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Sunday, October 30, 2016

Schools’ discrimination of pupils with health needs out of order

Photo credit: Luke Kelly Meli, above, has cerebral palsy and was denied his assistance dog at school and was awarded €5,500 in August. Another school refused to take an emergency kit for a child with anaphylaxis and has to pay out €9,000. 

LAST month this newspaper highlighted a case in which a boy with cerebral palsy was awarded €5,500 by the Workplace Relations Commission for discrimination over how he had been treated at his primary school.
Another ruling published on Friday last suggests this was not an isolated case. The latest example concerns a gaelscoil that failed to keep vital medicine on its premises for a boy with a respiratory disability during a stand-off between the school and the boy’s parents. (The WRC ruling does not identify the school or the boy at the parents’ request).

The boy suffers from wheat-dependent exercise-induced anaphylaxis — which means a severe allergic reaction is triggered after ingestion of wheat-based foods when followed by physical exercise.
The condition is not uncommon. Four pupils in the school in question suffer from the same ailment, but it does require that the sufferer has access to an emergency medical kit, which contains auto-injectors, inhaler, and antihistamines.
The boy began school in 2011. His parents informed the school of his condition and there was no issue. The parents arranged for three volunteer teachers to be trained in what to do in the event of an emergency.

At the beginning of the 2013 school year, the parents were handed an indemnity form in which they were required to agree “to see whether one of the three members of staff trained to administer the emergency medicine were working that day”.
The parents were shocked. The requirement would compel them to check every day when dropping off their son whether one of the three were working. If one of the three were not visible outside in the morning, the parents would have to go in search of them within the school to confirm their presence.

The principal said she would bring the matter to the school board, which confirmed the requirements, adding that “it is also the view of the board that it is a matter for you, as parents, to make the necessary alternative arrangements should it be that none of the listed volunteering teachers are in attendance or available in school on any given day”. The school, it added, would accommodate in any “reasonable way” in such an eventuality.
A compromise was then reached in which the principal would contact the parents if the three staff members were absent on any day.

The situation came to a head the following September at the start of the school year. On the first day, the father handed the emergency kit for the new school year to the vice principal but was then told by the principal that it couldn’t be accepted because the staff had not received up-to-date medical training.

There had been attempts by the parents to arrange for training for the staff over the previous few weeks, but that hadn’t been possible. In any event, the training received the previous January was still valid until the end of the calendar year.
One issue that arose was who was responsible for arranging the training. According to INTO policy, that was down to the school. A public health nurse approached by the parents also responded that the school should contact her to arrange a time for training. On that basis, the parents asked that the school policy document be adjusted to reflect that the school take responsibility for the training.

On the second day of the school year, the boy wanted to go to school but the emergency kit was not on the premises as the policy issue had not been sorted out. In order to facilitate him his father stayed in his car outside the school for the day, just in case any emergency would arise.
Then a bereavement occurred that kept the boy out of school for three days, but when he wanted to return thereafter the matter was still not resolved. The father, who had missed a week at work between the bereavement and being on guard outside the school the previous Friday, couldn’t take more time off. Yet the school still wouldn’t play ball.

The boy had to go home. “He wanted to see his friends as he had been at a funeral the previous three days,” according to the evidence heard at the WRC.
“His parents say he remained upset for the rest of the weekend.”
The stand-off persisted for another four days, despite the intervention of the parents’ GP who phoned the school on behalf of the family. The parents were left in an invidious position. At one stage, the principal said she would take responsibility for some of the kit only.
“Realising the seriousness of the situation, Anaphylaxis Ireland [which had been contacted by the family] contacted the school directly and informed the principal that she cannot pick and choose which parts of the emergency kit that she decides is necessary for the child’s safety.”
Over the following days, the issue got sorted, but not before the boy and his family had been put through major worry. They brought an action on the basis that their son had been treated differently because of his disability.

The school argued that its board and the principal acted in good faith at all times and that the three other pupils with a similar condition did not experience any problem.
However, the WRC ruled that discrimination had occurred, although it rejected complaints of bullying and victimisation. The ruling noted that: “The school should regard themselves as fortunate that they are not defending proceedings in the superior courts, or, worse, giving evidence in a coroner’s court. Had his parents not detained the complainant at home for a day, his father sit [sic] in his car outside the school for another day and dosed him up on antihistamines on the other days that is what the board of management could have been facing.”

The maximum allowable award for this kind of case is €15,000, and taking the circumstances into account, the deciding officer made an award of €9,000.
“In considering redress, I am cognisant that the complainant was only denied reasonable accommodation for nine days. However, it bears repeating that his emergency medical kit contained life-saving medication so it was a serious breach of the acts.”
The boy and a sister are reported to still be attending the school and are happy there.

Like the earlier case reported here this one shows what happens when the priorities of a school get all mixed up. In such cases, it is the children who come off worst, when their welfare should be the primary concern at all times.
Michael Clifford