[your address]

 

[your email]

To the Head Teacher / Principal

[School name]

[Address]

[email]

And to:

The Head of Education

[Local authority name]

[Address]

[email]

SARS-CoV-2 TESTING

 

URGENT ACTION REQUIRED

REFUSAL OF CONSENT and Warning of GDPR Breach

Dear [name/title]

Re: [name of your child/children and year group/class]

I am a [parent/guardian] of the above-named student.

  1. Objection and consent refused

In respect of my child named above, take notice that:

  • consent to testing for SARS-CoV-2 is REFUSED
  • I object to any persuasion or encouragement of my child or fellow pupils to take any such test
  1. Breach of GDPR and Data Protection

I object to the School identifying my child to the Government or to any third party or among staff, whether by name or failure to name, as being someone who, or whose parent, does not consent to such test. Such decision is sensitive personal information concerning my child which you do not have permission to share. I expect the same will apply to many if not all other children in the School and to biometric data from tests.

  1. Denial of face-to-face teaching or other restriction on equal access to education

I demand that my child is permitted to access education at the School on the same basis as any other child who, or whose parents, might give informed consent to testing. The School is not permitted to delay or deny my or any child’s return to School because consent if not given. Such conduct is unlawful.

  1. Health and Safety Breaches relating to testing (and other NPIs) and SARS-CoV-2

I object to and demand your assurance that the School will not introduce, or will immediately withdraw:

  1. any policy actively encouraging or requiring children in the school, in particular asymptomatic children, to undergo testing for SARS-C0V-2
  1. any other Non-Pharmaceutical Interventions (NPIs) without conducting suitable and sufficient risk assessment

There is no legal obligation on the School to introduce such a policy. There is significant risk that it may cause mental and potentially physical harm to my child and to other children in the School. Permitting that risk, putting the School’s children in danger in this way, and interfering with our children’s education in the process, is not justified and is unlawful.

It is with reluctance that I feel obliged to write so formally but you will appreciate the urgency of the situation demands I do so.  I remind you that ‘asymptomatic’ children are ‘healthy’ children unless and until there is reliable evidence to the contrary.

The School and the Local Authority should consider this a pre-action protocol letter in accordance with the Court’s Civil Procedure Rules. Unless context suggests otherwise, references below to the School should be read as referring also to the Local Authority, either or both of which as relevant be regarded as the ‘employer’ in the relevant legislation.

To avoid unnecessary and delaying correspondence, for your better understanding this letter addresses:

  1. The duty to secure efficient education
  2. General duty under the Health & Safety at Work Act 1974
  3. Management of Health and Safety at Work Regulations 1999
  4. SARS-CoV-2 and ‘covid-secure’ risk assessments
  5. The requirement for and meaning of proportionality
  6. Harm to mental health and responsibility to redress promoted fear
  7. Children with Disability

and, of particular importance and relevance to testing (and vaccination)

  1. Requirement for informed consent
  1. Duty to secure efficient education

Section 13 of the Education Act 1996 imposes the general responsibility of the Local Authority for education.  It reads:

  1. General responsibility for education

 A local authority shall (so far as their powers enable them to do so) contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary education, and secondary education and, in the case of a local authority in England, further education, are available to meet the needs of the population of their area.

That responsibility, to secure efficient education for children, is not diminished by policy or requests from Government which the government has not written into law.

Accordingly, and as has always been the case, the School has always retained the ability to:

  • refuse to arrange, encourage or mandate testing of children or staff for SARS-Cov-2
  • refuse to arrange, encourage or mandate wearing of face-covering by children or staff
  • refuse to close
  • refuse to arrange, encourage or mandate online or remote learning
  • provide education at the School in a traditional way
  • take only such steps to mitigate the spread of SARS-CoV-2 as are proportionate and necessary

Any and all of the NPIs being applied in the School which significantly interfere with the duty to secure efficient education are unlawful. That is unless the NPI is shown, based on evidence, not media reports, to be both proportionate and necessary in avoiding risks to the health and safety of those to whom it owes a duty of care.

The School’s primary common law duty of care, of course, is to look after the health and safety of its children as if it were the parent.

