A Medico-Legal Perspective
By Joel Doctor,
M.D., F.R.C.P.(C) Allergy and Clinical Immunology, The University
of Calgary, Faculty of Medicine, and,
Eleanor Doctor, B.Ed., LL.B., Barrister and Solicitor
Reprinted with permission given by Eleanor Doctor. February
In recent years, the media has reported several cases of serious
injury and death of students and others resulting from allergic reactions
to peanuts and other foods. While such events are relatively infrequent,
they are alarming, and educators are justifiably concerned about the
possibility of having to deal with a life-threatening allergic reaction
in their schools. In addition, an increasing number of schools have
to deal with parents who are making what may appear, at first blush,
to be unreasonable demands on schools to accommodate their children
who have allergies, life-threatening and otherwise.
from both legal and medical perspectives should drive any attempt
to formulate policy or procedure to address these concerns. For
example, under human rights legislation, schools must reasonably
accommodate students with disabilities. The term "disability" is
broadly defined and would include life-threatening allergic conditions.
Under the law of negligence and liability, schools must do what
is reasonable to prevent reasonably foreseeable harm to students
under their care. But what is reasonable? For this we must look
to the medical experts for information and guidance. Below, we place
this medical information within a legal framework to help schools
address their concerns.
The first consideration
in formulating policy and procedure is to consider who is owed a
duty of care in the school context, by whom and under what circumstances.
Who is owed
a Duty of Care? School authorities know that they owe a duty
of care to their resident students. However, following the broad
principal of law governing the duty of care, school authorities
also owe a duty of care to their "neighbour" and "neighbour" is
defined broadly as anyone who may come to harm as a result of ones
acts or omissions, if the harm to that person was reasonably foreseeable.
Accordingly, a duty of care may be owed to school visitors: a visiting
group of students who will be enjoying refreshments after a basketball
game; a sibling who is invited to class to participate in student's
birthday party; or a child from a foreign country who is visiting
a student and is allowed to come to school and experience a Canadian
procedure should address avoidance strategies and treatment protocols
for visiting children as well as for students in the school.
must be founded on foreseeability of a risk of harm, a determination
must be made as to which, if any, students or children under the
school's care, are at a real risk. The student's parent or guardian
has the primary duty to inform school authorities about their child's
life-threatening medical conditions, however, that duty may not
absolve school authorities from the duty to ask the question. Remember,
negligence and liability may also be founded on an omission to act.
procedure should provide a mechanism for obtaining this initial
information, perhaps with a simple question on a student's registration
form, "Does your child have any medical problems of which the school
should be aware?" or with an annual notice to parents requesting
that they inform the school if any such problems exist or arise
during the school year. Below we discuss what schools should do
once they are alerted to student allergies.
By whom is
the Duty of Care Owed? The duty of care will be owed by the
school board itself and, as well, by any employee or agent of the
school board who supervises allergic students. In the latter case,
school boards will be held vicariously liable for the negligence
of their employees or agents who are working within the scope of
their assigned duties or performing duties that are reasonably related
to their assigned duties. Accordingly, it is not sufficient to inform
only the student's home teachers and office personnel. It is incumbent
upon schools to notify any person who may be supervising students
including other staff members, substitute teachers or supervising
parents about student allergies, particularly if they are life-threatening.
procedure should provide for a method of ensuring that relevant
information is transmitted to all supervising persons, particularly
those who supervise younger children. Further, your school may wish
to consider whether lunch room programs and services should be operated
independently from the school, particularly where there is no legal
obligation to provide these programs and services to students.
above, the standard of care expected of school authorities is stated
in very general terms as that of "a careful and prudent parent of
a large family". It is a flexible standard depending upon the age,
maturity, intelligence, experience and behavioural propensities
of the student, the type of activity in which a student is engaged
and other relevant factors. The foods ingested by and the eating
environment of an intelligent, sixteen-year-old student would not
have to be as closely monitored, for example, as those of a grade-one
student of a mentally-disabled older student. The consensus statement
of the Canadian Association of Allergy and Clinical Immunology,
the Ontario Allergy Society and the Allergy Asthma Information Association
(the "Consensus Statement") proposes different procedures for pre-school
and primary grade students than for older students. In the former,
the consensus Statement recommends that, where peanut allergic children
are present, no peanuts, peanut butter or peanut-containing foods
should be allowed. In the latter, the Consensus Statement recognizes
that it may be impractical to impose a complete ban, however, where
peanut allergic students are present, it recommends that no peanut-containing
foods be allowed in common eating areas. It also recognizes that
allergy-free classrooms may have to be established in the appropriate
circumstances. The same would hole true for any other potentially
procedures should address differentiated avoidance strategies for
the purpose of meeting a school's duty of care in a reasonable manner.
Standard of Care
should do to meet the requisite standard of care will depend, in
large part, on what school authorities know or ought to know about
Versus Ingestion: A recent newspaper article claimed that "a
whiff of peanut butter on a desk may be enough to cause a violent
anaphylactic reaction". In fact, the risk of a life-threatening
allergic reaction resulting from this route of exposure is negligible.
