The Politics of Peanuts

pI was able to raise a question the other night on this board about whether a school could be held legally liable should your child suffer an anaphylactic reaction while at school. The same day I was thinking of raising this question, another PA parent had sent me the following article. The timing of it's arrival could not have been better. I wasn't clear if it would be okay to post it here but since it is taken from a website, I thought that it was probably okay to re-post it here./p
pThe article is from CBC's Market Place website and deals with the medico-legal perspective of PA. It is Canadian specific so please keep that in mind when reading it.br /
I did ask anyone who was in the U.S. or other countries that I originally group e-mailed it to if they knew if there was a similar thing in place in their countries but I haven't received an answer yet./p
pIt does answer the question about whether a school is legally liable. They are, to a degree./p
pHere goes:-/p
pThe Politics of Peanuts/p
pPeanut Allergies: A Medico-Legal Perspective/p
pBy Joel Doctor, M.D., F.R.C.P.(C) Allergy and Clinical Immunology, Thebr /
University of Calgary, Faculty of Medicine, and,br /
Eleanor Doctor, B.Ed., LL.B., Barrister and Solicitor /p
pRe-posted, with permission, from the Education Law Web Site/p
pIn recent years, the media has reported several cases of serious injury andbr /
death of students and others resulting from allergic reactions to peanutsbr /
and other foods. While such events are relatively infrequent, they arebr /
alarming, and educators are justifiably concerned about the possibility ofbr /
having to deal with a life-threatening allergic reaction in their schools.br /
In addition, an increasing number of schools have to deal with parents whobr /
are making what may appear, at first blush, to be unreasonable demands onbr /
schools to accommodate their children who have allergies, life-threateningbr /
and otherwise. /p
p"Reasonableness" from both legal and medical perspectives should drivebr /
anybr /
attempt to formulate policy or procedure to address these concerns. Forbr /
example, under human rights legislation, schools must reasonably accommodatebr /
students with disabilities. The term "disability" is broadly definedbr /
andbr /
would include life-threatening allergic conditions. Under the law ofbr /
negligence and liability, schools must do what is reasonable to preventbr /
reasonably foreseeable harm to students under their care. But what isbr /
reasonable? For this we must look to the medical experts for information andbr /
guidance. Below, we place this medical information within a legal frameworkbr /
to help schools address their concerns. /p
pThe Duty of Care /p
pThe first consideration in formulating policy and procedure is to considerbr /
who is owed a duty of care in the school context, by whom and under whatbr /
circumstances. /p
pWho is owed a Duty of Care? School authorities know that they owe a duty ofbr /
care to their resident students. However, following the broad principal ofbr /
law governing the duty of care, school authorities also owe a duty of carebr /
to their "neighbour" and "neighbour" is defined broadly asbr /
anyone who maybr /
come to harm as a result of ones acts or omissions, if the harm to thatbr /
person was reasonably foreseeable. Accordingly, a duty of care may be owedbr /
to school visitors: a visiting group of students who will be enjoyingbr /
refreshments after a basketball game; a sibling who is invited to class tobr /
participate in student's birthday party; or a child from a foreign countrybr /
who is visiting a student and is allowed to come to school and experience abr /
Canadian school environment. /p
pPolicy and procedure should address avoidance strategies and treatmentbr /
protocols for visiting children as well as for students in the school. /p
pSince liability must be founded on foreseeability of a risk of harm, abr /
determination must be made as to which, if any, students or children underbr /
the school's care, are at a real risk. The student's parent or guardian hasbr /
the primary duty to inform school authorities about their child'sbr /
life-threatening medical conditions, however, that duty may not absolvebr /
school authorities from the duty to ask the question. Remember, negligencebr /
and liability may also be founded on an omission to act. /p
pPolicy and procedure should provide a mechanism for obtaining this initialbr /
information, perhaps with a simple question on a student's registrationbr /
form, "Does your child have any medical problems of which the school shouldbr /
be aware?" or with an annual notice to parents requesting that they informbr /
the school if any such problems exist or arise during the school year. Belowbr /
we discuss what schools should do once they are alerted to studentbr /
allergies. /p
pBy whom is the Duty of Care Owed? The duty of care will be owed by thebr /
school board itself and, as well, by any employee or agent of the schoolbr /
board who supervises allergic students. In the latter case, school boardsbr /
will be held vicariously liable for the negligence of their employees orbr /
agents who are working within the scope of their assigned duties orbr /
performing duties that are reasonably related to their assigned duties.br /
Accordingly, it is not sufficient to inform only the student's home teachersbr /