 

  1. Health & Safety at Work Act 1974 (“the 1974 Act”)

The 1974 Act provides general duties on an employer, in this case the School, towards its employees (section 2), persons other than its employees (section 3) and to other persons using the school premises for a place of work (section 4) to avoid risks to their health or safety.

Of relevance to children, section 3 provides:

  1. General duties of employers and self-employed to persons other than their employees.

It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

Scope of the 1974 Act

The School may mistakenly believe that the 1974 Act is of wide application in imposing duties towards those outside the School. It does not.

Section 1 of the 1974 Act makes plain that these duties relate only to:

  1. a) securing health, safety and welfare of persons at work
  2. b) risks to health or safety arising out of or in connection with the activities of persons at work
  3. c) explosive or highly flammable or otherwise dangerous substances
  4. d) controlling the emission into the atmosphere of prescribed noxious or offensive substances from premises

(It should be noted that SARS-CoV-2 is not within paragraph (d) above a ‘substance’ in the meaning of the 1974 Act.)

Further, the 1974 Act does not itself place any wider statutory legal obligation on the School to have regard to or ensure the safety of the general public by reason of the risks that are not attributable to the School activities. The risks arising from the social contacts of its staff or children, with grandparents or anyone else, in their private lives are matters for the private, personal and autonomous decision making of every individual, as are the steps any individual may wish to take to protect themselves or their contacts.

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In short, the 1974 Act does not make the School responsible for spread of SARS-CoV-2 by children or staff in the wider community. Nor in respect of a common law duty of care could the School be any more responsible for the spread of SARS-CoV-2 than it could for the spread of a similar coronaviruses, such as may cause cold or influenza symptoms also potentially fatal to the vulnerable.

(For completeness, even if it could be argued that there is some other legal, moral or civic duty on the School to have regard to the impact of SARS-CoV-2 on the wider community, the School would then also be required to have regard to the impact of its counter measures on the same community. This would include economic and environmental harms as well as harms to health of families of children who do not wear a face-covering.)

  1. Management of Health and Safety at Work Regulations 1999 (“the 1999 Regulations”)

The 1999 Regulations provide more specific obligations. Regs 2 and 3 require the School, being an employer of more than 5 people, to make a “suitable and sufficient assessment of the risks to the health and safety” of

  1. its employees to which they are exposed whilst they are at work, (this will include teachers) and
  1. others not in our employment but arising out of or in connection with the conduct of our undertaking (this will include the children and visitors)

Regulation 3(3) also demands that the School’s risk assessment must be reviewed and required changes made if there is reason to suspect that it is no longer valid or there has been a significant change in the matters to which it relates.

In reviewing its risk assessments, the School cannot ignore the reports and evidence of mental and physical harms to children being reported widely. The School staff will also have observed or received increasing reports of concerns about the mental health of its children as a result of increased restrictions. In these circumstances the School’s risk assessments are required to be reviewed immediately and regularly.

  1. SARS-CoV-2 and ‘covid-secure’ risk assessments

Neither the 1974 Act nor the 1999 Regulations have been amended in response to SARS-CoV-2.

Indeed, since 19 March 2020 SARS-CoV-2 has not been considered to be a High Consequence Infectious Disease (HCID) in the UK. This was the determination of the 4 nations public health HCID group having regard to matters including low overall mortality rates. Agreed by the Advisory Committee on Dangerous Pathogens (ACDP), this remains the position today.

Looking back and not being a specialist clinical environment, the School has not previously had to assess risk of spreading other common types of coronavirus that cause cold or or influenza symptoms and which are spread in the same way as SARS-CoV-2. Nor has the School been required to take measures significantly affecting its running of the School to avoid that risk. In particular, the School has not had to conduct regular or intrusive testing of its children.

Neither the 1974 Act nor the 1999 Regulations have changed in any material way in 2020 or 2021. The School’s duties pursuant to that legislation are the same as they were before SARS-CoV-2.

