Request By:
Mr. Michael K. Farris
Principal
Sebree Elementary School
P.O. Box 37
Sebree, Kentucky 42455
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
This is in response to your letter to Attorney General Beshear and the Office of the Attorney General. You have asked about the legality of giving children of elementary school age such things as aspirin, Pepto-Bismol, or using a first aid ointment to help prevent infection on cuts. As the Principal of the Sebree Elementary School, you stated children are not allowed to receive aspirin without parental consent. This consent is kept on file to verify that the parent does not object.
The Office of the Attorney General has on two occasions written formal opinions on the subject of teachers providing medication to their students. See OAG 77-530 and OAG 73-768, copies attached. Each of these opinions primarily dealt with teachers assuming responsibility for dispensing prescription medication. Your question, however, relates to teachers providing school children with what may be called "over the counter" medicines and medications. This office recommends that as a matter of prudence, teachers probably should not dispense such drug store health remedies to school children, whether of elementary or secondary school age.
The reason for our "red flag" response above rests with the fear of negligence claims against teachers. "Negligence" is conduct which falls below an established standard. It is always a question of fact in any situation to determine whether a teacher has acted in a reasonable manner. In the area of teachers providing students with medications or first aid, the "text book" advice for some time has been that teachers should only administer reasonable first aid and medications in emergency situations. See Eugene T. Connors, Educational Tort and Liability Malpractice; Leroy J. Peterson, Richard A. Rossmiller, and Marlin M. Volz, The Law and Public School Operation; and E. Edmund Reuter, Jr. and Robert R. Hamilton, The Law of Public Education.
Many times a teacher's responsibilities are likened to those of a prudent parent and a teacher is said to stand in loco parentis to a child. However, that comparison should not be taken too far. The in loco parentis status of teachers does not justify their exercise of lay judgment regarding treatment, as a parent might do. It is one thing for parents to give their children aspirin (child or adult), decongestants, anti-acids, or to apply bacteria fighting ointments and the like. The parents are going to be intimately familiar with their child's health, including, most likely, physical ability to receive medicines and medications. A teacher, on the other hand, cannot possibly be so well versed about a child's health. Even if parents consent has been given to authorize the dispensing of something such as aspirin, the type or brand or dose of aspirin, anti-acid, ointment, etc. could make a big difference to a child's well being. The risk of harm to a child is too great; the potential of liability against the teacher too extreme.
While local boards of education are to promote "the general health and welfare of pupils (KRS 160.290), for the above reasons, the safest position for teachers is to not dispense drug store type medicines and medications. If circumstances other than an emergency are such that a teacher does feel it is necessary to provide aspirin or other medications to a child, the particular medication provided should be approved by a child's parents in writing if at all possible. Even with such parental approval, such activity on the part of the teacher should be engaged in only with a clear understanding that in assuming this responsibility, the teacher must act in a non-negligent manner.
We trust the above will be of some assistance to you. If you have further questions concerning this matter, please contact us.