Consent is required for many aspects of school life but it is not always clear what form this must take. Kate Mills looks at the issue of consent; when it is required, who needs to provide it, and how a school should go about getting it
Can a parent always give consent on behalf of their child?
The short answer to this question is no. However, whether you need a parent/guardian’s consent, a child’s consent, or both, will depend on the activity involved, the age of the child, their maturity and their ability to provide informed consent.
When can a child consent to medical treatment?
Vaccination is one of the forms of medical treatment commonly administered within schools. The normal procedure is for consent forms to be sent out to children’s homes to be signed and returned by the pupil’s parents/guardians. Issues can arise when consent is refused by the parent but not by the pupil. In such situations it has to be considered whether a child is able to provide valid consent – what is known as ‘Gillick competent’. A child who is ‘Gillick competent’ can consent to medical treatment against the wishes of their parents and without their parents being informed. This phrase originates from the case of Gillick v West Norfolk and Wisbech Area Health Authority, a 1985 House of Lords case. It was ruled that patients under the age of 16 could consent to treatment; that the parental right to determine treatment ends when the child has sufficient capacity to understand what is fully proposed. To assess whether a child is ‘Gillick competent’, it must be decided whether the child has the maturity and intelligence to fully understand the nature of the treatment, the options, the risks involved and the benefits.
Whose consent is required for the use of biometric data?
The use of biometric data is governed by the Data Protection Act 1998. In order for personal information to be processed under this Act, one of the conditions set out in Schedule 2 of the Act must be met:
1. Having permission of the pupil
2. If it is necessary for the performance of a contract to which the data subject is a party, for compliance with a legal obligation or for the purpose of legitimate interests pursued by the school, provided the rights of the school outweigh the rights of the data subject.
This means that only the consent of the pupil is required under the Act. In practice, it would be wise for a school to also gain consent of parents prior to collecting pupils’ biometric data.
Do I need consent for sharing information?
As local authorities increasingly move towards integrated children’s services, schools need to ensure that they share the right information, at the right time, with other organisations, so that pupils receive the help and support that they need. Pupils may choose to confide in their teachers if they are unhappy or at risk. It is important that schools know when, how and if they should share this information. Generally a pupil’s consent is required to share confidential information. However, there are exceptions to this rule. Government guidance says that it will be in the public interest to share information without the pupil’s consent where there is evidence of significant abuse, or where a teacher reasonably believes the child is being harmed. It is for the individual teacher to decide whether sharing the information is in the public interest. If this is not the case, the teacher will have to obtain valid consent in order to share the information.
How do I know whether consent to information-sharing is valid?
Where a pupil provides consent to share information, that consent must be informed. To assess whether a child is able to give informed consent to information sharing, the following guidance should be followed:
- Explain the issues to the child in a way that is suitable for their age, language and understanding
- The child must understand that they are being asked to consent to information sharing
- The child should have a reasonable understanding of the information that will be shared, the main reasons for sharing it and the implications of passing the information on
- The child must be able to appreciate and compare the alternative courses of action open to them
- The child must be able to express a clear personal view, which is reasonably consistent, on the issue.
If a child is unable to consent then, where appropriate, consent should be sought and obtained from a person with parental responsibility for the child.
Does consent apply when confiscating or using force?
While consent is not required to confiscate a pupil’s property, the confiscation must be reasonable and proportionate. The use of confiscation as a disciplinary penalty should be included in the school’s behaviour policy. The power to confiscate is to be found in Section 94 of the Education and Inspection Act 2006. The rules on the use of force are also set out in the Education and Inspection Act 2008 and again this does not require consent but can only be used to prevent a pupil from (a) committing an offence; (b) causing personal injury, or damage to property; or (c) prejudicing the maintenance of good order and discipline.
How do I go about getting consent for school trips?
The letters sent out to parents requesting consent to a school trip should outline the dates, cost, equipment needed and the school’s liability. Such letters should be sent out via a senior staff member or the headteacher. Consent slips will not necessarily be required for every type of trip. The school may issue a document to parents which states that pupils may, from time to time, be taken off site for educational purposes, in which case parental consent would be implied. This would only be applicable for one-day trips and visits to local places. This will also be dependent upon your school’s policy on parental consent; this should always be checked. For longer trips, that are residential, or that involve high-risk activities, it is advisable to invite parents to a meeting at the school where any concerns can be discussed. Parents should also be given the opportunity to inform the school, in writing, of any dietary requirements, allergies or medical conditions that may affect their child. Where possible, all exchanges should be conducted in writing, so that records may be kept.
This e-bulletin issue was first published in November 2008
About the author: Kate Mills