In a home-economics class where peanuts are being used in cooking
a satay dish, peanut protein particles can become airborne and an
allergic student may suffer itchy eyes, runny nose and asthma. A
similar reaction could occur if many students were crunching on
peanuts in class and throwing them around at one another. An asthma
attack could have serious adverse consequences, however, the risk
of violent anaphylaxis or death from inhaling airborne peanut is
negligible. On the other hand, ingestion of even a minute amount
of peanut could result in fatality.
Allergens: One teacher we interviewed refused to take any precautions
with respect to her pre-school student's peanut allergy, claiming
she could not possibly monitor every child for everything to which
the child was "allergic". That position, founded in ignorance, is
simply irresponsible. The primary concern of educators is to prevent
against anaphylaxis and resulting serious injury or death. Accordingly,
a distinction must be made between true allergic reactions and other
forms of food intolerance which are rarely, if ever, life-threatening.
A further distinction must be made between allergens that are more
likely to induce life-threatening reactions from those that rarely
result in such reactions.
the Consensus Statement, the list of foods which most commonly cause
allergy is relatively short: peanut, tree nuts, seafood, egg, milk,
soy and wheat. Further, reactions to peanut, tree nuts and shellfish
tend to be the most severe. Peanut allergies are one of the most
common food allergies and the leading cause of food-induced anaphylaxis
and death. Allergy to peanut is the most common cause of anaphylaxis
in schools. Accordingly, this pre-school teacher does not have to
treat all children who have food reactions, allergic or otherwise,
as she should treat life-threatening food allergies.
At a minimum,
policies and procedures should address those allergies which tend
to be most common and have the most life-threatening potential in
a school context, namely, peanut allergies. For example, it would
not take too much effort to remove peanut products form food prepared
for all school-sponsored activities and school/community functions,
including foods prepared in the school cafeteria or during home
economic classes. They should also address the appropriate response
to other allergies as directed by the allergic child's physician.
Condition - Anaphylaxis: Ideally, schools would prevent all
allergic reactions, however, as mentioned, the primary concern of
schools is the prevention and appropriate treatment of potentially
severe allergic reaction, namely, anaphylaxis. Anaphylaxis affects
multiple body systems resulting in breathing difficulty and a drop
in blood pressure caused by an outpouring of fluids from blood vessels.
of allergic reactions are unpredictable. The research indicates
that although an individual's allergic reactions tend to be of similar
severity to their prior reactions, it is not possible to predict
with any certainty just how serious a future reaction might be.
Since anaphylaxis can cause death quite quickly, it must be treated
appropriately and as early as possible.
procedure should address how this can best be done. Below we provide
more specific information for this purpose.
At-Risk Students: It is necessary to determine which students
are at risk of anaphylaxis. Not every allergic reaction in every
student calls for treatment with epinephrine and a dash to the nearest
hospital. Parents often claim that their children are allergic to
many diverse substances and have severe reactions to all of them,
which is possible but highly unlikely. They may also make unreasonable
demands on school-based personnel.
be encouraged to get a complete assessment of their child's condition
from a physician with expertise in the diagnosis and management
of allergic conditions. For reasons which will become more evident,
schools should recommend or insist that parents of allergic children
provide the school with individualized, written physician-prescribed
students are identified and the avoidance and treatment strategies
are determined, that information must be communicated to all persons
who may supervise allergic students. In addition, at-risk students
should have other means of identification, e.g., a medical alert
procedure should address how students, particularly at-risk students,
can be identified. They should also address, on an individualized
basis, how each allergic student should be monitored and treated,
and how more specific information should be communicated efficiently
to supervising persons. The
Allergy/Asthma Information Association (AAIA)*, Canada,
has a package that may help schools formulate procedures. It contains
valuable information about allergy including an Emergency Allergy
Alert (protocol) Form.
Box 100, Toronto, Ontario M9W 5K9
Phone (416) 679-9521 or 1-800-611-7011; Fax: (416) 679-9524
Strategies: Since the smallest amount of ingested allergens
can result in severe anaphylaxis and even fatality, the goal of
avoidance strategies is to reduce that risk, recognizing that risk
can never be completely eliminated in a school environment. Parents
should instruct even their youngest children in how to avoid contact
with the substances to which they are allergic. School personnel
can reduce the risk of harm to allergic students by monitoring them
carefully, particularly in the younger grades.
the Consensus Statement, allergic children should eat only foods
that are prepared at home. They should not exchange foods or utensils
with other students. Students in the same class should be encouraged
to wash their hands before and after eating. Surfaces, toys and
equipment should be washed clean of the allergen-containing foods
and care should be taken to avoid allergens when selecting foods
for crafts, cooking and other activities. As mentioned above, all
foods provided to students or used in school should be peanut-free,
particularly in larger schools where individual students may be
harder to monitor. If necessary, a school may have to take reasonable
measures to provide peanut-free environments. Both the allergic
student and others should be educated to understand the potential
severity of reactions and to avoid exposing an allergic student
to potentially harmful allergens such as peanut.
