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5.1 Discussion Paper 73 was distributed to more than 1 237 identified parties during August 1997. These include persons and bodies concerned with HIV/AIDS and children's issues; non-governmental organisations concerned with human rights and HIV/AIDS issues; Heads of Provincial Education Departments; provincial ministers responsible for education and for health; representatives of the organised educators' profession; educational institutions; selected school principals from the different provinces; the medical and health professions; women's organisations; relevant research institutions and government departments; and the South African legal fraternity.
5.2 The Department of Education, which assisted in developing the Discussion Paper and the draft national policy, was formally approached for comment and for assistance to ensure that the Commission's preliminary recommendations reach as many stakeholders as possible. This was done especially with the view to ensure liaison with the Heads of Provincial Education Departments and the Council of Education Ministers.
5.3 The release of the Discussion Paper was advertised in the Government Gazette and by way of a media statement. A further 44 copies of the paper were subsequently distributed.
5.4 The closing date for comment was 30 September 1997, extended to 15 October 1997. Comments received after the extended date were also taken into account.
5.5 Written comments were received from 66 respondents. These consisted mostly of persons and bodies concerned with children's issues. Comments include those received from the Departments of Education, Health, and Welfare; welfare organisations concerned with children's issues; the health, medical and educators' professions; organisations active in the fields of human rights and HIV/AIDS; three provincial education departments; school principals; educational institutions; health departments of local authorities; non-governmental organisations concerned with HIV/AIDS and human rights issues; and research institutions. Some of the comments reflect the views of interest groups of considerable extent while other represent the views of private individuals, researchers or small organisations. Significant and extensive comments were, for instance, received from the Religious AIDS Programme and the youth organisations and religious communities affiliated to and in support of the Programme.
5.6 School principals and parents of learners with HIV were included in the consultation process.
5.6.1 Discussion Paper 73 and the draft policy were distributed to 387 identified school principals of various types of schools in the different provinces. The Paper was also submitted for comment to 44 educational institutions (universities and educators' training facilities). Although only two school principals and five university faculties of education responded formally to the Discussion Paper, 23 of the 66 persons and bodies responding to the Discussion Paper are directly involved in education and training of learners or educators. Prof Christa van Wyk (project committee member who assisted the Commission in compiling this interim report) took part in a discussion with school principals where the proposed policy was debated.[397] Issues raised by these principals (referred to as Greater Pretoria school principals) are included in the overview of comments below.
5.6.2 Parents of learners with HIV were reached through the National Association of People Living with AIDS (NAPWA). The Association's comments were informed by parents of learners with HIV as well as parents with HIV who have school going children. NAPWA's comments are integrated in the discussion below.
5.7 A list of respondents is attached as ANNEXURE A.
5.8 In general, the comments reflect overwhelming and unanimous support - many without any reserve - for the necessity of a national policy on HIV/AIDS in schools.
5.8.1 Sixty-five of the 66 commentators expressly recognised the need for enacting a national policy on HIV/AIDS for schools.[398] (The Gauteng Education and Training Council raised specific concerns with regard to the proposed policy without expressing itself either in favour of or against it.) Some commentators suggested extension of the application of the policy to tertiary and pre-school institutions while many felt that it should also apply to school hostels.
5.8.2 Many commentators lauded the Commission for its initiative in taking a step long overdue, and for its thorough research in setting out the background to the policy and formulating its contents.
5.8.3 The vast majority of commentators positively expressed their motivation for supporting the proposal: they saw it as an important step forward;[399] as a rational and fair foundation on which to build;[400] and as succeeding admirably by catering for the needs of both the individual and the school community.[401] NAPWA commented that the parents of learners with HIV who were interviewed expressed strong support for the concept of and need for a national policy on HIV/AIDS for schools. The consensus among these parents was that a national policy is necessary to create a uniform set of guidelines to help prevent discrimination directed at learners with HIV.
