 12.
9 ESR, Section 197(4).
10 WHSR, Section 136; ESR, section 210
11 WHSR, section 136; ESR, section 201.
12 These observations are based on the article "I´m Not @!%#$* Abusing Or #!*&% Obstructing The Inspector!" by Glen Bartlett, Clayton Utz Lawyers, published at www.mondaq.com.au on 28 July 2008.
13 WHSA, Part 9; ESA, Part 11.
14 WHSA, section 173; ESA, section 196.
15 Ibid. See also, eg WHSA section 172 and ESA section 195.
16 This list is adapted from the critical incident materials appearing on the South Australian Department of Education and Children's Services website at www.schools.sa.gov.au.
17 As at September 2008, prescribed for the purposes of notification of workplace and electrical incidents regulated by the WHSA and the ESA to the Queensland Department of Employment and Industrial Relations. For up to date notification requirements at any time refer to the Departmental website at www.deir.qld.gov.au.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.