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4.PRELIMINARY RECOMMENDATIONS IN DISCUSSION PAPER 73

4.1 The adoption of a national policy on HIV/AIDS in schools was proposed in Discussion Paper 73. The motivation for this is evident from Chapter 3 above.^[380]

4.2 It was pointed out in Discussion Paper 73 that, in order to be effective, the policy will require uniformity. It therefore needed to be embodied in a national statutory instrument.^[381] As stated earlier, the 1996 Constitution provides that in such an event, national legislation may prevail over any existing and conflicting provincial legislation.^[382]

4.2.1 From the discussion in Chapter 3 above it was clear that the Minister of Education may determine national policy on HIV/AIDS for educational institutions which, it was submitted in Discussion Paper 73, would include both public and independent schools. The Policy Act further provides for the publication, implementation and monitoring of such national policy.^[383] The project committee was of the view that this should be done, as envisaged in the Policy Act, after prescribed consultation with various bodies and the necessary publication have taken place.^[384]

4.3 However, in order to ensure broad community participation, and in acknowledging the different needs of different school communities to enunciate their own ethos and values with regard to HIV/AIDS, it was recommended (and provided for in the proposed national policy contained in Discussion Paper 73) that the governing body of a school may adopt an HIV/AIDS policy at school level to give operational effect to the national policy.

4.3.1 If the Minister of Education determines, publishes and implements national policy as envisaged, it will apply to every public school.^[385] The Schools Act provides that governing bodies of public schools must, among other functions, promote the best interests of the school and strive to ensure its development through the provision of quality education for all learners at the school.^[386] A governing body also has to discharge functions as determined by the Minister of Education or the MEC.^[387] The functions of the governing body of a school could therefore include the adoption of an HIV/AIDS policy for a specific school provided however that the policy does not infringe upon the norms and minimum standards of national policy determined by the Minister of Education.

4.3.2 The project committee was of the view that, apart from the composition of governing bodies as prescribed by the Schools Act,^[388] a public health official, medical doctor or health care worker, and other community representatives could also usefully be co-opted in implementing an HIV/AIDS school level policy.^[389] It was consequently proposed that a Health Advisory Committee (a committee of the school governing body) could be established on which representatives of the medical or health care professions and the community, together with members of the academic and administrative staff, and representatives of the parents could serve. It was considered that a Health Advisory Committee could review the school level policy on HIV/AIDS (including the provisions on universal precautions and those in respect of contact sport) from time to time, and could advise the governing body on this.

4.3.3 It was thus envisaged that a national policy on HIV/AIDS in schools would constitute a set of basic principles from which the governing bodies of schools would not be allowed to deviate while the school level policy would reflect the needs, ethos and values of a specific school and its communities within the framework of the national policy. It was provided that in the absence of a school level policy the national policy would apply.

4.4 The proposed national policy covered admission to schools, school attendance, universal precautionary measures, and education on general health and safe lifestyles, of which sexuality education is to form part. The project committee was of the view that HIV/AIDS education would fit in comfortably with the Department of Education's curriculum on life skills or life orientation for schools.

4.5 The chief focus of the policy was considered to be children under 18 years^[390] and it was recommended that it should therefore be made applicable to all schools (public and independent) as defined in the Schools Act: that is schools admitting learners between grades zero and twelve. It was noted that the definition of "education institution" in the Policy Act encompassed too many and varied institutions to be of use in defining a target group for the proposed policy. This definition includes, among other institutions, also distance and community education institutions. The Policy Act, as well as the Schools Act, in any event does not apply to university and technikon education.

4.6 It was the project committee's view that the national policy need not at this stage expressly provide for condom distribution in schools since this issue is regarded as highly controversial and in some communities as offensive. However, it was acknowledged that the 1996 Constitution expressly provides for the right to have access to "reproductive health care".^[391] The proposed national policy therefore endeavoured to reflect this general constitutional entitlement. It was further submitted that if necessary, provision could be made for condom distribution by the governing body in a school level policy.