and office personnel. It is incumbent upon schools to notify any person whobr /
may be supervising students including other staff members, substitutebr /
teachers or supervising parents about student allergies, particularly ifbr /
they are life-threatening. /p
pPolicy and procedure should provide for a method of ensuring that relevantbr /
information is transmitted to all supervising persons, particularly thosebr /
who supervise younger children. Further, your school may wish to considerbr /
whether lunch room programs and services should be operated independentlybr /
from the school, particularly where there is no legal obligation to providebr /
these programs and services to students. /p
pThe Standard of Care /p
pAs mentioned above, the standard of care expected of school authorities isbr /
stated in very general terms as that of "a careful and prudent parent of abr /
large family". It is a flexible standard depending upon the age, maturity,br /
intelligence, experience and behavioral propensities of the student, thebr /
type of activity in which a student is engaged and other relevant factors.br /
The foods ingested by and the eating environment of an intelligent,br /
sixteen-year-old student would not have to be as closely monitored, forbr /
example, as those of a grade-one student of a mentally-disabled olderbr /
student. The consensus statement of the Canadian Association of Allergy andbr /
clinical Immunology, the Ontario Allergy Society and the Allergy Asthmabr /
Information Association (the "Consensus Statement") proposes differentbr /
procedures for pre-school and primary grade students than for olderbr /
students. In the former, the consensus Statement recommends that, wherebr /
peanut allergic children are present, no peanuts, peanut butter orbr /
peanut-containing foods should be allowed. In the latter, the Consensusbr /
Statement recognizes that it may be impractical to impose a complete ban,br /
however, where peanut allergic students are present, it recommends that nobr /
peanut-containing foods be allowed in common eating areas. It alsobr /
recognizes that allergy-free classrooms may have to be established in thebr /
appropriate circumstances. The same would hole true for any otherbr /
potentially life-threatening allergens. /p
pPolicy and procedures should address differentiated avoidance strategies forbr /
the purpose of meeting a school's duty of care in a reasonable manner. /p
pMeeting the Standard of Care /p
pWhat schools should do to meet the requisite standard of care will depend,br /
in large part, on what school authorities know or ought to know aboutbr /
allergy. /p
pInhalation Versus Ingestion: A recent newspaper article claimed that "abr /
whiff of peanut butter on a desk may be enough to cause a violentbr /
anaphylactic reaction". In fact, the risk of a life-threatening allergicbr /
reaction resulting from this route of exposure is negligible. In abr /
home-economics class where peanuts are being used in cooking a satay dish,br /
peanut protein particles can become airborne and an allergic student maybr /
suffer itchy eyes, runny nose and asthma. A similar reaction could occur ifbr /
many students were crunching on peanuts in class and throwing them around atbr /
one another. An asthma attack could have serious adverse consequences,br /
however, the risk of violent anaphylaxis or death from inhaling airbornebr /
peanut is negligible. On the other hand, ingestion of even a minute amountbr /
of peanut could result in fatality. /p
pThe Life-Threatening Allergens: One teacher we interviewed refused to takebr /
any precautions with respect to her pre-school student's peanut allergy,br /
claiming she could not possibly monitor every child for everything to whichbr /
the child was "allergic". That position, founded in ignorance, isbr /
simplybr /
irresponsible. The primary concern of educators is to prevent againstbr /
anaphylaxis and resulting serious injury or death. Accordingly, abr /
distinction must be made between true allergic reactions and other forms ofbr /
food intolerance which are rarely, if ever, life-threatening. A furtherbr /
distinction must be made between allergens that are more likely to inducebr /
life-threatening reactions from those that rarely result in such reactions. /p
pAccording to the Consensus Statement, the list of foods which most commonlybr /
cause allergy is relatively short: peanut, tree nuts, seafood, egg, milk,br /
soy and wheat. Further, reactions to peanut, tree nuts and shellfish tend tobr /
be the most severe. Peanut allergies are one of the most common foodbr /
allergies and the leading cause of food-induced anaphylaxis and death.br /
Allergy to peanut is the most common cause of anaphylaxis in schools.br /
Accordingly, this pre-school teacher does not have to treat all children whobr /
have food reactions, allergic or otherwise, as she should treatbr /
life-threatening food allergies. /p
pAt a minimum, policies and procedures should address those allergies whichbr /
tend to be most common and have the most life-threatening potential in abr /
school context, namely, peanut allergies. For example, it would not take toobr /
much effort to remove peanut products form food prepared for allbr /
school-sponsored activities and school/community functions, including foodsbr /
prepared in the school cafeteria or during home economic classes. Theybr /
should also address the appropriate response to other allergies as directedbr /
