Educational Malpractice

Educational malpractice, which is an offshoot of professional malpractice is a concept that has not taken root in the domain of education. What it involves is an assertion of professional negligence or the failure to provide services to a standard that can reasonably be expected. It assumes that the actors in the domain of education, like their professional counterparts elsewhere, must function to known or accepted standards and a deviation from those standards would impose liability on them if damages result from such deviations. Courts in all jurisdictions have been slow or reluctant to find teachers, officials, regulatory authorities, or institutions liable. This has been the position especially in cases where the allegations have been about unsatisfactory education or education that was alleged not to satisfy the expectations of students or their parents. Judges refuse to attempt to be educators. They abjure any knowledge or skills in education which they say is the province of teachers and institutions. Another reason they have often alluded to is the very nature of education. Unlike other professional services education relies on the active participation of the client-student over whose make-up and conduct are largely outside the institution’s control.

But the situation is changing. With more regulatory control and the statutory prescription of standards on institutions and teachers such as the minimum standards set by the Malaysian Qualifications Agency (MQA), courts now have more purchase on how education is programmed through curricula and even about how teaching is conducted or has to be conducted. Such published objective criteria may allay the reluctance of the courts, which means that education providers may have a new regulatory force to deal with. In 2012, the High Court in Terengganu had cause to thoroughly examine educational plagiarism and concluded with the opinion that if the student is guilty of plagiarism in her thesis, the thesis supervisor must also bear part of the responsibility for the student’s action.

Educational malpractice suits may equally be brought by staff against institutions and vice-versa. The earlier post describes a situation that could well have resulted in an action by the staff against the institution.