4.7 The proposed policy focussed on the principle of non-discrimination in respect of learners. It therefore did not deal with issues concerning employment in education. It was submitted that most of these issues are adequately dealt with in existing legislation.^[392] It was noted that the South African Council for Educators was at the time attending to a policy for educators with HIV.^[393] A first draft for a National Policy on HIV/AIDS for Educators has in fact since become available.^[394]

4.8 The proposed policy did not deal with other diseases, but only with non-discrimination in the context of HIV/AIDS. In this regard the project committee submitted that the scale of the AIDS epidemic is singular and the stigma and discrimination associated with it are such that special measures are required.

4.9 The proposed policy also did not directly address problems in the school environment associated with HIV infection and intravenous drug abuse. It was suggested that this issue could possibly be dealt with in a Code of Conduct for learners to be developed by governing bodies.

4.10 Although all previous policy guidelines on HIV/AIDS sexuality education^[395] allowed parents to withdraw their children from such education sessions, the project committee was of the view that, in view of the singular urgency of the matter, HIV/AIDS education had to be made part of the compulsory curriculum.

4.11 On its assumption that the definition of "schools" in the Schools Act does not in general include school hostels,^[396] and in view of the fact that the Policy Act applies to institutions providing "education" and not accommodation as such, the project committee was of the view that the proposed policy should apply primarily to schools and not also to school hostels. The proposed policy's underlying principles would nevertheless be clearly applicable. The policy did therefore not directly address additional measures which may be necessary in respect of cohabitation of learners under residential circumstances in school hostels.

4.12 The proposed national policy in Discussion Paper 73 included the following principles:

• Compulsory testing of learners as a prerequisite for admission to any school, or any unfair discriminatory treatment (for instance by refusing continued school attendance solely on the basis of the HIV status of the learner), is not justified.
• However, it was recognised that special measures in respect of learners with HIV may be necessary. These must be medically indicated or in the learner's best interests.
• Learners' rights in respect of privacy were confirmed: Where AIDS-related information is disclosed to the educational authorities, the policy provided that, except where statutory or other legal authorisation exists, it may be divulged only with the written consent of the learner (above the age of 14 years) or in other cases with that of his or her parent or guardian.
• The needs of learners with HIV should, as far as is reasonably practicable, be accommodated within the school environment.
• All learners have a right to be educated on AIDS, sexuality and healthy lifestyles, in order to protect themselves against HIV infection. The policy recognised the need for consultations with parent communities in order to ensure that sexuality education will accord with the community ethos and values. The policy required that information be given in an accurate and scientific manner.
• Universal precautions should be implemented by all schools to further minimise the negligible risk of transmission of HIV in the school environment. The policy contained specific provisions on participation in contact sport.

4.13 The following draft policy was included in Discussion Paper 73 for comment, and especially for comment on whether it should also apply to school hostels, and if so, whether additional policy measures are necessary in the latter regard:

NOTICE NO ... OF 1997

DEPARTMENT OF EDUCATION

PROPOSED NATIONAL POLICY ON HIV/AIDS FOR SCHOOLS

I, Sibusiso Mandlenkosi Emmanuel Bengu, Minister of Education, hereby give notice in terms of section 3 of the National Education Policy Act, 1996 (Act No. 27 of 1996) that, after consultation with such appropriate consultative bodies as has been established for that purpose in terms of section 11 of that Act or any applicable law, I have determined the national policy to be applied in respect of HIV/AIDS for schools as set out in the Schedule hereto.

SCHEDULE

NATIONAL POLICY ON HIV/AIDS FOR SCHOOLS

There are no known cases of the transmission of HIV in the educational setting. HIV cannot be transmitted through day to day social contact. The virus is transmitted only through blood, semen, vaginal and cervical fluids and breast milk. Although the virus has been identified in other body fluids such as saliva and urine, no scientific evidence exists that these fluids can cause transmission of HIV.

