How is concussion management linked with child safeguarding?

Deirdre is a  law graduate, qualified teacher and post graduate qualified former safeguarding/child protection designate. She has over 30 years of experience in delivering effective child welfare services in legal practice, social care and education.

*Please note that the information and opinions within this article are for information purposes only. They are not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.

Advocating usage of an electronic concussion management system by persons that are involved in concussion management may understandably provoke cries of “bias, conflict of interest!”. However, do stop to consider that it is out of a love of grassroots sport and a commitment to the welfare of children and young people that Return2Play was born. Return2Play is made up of like-minded people from differing perspectives who are convinced that an electronic concussion management system should be implemented in all schools and colleges. It will keep our children safe now and into their futures. It will also discharge the medical, legal and procedural liabilities and duties for organisations and individuals around the safeguarding agenda without banning contact sports and all the benefits derived from participation. A win-win all round.

Reducing organisational and individual risk: the argument for using an electronic concussion management system in schools and colleges to safeguard children’s welfare in contact sports

Enormous challenges face teachers and educational organisations that are accountable for safeguarding. They are presented with the constant dilemma to establish (with certainty) roles, responsibilities and clear remits for those practitioners charged with the safeguarding and protection of children. Safeguarding and child protection are often terms used interchangeably but not always accurately. Safeguarding is the broad preventative work undertaken to keep children safe. Child Protection is that specific legal activity undertaken pursuant to S.17 and S.47 of the Children Act 1989 to protect children who are suffering from or are likely to suffer harm. Return2Play’s remit lies largely in the former definition.

What are the safeguarding duties applicable to schools and colleges?

The UN Convention on the Rights of the Child enshrines four key principles outlined in 54 articles. Article 19 states that “Everyone has the responsibility to protect all children from all forms of harm, abuse, neglect and exploitation”. Article 31 expresses “every child’s right to participate in play and recreational activities”. Enshrined within English law, safeguarding children is everyone’s responsibility and the welfare of children is paramount in all circumstances.

Although parents and guardians have primary responsibility for a child’s welfare, it is in their absence that a duty of care will fall on others, such as schools/colleges and their agents, in loco parentis. In essence, a person who does not have “parental” responsibility for a particular child, but has care of the child, must do what is reasonable in all the circumstances for the purpose of safeguarding or promoting a child’s welfare.

It is in this context that defined legislative duties have been conferred upon maintained (state) schools and FE colleges, independent schools, academies, free schools and technology colleges to exercise their functions with a view to safeguarding and promoting the welfare of children. As part of generally safeguarding children it is incumbent upon schools and colleges to safeguard children by providing ongoing promotional and preventative support through proactive work with children and families. Also required is a clear commitment by senior management to the importance of safeguarding and promoting children’s welfare through both the commissioning and the provision of services. Extensive statutory guidance exists to assist schools and colleges in maintaining standards in protecting the welfare of children. This guidance is issued by the Government and it must be followed unless there exists good reason not to do so.

In short, schools and colleges, together with their staff, should ensure that they take reasonable steps to ensure the safety of the pupils in their charge and not act in a way that might be considered careless. Depending upon the particular activities being undertaken by pupils, this would include following any relevant guidance and best practice. This is in line with other duties in relation to pupils imposed on teaching staff by English law whether pursuant to “common law” or statute (in particular Health and Safety at Work legislation).

What are the consequences for individuals and organisations in the event of a failure to discharge their safeguarding duties?

A failure to properly discharge safeguarding duties may expose both the organisation, and individuals within the organisation, to liability. For the individual, teachers and operational managers may be held accountable where injury to, or death of, a child has occurred and in circumstances where there has been a failure to comply with safeguarding duties. The consequences for the individual will of course vary depending upon the particular circumstances and also depending upon, for example, whether or not the harm suffered by the child was reasonably foreseeable. At the lower end of the scale, the consequences would include internal sanction, and possibly dismissal, under an organisation’s policies and procedures. However, it is also possible that teachers and operational managers may be pursued in the courts for damages arising out of the injury to, or death of, a child. In very rare cases criminal charges may also be brought – for example, and in the event of the death of a child arising out of “gross” negligence, a conviction for involuntary manslaughter may be sought.

There is also potential liability for the wider organisation who can be held directly accountable for a failure to comply with safeguarding duties or, under the tenets of vicarious liability, accountable for the actions of its staff. Furthermore, the organisation’s strategic leaders, however far removed from operational and day to day decision making, may also be found to be accountable. In the event of harm to a child, there will of course also be (potentially severe) reputational damage to the organisation and its strategic leaders.

What guidance exists for treating concussion in sport?

The principle guidance on concussion treatment is set out in the 2012 Zurich Consensus Statement. This is a document produced by leading neurological specialists following deliberations at the 4th International Conference on Concussion in Sport held in Zurich in November 2012. The conference was organised by sporting groups including the International Ice Hockey Federation (IIHF), the Fédération Internationale de Football Association (FIFA), the International Olympic Commission (IOC) and the International Rugby Board (IRB).

The Consensus Statement contains clear guidance developed primarily for use by healthcare professionals involved in the care of injured athletes whether at recreational, elite or professional level. In general terms the guidance identifies a graduated return to play in circumstances where an athlete has suffered concussion.

However the guidance also sets out particular considerations to be taken in to account when assessing child athletes with concussion. This is for a number of reasons including because children will take longer to recover from concussion injuries and because children’s symptoms may differ from adults and so will require age appropriate symptom checklists. The guidance also recognises that the clinical evaluation of a child by a healthcare professional may also need to involve input from the patient, his/her parents and the teaching staff/school, i.e. it will necessarily involve a high degree of coordination amongst and between all of the interested parties. For children who have experienced a concussion injury, the guidance indicates that the emphasis is to be on a return to “learn” before a return to sport.

