Supporting children and young people with healthcare needs in schools: guidance

Chapter 1 – The Legislative and Policy Context

Background

1. In recent years there have been a number of legislative and policy developments which provide the context for supporting children and young people with healthcare needs at school. Although this guidance is focussed on the delivery of healthcare and medication provision in schools, the legislation and policy operates at strategic and operational levels across both health and education services. Delivery of these services to children and young people requires NHS boards and education authorities to plan and work in partnership.

2. It is recognised that this is a complex landscape and therefore this section of the guidance sets out the legal and policy frameworks which directly relate to the provision of healthcare and medication in schools. Annex C sets out some further detail of some of the provisions listed and other relevant legislation, however, it is expected that those working in NHS boards and education authorities will be familiar with their statutory responsibilities. It should be noted that the links to legislation in this document may not always be to the most up-to-date version of the legislation, due to changes in legislation, although correct at the time of publication. The legislation is presented in chronological order to provide some context of how the policy and legislation landscape has developed.

Legislative context

National Health Service (Scotland) Act 1978

3. Under the National Health Service (Scotland) Act 1978 ^[14] , NHS boards are responsible for securing the medical inspection, medical supervision and treatment of pupils in schools and education authorities will help them to discharge these responsibilities.

Education (Scotland) Act 1980

4. The Education (Scotland) Act 1980 ^[15] , as amended, provides the legislative basis for education in Scotland and includes:

• a duty on education authorities to secure an adequate and efficient provision of school education to children in their area ^[16] ;
• a duty on parents to ensure that children receive an education ^[17] ;
• a requirement for school premises to be equipped and maintained as to conduce good health and safety ^[18] ;
• provisions on attendance ^[19] ;
• provisions on the medical and dental examination of children and young people at school ^[20] .

Age of Legal Capacity (Scotland) Act 1991

5. The Age of Legal Capacity (Scotland) Act 1991 ^[21] provides that a person under the age of 16 has the legal capacity to consent on their own behalf to any surgical, medical or dental procedure where, in the opinion of a qualified medical practitioner attending them, they are capable of understanding the nature and possible consequence of the procedure or treatment.

Children (Scotland) Act 1995

6. Part I of the Children (Scotland) Act 1995 ^[22] provides for parental responsibilities and rights. The rights are there so that a parent can fulfil his or her responsibilities and safeguard and promote the child's health, development and welfare.

Data Protection Act 1998

7. The Data Protection Act 1998 ^[23] governs the protection of personal data in the UK ^[24] . It protects the rights of individuals, whom the data is about (data subjects), and places duties on those who decide how and why such data is processed (data controllers). This Act applies to both educational and health records and also sets out what information is classed as 'personal data' ^[25] and 'sensitive personal data' ^[26] . The Act also gives children and young people rights in respect to the personal information held about them, and gives them and their parents/carers, the right to make a subject access request ( SAR).

Adults with Incapacity (Scotland) Act 2000

8. The Adults with Incapacity (Scotland) Act 2000 ^[27] provides ways to help safeguard the welfare (including medical treatment) and finances of people who lack capacity. It protects adults (people aged 16 or over) who lack capacity to take some or all decisions for themselves because of a mental disorder or an inability to communicate. It allows a welfare and/or financial guardian appointed by the court - such as a parent or other relative - to make decisions on the adult's behalf.

Standards in Scotland's Schools etc. Act 2000

9. A child's right to education is legislated for under the Standards in Scotland's Schools etc. Act 2000 ^[28] . The Act also places a requirement on education authorities to secure the provision of education that is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential ^[29] .

Education (Disability Strategies and Pupil Educational Records) (Scotland) Act 2002

10. Under the Education (Disability Strategies and Pupil Educational Records) (Scotland) Act 2002 ^[30] responsible bodies have duties to develop accessibility strategies to increase access to the curriculum, the physical environment for pupils with a disability, and to improve communication for such pupils. Mental Health (Care and Treatment) (Scotland) Act 2003

11. The Mental Health (Care and Treatment) (Scotland) Act 2003 applies to people who have a mental illness, learning disability or related condition. The Act calls this mental disorder. Most of the time, when people become unwell, they understand that they need treatment, but sometimes, people are unwilling or unable to agree to treatment. This Act sets out when and how people can be treated if they have a mental disorder; when people can be treated or taken into hospital against their will; and what people's rights are, and the safeguards which ensure that these rights are protected. Guidance is available from http://www.mwcscot.org.uk/the-law/mental-health-act/. It should be noted that changes have been made to the legislation through Part 1 of the Mental Health (Scotland) Act 2015, of which the provisions came into force on 30 June 2017. See paragraph 24 below for more information on this Act.