Because of the increase in infection rates, learners with HIV/AIDS will increasingly form part of the school population. More and more children born with HIV will, with better medical care, reach school going age and attend primary schools. Indications that young people are sexually active, mean that increasing numbers of learners attending secondary schools might be infected. Intravenous drug use may also become an increasingly important source of HIV transmission among learners. Recipients of infected blood transfusions, primarily haemophiliacs, may also be present at schools.

It is impossible to know who is infected and who not. Even if mandatory screening for HIV of all learners were implemented, it would be impossible to know with certainty who were infected and who not, or to effectively exclude infected (or subsequently infected) learners.

Children with HIV/AIDS should lead as full a life as possible and should not be denied the opportunity to receive an education to the maximum of their ability. Their infection as such does not expose others to significant risks within the educational setting. However, if it is ascertained that an infected learner poses a "medically recognised risk" to others owing to secondary infections, appropriate measures may be taken.

The negligible risk of transmission of HIV can be further minimised by following standard infection control procedures and good hygiene practices under all circumstances. In the educational setting this means that all blood, open wounds, breaks in the skin, grazes and infected skin lesions, as well as all body fluids, should be handled in a prescribed manner by a member of staff. Strict adherence to universal precautions under all circumstances is advised as the state will be liable for any damage or loss caused as a result of any act or omission in connection with any educational activity conducted by a public school.

Good hygiene practices also include that learners with illnesses such as measles, whooping cough and mumps should be kept from school to protect all other learners, and especially those whose immune systems may be impaired by HIV.

Learners should receive education about HIV/AIDS in the context of life skills education. HIV/AIDS education should not be presented as an isolated learning content. The purpose of education about HIV/AIDS is to prevent HIV infection and to allay excessive fears of the epidemic. Education should ensure that learners acquire the age-appropriate knowledge and skills they will need to adopt and maintain behaviour that will minimise the risk of infection. Education will include information on the sexual transmission of HIV and the dangers of drug abuse, which will be offered in a scientific manner. In the elementary classes, education about HIV/AIDS should be provided by the regular educator, while in secondary grades the guidance counsellor would ideally be the appropriate educator. Because of the sensitive nature of the learning content, the educator selected to offer this education should be specifically trained, should feel at ease with the content and should be a role-model with whom learners easily identify.

In accordance with the constitutional guarantees of the right to a basic and further education, the right not to be unfairly discriminated against, the right to freedom of access to information, the right to freedom of conscience and the right to privacy, the following policy shall constitute national policy.

Definitions

1. In this policy any word or expression to which a meaning has been assigned in the South African Schools Act, 1996 (Act No. 84 of 1996), shall have that meaning.

Admission and testing

2. (1) No learner will be denied admission or continued attendance at school on account of his or her HIV status or perceived HIV status.

(2) The testing of learners for HIV as a prerequisite for admission or continued attendance is prohibited.

No unfair discrimination

3. (1) No learner with HIV may be unfairly discriminated against.

(2) Any special measures in respect of learners with HIV must be medically indicated or in the learner's best interests.

Disclosure

4. (1) A child is entitled to the same rights in respect of the protection of his or her privacy as an adult and such rights are limited to the same extent.

(2) Although disclosure to the school principal is probably not legally enforceable (in view of the fact that the Regulations relating to Communicable Diseases and the Notification of Notifiable Medical Conditions, 1987 have never been applied and will probably shortly be replaced by new Regulations), it may generally be in the best interests of the learner with HIV (for example that special needs may be met) if the principal or other care giver is informed of his or her condition either by his or her parents or guardians or by the learner him- or herself (if the learner is above the age of 14 years).

(3) The principal or other person to whom this information was divulged, may not inform anyone else of the condition of the learner with HIV except with the informed written consent of the learner (above the age of 14 years), or his or her parent(s) or guardian. Disclosure otherwise is justified only if statutory or other legal authorisation exists therefor.

