So here is the NSW Education Department’s current advice to a parent who wants a LifeVac® in the school to mitigate the risk of the choking death of their child!
NSW DoE Statement RML24/200 - 19 March 2024
Author - Dianne Van Berlo - Executive Director, Health, Safety and Staff Wellbeing
“It has been noted that where a student has been issued an anti-choking device as part of individual health care considerations, school representatives will work with the student’s parent/carer and medical practitioner to ensure that the student is supported. In these circumstances, the parent/carer would be required to provide necessary equipment, and appropriate advice and training would be sought by those staff responsible for implementing individual care arrangements.”
There are a few issues with this set of bureaucratic requirements.
1. Under the TGA listing the LifeVac® does not require a prescription and is therefore not “issued” by anyone or any department or organisation. However, given the deaths have already occurred, having a LifeVac® is now an identified “health care consideration” for all parents, and so this statement makes no sense.
2. There is no requirement for the involvement or “approval” by a “medical practitioner” for the purchase or use of LifeVac® in Australia. The TGA has deemed the device to be low-risk, and can be supplied without a prescription, can be used by anyone (not just health professionals) and does not require additional specific training for its use. The regulator for medical devices in Australia is the TGA which has already conducted a review of safety, evidence, risk management, and unlike first aid, continuously monitors for harm and efficacy of medical devices. The Department is confused here between a prescription medication or customised individual medical apparatus, with a universally available piece of equipment.
3. Although the LifeVac® is on the NSW Education equipment list as a supplier (as suggested by the NSW DoE) it has been deemed that it is the parent apparently who needs to supply the LifeVac®, and this cannot be used on any other choking student because that would be against policy. NSW DoE is suggesting that every single student would have to have their own individual LifeVac device, and no teacher could exercise common sense in an emergency i.e. it is better that a child dies from a choking emergency than policy is broken. This same nonsensical position was the impetus for schools being equipped with Salbutamol (Ventolin®) puffers and EpiPens® independently of parent-supplied prescriptions.
4. Not only does the parent have to supply the individual LifeVac device specific to their child, but each and every single child’s parents have to supply individual training and advice to all the staff who may have to use the “general use” device in the school. E.g. 200 LifeVacs = 200 training sessions for 200 individual care plans.
As usual, in formulating this policy statement, the Department and its officers have:
a. not considered the contents of its existing policies,
b. examined existing policies to ensure there is no contradiction in message,
c. applied common sense or considered future liabilities resulting from poor advice that is not only unworkable but knowingly places lives at risk.
The current DoE Medication Policy already provides exemption for the use of the LifeVac in an emergency situation (e.g. failure of first aid in a life-threatening choking emergency) without the necessity for any of the requirements previously demanded.
Administration of Medication Policy – NSW Education Department
“Except in an emergency, only individual staff members who have been trained will administer prescribed medication to students. Anaphylaxis and e-Emergency care training are mandatory for all permanent, temporary and casual school-based staff.”
As stated in the NSW Education Department’s own policy, in an emergency situation, any staff member can apply emergency treatment (even drugs). One would presume that a choking emergency would be considered an “emergency situation”, particularly after first aid has failed i.e. this is therefore a policy exemption.
“Should a student be injured or made ill as a result of the administration of prescribed medication or health support procedures by a member of staff, the staff member is protected by the legal principle of vicarious liability in relation to personal injury proceedings.”
The Department makes it very clear that if “medication or health support procedures” are delivered as per the policy (including emergency actions), the staff member is protected from any liability. The excuse offered by the NSW DoE that is it protecting staff from liability by failing to introduce LifeVac is not factual.
If, against parent, community, and staff demands, the NSW Department of Education’s position is that it “cannot allow LifeVac® to be available in NSW schools”; then the basis for this has to be properly articulated and reflect:
· Existing policy exemptions and structures whereby unaccredited emergency training is currently relied upon for the safety of students in NSW, and in an emergency no requirements are in place.
· The law in Australia.
· Actual legal determination of future legal liability over perceived liable
· “Strong advice” that is more than a casual email to a single individual in NSW Health who relies on tabloids as evidence.
· A thorough understanding of WHS legislation and code of practice, rather than a superficial reading and interpretation.
· A thorough understanding of medical device regulation.
· A legal understanding of any legal basis for first aid guidelines and training to be considered “law” or protections under the law. This includes the legal standing of non-accredited first emergency training provided by the NSW DoE to staff as a proxy for accredited training but considered “sufficient” protection.