Pupils' Educational Records (Scotland) Regulations 2003

12. The Pupils' Educational Records (Scotland) Regulations 2003 sets out the type of information that should be contained in a child or young person's educational record. It also makes provision for a parent to request access to their child's educational records and the circumstances when information in an educational record should and shouldn't be disclosed. This is intended to protect a child or young person's right to confidentiality ^[31] .

Education (Additional Support for Learning) (Scotland) Act 2004

13. Under the Education (Additional Support for Learning) (Scotland) Act 2004 ^[32] , (as amended) (the 2004 Act) education authorities have a statutory responsibility to identify, make provision for and review, the additional support needs of children and young people for whose education they are responsible. An additional support need may arise for any reason and be of short or long-term duration, and would cause, without the provision of support, a barrier to learning. Additional support needs may arise from a disability or a health need. Therefore, the requirement to have medication administered or healthcare needs met at school may be considered to be an additional support need or give rise to further additional support needs. Where an additional support need arises as a result of one or more complex factors, and is likely to continue for more than one year, the child or young person will have a co-ordinated support plan. Appropriate agencies, including NHS boards, have a duty to help the education authority discharge their duties under the 2004 Act. Statutory Guidance on the 2004 Act is contained in the Supporting Children's Learning Code of Practice, 3 ^rd edition, 2017 ^[33] .

Scottish Schools (Parental Involvement) Act 2006

14. The Scottish Schools (Parental Involvement) Act 2006 ^[34] modernises and strengthens the framework for supporting parental involvement in school education. It aims to help schools, education authorities and others to engage parents meaningfully in the education of their children and in the wider school community. It requires Scottish Ministers and education authorities to promote the involvement of parents in children's education at local authority schools.

The Equality Act 2010

15. All schools, education authorities and NHS Boards in Scotland have obligations under the Equality Act 2010 ^[35] . Education authorities, grant-aided and independent schools have duties under the schools provisions (Part 6, chapter 1) of the Act. The Technical Guidance for schools in Scotland ^[36] explains who has responsibilities for schools (responsible bodies) and explains the requirements of the schools provisions of the Act. NHS Boards and education authorities also have obligations under other parts of the Act as service providers and in exercising their public functions. Further guidance and Codes of Practice are available from the Equality and Human Rights Commission website ^[37] .

16. Schools have specific responsibilities to prevent discrimination in relation to: admissions, provision of education, access to any benefit, facility or service, exclusions, or any other detriment. Discrimination which is unlawful under the schools provisions includes the following (these concepts are explained in the Technical Guidance):

• direct discrimination;
• indirect discrimination;
• discrimination arising from disability;
• failure to make reasonable adjustments for children and young people with healthcare needs - explained in more detail in paragraph 17 below.

17. The duty to make reasonable adjustments is key to the healthcare needs of children and young people with disabilities ^[38] . Schools and education authorities will also have to ensure that all policies and practices which cover arrangements for meeting healthcare needs in schools, do not discriminate in any other way against children and young people with disabilities. Further details of these responsibilities are set out within Annex C of this document.

The Public Bodies (Joint Working) (Scotland) Act 2014

18. Under the Public Bodies (Joint Working) (Scotland) Act 2014 ^[39] local authorities and NHS boards are required to integrate the governance, planning and resourcing of adult social care services, adult primary care and community health services and some hospital services under the responsibility of Integration Authorities or Health and Social Care Partnerships. The Act also allows NHS boards and local authorities to delegate other areas of activity, including children's health and social care services.

19. Health and Social Care Partnerships are responsible for strategic planning and commissioning of services, and issuing directions to health boards and local authorities in pursuit of realising strategic plans. Health and Social Care Partnerships typically have oversight of operational matters for all services that are delegated and their Chief Officer normally has full operational responsibility for all such services. This Guidance will apply to the Health and Social Care Partnerships that cover children's health and social care services.

Children and Young People (Scotland) Act 2014

20. The Children and Young People (Scotland) Act 2014 ^[40] supports the Scottish Government's ambition for Scotland to be the best place to grow up. It seeks to improve the way services work together to support children, young people and families and ensure that children's rights are respected across the public sector. For example, part 1 ^[41] (sections 2 and 3) of the 2014 Act places duties on public authorities, as defined at schedule 1 ^[42] of the Act, to report every 3 years on the steps they have taken in that period to secure better or further effect the United Nations Convention on the Rights of the Child ^[43] .

