We discuss why the controversial decision by a Whangarei childcare centre to expel a young boy with HIV, if proven, is contrary to the Ministry of Education's recommendations and is likely to be unlawful.

The dispute

Earlier this month the Aids Foundation alleged that the Mokopuna Early Childhood Education and Care Centre expelled a young boy because he is HIV-positive. The family said that, after informing the Centre that the boy had HIV, the Centre told them it 'didn't want him here'.

The Centre denies the claims, saying that it did not exclude or expel the child and that it was putting in place a care plan to ensure that children at the Centre received appropriate care and that staff were aware of his condition and how best to care for him if a situation occurred.

No requirement for doctor or family to disclose presence of HIV

The Health Act lists certain diseases which are 'notifiable'. A medical practitioner is required to notify the Medical Officer of Health if a person has a notifiable disease. No other person, including the family of the person with the disease, is required to notify the Medical Officer of any disease under the Act. A Medical Officer can determine that people with certain infectious notifiable diseases be isolated from school for a prescribed period.

Notifiable diseases include AIDS, some cases of Hepatitis C and B, and meningococcal disease. However, HIV is not a notifiable disease.

Due in part to the right to privacy, the family of a child who has HIV is not legally required to inform the child's school of his or her condition.

Ministry of Education guidance

In 2004, the Ministry of Education released an 'Education Circular' which details the relevant competing factors that schools need to balance when they become aware that a pupil has a blood-borne virus. Good practice would suggest that early childhood centres would take a similar approach as that outlined in the Circular.

The Ministry recommends that parents disclose the child's condition to the school principal so that the school can provide appropriate support and staff who need to know are informed.

The Ministry also encourages schools to have policies on how they manage school life when there are pupils with certain diseases and provides detailed guidelines of what these policies should include (e.g. policies related to disclosure of the child's personal information and detailed health and safety policies).

It is interesting that although the Circular was issued in 2004, the Centre in the present case says that, on being informed of the fact the boy had HIV, it was putting together such a plan. The Ministry's advice is that schools should already have a plan in place so that they are prepared if a student with a blood-borne virus enrols.

Health and safety vs. obligation not to discriminate

If a family chooses to disclose the disease, which occurred here, then the school or centre must ensure they comply with the Human Rights Act and the Privacy Act.

If the Centre here did in fact expel the boy, this would be likely to constitute unlawful discrimination under the Human Rights Act. Under the Act, an education establishment cannot deny access or exclude a person or pupil from the establishment due to the presence in the person's body of organisms capable of causing illness.

The Human Rights Act also makes provision for education establishments' health and safety obligations to other students. An education establishment will not have acted unlawfully under the Act if the child's disability is such that the risk of harm to others if they were admitted to an education establishment is not a risk which is reasonable to take.

However, the chances of a child contracting HIV in an education setting are low and HIV is becoming increasingly easier to manage. There have been no recorded cases of a child contracting HIV from another while at school or at a centre. Therefore, any 'risk of harm to others' which may be present is unlikely to be significant enough to show that expelling the boy was reasonable.

Lessons learnt

This case is a reminder that it is unlawful to discriminate against a person on the basis that they have a disability and that organisations should strive to work with a person with a disability so that they can make life as easy as possible for them. When a decision is made in relation to a person with a disability, it is important that their rights to privacy and freedom from discrimination are properly taken into account.

While health and safety concerns for others who may be affected will often be a further relevant factor when reaching such a decision, up-to-date information about the relevant disability should be drawn on when assessing the risk of harm and any response should be proportionate to that risk.

Organisations should also ensure that they have taken into account and, where appropriate, implemented all relevant policies or guidelines issues by regulatory authorities.

The Centre at the forefront of this issue has exposed itself to a complaint by the boy's parents and a possible investigation by the Human Rights Commissioner.

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Often organisations in the health sector are faced with making a decision which may affect the rights of people.

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