Legal Advice for return to Education

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With Barrister-at-Law Tracey O’ Mahony

This week The Advertiser spoke to Barrister Tracey O’ Mahony about the legal rights for parents and children as they return to education.
Tracey discusses issues around the rights of your child with regard to knowledge of vaccination status, consent to medical treatment and mandatory vaccinations. She will examine more of these issues next week.

1.The rights of a school to ask whether your child has been vaccinated against Covid-19
As matters stand, there is no lawful basis to ask whether your child has been vaccinated against Covid-19. The most important piece of guidance to support this position was published by the Office of the Data Protection Commission on the 22nd of June 2021. This document specifically concerns the processing of Covid-19 vaccination data in the content of employment, however, the same advice could be applied in many other settings, including, in my view, all educational institutions (which includes primary school, secondary school, third level, and any type of training course).

The guidance published by the Data Commissioner states:“in the absence of clear advice from public health authorities that it is necessary for all employers and managers of workplaces to establish vaccination status of employees and workers, the processing of vaccine data is likely to represent unnecessary and excessive data collection for which no clear legal basis exists. This is particularly the case when there is no public health advice pertaining to what the purpose of such data collection would be.”

What this means is that, unless the Department of Health, or another official public health authority, advises that schools must collect the vaccination status of pupils for a particular purpose, then there is no lawful basis to do so.

2. The rights of a school to require your child’s temperature to be checked each day as a condition of admission
Both vaccination status data and temperature checking data are special categories of data under the General Data Protection Regulations, this means that the school (or employer if you are a teacher in a school) cannot simply ask for this information, without having a lawful basis to do so.

With regard to temperature checking, it is worth noting that the Office of the Data Protection Commission issued guidance in 2020 to the effect that temperature checking in the workplace would only be considered necessary and proportionate in circumstances where public health authorities or other relevant authorities are recommending such measures.

We can use the same logic with regard to considerations around temperature checking in schools. In this regard it is worth noting that the Covid-19 Response Plan for the Safe and Sustainable Re-opening of Primary and Special Schools and Post Primary Schools published in August 2021 make no reference to a requirement to check a child’s temperature upon entering a school, therefore, unless your child’s school has been identified as particularly high risk, the school in question must justify why any consequent processing of personal data is necessary.

3. The age at which children can provide consent to medical treatment without parental knowledge or consent
Section 23 of the Non-Fatal Offences Against the Person Act 1997 provides that a person over the age of 16 years can give consent to surgical, medical or dental treatment without needing to obtain consent from their parents or legal guardian. In light of same, if your child is over the age of 16 years, they may be approached in the school or by their GP to see if they wish to take the Covid-19 vaccine, so you should ensure that your child is educated on the risks versus the benefits of this vaccine; ensure they are aware that they may be approached while in school; and ensure they know that the vaccine is not mandatory.

The law with regard to children under the age of 16 years is less straight forward in Ireland. I say this given guidance issued by the HSE in their National Consent Policy Version 1.3, which at Part 2 deals with Children and Minors and confirms that it may be possible for children under the age of 16 years to provide consent to medical treatment, without parental knowledge or consent, if that child is considered a Mature Minor. A Mature Minor being a child, who is considered by the health care provider, to have sufficient understanding and intelligence to enable that child to understand what is being proposed with regard to medical treatment. The HSE Consent Policy goes on to state that the concept of Mature Minor is accepted in many other jurisdictions such as Northern Ireland, Scotland, New Zealand, Australia and Canada.

With regard to children under the age of 16 years, I would again advise parents to ensure that their child is educated on the risks versus the benefits of this vaccine; ensure they are aware that they may be approached while in school; and ensure they know that the vaccine is not mandatory. With regard to children under the age of 16 years, I would also advise parents to send both their child’s school and their GP a non-consent form advising that you do not consent to the Covid-19 vaccine being administered to their child without their prior written consent and confirming that their child does not have the maturity, understanding or intelligence to give informed consent without parental involvement and that in this regard should a decision be made by the school or healthcare provider that their child is considered a mature minor, they shall hold them personally liable for loss, damage, injury and interference with their constitutional rights to safeguard the welfare of their child.

4. Whether it would be possible to make mandatory in law the Covid-19 vaccine for children in schools
It my view the Covid-19 vaccine will not be made mandatory in law for primary, second or third level education. I think it is far more likely that educational institutions, in concert with the government, will employ coercive measures to encourage pupils to take the vaccine.

The following constitutional protections exist with regard to mandatory vaccination in educational settings, all of which would make it problematic to mandate the Covid-19 in law:

a) Article 42.1 which states “The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.”

b) Article 42.4 which states “The State shall provide for free primary education”

This Article 42.4 is particularly important as in 2019 Simon Harris sought advice from the Attorney General around the legality of mandating vaccinations in school and he was advised that it would be “legally challenging” given a number of competing protections under the Constitution, but he specifically mentioned the right to free primary education as being a barrier.

c) Article 40.3.1 which concerns the unenumerated right to bodily integrity, which was first recognised in 1965; and

d) Article 41.1 which states “The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”

“I would like to sincerely thank Tracey for her time to send me this very important information and for her brilliant ongoing work to help preserve the rights of Irish people. We will have another article next week from Tracey discussing similar issues including informed consent and PCR testing in school children.” Denis Walsh