Tag: duty of care

We’re a hands off facility. What do we do when there is a fight?

Question:

We are a hands off facility but we have teenage boys in our group homes that are at times very aggressive/violent.  Our staff is working on deescalating the boys as soon as possible and developing relationships with them but what can we do when they start fighting with each other?

How can we break up the fight, keep everyone safe, and be hands off at the same time?

Answer:

The short answer is, you can’t; not if your client-combatants ignore your verbal instructions to stop.

The long answer is, while it may be nice to say you are a “hands off” facility, the fact is, your agency has a  responsibility to protect those in its care.

If you are going to take a population where it is foreseeable that there might be a physical altercation, you have to train staff to deal with that situation in a manner that is effective. It is not enough that you have “a” policy in place, the policy and training has to be effective to deal with the situation.  The other option is to call law enforcement, but if law enforcement does not get there quickly enough, your agency may still have to answer why it did not intervene.

There is a duty to train staff to deal with foreseeable circumstances.  There is also a duty to set up a safe environment capable of dealing with the population you serve. Again, “a” policy will not insulate you if the policy is not suitable for the needs of your facility.

If your agency is taking kids and there are fights and you know there are fights and the kids are not listening to verbal commands, and you can and should check with your agency attorney, but I don’t see how you can escape your duty to protect a client in your care who is a victim(s) of a battery by saying we didn’t intervene because we’re hands off.  The only possible way to minimize the duty to train staff to deal with violence is to only accept those clients who present zero risk of assaultive behavior into your program.  I am not sure that is possible.

Failing to take action can be just as abusive to a client as taking inappropriate action, under the right circumstances.

If the State is preventing you from restraining and forcing you to retreat and maintain a hands off policy, we would suggest that you bring the issue up with your State licensor and change the semantics of the discussion.  Frame the issue with respect to your state self defense and defense of others laws and the constitutional right to protect oneself (or another) from bodily harm.  Then address the issue of  your facility’s duty of care.  Frame the use of restraint as a least restrictive method of self-defense when retreat and verbal commands proved or were determined to be ineffective.

We do not want to place your agency at odds with your state licensing agency, but if you haven’t addressed the issue with them maybe you should ask for an advisory opinion or guidance.  A hands off policy where someone is in danger of being physically hurt is (in our opinion) illegal and ultimately unenforceable.  We have a position paper on this issue that we have provided links to.

Feel free to call us if you have any additional questions (845) 255-4031.

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Oregon School Sued for Failing To Protect Students

A Harrisburg mother says educators didn’t PROTECT her son, who has Tourette’s syndrome.

The mother of a middle school student has filed a federal lawsuit against the Harrisburg School District, alleging that its educators failed to protect him from bullying and assaults by other students.

The complaint accuses the district of negligence and intentional infliction of emotional distress by allowing other students to taunt, push and strike him.

The suit also accuses the district of disclosing the boy’s confidential personal information and education records to the general public without his consent.

Because the boy and his alleged tormenters are juveniles, The Register-Guard is not publishing their names.

Harrisburg Superintendent Brian Wolf declined comment on the suit, saying district officials do not discuss pending litigation publicly.

The suit alleges that classmates began bullying the boy in 2007, when he was a fourth-grader at Harrisburg Elementary School.

It says he was taunted with derogatory terms for homosexuals and offensive hand gestures. It says the district failed to address “escalating incidents” of such bullying over the years, creating a “hostile and toxic education environment” for the boy.

It alleges that other students hit, punched and spit on him; jumped on him, causing him to cut his head; and shoved him into a wall, breaking his thumb.

It says the boy repeatedly complained to teachers. It charges that at least one teacher responded by accusing him of lying. It says others admonished his alleged attackers, or punished both him and them with in-school suspensions. But the district failed to stop the other students’ actions, the suit alleges, and the boy stopped seeking teachers’ help.

The boy’s mother also complained to school officials and reported the broken thumb to the Linn County Sheriff’s Office, the suit charges, but the behavior still was “not addressed” at school.

After two months of “near-daily incidents of name-calling and harassment, all with the same anti-homosexual theme,” the boy in 2009 began begging to stay home from school, the suit says. His parents pulled him from school, it contends, after he began experiencing “diarrhea, stomach pains, anxiety, fear of adults, aggression toward his younger sisters, and general distrust of people.”

The harassment and physical attacks continued when the boy attended seventh grade at Harrisburg Middle School during the 2010-11 school year, the suit alleges. It charges that a teacher failed to intervene when another student grabbed and “dry humped” the boy in a locker room.

The suit says Oregon teachers and administrators are required to know federal laws prohibiting discrimination, including “student-on-student perceived gender discrimination.”

Yet, “as a result of the (Harrisburg) district’s unofficial policies, customs or practices,” the boy was “harassed, bullied, disciplined and punished by his fellow students” with behavior that was “condoned, tolerated and intentionally encouraged by the district,” the suit says.

Moral of the Story: There are consequences for failing to take action.