In brief - Alarming new studies show a growing trend in school students using e-cigarettes or 'vapes'. Schools need to be aware of what they can and cannot do to address this epidemic and to manage their risk.

Teachers and education leaders' concern about the impact of rising e-cigarette use on student mental health and performance has been confirmed by a new study from the George Institute for Global Health.

Of the high school staff who responded to the survey, 84 per cent say that they know a number of their students are using e-cigarettes or 'vaping'.

One third of primary schools teachers who responded to the survey said that some students are vaping.

Despite these concerns, only one-third of respondents said that their school has a drug policy in place which addresses vaping. Even fewer indicated that their school has provided training or education around vaping-prevention strategies.

Where vaping is likely a WHS as well as a safeguarding issue, and where schools already have a duty of care to protect students, how should schools and education leaders respond to the risk?

Duty of care of schools

Schools must ensure safety of people in workplaces, as far as reasonably practicable.

Schools and teachers owe pupils a duty of care of general supervision concerning their physical safety (Commonwealth v Introvigne (1982) 150 CLR 258).

Schools might consider how active supervision might help them to address the risk of vaping and to discharge their duty of care.

Implementing random bag or locker checks or increasing CCTV surveillance might be an option for improving supervision around these issues. However, schools must ensure that they are not impacting on student privacy or breaching surveillance laws when implementing such measures.

This is where policies, training and consultation can help schools to manage the risk associated with vaping.

Safeguarding your school

Understand your obligations

Before implementing increased supervision or surveillance measures, education leaders must be aware of the applicable laws in their state. Obligations around consultation and notice requirements before searches are conducted, surveillance and privacy vary between the jurisdictions.

Once you understand those obligations, consultation and communication will be key to implementing your school's response to vaping risks.

Consultation with the school community

As a first step, the school should communicate to the school community the dangers and risks associated with vaping and how the school will respond. Implementing a policy in support of such communication is a useful starting point. That policy might address the risk of vaping, the school's expectations and how it will respond.

Importantly, as a health risk and behaviour issue, school policies should address both risk and the conduct. A disciplinary response may not be the best or only way to respond to the risk. Requiring counselling, addiction therapy and other supports can assist a school to take a 'child centric' approach to vaping, while trying to change behaviours.

Addressing the instances in which a student's property might be searched as part of a policy, for example, may provide the school with an agreed basis on which to address the vaping risk at school. Such a policy should not provide a 'carte blanche' power to search. Searching should be limited to instances where the school reasonably suspects that a student/students might be at risk of harm.

How can a school assess reasonable suspicion of harm?

Assessing whether a search of a student is appropriate must be done on a case-by-case basis. Such assessments should be documented and sufficient evidence gathered to support the decision to search. Consent should also be sought before a search, unless there is a risk of serious and imminent harm.

There are a number of elements which might inform the assessment of a reasonable suspicion of harm. Further, different factors might increase the degree of possible harm and the need for an immediate response.

To discharge both the WHS duty and duty of care obligations, schools might consider the following questions in assessing whether they hold a reasonable suspicion of harm:

1. How old is the child?

2. Are they a residential student? Duty of care may be amplified where the student is a boarder.

3. What is the suspected item?

• Can this item cause harm to the student?

• Can this item cause harm to others?

4. What is the evidence of possible harm? For example, CCTV footage, a report by another student or teacher, student has been seen with vaping paraphernalia.

5. Are there any other factors: special needs, vulnerable students etc?

Terms of the policy and Enrolment Agreements

Where vaping is a risk, schools should undertake risk assessments specific to their school and students and then put in place training, avoidance measures and policies to address that risk.

Such policies might specifically address:

  • A search policy (allowing searches pursuant to the suspicion of reasonable harm);

  • A drug policy (prohibiting e-cigarettes on campus);

  • The possible outcomes if vapes or drugs are found, including any:

    • disciplinary response (warnings, temporary or permanent exclusion);

    • therapeutic response (including counselling, rehabilitation etc).

Your school's Enrolment Agreement should also address searches, the school's attitude to vaping (and other substances), and the consequences of such conduct. Such Agreements should specifically note the prohibition of vapes on campus, that searches may be conducted, and the consequences if vapes are found. A specific parent agreement to such measures can be confirmed in Enrolment Agreements.

Whether searching is addressed in polices or Enrolment Agreements, parent consent should be sought to undertake any searches of student property.

An important part of managing the risk associated with vaping is communication about the risks, the terms of policies and the possible outcomes. Students should be engaged regularly about such risks at assembly, in class and through school notices so that the risks associated with e cigarettes and the application of the policy are understood.

Schools should seek advice about conducting searches of student property and about implementing vaping policies

For most schools vaping might be addressed under current student codes of conduct or drug policies. Such documents may be sufficient, in part, to allow a school to take disciplinary action in response to vaping.

However, a specific vaping policy may enable a school the option of taking a disciplinary or therapeutic approach to this issue, and to manage risk in a more targeted way.

Whichever approach is adopted to managing the risk of vaping, taking a blanket approach to the risks associated with vaping, including searching students and surveillance, will expose your school to risk. For this reason, schools should seek advice prior to undertaking any searches of student property and in respect of how your school is addressing this emerging and current risk.