The commonplace ‘covid-secure’ assessment to reduce the risk of spreading SARS-CoV-2, conducted at recommendation of the Government and the HSE, is an assessment with extremely narrow focus. However, there is no law requiring it to replace or be prioritised for consideration over and above risk of other dangers. An assessment which does so is fundamentally flawed and in most cases, certainly in the School, not be an assessment in accordance with Reg 3 of the 1999 Regulations. 

  1. The requirement for proportionality

The 1999 Regulations are made pursuant to obligations under European health and safety legislation. The School also exercises a public function. The importance of each of the foregoing is that the 1999 Regulations must be interpreted, and the School must act, in accordance with the European Convention on Human Rights (ECHR).

For present purposes, the relevant articles of the ECHR include:

  • Article 8: Right to respect for private and family life, home and correspondence.

This embraces, for example, rights

  • to bodily integrity and personal autonomy (including to refuse to give bodily samples: Jalloh v. Germany [GC], § 70)
  • not to wear a face covering (A.S. v. France [GC], § 122)
  • to establish and develop relationships with others
  • Article 2 of Protocol No. 1: Right to education

This provides a right of access to education through the School existing at a given time. It must be provided equally without interference with other fundamental rights, such as Art. 8 rights.

It is fundamental principle that no act or omission of the School is permitted to interfere with those rights unless such interference is proportionate i.e. it is both appropriate and reasonably necessary so. In this respect, the following factors at least must be considered:

  • will such interference in fact achieve the desired aim? (evidence of this is required)
  • can the aim be achieved by other means?
  • what is the effect of the interference?
  • what is the balance between the effect of interference and the aim?

Proportionality and evidence in relation to testing for SARS-CoV-2 and restricting access to face-to-face teaching

Assuming the aim is to achieve a significant reduction in spread of SARS-CoV-2, there is little or no evidence that testing, via Lateral Flow tests (or PCR), assists in achieving that aim. This is particularly so in schools.

There are, however, real and potential dangers and/or risk to the health and safety of the School’s children and to their education. Such dangers and risks include:

  • psychological harm, short and long term, from testing against will and resulting from all of the below
  • resentment towards the School and teachers arising from the encouragement or coercion of an unpleasant procedure
  • encouraging belief that they, or anyone, is dirty or infectious until tested otherwise
  • increasing spread of SARS-CoV-2 by transfer from natural protection of nasal passage to throat where the virus may take hold
  • risk, albeit likely rare, of serious injury from individuals pushing swabs up their nose
  • fear of the next test and of others not tested
  • generally endorsing and encouraging an environment of fear
  • anxiety for themselves and families
  • very significant numbers of ‘false positive’ results of health and non-infectious children
  • constant fear of forced isolation for the child, their household and contacts, whether appropriate or not, whether from false posti
  • bullying and isolation of those unable or unwilling to consent testing
  • disruption to classes
  • reduced access to efficient education
  • reduction in educational attainment
  • interference with family life where children are required to learn from home
  • massive diversion of resources away from education
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Restricting access to face-to-face teaching because of refusal to participate in testing for SARS-CoV-2 is a breach of Article 11 because the accompanying effect of breaching of Article 8 rights is not proportionate. Restricting access is also a breach of Article 8 rights in itself, as referenced below particularly in relation to informed consent.

Evidence in conducting risk assessments

It is no defence in relation to a breach of its health and safety duties towards its children and staff that the School may say it is following Government, or indeed SAGE, guidance or to suggest that such guidance was evidence based.

Each of the Government’s Regulations concerning Coronavirus Restrictions has contained the statement “No impact assessment has been prepared for these Regulations.” While the Government may avoid providing any assessment of the costs or harms arising from implementation of the Coronavirus Regulations or Guidance on excuse it is emergency legislation, no such excuse is available to the School.

The School’s obligation to conduct suitable and sufficient risk assessment is absolute. The School must act taking reasonable account of all information available to it and may not bury its head or fail to exercise due diligence in conducting its risk assessments.

Having regard to the serious dangers and risks that may result from its actions, the School is required to consider, at least but not only and is put on notice of, the evidence referenced in the letter to the Secretary of State for Education linked here: Open Letter from the UK Medical Freedom Alliance.