by the allergic child's physician. /p
pThe Life-Threatening Condition - Anaphylaxis: Ideally, schools would preventbr /
all allergic reactions, however, as mentioned, the primary concern ofbr /
schools is the prevention and appropriate treatment of potentially severebr /
allergic reaction, namely, anaphylaxis. Anaphylaxis affects multiple bodybr /
systems resulting in breathing difficulty and a drop in blood pressurebr /
caused by an outpouring of fluids from blood vessels. /p
pThe severity of allergic reactions are unpredictable. The research indicatesbr /
that although an individual's allergic reactions tend to be of similarbr /
severity to their prior reactions, it is not possible to predict with anybr /
certainty just how serious a future reaction might be. Since anaphylaxis canbr /
cause death quite quickly, it must be treated appropriately and as early asbr /
possible. /p
pPolicy and procedure should address how this can best be done. Below webr /
provide more specific information for this purpose. /p
pIdentifying At-Risk Students: It is necessary to determine which studentsbr /
are at risk of anaphylaxis. Not every allergic reaction in every studentbr /
calls for treatment with epinephrine and a dash to the nearest hospital.br /
Parents often claim that their children are allergic to many diversebr /
substances and have severe reactions to all of them, which is possible butbr /
highly unlikely. They may also make unreasonable demands on school-basedbr /
personnel. /p
pParents should be encouraged to get a complete assessment of their child'sbr /
condition from a physician with expertise in the diagnosis and management ofbr /
allergic conditions. For reasons which will become more evident, schoolsbr /
should recommend or insist that parents of allergic children provide thebr /
school with individualized, written physician-prescribed action plans. /p
pOnce allergic students are identified and the avoidance and treatmentbr /
strategies are determined, that information must be communicated to allbr /
persons who may supervise allergic students. In addition, at-risk studentsbr /
should have other means of identification, e.g., a medical alert bracelet. /p
pPolicy and procedure should address how students, particularly at-riskbr /
students, can be identified. They should also address, on an individualizedbr /
basis, how each allergic student should be monitored and treated, and howbr /
more specific information should be communicated efficiently to supervisingbr /
persons. The Allergy Asthma Information Association, 30 Eglinton West, Suitebr /
750, Mississauga, Ontario, L5R 3E7 has a Package that may help schoolsbr /
formulate procedures. It contains valuable information about allergybr /
including an Emergency Allergy Alert (protocol) Form. /p
pAvoidance Strategies: Since the smallest amount of ingested allergens canbr /
result in severe anaphylaxis and even fatality, the goal of avoidancebr /
strategies is to reduce that risk, recognizing that risk can never bebr /
completely eliminated in a school environment. Parents should instruct evenbr /
their youngest children in how to avoid contact with the substances to whichbr /
they are allergic. School personnel can reduce the risk of harm to allergicbr /
students by monitoring them carefully, particularly in the younger grades. /p
pAccording to the Consensus Statement, allergic children should eat onlybr /
foods that are prepared at home. They should not exchange foods or utensilsbr /
with other students. Students in the same class should be encouraged to washbr /
their hands before and after eating. Surfaces, toys and equipment should bebr /
washed clean of the allergen-containing foods and care should be taken tobr /
avoid allergens when selecting foods for crafts, cooking and otherbr /
activities. As mentioned above, all foods provided to students or used inbr /
school should be peanut-free, particularly in larger schools wherebr /
individual students may be harder to monitor. If necessary, a school maybr /
have to take reasonable measures to provide peanut-free environments. Bothbr /
the allergic student and others should be educated to understand thebr /
potential severity of reactions and to avoid exposing an allergic student tobr /
potentially harmful allergens such as peanut. /p
pPolicy and procedure should address avoidance strategies of generalbr /
application to the entire school population and those of specificbr /
application to students who are known to be at risk of anaphylaxis. /p
pThe Duty to Treat Reasonably: In spite of all the efforts by schoolbr /
personnel, allergic reactions cannot always be avoided. When emergencybr /
treatment is undertaken voluntarily, e.g., by a visitor in your school, thatbr /
person will be expected to do what is reasonable considering his or herbr /
knowledge, training and experience. Where there is a legal duty to providebr /
medical services to students or where schools formally undertake the duty tobr /
provide medical treatment to students, more will be expected of school-basedbr /
personnel. They will be expected to make reasonable efforts to gain thebr /
requisite skill and knowledge to undertake medical treatment, emergency orbr /
otherwise, appropriately. /p
pPolicy and procedure should provide for the training of staff in basic firstbr /
aid, resuscitative techniques and in the use of epinephrine auto-injectors.br /
