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Data Protection and Equality Legislation - HIV Infected Pupils

Monday morning, the first day of a new term, and a telephone call comes in from the mother of a year 7 pupil, P who is absent from school that day.  The mother tells you that absence of P is due to HIV related illness.  She tells you that she has told no one else but you about the HIV diagnosis and she does not want anyone else to know.  P himself does not know, she says.  She rings off.

Monday morning, the first day of a new term, and a telephone call comes in from the mother of a year 7 pupil, P who is absent from school that day.  The mother tells you that absence of P is due to HIV related illness.  She tells you that she has told no one else but you about the HIV diagnosis and she does not want anyone else to know.  P himself does not know, she says.  She rings off.

You happen to know that P is prone to fighting with other children in the playground, having caused another pupil to suffer a nosebleed only last week.  It can only be a matter of time before someone retaliates ….

You also know that pupil P is a keen rugby player, likely to be picked for the school team.  Again, the risk of a skin-breaking injury to P looms large ….

What do you do?

The purpose of this article is not, primarily at least, to examine the needs and requirements of P.  Much attention has been focussed on the needs of the HIV sufferer, and rightly so, given the tendency back in the 1980s to treat sufferers very much as lepers would have been treated in days gone by.  On the question of how a school can best respect the needs of a child with HIV diagnosis, there is excellent advice contained in a 2005 publication entitled HIV in Schools by Magda Conway, which can be found on the National Children’s Bureau’s website www.ncb.org.uk .

Instead, this article will consider, briefly, how the duty to the child sufferer fits in with and relates to other duties that the school owes to other children at the school and their parents.

In this particular case, should those who might be responsible for supervising P in the playground or on the rugby pitch be told of his diagnosis so they can be more alert to intervene in the event of injury?  Or possibly in the event of the imminent threat of injury?  Or should P be prevented from playing rugby altogether, just in case ….? What action are parents of other children at the school entitled to expect the school to take?  If the school does not take particular steps, and parents later learn of P’s condition, are they entitled to be filled with righteous indignation?

In this situation the law does not have all the answers, although it is helpful in directing us to what key questions need to be asked in order to arrive at a plan of action that will stand up to scrutiny.

As well as the general duty to protect and care for the wellbeing of all the children attending the school, the two areas of statutory law that are engaged by the scenario set out above are the Data Protection Act 1998, as amended by the Data Protection (Processing of Sensitive Personal Data) Order 2000, and the Equality Act 2010.

The main questions that arise are:

  • What action, if any, would a school ideally wish to take to safeguard the wellbeing and safety of other pupils in the school in the case of a child attending the school who is known to be positive for HIV, inter alia taking into account other known factors in so far as they may be relevant (eg. he is known to be prone to violence, and plays rugby)?
  • Can the school take those actions against the background of the legislation mentioned above, and the duty to the child in question (especially bearing in mind that he is believed not to know that he is HIV positive)?

The effects of Data Protection and Equality legislation in relation to this issue, although well known, are worth repeating in this context.

First, in relation to Data Protection legislation, the normal rule is that sensitive personal data should not be disclosed to anyone without the consent of the person to whom it relates, or the parent or guardian of that person. Clearly being HIV positive is “sensitive personal data”.  Disclosure is generally permitted “for the purposes of exercising any function conferred on a person”, which, in the case of a school, covers a wide ambit, but, specifically in relation to sensitive personal data, at least one of the conditions set out in Schedule 3 of the Data Protection Act also has to be met. The only condition likely to be relevant is that “disclosure is necessary for the purposes of protecting the vital interests of another person...where consent by or on behalf of the data subject has been unreasonably withheld”.

Moving on now to the Equality Act 2010, discrimination by reason of disability is prohibited unless it is a proportionate means of obtaining a legitimate aim.  Being HIV positive, even though asymptomatic, is specifically classed as a disability by the legislation.  Any step that the school might contemplate taking in relation to the pupil in question, such as disclosure of his condition, banning him from playing rugby or playing certain positions in rugby etc. would be classed as treating the pupil less favourably than other pupils, and thus would be discrimination by reason of his disability, and therefore would be unlawful unless it could be justified as being a proportionate means of achieving a legitimate aim.

So much for the underlying law.  As so often, the question of what action, if any, the school actually takes, is a balancing act.

The relevant non-legal considerations that will inform the decision include:

  1. How likely is it that a transfer of the infection will occur in the normal day to day life of an HIV pupil attending the school?
  2. Is the risk enhanced by the pupil taking part in a contact sport such as rugby?
  3. If the answer to 2 is yes, how great is the enhanced risk?
  4. If the risk is significant, can it be appreciably lessened by, for example, the pupil not playing rugby, or not playing certain positions in rugby, or by staff members being aware of the condition so that, if a risk-creating incident does occur, they can intervene more swiftly, or in a different way, so as to lessen or eradicate the risk?

The answers to the above questions are discoverable only by reference to data produced by scientific research into these issues, which, unfortunately is not always easy to find, nor is it easy for a lay person to assess how reliable any particular study is.  The guidance published by the National Children’s Bureau referred to above states that there is no known case of HIV having been transmitted in a school.  However that comment is not specifically attributed to any particular study, and is in any case now some 9 years out of date. It is beyond the remit of this article to search out the most up to date and reliable scientific data, but, if it is indeed true that, even now, there is no known case of HIV having been transmitted in school, the risk of transmission is presumably slight, and the arguments in favour of any special steps in the case of the pupil P would be lessened accordingly. In this particular case, however, it would also be important to have regard to research into risks specifically associated with rugby.

Also relevant is this question: if the HIV status of P was disclosed, what could a staff member actually do to lessen the risk or improve the situation if a risk-creating event occurred, other than the steps which all staff should be instructed to take routinely, regardless of whether they know HIV to be present.  The answer is almost certainly nothing, apart from perhaps to ban P from all activities where he might come into violent physical contact with other children.  Potentially blood fluids might already have occurred if a fight broke out while no staff member was present, or if there was a clash of heads in rugby, before any member of staff was in a position to take any action at all.  Once a staff member is in a position to take action, then the action that the staff member should be taking should be such as would lessen the risk to the greatest extent possible whether or not they know one of the children involved to be HIV positive. That is because HIV is not a notifiable disease, and there is always the possibility of HIV being present, without having been disclosed.

Of course, human fallibility being what it is, not everybody necessarily acts in an absolutely ideal way 100% of the time, and staff would no doubt be particularly vigilant if they were aware of the HIV diagnosis, which might in practice be beneficial if a risk-creating situation did occur.  However that would not be enough to justify disclosing the situation against the wishes of the pupil’s parent.  In the absence of consent to disclosure the only legitimate action to take to address the risk that staff might not take recommended precautions would be to reinforce more generally the actions to be taken in respect of all potentially risk-creating situations.

From a practical point of view, the most constructive action to take immediately would be to discuss the situation with P’s parents, fully exploring with the parents the extent to which disclosure or other measures might benefit P himself, and/or other pupils of the school, with the objective of achieving a consensus as to what measures it would be sensible to take to in the best interests of both P and other pupils of the school. Part and parcel of this would be a discussion as to the appropriate time to make disclosure to P himself, so as to avoid the possibility of his discovering his predicament in an unplanned way, and so that he can begin to take responsibility for his own situation, thus maximising his chances of remaining asymptomatic, as well as avoiding inadvertently causing harm to others.

About the author

Patricia Hall profile photo

Patricia Hall

Patricia is a Practising Consultant in the Dispute Resolution team.

Published: Wednesday 12th March 2014
Categorised: Education

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