21. Further, part 3 of the 2014 Act ^[44] places a duty on each local authority and the relevant NHS board to jointly prepare a children's services plan for the area of the local authority, covering a 3 year period. These plans should be prepared with involvement of the service providers capable of having a significant effect on the wellbeing of children. Plans should cover services for children generally and for children with specific needs (children who require medical treatment in schools could be considered as children with specific needs) and related services (services that aren't children's services but are capable of having a significant effect on the wellbeing of children).

22. To achieve consistency in the implementation of the national policy Getting it Right for Every Child, Parts 4 and 5 of the Act put elements of the Getting it Right for Every Child approach into legislation (Named Person and Child's Plan). Implementation has been paused so the necessary changes to the information sharing provisions can be made, working in partnership with stakeholders. Human Medicines (Amendment) (No. 2) Regulations 2014.

Human Medicines (Amendment) (No. 2) Regulations 2014

23. The Human Medicines (Amendment) (No. 2) Regulations 2014 ^[45] amended the Human Medicines Regulations 2012 ^[46] and give schools a power to buy and hold salbutamol inhalers for use in emergencies with children and young people who are diagnosed with asthma. More detailed information on the use of emergency salbutamol inhalers is provided at Annex A.

Mental Health (Scotland) Act 2015

24. The Mental Health (Scotland) Act 2015 ^[47] makes changes to the original Mental Health (Care and Treatment) (Scotland) Act 2003 ^[48] . This Act allows service users with a mental illness, learning disability, or related condition to access effective treatment quickly and easily. It also contains measures around named persons, advance statements and advocacy to enhance service users' rights and to promote service users' involvement in their treatment. It introduces a Victim Notification Scheme for victims of mentally disordered offenders. It also makes some changes to the Criminal Procedure (Scotland) Act 1995 in relation to mental health disposals in criminal cases. The majority of Parts 1 and 2 of the Act, along with associated regulations, are in force from 30 June 2017.

Policy context

United Nations Convention on the Rights of the Child ( UNCRC)

25. A child's right to healthcare services that help them achieve the highest attainable standard of health and to an education which aims to develop their personalities, talents and abilities to the fullest potential is underpinned by articles 24 and 29 of the UNCRC ^[49] . Under Article 23, a disabled child has the right to enjoy a full and decent life in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community. In addition, under Article 12, a child has the right to express their own views in all matters affecting them. The child has the right to either be heard directly, or through a representative body consistent with the procedural rules of national law.

Getting it Right for Every Child

26. Getting It Right for Every Child is the national approach in Scotland to improving outcomes and supporting the wellbeing of our children and young people by offering, if needed, the right help at the right time from the right people.

27. Getting It Right for Every Child requires services to work together and in partnership with children, young people and their parent(s) to support children and young people's wellbeing. It ensures that children and young people are at the centre of any planning to meet their wellbeing needs.

28. The Getting It Right for Every Child National Practice Model provides a framework for everyone (children, parents and services) to consider and assess children's and young people's wellbeing needs in a holistic, consistent, strengths based way, so there is a shared understanding of a child's or young person's strengths and wellbeing needs. It promotes the participation of children, young people and their families in making decisions about any planned supports. It provides a common language within a single framework, enabling more effective inter and intra-agency working. Where there is a child's plan in place, other types of plans or programmes, such as an individual healthcare plan or an individualised learning programme can be contained within or attached as part of the overall, single child's plan.

29. Wellbeing sits at the heart of the Getting It Right for Every Child approach and reflects the need to tailor the support that children, young people and their parents are offered to support their wellbeing. The eight wellbeing indicators are: safe; healthy; achieving; nurtured; active; respected; responsible and included.

30. Under the Getting It Right for Every Child approach, having a clear point of contact or "named person" ensures that there is someone who has responsibility for helping children and young people get the support they need, if and when they want it. It is also a clear point of contact for parents should they wish to seek advice or if they wish to discuss a concern about the wellbeing of their child. Named persons are also a point of contact for other services if they have concerns about a child's or young person's wellbeing. This helps to ensure services can provide more effective support for children, young people and their parents by being better coordinated. Following the Supreme Court judgement, the Scottish Government has introduced the Children and Young People (Information Sharing) (Scotland) Bill ^[50] .

31. The named person is usually provided from services such as health visiting and education. Generally, the responsibility for providing a named person service lies with the NHS board before the child starts primary school and the local authority when the child starts school.