5.8.4 It is significant that the Joint United Nations Programme on HIV/AIDS (UNAIDS) Intercountry Team for Eastern and Southern Africa offered overwhelmingly supportive comments in the following terms:
This is the best policy on AIDS and school(s) in the world to date ... both on non-discrimination and on (the) right to education ... it is so good that such an advanced policy comes from Africa ... you can be proud that this document will set a high standard and an example for many other countries in the world ... let's make sure the policy becomes law of the land soon![402]
5.9 With the exception of two commentators, commentators were also in broad agreement with the contents of the policy. Various commentators offered detailed suggestions for further refining the policy while some raised specific concerns. The suggestions and concerns relate mostly to practical matters. These latter comments reflect recurring concerns and suggestions. The concerns and suggestions emphasised by different commentators are recorded below.
5.9.1 Two commentators found the proposed policy to be unacceptable and unrealistic. Prof M J Bondesio, Dean of the Faculty of Education at the University of Pretoria, and the South African Foundation for Education and Training (SAFET) expressed the view that the policy is flawed in that it fails to achieve a correct balance between the fundamental rights of those free from HIV and those with HIV in that it generally overemphasises the rights of the latter group. They also felt that the policy was poorly drafted and that it contained incorrect and misleading statements. They further questioned the authority of the Minister of Education to make policy on the matter of HIV/AIDS since, according to them, section 3 of the Education Policy Act is not absolutely clear in this regard.
5.10 The government departments which are stakeholders in the debate regarding a national policy for HIV/AIDS in schools are in strong support of the proposed national policy.
5.10.1 According to the Department of Education's comments the Heads of Education Committee approved of the proposals in Discussion Paper 73. The Council of Education Ministers on 24 November 1997 approved the preliminary recommendations as set out in the Discussion Paper.[403]
5.10.2 The Department of Health submitted comments in strong support of the policy and its contents. It also offered suggestions for refining the policy and adding to the background information. However, the Department regarded these as "relatively minor amendments". The Department's suggestions are included below. The Director of the Department's National AIDS Programme expressly suggested that any proposed amendments be subjected to the same consultative process which resulted in the development of the Discussion Paper.
5.10.3 The Department of Welfare welcomed the initiative taken and saw a national policy as a necessity which should also apply to school hostels. The Department referred the Commission to the United Nations Convention on the Rights of the Child (1989) which emphasises the interests of the child above all other considerations.
5.11 Parents of learners with HIV consulted by NAPWA strongly felt that a national policy must be adopted and implemented urgently as the lack thereof has contributed to the current unacceptable situation. They stressed that the Nkosi Johnson incident is illustrative of the confusion and lack of guidance created by the absence of a policy. NAPWA further recorded that discussions with staff and parents at the school attended by Nkosi Johnson reflect a view that if a national policy had been in place, the unfortunate situation would not have occurred. It was also suggested by the Co-operative for Research and Education (CORE) and Ms Tania Vergnani of the Department of Educational Psychology of the University of the Western Cape that the consultation process be hastened so as to enable implementation of the policy as soon as possible. The National Professional Teachers' Organisation of South Africa (NAPTOSA) would like to see HIV/AIDS education to be implemented at all schools as soon as possible. The Afrikaanse Christelike Vrouevereniging (ACVV) on the other hand suggested that any HIV/AIDS policy be evaluated first in terms of a pilot project launched at a number of representative schools before it is implemented nationally.
5.12 Concerns were expressed and suggestions offered on the principles enunciated in the policy in general, the specific terms of the policy, implementation of the policy and additional matters to be included in the policy. Many commentators also responded to the Commission's expressed invitation to comment on the suitability of the proposed policy for school hostels. Recurrent concerns related to a lack of clarity on whether the policy would also be applicable to other educational institutions (for instance pre-school and tertiary institutions, reformatories, and schools of industry and schools for the handicapped); the protection of "healthy learners"[404] and their rights; and the practical implementation of the policy. Concerns and suggestions are recorded in more detail below.