  1. Harm to mental health and responsibility to redress promoted fear

Since 23rd March 2020 the Government has conducted a communications and media campaign designed to engender and maintain fear in the public. This campaign, with a spend of over £100 million, has not spared the School’s children and staff. 

Less well known is the advice to the Government from its SAGE Behavioural Science sub-group, SPI-B, from March 2020 and followed ever since has been to manipulate the public by persuasion and coercion:

“The perceived level of personal threat needs to be increased among those who are complacent, using hard-hitting emotional messaging

Messaging needs to emphasise and explain the duty to protect others

Messaging about actions need to be framed positively in terms of protecting oneself and the community, and increase confidence that they will be effective…

Communication strategies should provide social approval for desired behaviours and promote social approval… “

Promotion of fear may be a political objective or Government choice. Mass testing in schools perpetuates that fear and may produce more test results to help justify continuing restrictions when reported by the Government as being ‘cases’ or ‘infections’, even when obtained from perfectly healthy children. However, being subjected to an environment of fear has caused significant harm to the nation’s mental health including children. For the School to conduct its undertaking in a way to promote fear when it is not proportionate to do so is in breach of the School’s duties under the 1974 Act.

The School has a responsibility and a positive duty to consider redressing the state of fear and provide its children with proper and accurate information, in context, as to the actual level of risks of harms they face from spread of SARS-CoV-2. This includes information as to the efficacy and usefulness of the testing by which the School is choosing to interfere with its duty to provide efficient education to its children.

  1. Children with Disability

Many children will face particular disadvantage by reason of disability.

In conducting its assessment, the School is required to have particular regard for any children with a ‘disability’ in the meaning of Section 6 of the Equality Act 2010 and, by Section 20, to make reasonable adjustments to avoid the disadvantage caused to its children as result of the School policies.

Children unable to consent to testing for a reason related to their disability may be stigmatised and suffer, at the very least, feeling of social exclusion and loss of self-esteem. There is considerable risk many may suffer, or at least suffer fear of, bullying. They may also be fearful that without testing, they are themselves in danger.

As a result, the environment created for children not testing is likely to be one of isolation, being intimidating, hostile, degrading and humiliating. These are risks which none of the School’s children, with or without disability, should face. 

However, in particular for those with a ‘disability’, and those with special educational needs, the harm caused by a general policy of encouragement for all to participate in testing may be significant. It will therefore also be a reasonable adjustment to avoid any such policy which positively encourages testing of asymptomatic children. Refusal to make such adjustment must be justified on evidence as proportionate.

  1. Requirement for informed consent

 

The law requires that ‘informed consent’ is obtained before any medical procedure or treatment interfering with bodily integrity is undertaken. (see UK Supreme Court case Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11).  The placing of a swab up the nose or to the back of the throat to provide test result is a medical procedure.

Informed consent requires disclosure to the recipient of balanced information that enables them to make their own independent and informed choice whether or not to have that procedure or treatment.

As noted above (under sub-heading 5. The Requirement for Proportionality) rights under the ECHR must be respected. The United Kingdom remains one of the 47 member states of The Council of Europe, an international body promoting human rights, democracy and the rule of law. The United Kingdom is bound to act, and the Courts must interpret UK law, in accordance its instruments including the Convention on Human Rights and Biomedicine [1997] COETS 1 (4 April 1997) of which the following is an extract. (The ‘representative’ in this case is the parent or guardian and bold font is added for emphasis.)

Article 5 – General rule

An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.

The person concerned may freely withdraw consent at any time.

Article 6 – Protection of persons not able to consent

1 […..] an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.

2 Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.

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[3. ]

4 The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.

5 The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.

By definition, if agreement is coerced it is not by consent. The withholding of access constitutes a form of coercion and is unlawful.

Put another way, if access to education is only given in return for consenting to a medical procedure, whether administered by self or another, that consent is not free.

What is more, ‘encouragement’ from any person in position of authority, such as the School or its teachers, encroaches significantly on the concept of freely given consent and would in itself require justification. ‘Encouragement’ may, in practice, be little more than a subtle form of coercion.