(4) Schools must inform all parents of the incidence of infectious diseases (meaning common childhood diseases) in the school, and of all inoculation programmes that are implemented at the school.

Attendance

5. (1) The needs of learners with HIV or learners affected by it shall as far as is reasonably practicable be accommodated within the school environment.

(2) Learners with HIV are expected to attend classes in accordance with statutory requirements for as long as they are able to function effectively. They have to supply written reasons for any absence.

(3) Academic work should be made available for personal study at home, and parents should be allowed to educate learners with HIV when they become incapacitated through illness, or if they pose a medically recognised health risk to others (for instance if such a learner has a serious secondary infection which cannot be treated and could be transmitted to other persons in the course of day to day contact).

(4) Learners with HIV who develop HIV-related behavioural problems or neurological damage could, if necessary, be accommodated within alternative structures in the same institution.

Education on HIV/AIDS

6. (1) A continuing HIV/AIDS education programme will be implemented at all schools for all learners, educators and other members of staff. Parents and guardians will be informed about all HIV/AIDS education, the learning content and methodology to be used. They should be invited to participate and should be made aware of their role as sexuality educators at home. Other major role-players in the community (for example religious and traditional leaders) should be acknowledged and informed about the HIV/AIDS education offered in schools.

(2) Age-appropriate education on HIV/AIDS will form a part of the curriculum and will be integrated in the life skills education programme for primary and secondary school learners. The education programme will be aimed at giving information on the reality of HIV, AIDS and STD (sexually transmitted diseases) in South Africa and at developing the life skills necessary for the prevention of STD, HIV infection and teenage pregnancy. The information will be given in an accurate and scientific manner.

(3) Learners will be encouraged to make use of health care and counselling facilities including reproductive health care.

(4) A culture of non-discrimination towards people with HIV will be cultivated. Learners will be taught how to behave towards and live with a person with HIV. Social norms against drugs, sexual abuse and violence will be promoted.

Universal precautions

7. (1) All schools will implement universal precautions to further minimise the negligible risk of transmission of all blood-borne pathogens, including HIV, in the educational setting. All blood, open wounds, breaks in the skin, grazes and infected skin lesions, as well as all body fluids, should be treated as potentially infectious.

(2) All schools will have available at least two first aid kits each of which contains two large and two medium pairs of disposable latex gloves, two large and two medium pairs of rubber household gloves for handling blood-soaked material in specific instances (for example when broken glass makes the use of latex gloves inappropriate), absorbent material, waterproof plasters, disinfectant (such as hypochlorite), scissors, cotton wool, gauze tape, tissues, containers for water, and a cardio-pulmonary resuscitation mouth piece or a similar device with which mouth-to-mouth resuscitation could be applied without any contact being made with blood or other body fluids. In addition, each educator should preferably have a pair of rubber household gloves in his or her classroom.

(3) The contents of the first aid kits will be regularly checked and used items should be replaced immediately.

(4) The kits will be stored in one or more selected (class) rooms in the school.

(5) All bleeding wounds should be treated and cleaned while wearing latex gloves, and should be covered well with a dressing or plaster. However, emergency treatment should not be delayed because gloves are not available. Bleeding can be managed by compression with material that will absorb the blood, for example, a towel. People who have skin lesions should not attempt to give first aid when no latex gloves are available.

(6) If blood has contaminated a surface, that surface should be cleaned with a fresh clean bleach solution and the person responsible for this should wear latex gloves. Other body fluids (such as urine, vomit or diarrhoea) should be cleaned up in similar fashion.

(7) Blood-contaminated material should be sealed in a plastic bag and incinerated or sent to a disposal firm.

(8) Skin exposed accidentally to blood should be cleaned promptly with water and disinfectant.

(9) All personnel should be trained on the correct procedure to be followed and on the appropriate use of the various devices contained in the first aid kit. Learners, especially in primary school, should not handle emergencies such as the nosebleeds of friends, on their own.