* General comments on the principles enunciated in the policy
+ Idealistic nature of the policy and current "abnormal circumstances"
5.13 The Catholic Institute of Education commented on the rather idealistic nature of the proposed policy in that it does not give any real attention to what schools can actually cope with. It observed that the ability of schools to cope will vary considerably, depending upon the training and experience of staff, their material and financial resources, the soundness of their administration, the background of the learners accommodated, the educator/learner ratio and overall morale of a specific school. The Institute concluded that any given school may be able to cope with a few infected learners, but be overwhelmed if the numbers become too great.
5.14 Several commentators referred to the "abnormal" circumstances under which many of our schools currently operate and requested that these should be acknowledged.
5.14.1 The Catholic Institute of Education and Greater Pretoria school principals drew attention to the caveat that the transmission of HIV "under normal circumstances" in the school environment is highly unlikely. It questions the "normality" of the circumstances under which many of our schools are presently functioning with strikes by educators and boycotts by learners, and a widespread breakdown of discipline and unacceptable behaviour by educators. In such abnormal circumstances a higher degree of sexual activity among learners (and with educators) is more likely, which enhances the danger of infection. Prof Bondesio supports this view and adds that phenomena such as child abuse, sexual relations between educators and learners, and violence would increase the risk of infection substantially. He argues that these factors would increase the numbers of learners with HIV which would in turn increase the risk of infection. These comments are supported by SAFET.
5.14.2 The AIDS Consortium stressed the need (with high levels of sexual abuse between educators and learners, and among learners in schools and hostels) for schools to be developing an ethos that is tolerant of sexual orientation and intolerant of sexual abuse and discrimination.
+ "AIDS exceptionalism"
5.15 The Department of Community Health of the Faculty of Medicine, University of Natal suggested that the policy should not be aimed only at learners with HIV, but rather at learners with viral diseases. The Department felt that the inclusion of "socially acceptable" diseases in the policy such as Hepatitis B and C, which require similar universal precautions, may promote the acceptability of the policy in the school environment. The City Health Department, Durban supported this and suggested that even if Hepatitis B is not included in the policy itself (for fear of confusion), prominent reference highlighting the similarities between Hepatitis B and HIV/AIDS should be included in the preface to the policy. The ACVV strongly felt that the same criteria should be applicable to both HIV/AIDS and tuberculosis.
5.16 Stressing the need for a relationship of trust within a school environment, NAPTOSA observed that many homes share with the school cases of terminal illness in the family and asked why AIDS should be different in this respect. This view was shared by the Gauteng Education and Training Council. The District Surgeons Society pointed out that HIV/AIDS is no different from similarly fatal diseases and that the school system could be brought to a standstill if other fatal diseases are given the same focus or special treatment as HIV/AIDS.
5.17 Prof Bondesio and SAFET strongly felt that the proposed policy in general overemphasises the rights of learners with HIV.
5.18 Applying the argument of AIDS exceptionalism to the terms of the proposed policy, Dr Martie Lane of the Department of Education observed that the requirement in clause 5(2) of the policy that learners with HIV should supply written reasons for any absence, creates the impression that they alone should supply reasons for absence (while learners absent with other diseases should in practice also supply reasons). The Department of Health endorsed this.
5.19 With regard to AIDS education the Newlands Education Support Centre suggests that a general culture of non-discrimination towards all people - regardless of race, colour, sexual preference, gender and religion - should be encouraged by an education programme rather than focussing exclusively on HIV/AIDS. The South African National Council on Alcoholism and Drug Dependence likewise favoured an integrated approach to various health and social issues and submitted that an HIV/AIDS education programme should be "one among others" (referring to, for instance, programmes on drug abuse, smoking, alcohol, teen pregnancy and mental health) and should not be singled out as the only issue. The Council is of the opinion that this will ensure a more balanced acceptability of the introduction of HIV/AIDS education.
+ Rights of learners without HIV ("healthy learners"[405])
5.20 Several commentators[406] shared the opinion that the rights of learners without HIV should be protected. They emphasised that the policy should aim at a clear balance between the rights of learners with HIV and those without HIV.
