Canada: Protecting Schools From Concussion-Related Headaches

It seems nearly every week there is a new concussion-related news alert: on May 18, 2017 we learned that Tom Brady had apparently suffered numerous unreported concussions during his career; on May 8, 2017 we held our breath when Sidney Crosby went head-first into the boards yet again; and on May 11, 2017, many of us wondered if James Harden's poor and glassy-eyed performance — after returning to the court following an elbow to the head — could have been an attempt to avoid the NBA's concussion protocols.

At the same time, more and more athletes, both professional and amateur, are turning to courts of law to seek relief for their concussion-related suffering. A class action lawsuit against the National Collegiate Athletic Association ("NCAA") was recently settled for millions of dollars and included a commitment to medical screening for former NCAA athletes, as well as changes to the NCAA's concussion policies and practices; retired professional football players recently settled a class action against the NFL in exchange for establishing a screening program and monetary awards for those who are diagnosed with certain serious concussion-related ailments; and a concussion-related class action against the NHL is still unfolding in the US courts.

These class lawsuits are in addition to the numerous individual concussion-related lawsuits that are starting to develop in the US and in Canada — including a negligence action against the Canadian Freestyle Ski Association, a claim by a student football player against Bishop's University, an action against the Canadian Football League, a product liability lawsuit against helmet manufacturer Bauer, and an action against an NHL team and its doctors following two mid-game hits.

Each of these actions makes allegations against the organizations involved in facilitating the athletics activities. They allege that the organizations failed to take appropriate steps to protect athletes from suffering concussions and concussion-related injuries — whether by allowing or encouraging athletes to return to play too quickly, by providing ineffective medical supervision, or by failing to teach players and coaches how to prevent concussions in the first place.

Ontario schools and school boards are very supportive of students' athletic endeavours. Many schools participate in interschool leagues, and students play in games both at their schools and off premises. Further, schools and school boards may find themselves in a concussion-risky situation outside of the sports context — for instance, in gym class or at a school carnival event where attendees may engage in physical activities.

So what can schools and school boards do to reduce the risk of becoming the next headline? Ensure that there is an effective concussion protocol in place for all student activities.

While the Ontario government attempted to amend the Education Act in 2012 by setting out required concussion policies and guidelines for all public and Catholic schools, these proposed amendments were never brought into force. The only step taken at a legislative level, to date, has been the passing of Rowan's Law in 2015, which establishes the Rowan's Law Advisory Committee. The Committee is tasked with reviewing the recommendations made following an inquiry into the death of 17-year-old Rowan Stringer, who passed away from a concussion-related injury on May 12, 2013.

Schools and school boards should seek guidance from other publications including the Ministry of Education's Policy/Program Memorandum No. 158 School Board Policies on Concussion ("PPM 158"), and the Ontario Physical Education Safety Guidelines published by the Ontario Physical and Health Education Association .

PPM 158 requires that all public and Catholic schools develop and maintain policies on concussions, and provides direction on the development and implementation of those policies. PPM 158 notes that the Ministry of Education considers the concussion protocol outlined in the Ontario Physical Education Safety Guidelines to be the minimum standard. These minimum standards require that concussion policies must contain at least the following components: development of awareness, prevention, identification, management procedures for diagnosed concussions, and training. These are also recommended best practices for independent schools.

All schools and school boards should also bear in mind the common law considerations that often govern potential actions by students: in particular, whether the school or school board fulfilled its duty of care, to the standard of a prudent or careful parent in the circumstances, by providing reasonable supervision in the circumstances to guard against foreseeable risks.

This common law duty of care is also guided by the obligations of educators set out in the Education Act and its regulations: principals have a duty "to give assiduous attention to the health and comfort" of the school's pupils, and to provide for the supervision of and the conducting of any school activity authorized by the board, while teachers have a duty to ensure that all reasonable safety procedures are carried out in courses and activities for which the teacher is responsible.

Accordingly, we recommend developing and implementing a concussion protocol that incorporates at least the minimum standards outlined in PPM 158 and the Ontario Physical Education Safety Guidelines. These include the following items:

  1. Increasing education and awareness. This principle may require a "paradigm shift" and attitude changes. Many sports or students may feel pressure to quickly return to play, or may feel stigmatized regarding an injury. Schools and school boards should encourage students to speak up regarding any injury, especially potential concussions, and should encourage parents to share medical updates. Schools and school boards should also implement regular training for everyone involved in sports, including students and parents.
  2. Sport-specific prevention techniques. These protocols should cover the following considerations, which should be tailored depending on the appropriate needs of each sport:

    1. Advising players how best to avoid injury and ensuring all players are aware of this standard, even if absent during orientation;
    2. Always wearing approved helmets properly, while also advising that helmets cannot prevent all injuries;
    3. Wearing mouth guards if appropriate;
    4. Advising players and all stakeholders about the importance of the above standards, and the importance of reporting injury; and
    5. Hiring qualified and well-informed coaches and team managers.
  3. Adopting adequate methods of detecting and diagnosing concussions. Schools and school boards should ensure that all members of the school community are educated regarding concussion symptoms, and are aware of the concussion protocol. Schools and school boards should provide information to parents that set out the various steps in the concussion protocol (regarding removal from play, clearance to return, etc.).
  4. Health professionals. If a school, such as an independent school, employs a nurse or other health professional staff person, consider having that person, or a designated individual with more in-depth concussion training, available on site during games to assist.
  5. Implementing strict return-to-play guidelines & post-concussion management programs. Schools and school boards should implement return-to-play guidelines that include the following considerations:

    1. Requiring medical clearance following a concussion, or signs of a concussion, by a physician trained in the management of concussions;
    2. Providing for sanctions for failing to adhere to the guidelines (though bearing in mind the attitude shift discussed above, which should not encourage stigmatization of injury);
    3. Emphasizing that the decision to return to play is based solely on medical factors; and
    4. Emphasizing or mandating strict enforcement and adherence to the guidelines.
  6. Return to learn. Schools and school boards may also consider implementing a return-to-learn element of their concussion protocols. While classroom learning is not a source of risk for aggravating a concussion or sustaining another more serious injury like a premature return to play might be, schools and school boards should ensure that injured students are supported in their academic programs.

Canadian courts recognize that there is some level of risk inherent in playing sports. However, it is incumbent upon schools and school boards to try and minimize this risk and to act appropriately if the risk materializes. Specifically, schools and school boards should be aware of the standard of care that a court will apply in negligence cases: whether or not the school or school board exercised supervision, care, and control in the manner of a prudent or careful parent in the circumstances. In most cases, this means developing, implementing and providing training on an appropriate concussions protocol.

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Miller Thomson LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Miller Thomson LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions