Will school children be offered Covid vaccines…and if so what duties will schools have?
Schools are already dealing with concerns about the possibility of vaccinating pupils.
Wrigleys’ education team is aware that many schools and multi-academy trusts have recently received correspondence from campaigning groups expressing concerns about the possible participation of schools in any rollout of the vaccination programme to school age children and young people.
It is our understanding that no decision has been taken as yet about whether vaccinations will be offered to under 18s in the UK. We also understand that there has been no communication from the Department for Education (DfE) or Public Health England to prepare schools for any such rollout or to clarify what part schools might be asked to play.
Since the Pfizer vaccine was approved for 12-15 year olds in the UK by the Medicines and Healthcare products Regulatory Agency (MHRA) at the beginning of June, press reports have suggested that children may be offered the vaccine as early as the Autumn term. However, recent reports (such as this from the BBC Covid: Children aged 12-17 unlikely to be offered vaccine in UK) suggest that the upcoming statement from the Joint Committee on Vaccination and Immunisation (JCVI) is unlikely to recommend the vaccine is automatically offered to children in the near future.
Consenting to the vaccine
The rules around consent to vaccination for children are the same as those for consent to medical treatment. Briefly, those aged 16 and above are usually entitled to consent to their own medical treatment. Younger children who are “Gillick competent” (in other words they have the intelligence and competence to understand what is involved in their treatment) can consent to their treatment. Otherwise, someone with parental responsibility can consent on their behalf. Further details can be found at the following links:
DfE guidance on Covid testing and the use of face coverings for children in schools has not been mandatory and no school can refuse to educate a child on the basis that they do not wear a face covering or fail to undergo non-symptomatic testing. If the vaccination programme is rolled out to school aged children, it will be highly unlikely to be a mandatory requirement for school attendance.
Whether schools may have any involvement in the delivery of any such vaccination programme is a separate whilst related point.
In relation to both, we would also expect detailed guidance, including on child and/or parental consent issues, to be shared by the DfE as part of any rollout programme.
The duties of the school or academy trust in relation to any vaccine rollout to school children
Schools and academy trusts must take DfE guidance (including any Covid-related guidance) into account when taking decisions about policy and practice. The trust, school or local authority (in the case of maintained schools) also have common law and statutory duties to protect as far as reasonably practicable the health and safety of staff and pupils. This includes an obligation to carry out risk assessment, to consult with staff representatives on health and safety matters, and to review and revise risk assessment and mitigation measures when circumstances change. Academy trusts must by statute have a health and safety policy which is reviewed at least annually. The Government also expects large employers (with 50 or more staff) to publish their risk assessments on their website (although this is not a statutory requirement).
Schools and trusts will need to assess the risks of any steps they are asked by the DfE to take in relation to the vaccine rollout, if and when proposals are formulated by the Government. This may include hosting vaccination clinics and helping to disseminate authoritative and accessible information to families so that they can make an informed choice. Ultimately, it is for the Government to determine whether vaccination will be mandated for school attendance (as is currently proposed for staff working in older age care homes) and it will be for parents and children (where they can provide consent) to decide whether to comply with any mandatory rules or to accept any offer of a vaccine. It is not for schools and trusts to compel compliance or acceptance.
During this period of uncertainty, we recommend that schools and trusts inform the DfE of any campaigning correspondence they receive on this issue and push for sector-wide advice from the DfE. Where concerns are expressed by parents, these will need to be sensitively handled and the relevant usual processes followed. Should vaccination be offered to school children, it will be important to ensure as far as possible that children are not disadvantaged by not taking up the offer and that it does not impact on their access to education.
For further information on a recent European Court of Human Rights case on childhood vaccination, please see Compulsory vaccination scheme was not a breach of european convention on human rights. For further information on whether schools can insist that staff are vaccinated and some of the potential legal risks, please see Could schools insist that staff take up the offer of a covid vaccine?. Both articles are available on our website.
If you would like to discuss any aspect of this article further, please contact Alacoque Marvin or any of the education team on 0113 244 6100.
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The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.