5.20.1 The Department of Educational Psychology, University of Port Elizabeth expressed the opinion that non-discrimination is not the primary issue at stake. According to this respondent it is crucial to also consider how "healthy learners" can be protected against HIV in future. The Catholic Institute of Education and the Gauteng Education and Training Council share this view. The Institute stated that the policy lacks an approach from the point of view of "healthy learners", the school principal, and staff. It further emphasised that the policy is silent on the obligations of learners with HIV and their parents or guardians towards the school and other learners.
5.20.2 The Rector of St Mary's Diocesan School for Girls, Pretoria thought it essential that the rights of "healthy learners" be protected on an equal basis to the rights of those with HIV. The policy should therefore aim at establishing and maintaining the delicate balance between the rights of these two groups. The South African National Council for Child and Family Welfare and the Johannesburg Institute of Social Services agreed with this.
5.20.3 Prof Bondesio and SAFET are of the opinion that the proposed policy is flawed in that it fails to achieve the correct balance between the rights of "healthy learners" and those with HIV. They submitted that the negligibility of the risk of transmission in the school environment should be balanced with the seriousness and increase of the risk in view of the phenomena of child abuse, sexual relations between educators and learners and violence which plague a significant number of schools in South Africa at present. The Gauteng Education and Training Council's comments implied that should it be shown that the risk of HIV transmission in the school environment is not negligible (as is accepted in the proposed policy), the policy would not be adequate. Prof Bondesio and SAFET further submit that only certain constitutional rights are emphasised in the policy (the right to a basic 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) while other rights (which would ensure a balance in also protecting the healthy school population) are absent. In the latter regard they refer to the right to bodily and psychological integrity, the right to an environment that is not harmful to health and well-being and the right to freedom of association. They conclude that an unreasonable emphasis is placed on the rights of those with HIV and that the policy falls foul of section 4(a) of the National Education Policy Act which requires that policy be directed towards the fundamental rights of "every person".
5.21 Mr S S Gerber, Principal of the Rosenhof High School (a school of industry) emphasised the position of the government acting in the place of the parent in such schools (where sexual activity may occur) and the rights of the healthy should be protected. The Religious AIDS Programme stressed the responsibility of learners with HIV towards healthy people and referred to the possibility of claims resulting from negligence where "healthy learners" are exposed to HIV. The Association of Professional Teachers (an affiliate of NAPTOSA) commented that the proposed policy did not appear to give enough protection to "healthy learners", educators and support staff who will be in daily contact with learners with HIV. The Association enquired about the liability of parents or guardians and principals in the case of non-disclosure of AIDS-related information or lack of protective action in instances where "healthy learners" or educators are infected with HIV. The Child, Family and Community Care Centre of Durban emphasises that the proposed policy is silent on the issue of individuals becoming infected in the school environment despite all precautions. The Dutch Reformed Ministry of Caring stressed the need for clarity in the policy on the responsibility of parents or guardians if their sexually active children expose others to HIV in an irresponsible or even intentional way. The Gauteng Education and Training Council likewise required clarity on legal responsibility in the case of educators or learners becoming infected in the course of duty or through activities related to the school (for instance, an injury where blood flows, a sexual act, or hospital treatment following an accident at school).
5.21.1 School principals from Greater Pretoria questioned how learners who are sexually active could be dealt with in the school environment. They asked clarification on the role of the school principal as protector of the rights of "healthy learners".
5.22 The City of Cape Town Medical Officer of Health stated that learners and staff with pulmonary tuberculosis have to be aware of the potential risk they pose for learners without HIV in the instance of non-compliance with treatment for tuberculosis.
5.23 The Western Cape Education Department has already implemented an AIDS policy which requires that the learner with HIV and his or her physician must "devise preventive and safety measures to protect healthy persons, but also meet the needs of the learners with HIV". This policy further stresses that "care must be taken that all the procedures are medically, ethically, educationally and legally sound".
* Comments on the terms of the proposed policy
5.24 Many commentators offered specific suggestions for reformulation of the proposed clauses. Several suggestions pertaining to clarification of terms were incorporated in the revised policy attached as ANNEXURE B.