(10) If there is a biting or scratching incident where the skin is broken, the wound should be squeezed gently to make it bleed, and should then be washed thoroughly with warm water and disinfectant, and covered with a waterproof plaster. The injured person should be given an anti- tetanus injection.

(11) (a) No learner should participate in contact sport, such as rugby or boxing, with an open wound or infected skin lesion.

(b) If bleeding occurs during such a contact sport, the player should be taken off the field and should be appropriately treated.

(c) Bleeding should be controlled, wounds or lesions should be cleaned with warm water and disinfectant, an antiseptic applied and the wound covered with a non-porous dressing. Only then may the player resume playing and only for as long as the dressing remains effective.

(d) All change rooms or locker rooms should have a fully equipped first aid kit.

School level policies

8. (1) Governing bodies of schools may adopt an HIV/AIDS policy to give operational effect to the national policy. Such school level policy will reflect the needs, ethos and values of the school and the community. The national policy constitutes a set of basic principles from which the governing bodies of schools may not deviate. In the absence of a school level policy the national policy applies.

(2) It is strongly recommended that each school should establish its own Health Advisory Committee as a committee of the governing body. This committee will consist of members of the academic and administrative staff, representatives of the parents and guardians and a medical doctor or a public health officer.

(3) This committee should be set up and chaired by the principal. The committee should modify and/or approve the school's policy on HIV/AIDS and review it from time to time, especially if new scientific knowledge about HIV becomes available. This committee should advise the governing body on health care matters in the HIV/AIDS field.

Where policy may be obtained

9. This policy may be obtained from The Director-General, Department of Education, Private Bag X895, Pretoria, 0001.

[380] See especially par 3.50-3.50.3 above.

[381] Cf par 3.51.1-3.51.4 above.

[382] Sec 146 of the 1996 Constitution.

[383] Sec 3 deals with the determination of policy, sec 4 deals with the directive principles for national education policy, sec 5 sets out requirements with regard to consultation which must take place before policy is determined, sec 7 deals with publication of policy, and sec 8 deals with monitoring and evaluation of education and compliance with national policy.

[384] Cf The Policy Act sec 7.

[385] Cf sec 3(3) of the Policy Act as well as par 3.51 et seq above.

[386] Governing bodies may further apply to the Head of Department to be allocated other functions consistent with the Schools Act and any applicable provincial law (see sec 20(1)(a) and sec 21(1)(e)).

[387] Sec 20(1)(m) of the Schools Act.

[388] Learners in secondary schools (from the eighth grade) have to be represented in the governing body (sec 23(2)(d) of the Schools Act). Governing bodies further have to comprise members of the academic and administrative staff, and representatives of the parent and student bodies.

[389] According to sec 23(6) of the Schools Act a governing body may co-opt a member or members of the community to assist it in discharging its functions. Such co-opted member(s) would however have no voting rights (sec 23(8)).

[390] Cf sec 28(3) of the 1996 Constitution.

[391] Cf sec 27(1)(a) of the 1996 Constitution.

[392] The Educators' Employment Act (Proclamation 138 of 1994) and the Labour Relations Act 66 of 1995 (cf sec 2) deal with the rights of educators as employees. Cf also the Basic Conditions of Employment Act 75 of 1997. The South African Law Commission's Second Interim Report on Aspects of the Law Relating to AIDS contains proposals to prohibit pre-employment HIV testing except in narrowly defined circumstances. The Commission's First Interim Report on Aspects of the Law Relating to AIDS (cf par 1.2 above) dealt with universal work place infection control measures (universal precautions) which will also apply to educators and other school staff.

[393] Cf departmental letter 1/2/3 of 23 April 1997 from the Director-General, Department of Education addressed to Mr W Henegan, Secretary of the Commission.

[394] See par 6.29.2 for more detail.

[395] Cf fn 33 above.

[396] Par 3.15.2 of SALC Discussion Paper 73.