Curriculum for Excellence

32. Curriculum for Excellence ^[51] underpins all schools' ethos and forms the basis for a whole-school approach to improving the health and wellbeing of all children, young people, staff and the wider community. The curriculum includes a range of entitlements for all children and young people, including an entitlement to support for every child and young person to enable them to gain as much as possible from the opportunities which Curriculum for Excellence can provide, whatever their circumstances.

33. Health and Wellbeing is one of the eight curricular areas in Curriculum for Excellence. Its substantial importance is reflected in its position at the centre of the curriculum and at the heart of children's learning. Along with literacy and numeracy it is one of the three core areas that are the responsibility of all staff in the school. Learning in Health and Wellbeing is designed to ensure that children and young people develop the knowledge and understanding, skills, capabilities and attributes which they need for mental, emotional, social and physical wellbeing now and in the future. Good health and wellbeing is central to healthy human development, and schools, colleges and other learning establishments have much to contribute to its development.

How good is our school

34. How good is our school ^[52] provides a suite of quality indicators that supports self-evaluation and improvement. The quality indicators are designed to reflect the context within which schools now operate and include specific reference to how well schools ensure children and young people are safe, well cared for and the quality of targeted support for those with healthcare needs.

National Improvement Framework for Scottish Education

35. The National Improvement Framework ^[53] sets out the Scottish Government's vision and priorities for children's progress in learning and is a key part of the work to continually improve Scottish education and close the attainment gap.

Guidance on the education of children and young people unable to attend school due to ill-health.

36. The Guidance on the education of children and young people unable to attend school due to ill-health ^[54] provides guidance to education authorities and their partners on their responsibilities to meet their duty to provide education elsewhere than at a school for pupils who are unable to attend school due to ill health.

Developing the Young Workforce.

37. Developing the Young Workforce ^[55] aims to better prepare children and young people from 3 - 18 for the world of work.

Pre-Birth to Three Positive Outcomes for Scotland's Children and Families

38. For children under the age of three, national guidance was published in 2010: Pre-Birth to Three Positive Outcomes for Scotland's Children and Families ^[56] . This sets the context for high quality care and education and seeks to identify key features that support and promote evidence-based approaches.

Building the Ambition: National Practice Guidance on Early Learning and Childcare

39. Building the Ambition ^[57] was published in 2014 and builds upon Pre-Birth to Three and Curriculum for Excellence early level from 3 years to 6 years. It provides practical guidance on the experiences and interactions necessary to deliver the learning journey at the most important developmental stages for babies, toddlers and young children.

Health for all children 4 (Hall 4)

40. Health for all children 4: Guidance on Implementation in Scotland ^[58] (Hall 4) sets out the core programme of screening, surveillance and health promotion contacts which every child in Scotland should receive. The Hall 4 guidance introduced a tiered programme of support and intervention for those children who are vulnerable or are considered to be at risk, empowering health visitors and school nurses to assess the level of support and intervention required according to assessed need. The guidance expects health practitioners to work closely with other agencies and services. Hall 4 guidance was supplemented with further refreshed advice ^[59] in 2010 and with additional guidance in 2011 focussed on the early years ^[60] . Further guidance on an additional health review at 27-30 months was published in 2012 ^[61] and in October 2015, a Universal Health Visiting Pathway in Scotland – Pre Birth to Pre School set out a refocused role for Health Visitors. This included a revised universal home visiting pattern and the introduction of new health reviews at 13-15 months and at 4-5 years ^[62] . This approach will help us better respond to needs of children and families, support development of parenting capacity and improve access to other services and support. To support this an unprecedented commitment to increase the number of Health Visitors by 50% was made which will result in the creation of an additional 500 Health Visitor posts by the end of 2018.

The role of the Child Health Commissioner

41. There is a Child Health Commissioner appointed in every Health Board in Scotland. Although there is some variance in the role across Scotland, the broad role of the Child Health Commissioner was set out in a letter to NHS Chief Executives in 2011 ^[63] .

Ready to Act - Children and Young People Plan

42. Ready to Act is the first children and young people's services plan in Scotland to focus on the support provided by Allied Health Professionals ( AHPs). The plan highlights the critical place of prevention and enablement and promotes least intrusive interventions through a tiered model of service design and delivery (universal, targeted and specialist levels of provision) directly linked to well-being outcomes. The plan sets out five key ambitions for AHP services for children and young people based on the outcomes they, their parents, carers, families and stakeholders told us mattered to their lives. The key ambitions are: participation and engagement; early intervention and prevention; partnership and integration; access; and leadership for quality improvement ^[64] .