Furthermore, the Consensus Statement specifically recognises the importance of a detailed “concussion history”, i.e. beyond simply taking in to account the number of previous concussions suffered by an athlete. This means that the clinical evaluation of a child athlete should be structured to include, for example, reference to the symptoms suffered, and the length of recovery required, following previous concussion injuries. Strategic bodies in sport have now adopted the guidance contained in the Consensus Statement and, as a consequence, a very significant change of culture is being actively fostered and filtered down to “grassroots” level.

Is concussion guidance relevant to the safeguarding duties applicable to schools and colleges?

Against this background, compliance with the concussion guidance contained in the Consensus Statement is likely to be considered, at the very least, a reasonable step in safeguarding a child’s welfare. Indeed, a school or college is most likely to be considered careless to the extent that it does not have procedures in place that facilitate compliance with the guidelines set out in the Consensus Statement. Certainly it is our view, at Return2Play, that the correct application of the concussion of guidelines is fundamental to the welfare of children engaged in sporting activities.

Therefore, to the extent that a school or college either fails to follow the concussion guidance, whether due to a failure to correctly apply the guidance or a fundamental failure to apply it at all, the organisation and relevant individuals will most likely face the potential consequences indicated above in the event of harm to a child. Clearly therefore the Consensus Statement, and the guidance set out therein, is of very significant relevance to schools and colleges in the discharge of their safeguarding duties.

In light of the welfare issues and the potential consequences for the organisation and the individual, why do we continue to support contact sports in schools and colleges?

The health benefits offered by participation in sport are far reaching and invaluable. Significant health benefits are derived from physical activity. Exercise is one of the factors that promotes wellbeing and resilience in childhood, thus improving health behaviours and health outcomes throughout life. A child’s resilience provides the ability to overcome stressful situations or cope with challenging situations or environments which may have a negative impact on others.

Parents will often decide there are many more positive than negative outcomes that come from a child’s involvement in a contact sport when played in a safe and sportsmanlike context. All sports offer huge benefits to young people in developing values and ethos in areas such as teamwork; sportsmanship; integrity; solidarity; discipline and respect.

Injuries are always an unfortunate circumstance but they are a part of any physical activity. Adults must take full responsibility to ensure that, should a child become injured, that the child is properly medically assessed and receives the correct treatment to ensure that they are able to safely return to play. In these circumstances children are able to enjoy all the health and psychological benefits that participation provides.

What do organisations need to do to ensure the safety of their pupils and compliance with concussion guidance and safeguarding duties?

Increasingly in safeguarding, the requirement is for reflective and reflexive practice. This requirement prevails in circumstances laden with change management and often where the practitioner is tasked to manage the “effective detail” required for efficient implementation of relevant guidance. Teachers are required to think about risk assessment and evaluate potential hazards taking into account the particular needs, characteristics and capabilities of their pupils and school environment. Practitioners can become paralysed by the complexity of the dilemma in a myriad of safeguarding issues presented to them in real time. Mistakes can be made that do not bear up under subsequent scrutiny.

The reality is that most teachers and senior leaders, as part of their vocation, are looking to create a safeguarding culture that is over and above minimal requirements conferred upon them by legislation. Most practitioners seek to place the welfare of children at the heart of their operational and strategic decision making on a day to day basis.

Organisations need to develop systems that meet the safeguarding agenda so as to protect children but also demonstrate their willingness to exceed requirements in terms of effectively recording and tracking physical injury and recovery. This will ensure best possible outcomes for the children in their care. It will create a culture where the “paramouncy principle” around children’s welfare is explicit and embedded in the organisations daily work at all levels. It will ensure that a rigorous approach to child welfare is evidenced through its communication systems. Organisations need to create data particular to their organisation and personal to an individual child; allow for the analysis of data; and produce accurate data for effective and timely operational and strategic decision making and planning.

What solution does Return2Play offer schools and organisations?

Sharing information between professional groups in circumstances where there are concerns about the welfare of a child has become an important principle underpinning safeguarding practice and is enshrined in legislation. It has long been recognised that failures in communication between parents, teachers and agencies tasked with the safeguarding and protection of children have been a significant contributing factor in the event of injury to, or death of, a child. Indeed, poor information exchange between interested parties adversely affected by paper records and differing systems of record keeping have been specifically identified as playing a large part in the failure of those charged with safeguarding the welfare of pupils.

In safeguarding practice there is a move toward an actuarial approach to risk management, assessment and referral of safeguarding concerns. Return2Play have designed an electronic concussion management system that complies with both concussion and safeguarding guidance. It creates a simple accessible piece of administration for busy practitioners. The system has significant and far reaching consequences for safeguarding. Adhering to the Return2Play system allows the practitioner the peace of mind that their pupils are being properly medically assessed according to concussion guidance and that compliance with safeguarding duties is assured. In the event of the unthinkable happening everyone concerned with the welfare of the child will be confident that they have done all in their power to ensure that the child’s safety was, at all times, paramount.

The Return2Play system also creates data particular to an organisation and personal to an individual child; it allows for the analysis of data; and it produces accurate data for effective and timely operational and strategic decision making. It significantly reduces the likely incidence of poor judgement; encourages the discipline of recording and referral in safeguarding practice and shifts child welfare out of a system of paper and/or anecdotal communications thereby improving outcomes for the welfare of children. The system also creates a portable “concussion passport” for a child or young person that will provide a platform to ensure their welfare for many years and throughout their sporting careers.