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Children's rights
Under the provisions of the Children (Scotland) Act 1995, the local authority has a duty to promote the welfare of children in need by providing a range of appropriate services in their area. Children with disabilities or who are adversely affected by the disability of any other person in the family are regarded as children in need and services should be designed to
"... minimise the effect on any disabled child who is within the authority's area, of his disability and .... to give those children the opportunity to lead lives which are as normal as possible." (Section 23)
The Act and associated regulations and guidance contain a number of themes of particular relevance to children in need with disabilities:
Definition of a child
In respect of Section 23 of the Children (Scotland) Act 1995 (see above) as 'child' means a person under the age of 18 years. (Section 93(2)(a)).
Consent to medical examination and treatment
Responsibility for making decisions about personal health care issues rests in the first instance with the child or young person him/herself. Under the provisions of the Age of Legal Capacity (Scotland) Act 1991, a child under the age of 16 years can consent to any medical procedure where, in the opinion of a qualified medical practitioner attending him/her, s/he is capable of understanding the nature and possible consequences of the procedure. This means that parental consent to treatment will only be relevant if the medical practitioner feels that the child does not have sufficient understanding.
Children with disabilities, like other children, have legal rights to consent or to withhold consent to medical examination or treatment if they are judged to have sufficient understanding to do so. Special efforts should be made to explain to the child the purpose and potential outcomes of any examination or treatment. It is always helpful to have the child's consent in writing. However, this might not always be possible, for example in the case of a child who has sufficient understanding to give consent but is physically incapable of writing. In such a situation the fact that the child had given consent could be recorded by the medical practitioner.
In situations where the child is not considered capable, the Children (Scotland) Act 1995 allows anyone holding parental rights and responsibilities to give or refuse consent. This includes mothers, fathers who are married to mothers, or were married to them at the time of the conception of the child or subsequently, or anyone who has acquired parental responsibilities. If none of the above is available, Section 5 of the Act allows anyone over the age of 16 years who has the care and control of the child for the time being (such as a childminder, social worker or co-habitee) to give consent provided that this person does not already know that the child's parent would refuse to do so. NB: This legislation specifically excludes school staff.
In situations where parental consent is not legally required, good practice would seek to involve parents, with the child's consent, in any decisions about medical examinations or procedures.
Health and Safety at Work etc Act 1974
Management of Health and Safety at Work Regulations 1992
Employers are responsible for the health and safety of their employees and anyone else on the premises. In schools this covers the headteacher and teachers, non-teaching staff, pupils and visitors.
The employer of staff at a school must do all that is reasonably practicable to ensure the health, safety and welfare of employees. The employer must also make sure that others, such as pupils and visitors, are not put at risk. The action which a prudent employer might take to ensure compliance with his/her duties under the Act would include the following:
Most schools will at some time have pupils with special medical needs. The responsibility of the employer is to make sure that safety measures cover the circumstances of all pupils at the school. This may mean making special arrangements for particular pupils.
Administration of medicines in school
Section 39 of the NHS (Scotland) Act 1978, as amended by Section 10 of the Health and Medicines Act 1988, places a duty on the Secretary of State to provide for the medical treatment of all pupils. Specifically it states that:
"It shall be the duty of the Secretary of State to provide for the medical inspection, at appropriate intervals, and for the medical supervision and treatment of all pupils in attendance at any education authority or at any self-governing school".
The Secretary of State has delegated his duties under Section 39 to the Health Boards, through the Functions of Health Boards (Scotland) Order 1991.
There is no statutory obligation on local authorities to provide for the medical treatment of pupils but they are required to co-operate with a Health Board in making such provision (Section 13 NHS (Scotland) Act 1978).
In view of this background, it seems incumbent on education authorities to take reasonable steps to assist health boards in ensuring that medical treatment is available to pupils who require it. This would involve education authorities in making arrangements for teachers, or other staff in schools, to voluntarily supervise or administer medicines for which parents, rather than health professionals, would normally be responsible.
This is the basis on which existing arrangements mainly operate in schools across Scotland. Commendably, a number of local authorities have produced very good advice for their schools concerning the administration of medicines to pupils.
