An e-cigarette is a device that heats a liquid to produce vapours that users inhale. E-cigarette use is also commonly referred to as vaping. Liquids used in e-cigarettes may contain nicotine and other toxic chemicals harmful to humans.
Does a school have a duty of care to students to prevent harm to them from vaping?
Putting it simply, to determine if a school has a duty of care, we must ask:
(a) Is the risk reasonably foreseeable?
(b) If so, is the likelihood of the risk materialising more than insignificant?
There is increasing evidence that e-cigarettes are not harm-free and may expose users and bystanders to chemicals that are harmful to their health. As NSW Health states:
Vapes are not water. The main ingredient in vapes is propylene glycol, vegetable glycerine or glyercol. Vapes can contain the same harmful chemicals found in cleaning products, nail polish remover, weed killer and bug spray. They just don't put it on the pack.
Testing has shown that vapes labelled 'nicotine-free' can have high nicotine levels. People can think they are using nicotine-free vapes and can unknowingly quickly develop a nicotine addiction.
Recent studies also suggest that the use of e-cigarettes by both primary and secondary students in Australia is increasing.
Accordingly, we can safely conclude that the risk of students suffering harm from vaping is reasonably foreseeable and the probability of it happening is more than insignificant.
Therefore, schools must ask what reasonable steps should be taken to minimise that risk. This is a question which should be carefully considered by staff in schools in conjunction with healthcare experts. However, in our view, reasonable steps will include:
(a) educating staff, students and their families – bringing in qualified people to assist your own staff in doing this can be helpful;
(b) building a culture in which vaping is not cool – display posters, talk about vaping in assemblies and tutor groups, instigate peer led programs, ensure staff are good role models;
(c) publicising services that help students to quit vaping such as the NSW Quitline – 13 78 48;
(d) helping students and families to access support services, their GP and the school counsellor;
(e) supervising students, particularly in places where they might seek to smoke or vape unnoticed;
(f) inspecting bags and lockers when it is suspected that a student may be in possession of e-cigarettes and accessories;
(g) adopting policies; and
(h) taking appropriate disciplinary measures.
What does the law say?
It is also important that schools are aware of the law applying in their state or territory in relation to smoking and vaping. For example, under the Public Health (Tobacco) Act 2008 (NSW), the Smoke-free Environment Act 2000 (NSW), the Tobacco Act 1987 (Vic) and the Tobacco and Other Smoking Products Act 1998 (QLD), it is an offence:
(a) to sell e-cigarettes and accessories to people under 18 years of age; and
(b) for a person to smoke tobacco or use an e-cigarette (that is, to vape) at a school.
Putting it plainly, a student who vapes at school is committing a criminal offence quite apart from breaking school rules.
In NSW, the legal entity operating a school is also guilty of an offence if a person smokes or vapes at the school. It is a defence if, as soon as the school or any of its employees became aware that a person was smoking or vaping at the school, the school or the employee in the know:
(i) required the person to stop smoking at the school, and
(ii) informed the person that the person was committing an offence by smoking at the school, and
(iii) if the person continued to smoke after having been required to stop, required the person to leave the school.
The other states have comparable provisions in their legislation.
Putting your head in the sand won't cut it!
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