It should provide a mechanism for staff to determine appropriate treatmentbr /
protocols, particularly for students at risk of anaphylaxis. /p
pManagement of Anaphylaxis: Two primary risk factors for death from foodbr /
allergy are underlying asthma and delay in administering epinephrine. Oftenbr /
children with food allergies also have asthma. The earliest manifestation ofbr /
an anaphylactic reaction is often asthma. Asthmatic children experiencingbr /
anaphylaxis are frequently treated for asthma while more appropriatebr /
treatment with epinephrine is withheld. There is no substitute forbr /
epinephrine in the emergency management of anaphylaxis. Althoughbr /
antihistamines and asthma inhalers are useful adjunctive therapies, theybr /
cannot be relied upon to adequately treat anaphylaxis. Several years ago, abr /
Canadian student on a school trip to Paris ate pate-containing nuts. Shebr /
took antihistamines and rushed back to her hotel to get further help.br /
Unfortunately, she succumbed to anaphylaxis before appropriate therapy couldbr /
be initiated. A dose of epinephrine could have saved her life. /p
pWhen a student experiences an allergic reaction, the physician-prescribedbr /
action plan should be followed. In the absence of any specific action plan,br /
the school should follow the Consensus Statement guidelines: "Epinephrinebr /
must be administered as soon as possible after the onset of symptoms ofbr /
severe allergic reaction." However, if the student has a history of severbr /
anaphylaxis or poorly controlled asthma, epinephrine may have to be given atbr /
the earliest sign of reaction. In extreme cases, epinephrine may have to bebr /
administered after ingestion and prior to the onset of any manifestations ofbr /
anaphylaxis. School-based personnel would have difficulty making thesebr /
clinical distinctions and that is why the physician-prescribed action planbr /
is so important! /p
pSchools should also take the following important precautions: /p
p1. Epinephrine should be kept in close proximity to children at risk ofbr /
anaphylaxis.br /
2. Epi-pens should be clearly marked with the student's name and routinebr /
checks should be undertaken to ensure that they are not stale-dated.br /
3. In all cases where epinephrine is administered the student should bebr /
transported to hospital immediately. In some cases, additional epinephrinebr /
may be required during transport.br /
4. Students at risk of anaphylaxis should be carefully monitored. Even anbr /
older student who knows how to self-administer epinephrine may need adultbr /
assistance if ability to self-administer is hampered by an adverse reaction.br /
In fact, it is our understanding that the student who died in Paris was notbr /
under any supervision at the relevant time./p
pPolicy and procedure should provide for the treatment of students inbr /
accordance with physician-prescribed action plans or, in the absence of suchbr /
plans, in accordance with predetermined guidelines. In addition, they shouldbr /
address precautions of general application to the school community. /p
pLiability for Breach of the Standard of Care /p
pIn light of the above information, failure to do what the reasonable prudentbr /
parent of a large family would do in the circumstances constitutesbr /
negligence. However, school authorities will not necessarily be liable orbr /
wholly liable to pay damages for such negligence. If, for example, thebr /
student had suffered severe neurological damage even if the appropriatebr /
treatment had been undertaken, school authorities would not be held liablebr /
for this injury. In the case of the student who died in Paris, schoolbr /
authorities would not be liable if the evidence proved that the studentbr /
would have succumbed even if several doses of epinephrine had beenbr /
administered. Further, they would not be liable if the chain of causationbr /
was broken. Even if school personnel are negligent in the monitoring andbr /
treatment of a student, the real cause of death could, for example, bebr /
caused by delay due to an accident enroute to the hospital. /p
pThe use of waivers should also be considered. It has been suggested that nobr /
parent should waive liability of school authorities for injuries to studentsbr /
caused by the negligence of school authorities. That proposition is moot,br /
because if there is no negligence, there will be no liability. Schoolbr /
authorities would probably prefer to have all liability waived, particularlybr /
where they voluntarily undertake to provide medical treatment to students.br /
However, the courts do not like waivers very much and will do everythingbr /
possible to get around them and find liability, particularly in abr /
sympathetic case. /p
pFurther, parents may only waive liability for their own damages, e.g., Forbr /
their expenses in transporting their child home, in providing care for theirbr /
child, in purchasing special equipment or hiring special services for thebr /
rehabilitation of their child. They cannot waive the school's liability forbr /
the child's damages. The child can sue in her own right after reaching thebr /
age of majority. In the case of injuries to minors, most provincial statutesbr /
of limitation will begin to run at that time. /p
pBest wishes! [img]http://uumor.pair.com/nutalle2/peanutallergy/smile.gif[/img]/p
p------------------/p
p[This message has been edited by Cindy Spowart Cook (edited April 13, 2001).]/p