procedure should address avoidance strategies of general application
to the entire school population and those of specific application
to students who are known to be at risk of anaphylaxis.
to Treat Reasonably: In spite of all the efforts by school personnel,
allergic reactions cannot always be avoided. When emergency treatment
is undertaken voluntarily, e.g., by a visitor in your school, that
person will be expected to do what is reasonable considering his
or her knowledge, training and experience. Where there is a legal
duty to provide medical services to students or where schools formally
undertake the duty to provide medical treatment to students, more
will be expected of school-based personnel. They will be expected
to make reasonable efforts to gain the requisite skill and knowledge
to undertake medical treatment, emergency or otherwise, appropriately.
procedure should provide for the training of staff in basic first
aid, resuscitative techniques and in the use of epinephrine auto-injectors.
It should provide a mechanism for staff to determine appropriate
treatment protocols, particularly for students at risk of anaphylaxis.
of Anaphylaxis: Two primary risk factors for death from food
allergy are underlying asthma and delay in administering epinephrine.
Often children with food allergies also have asthma. The earliest
manifestation of an anaphylactic reaction is often asthma. Asthmatic
children experiencing anaphylaxis are frequently treated for asthma
while more appropriate treatment with epinephrine is withheld. There
is no substitute for epinephrine in the emergency management of
anaphylaxis. Although antihistamines and asthma inhalers are
useful adjunctive therapies, they cannot be relied upon to adequately
treat anaphylaxis. Several years ago, a Canadian student on a school
trip to Paris ate pate-containing nuts. She took antihistamines
and rushed back to her hotel to get further help. Unfortunately,
she succumbed to anaphylaxis before appropriate therapy could be
initiated. A dose of epinephrine could have saved her life.
When a student
experiences an allergic reaction, the physician-prescribed action
plan should be followed. In the absence of any specific action plan,
the school should follow the Consensus Statement guidelines: "Epinephrine
must be administered as soon as possible after the onset of symptoms
of severe allergic reaction." However, if the student has a history
of sever anaphylaxis or poorly controlled asthma, epinephrine may
have to be given at the earliest sign of reaction. In extreme cases,
epinephrine may have to be administered after ingestion and prior
to the onset of any manifestations of anaphylaxis. School-based
personnel would have difficulty making these clinical distinctions
and that is why the physician-prescribed action plan is so important!
also take the following important precautions:
Policy and procedure
should provide for the treatment of students in accordance with physician-prescribed
action plans or, in the absence of such plans, in accordance with
predetermined guidelines. In addition, they should address precautions
of general application to the school community.
should be kept in close proximity to children at risk of anaphylaxis.
should be clearly marked with the student's name and routine checks
should be undertaken to ensure that they are not stale-dated.
- In all cases
where epinephrine is administered the student should be transported
to hospital immediately. In some cases, additional epinephrine
may be required during transport.
at risk of anaphylaxis should be carefully monitored. Even an
older student who knows how to self-administer epinephrine may
need adult assistance if ability to self-administer is hampered
by an adverse reaction. In fact, it is our understanding that
the student who died in Paris was not under any supervision at
the relevant time.
for Breach of the Standard of Care
In light of
the above information, failure to do what the reasonable prudent
parent of a large family would do in the circumstances constitutes
negligence. However, school authorities will not necessarily be
liable or wholly liable to pay damages for such negligence. If,
for example, the student had suffered severe neurological damage
even if the appropriate treatment had been undertaken, school authorities
would not be held liable for this injury. In the case of the student
who died in Paris, school authorities would not be liable if the
evidence proved that the student would have succumbed even if several
doses of epinephrine had been administered. Further, they would
not be liable if the chain of causation was broken. Even if school
personnel are negligent in the monitoring and treatment of a student,
the real cause of death could, for example, be caused by delay due
to an accident enroute to the hospital.
The use of waivers
should also be considered. It has been suggested that no parent
should waive liability of school authorities for injuries to students
caused by the negligence of school authorities. That proposition
is moot, because if there is no negligence, there will be no liability.
School authorities would probably prefer to have all liability waived,
particularly where they voluntarily undertake to provide medical
treatment to students. However, the courts do not like waivers very
much and will do everything possible to get around them and find
liability, particularly in a sympathetic case.
may only waive liability for their own damages, e.g., For their
expenses in transporting their child home, in providing care for
their child, in purchasing special equipment or hiring special services
for the rehabilitation of their child. They cannot waive the school's
liability for the child's damages. The child can sue in her own
right after reaching the age of majority. In the case of injuries
to minors, most provincial statutes of limitation will begin to
run at that time.
of Use: The information
on this site does not constitute medical advice and is for your
general information only. We cannot be held responsible for anything
you could possibly do or say because of information on this site.
Consult your family physician or allergist for specific questions