Teachers' contracts do not oblige them to administer medicines to pupils and they are not obliged to do so in common law although in an emergency situation they would be expected to take such action to assist the pupil as a prudent parent would take. However, where an Education Authority decides that its co-operation will involve teachers agreeing voluntarily to administer medicines with parental consent, such teachers are undertaking this task in the course of their employment.
Staff who provide support for pupils with medical needs, or who volunteer to administer medication, need support from the headteacher and parents, access to information and training, and reassurance about their legal liability. Appendix 1 gives an exemplar Staff Training Record proforma which schools should consider having for all staff who administer medication to pupils.
In these circumstances, it would be reasonable for teachers to expect Education Authorities to provide clear indemnities against any potential liability incurred. This need pose no additional burden on Education Authorities because it is anticipated that this potential liability would not add significantly to their employer liability insurance costs. However, individual Education Authorities should clarify indemnification issues at a local level with their insurers.
Some school staff may be understandably reluctant to volunteer to administer intimate or invasive treatment because of the nature of the treatment, or fears about accusations of abuse. Parents and headteachers should respect such concerns.
Back up cover must be arranged for when the member of staff normally responsible for administering medication to a pupil is absent or unavailable. The headteacher should ensure that temporary staff are made aware of the needs of individual pupils and how these are to be met.
Any member of staff giving medicine to a pupil should check:
If in doubt about any of the procedures the member of staff should check with the parents or a health professional before taking further action. The school should have a known procedure which involves parents and, where relevant, the child's medical practitioner providing the school with written information about the medicine to be administered. The headteacher should then formally acknowledge agreeing to administer the medicine in the school. Staff should be required to record and sign a form each time they administer medication to a pupil. Where possible, the dosage and administration should be witnessed by a second adult. Appendix 2 gives an example of forms which can be used for these purposes. The support of West Lothian Council in giving permission to copy these forms is gratefully acknowledged.
The school should, where practical, arrange for two adults, at least one the same gender as the pupil, to be present for the administration of intimate or invasive treatment to ease practical administration of the treatment and minimise the potential for accusations of abuse. Staff must protect the dignity of the pupil as far as possible, even in emergencies.
Record retention
It is good practice to retain records relating to individual pupils regarding the administration of medication and health care plans. Sound advice is given by some local authorities which requires these records to be held until the date of the pupil's 25th birthday and in the case of children with severe/profound/complex educational difficulties kept indefinitely.
Dealing with medicines safely
The protection of staff and pupils must always be a prime consideration. Particular attention should be paid to the safe storage, handling and disposal of medicines. The headteacher has prime responsibility for the safe management of medicines kept at school. This duty derives from the Control of Substances Hazardous to Health Regulations 1994 (COSHH). School staff are also responsible for making sure that anyone in school is safe. Medicines should generally be kept in a secure place not accessible to pupils but arrangements must be in place to ensure that any medication that a pupil might need in an emergency is readily available. Schools should not store large volumes of medication. Each medicine must be in its own labelled container showing the name of the pupil, the dose of the drug, the frequency of administration and its expiry date. School staff should not dispose of medicines. Parents should collect medicines held at school at the end of each term. Parents are responsible for disposal of date-expired medicines.
Hygiene
All staff must be familiar with normal precautions for avoiding infection and must follow basic hygiene procedures. Staff must have access to protective, disposable gloves and take care when dealing with spillage of blood or other bodily fluids and disposing of dressings or equipment.
Health Boards and NHS Trusts have been advised that they should provide appropriate advice and training to schools in these matters.
Health care plans
The main purpose of an individual health care plan for a pupil with medical needs is to identify the level of support that is needed at school. A written agreement with parents clarifies for staff, parents and the pupil the help that the school can provide. Schools will want to review individual health care plans on a regular basis.
An exemplar of a health care plan format can be found in Appendix 3. The assistance of West Lothian Council in giving their permission for this form to be copied is gratefully acknowledged.
Those who may contribute to a health care plan are:
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