Will children be denied admission to public school if not fully immunised?

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Educating learners on "issues of Gender-Based Violence" is a central concern for the DBE.
Educating learners on "issues of Gender-Based Violence" is a central concern for the DBE.

In February, the Department of Basic Education released its amendments to the Admission Policy for Ordinary Public Schools

The update is 23 years in the making and includes proposed protocol which public schools might follow on matters such as language of instruction, school zones and the "compulsory school-going age". 

It also speaks to the public school system's potential policy on vaccination for communicable diseases such as "polio, measles, tuberculosis, diphtheria, tetanus and hepatitis B". 

Regarding vaccinations, the document states: 

"On application for admission, a parent must show proof that the learner has been immunised against the following communicable diseases: polio, measles, tuberculosis, diphtheria, tetanus and hepatitis B. If a parent is unable to show proof of immunisation, the principal must immediately advise the parent in writing to have the learner immunised as part of the free primary health care programme. If the parent refuses or fails, within seven days from the date of the written communication referred to above, to submit proof of immunisation, the principal must not admit the learner to the school and must refer the matter to the Head of Department for further direction. It is in the best interest of other learners that a learner without proof of immunisation must not be allowed on the school premises during the seven days’ period referred to above". 

Currently, this is only a proposed addition, but what does the law say if these amendments to the Admission Policy for Ordinary Public Schools are given the green light? 

'These rights must then be balanced against all other rights'

We asked two local legal experts for a breakdown on the matter. 

Lawyer Shando Theron, a senior partner at Theron Inc, says that while "there are no legal requirements for parents to ensure children receive the requisite vaccinations prescribed," by registering your child with a public school "you tacitly agree to its admission policies". 

Theron explained that there are several factors at play. 

"The school's code of conduct is secondary to the Constitution, so a child can refuse to sign the code of conduct. The Bill of Rights provides certain provisos especially in the area of vaccinations in that it states that neither the State nor any person may unfairly discriminate directly or indirectly against anyone on one of the grounds including religion, conscience and belief. Section 12 of the Constitution provides that everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their bodies," Theron advises. 

But there are of course exceptions, and according to Theron, "Patient autonomy is not, however, absolute". 

"The Constitution permits limitation of rights in terms of a law of general application and only to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. These rights must then be balanced against all other rights," he told Parent24. 

Theron further stated that "The question then to be determined by the court would be, 'Would it be reasonable/fair in the circumstances, for a school to refuse admission of a child whose parents choose for that child not to be vaccinated?'. The answer to this question is vexing and remains yet to be determined". 

"The broader public good"

Dr Sara Black, an Education Policy analyst and postdoctoral fellow at the Centre for Education Rights and Transformation advises the amendment serves "the broader public good".

"Public schools are exactly that: public - they are accountable to the broader public. They must serve the broader public good. They must accommodate individual preferences within reason, but not at the expense of risking everyone becoming sick". 

Dr Black suggested that parents who for whatever reason may not be on board with the potential mandate might be up for "home-schooling or finding a private school where the other parents have agreed vaccinations don't matter," adding the caveat that there is a significant threat to public health "if sufficient numbers of people don't get vaccines". 

"At what point does our individual freedom end and our collective responsibility begin?" 

Parent24 has contacted the Department of Basic Education for comment. This article will be updated with their feedback as soon it is received. 

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