And further and in any event, if justification is argued for any interference, evidence must be considered carefully. If the aim is to avoid an extremely small risk of significant harm to another person (the vast majority of the population, including teachers, are at extremely small risk from SARS-CoV-2), recipients are required to be informed of the risk of harm to themselves by receiving or not receiving the treatment or procedure. In the case of children (as for the vast majority of the population), the comparative risk to themselves from accepting the treatment or procedure may be far greater than if they refused it, and by a significant factor.

Finally, it important in the first instance to note this: the choice, whether to consent or not, is the fundamental right and choice of the individual, not the choice of the Government, the School or any community group.

Children aged 16 or over

Even children aged 16 or over are vulnerable. The School’s duty of care towards all of its children is overriding and the concept of Gillick competence does not only apply to under-16s. The school will need to ensure and evidence its belief that each child has enough intelligence, competence and understanding to fully understand and weigh the information provided to them when deciding whether to consent to any medical treatment or procedure.

Response required

 

The issues raised in this letter should not be unexpected. The School has access to specialist legal advice and should at all times have been fully aware of its duty properly to assess the risks arising from testing and from all NPIs introduced relating to SARS-CoV-2.

The School is required:

  1. Immediately to desist from any current policy to encourage or asymptomatic children in the School to participate in testing for SARS-CoV-2.
  1. Immediately to take active steps to redress the state of fear and provide children, their parents and guardians and the School’s staff with proper and accurate information, in context, as to
  1. the actual level of risks of harms they face from spread of SARS-CoV-2
  2. the efficacy and usefulness of testing asymptomatic people for SARS-CoV-2
  3. the risks and possible consequences of testing asymptomatic people for SARS-CoV-2
  1. Within 7 days to reply to confirm it will desist from introducing any policy to encourage or require asymptomatic children in the School to take part in testing for SARS-CoV-2.
  1. By return to provide by return a copy of the School’s risk assessments, current and in any versions since March 2020, as relate to
  1. testing for SARS-CoV-2; and
  2. all NPIs introduced or to be introduced in response to SARS-CoV-2.
  1. To confirm what steps have been taken fully to inform and train the School staff in respect of increasing awareness of, and how to respond to, indicators of health concerns for the School children, including but not only in respect to testing for SARS-CoV-2.

The timescales above are short as the dangers are immediate. Further, delay cannot be tolerated having regard to the loss of education the School’s children have already suffered, the harms they continue to suffer and the strains to mental ill health for children and their families arising at the prospect of testing for SARS-CoV-2 in the Schools continuing or increasing.

Warning of Issue of Proceedings

 

If the School does not give the assurances as sought and in default of sufficient response, further and immediate action may be taken, without further notice to the School to instruct solicitors, or independently, to issue application to the Courts. Relief sought will include for declarations in relation to unlawfulness of your conduct of the School and for injunctive relief to prevent or impose necessary restriction on the School regarding its encouragement or requirement for testing for SARS-CoV-2 or any restriction on access to education resulting from any failure to cooperate with testing or to give consent to testing. Damages will be sought as appropriate having regard to the School’s breaches. 

It is recommended that the School takes urgent legal advice on this matter. 

And Take Further Notice

I expect and require the School to be supportive of my position and to show appropriate support towards my child. Any conduct which is inconsistent with that shall be regarded as a breach of my child’s human rights under Articles 8 and 11 of the ECHR.

I have in this letter also asserted the rights of children at the School who are at disadvantage in relation to testing or any NPI or covid-secure measures because of a disability. Any detrimental conduct towards my child following this letter may also be regarded as unlawful victimisation in breach of Section 27 of the Equality Act and in respect of which any individual responsible may he held personally liable by the Courts.

Please acknowledge receipt of this letter by return.

Yours sincerely

Signed: ………………………………………………………………………………………  Date:……………………………………………

Name in capital letters: ………………………………………………………………………………

https://www.saveusnow.org.uk/solicitors-letter-sarscov2-testing-health-and-safety-breach/?utm_source=rss&utm_medium=rss&utm_campaign=solicitors-letter-sarscov2-testing-health-and-safety-breach