Professional discretion of educators in preventing negligence

Abstract

This research builds on and contributes to work in the field of educators' professional discretion and the prevention of negligence. Existing literature suggests that many educators are still unaware of how the law operates regarding policy requirements and their in loco parentis obligations. This is demonstrated by the number of litigations and how an educator's liability regarding negligence has grown. In South Africa, numerous authors have made contributions in relation to learner safety and educators' duty of care. An educator is tasked with duty of care and to use professional discretion appropriately. At the same time, educators should be mindful to minimise their exposure to lawsuits. However, not much appears to have been done in this country to establish how educators can maintain a respectable balance between professional discretion and policy requirements without being negligent. The purpose of this study was, thus primarily to explore ways in which educators can reconcile professional discretion and legal and policy requirements to prevent negligence. The study utilised a qualitative research approach underpinned by an interpretive paradigm. Data collection was done by the means of qualitative collection techniques, namely semi-structured interviews supported by an analysis of relevant court cases. Twenty participants from two primary and two secondary public schools in the Tshwane South school district in Gauteng participated in the study. Two of these schools were fee-paying schools and two non-fee-paying schools. Five participants from each school were identified and invited to participate in this study and consisted of the principal, a member of the school management team (deputy-principal or head of department) and three educators. Each of the participants had different legal obligations, discretions, responsibilities and accountabilities as far as negligence is concerned. The conceptual framework for this study, was based on Dworkin’s (1978:31) ‘doughnut’ metaphor for the concept of professional discretion. Based on an adapted version of Dworkin’s ‘doughnut’ metaphor, findings confirm that some educators feel restricted in their decision-making and limited in their professional discretion due to the legal and inflexible policy framework regulating their work. It came to the fore that the understanding and interpretation of certain school policies were dealt with differently by the participants due to their varied levels of experience, knowledge and training. The findings illuminated the fact that the participants did not fully grasp the vii concept of professional discretion. In making decisions and exercising judgement, these participants may not be comfortable in their knowledge experience or personal intuition. Educators’ capacity and ability to apply discretion is influenced by a number of external and internal factors. These factors restrict an educators’ autonomy space, which could ultimately lead to the inability to apply appropriate discretion. This could lead to a form of paralysis to uphold a high standard of care in dire situations and could lead to negligence. Therefore, in order to achieve a high standard of care and not be negligent, educators should not only have the ability to apply appropriate discretion, but also have the freedom to do so.

Key terms: professional discretion; duty of care; in loco parentis; negligence; law of delict; standard of care; school safety policies.