Educational psychologist’s negligence wrongly sends boy to ‘special school’

Surprising as it may sound, the employees of the state that potentially could most affect your lives, freedoms and privacy are teachers…and why? Because, in state schools at least, teachers are usually the people who will refer you or your children to psychologists and Social Services. So far, so good – great, actually, for the child. But when teachers or the professionals they refer you to abuse their power or exaggerate a child’s problems, there are few laws to control their behaviour (remember the family who fled abroad for a year to stop their daughter’s baby being taken away just because their daughter had mild autism – and even though she was living with her parents who were caring for the baby?). Below is the summary of one such case that actually was able to make it to court – but only after the child had been wrongly placed in a “special school”.

The pupil claimed damages from the LEA on the basis that the school psychologist had been negligent in preparing the report in 1990. The boy said he would have received an education more suited to his needs had the psychologist not been negligent. The pupil’s claim relied on the evidence of a senior specialist educational psychologist for children with complex needs. He said that educational psychologists in the boy’s area were skilled in identifying autistic features in children, and that the educational psychologist had failed in his duty of care to the boy by:

• simply referring to his complex needs, and
• not doing more to assess precisely what those needs were

The trial judge held that the psychologist had been negligent in: 1. failing to appreciate that the boy had not presented a profile of a child with emotional and behavioural difficulties, so that it had been inappropriate to place him in a school for such children 2. failing to carry out any psychometric tests, such as a general intelligence test using the Wechsler testing method 3. failing to recommend to the school and the parents that the boy’s educational needs could be met only by a school with experience and expertise in teaching children with communication disorders

The school educational psychologist should have identified the claimant’s complex social and communication needs, which were not appropriately catered for by the school for children with emotional and behavioural difficulties, to which he was sent.

The psychologist’s negligence had meant that the boy did not learn how to improve his social skills, to manage his behavioural difficulties, or to gain some education opportunities. Damages should be assessed on this basis.

The court of appeal The LEA appealed, but the Court of Appeal held that the judge had been entitled to hold, on the evidence, that the psychologist had been negligent.
So far as damages were concerned, however, the Court of Appeal held that the judge had gone too far in holding that the negligence had caused the boy to lose the opportunity to learn how to improve his social skills, to manage his behavioural difficulties, and to gain some education opportunities. Damages should be assessed on this basis.

The court of appeal The LEA appealed, but the Court of Appeal held that the judge had been entitled to hold, on the evidence, that the psychologist had been negligent.
So far as damages were concerned, however, the Court of Appeal held that the judge had gone too far in holding that the negligence had caused the boy to lose the opportunity to learn how to improve his social skills, to manage his behavioural difficulties, and to gain some education opportunities.

The judge should have approached the question of damages by considering, on the balance of probabilities, what would have been the likely outcome for the boy if he had gone to an appropriate school.

The boy’s brain was badly damaged. All the experts could say was that the outcome would have been better, or different, with a different education.

AMOUNT OF DAMAGES While the boy was clearly entitled to damages, the uncertainties were so great that only a small award for loss of earning capacity could be justified.

Reference: http://www.teachingexpertise.com/articles/educational-psychologists-duty-care-549