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Education: Vaccination battle looms for schools

by
25 September 2020

Howard Dellar sees legal problems in store for schools

PA

Palestinian health workers give a polio vaccine to a child in a UN clinic in Shati Camp, in Gaza, earlier this month

Palestinian health workers give a polio vaccine to a child in a UN clinic in Shati Camp, in Gaza, earlier this month

SCHOOLS that attempt to deal with government guidance on making their children and staff Covid-safe are on more or less firm ground when it comes to test and trace. When it comes to vaccinations, however, the ground might turn out to be boggier.

To begin with, small church primary schools in well-run diocesan multi-academy trusts will be relieved that some of the burdens are being carried centrally for them rather than at school level. One example of such a challenge is applying the Government’s Covid test-and-trace system to the schools system.

But, as pupils return to “Covid-secure schools”, what if a parent refuses to consent to the school version of the test-and-trace system if there is a suspected outbreak? Where does that leave the head teacher legally, or any multi-academy trust that the school is in?

In brief, the school has the law on its side; but it is still necessary to know the school’s families and their situations, and have proper processes in place.

The safety and well-being of the children is, of course, a head teacher’s first consideration. Controlling the spread of Covid is clearly, also, in the public interest. Indeed, as a public body, the school can argue that it has to comply with government guidance (unless it has a very good reason not to).

The school also has a public duty and a legal obligation to promote and safeguard the welfare of pupils, and a duty of care for its staff. Private individuals are currently allowed to decide whether to co-operate with the test-and-trace programme at the risk of suffering the consequences of their choice. For a public body such as a school, it is simply a question of duty.

Thus, passing on the contact details of a child who may have been exposed to infection, so that their parents can be contacted and notified, forms part of the school’s basic safeguarding duties. It can do this without fear of a fine from the Information Commissioner’s Office.

 

THERE is a caveat. Parents still have a right to object to the system on the basis of their specific circumstances. For example, a head teacher might decide that it was fair enough not to pass on the details of a child living in a domestic-violence refuge, choosing, instead, to make direct contact.

For parents challenging test and trace without reason, however, the school can dismiss their objections on the grounds that it can demonstrate compelling legitimate grounds for data-processing which override the interests, rights, and freedoms of the individual. It is going to be rare for a school to uphold a family’s objections as unfair or risky.

It will help if, when schools communicate with parents by letter on the subject of test and trace, schools make it clear what they plan to do if a child has symptoms, and that they will be acting in accordance with government guidance. If someone else in the school tests positive for the coronavirus, then the school would co-operate with the local health-protection team, as it is required to do so.

In some circumstances, set out in government guidance, this could include passing on contact details of the people whom the school knew to have come into close contact with this person, so that they, too, could be contacted. Again, this is part of the duty of a public body, and will not breach the General Data Protection Regulation.

In the rare cases in which families have particular personal circumstances that mean that they would be put at risk if their information was disclosed in this way, they should let the school know.

 

FINALLY, some schools and parents are looking ahead and have asked about the legal position if a child’s parent objects to the vaccination of the child against the coronavirus.

As the law presently stands, parents have the right not to have their child vaccinated. A school needs a parental-consent form to be signed before a vaccination can take place. The school simply does not have the legal right to vaccinate without parental consent.

Keeping a child off school when other children are being vaccinated, however, would be an unauthorised absence.

Schools will also want to know, nearer the time, whether, to protect the rest of their pupils and staff, they have the right to bar a child who has not been vaccinated. While there is presently no mandatory vaccine law in the UK, there may well be changes in this area. Indeed, this is very likely.

Even before Covid, the Heath Secretary appeared to be prepared to consider a legal framework that could give schools the power to adopt strict policies on student vaccination as a prerequisite of school admission.

So, as soon as a Covid-19 vaccine is available, will it become mandatory for pupils in schools to be vaccinated, just as it may be if you attend an office or a sporting event?

If public heath ends up trumping individual rights in this area, there will still be parents who resist having their children vaccinated. Schools could find themselves caught up in disputes and litigation.

 

Howard Dellar is a solicitor at Lee Bolton Monier-Williams who specialises in charity, ecclesiastical, and education law.

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