+ Preamble
5.25 The Department of Health suggested that a brief description of the natural course of HIV disease in children, in addition to what is already provided for, should be included in the policy. NAPWA supported this, especially with regard to the impact of HIV infection on physical growth and mental development in learners. the Department of Health further submitted that the statement referring to haemophiliacs and recipients of infected blood should be balanced against the fact that in South Africa Factor XII is heat treated and blood for transfusions is as safe as it is possible for it to be, and that these are thus insignificant sources of HIV infection.
5.26 The Western Cape ATICC suggested that reference also be made in the preamble to learners at risk of contracting HIV through child abuse and rape given the high rates of sexual abuse in our country.
5.27 The South African National Council for Child and Family Welfare requested clarity on what are considered to be the special needs of learners with HIV and how these differ from those of other learners.
5.28 The Department of Health proposed that guidelines and/or protocols should be provided on what constitutes a "medically recognised risk" owing to secondary infections and the appropriate measures that may be required to be taken in order to prevent arbitrary decisions in this regard. The North West Province Department of Education supported this.
+ Admission and testing (Clause 2)
5.29 All parents of children with HIV consulted by NAPWA were opposed to the testing of learners as a prerequisite for admission to school, not only on the grounds that the practice is discriminatory, but also because they believe that testing for HIV should be voluntary and at the request of the individual concerned. They stressed that where certain schools have directed learners to service organisations for HIV testing (as a prerequisite for admission) in the past, this has caused great distress and anxiety. The Department of Health suggested that clause 2(2) should make HIV testing inadmissible for whatever reason (for instance before granting scholarships to learners).
5.30 The South African National Council for Child and Family Welfare submitted that even though HIV testing should not be a prerequisite for admission to schools, a medical report for admission to school should be a prerequisite at all levels. This should apply also to learners with HIV.
+ No unfair discrimination (Clause 3)
5.31 The Institute for Human Rights Education stressed the need to cultivate a culture of non-discrimination and suggested that clause 3(2) should provide for education of the school community on how to relate to learners and educators with HIV.
5.32 The North West Department of Education suggested that the criteria of "fairness" be removed throughout the policy. The Department of Health supported this in specifically requesting that the word "unfairly" be removed in the provision that no learner with HIV may be "unfairly" discriminated against (clause 3(1)).
5.33 Parents of learners with HIV commenting through NAPWA supported the inclusion of clause 3(4) which requires schools to inform all parents of the incidence of infectious diseases in the school and of all inoculation programmes. They requested that special attention must be given to inoculation programmes, especially where the inoculation involves live vaccines, which could be potentially dangerous for HIV positive recipients.
+ Disclosure of AIDS-related information (Clause 4)
5.34 A predominant number of respondents submitted that HIV status of learners should be disclosed in some or other way.[407]
5.34.1 The Catholic Institute of Education expressed the opinion that the view recorded in the text of the Discussion Paper that the legal and ethical duty of confidentiality is not absolute and that disclosure can be justified if it would be in the overriding public interest, seems to be in contradiction with clause 4 of the proposed policy. According to the Institute it appears that "healthy learners" and parents may have a constitutional right to know if a person at the school has HIV in terms of "healthy learners'" fundamental right to life. The Institute suggested that something stronger should be added to clause 4 on the duty of parents or guardians (or the learner above the age of 14) to inform the school principal and other care givers if their child has HIV.
5.34.2 The Rector of St Mary's Diocesan School for Girls, Pretoria submitted that the policy should insist on disclosure on a need to know basis to ensure special treatment for the learner with HIV and adequate protection for the "healthy learner". Although not expressly favouring disclosure, the Department of Health also suggested that the policy refer to the concept of "need to know" in the context of disclosure.
5.34.3 Most parents of learners with HIV consulted by NAPWA would be supportive of disclosing the learner's HIV status to both the school principal and the learner's (class)educator, or of them being aware of the learner's HIV status. These parents felt that in addition to the principal being informed (by either the parents or the learner) they would in most instances prefer to also inform the class educator - particularly in the junior grades where learners generally have one assigned class educator. It was felt that the class educator is better placed to support and monitor learners than the school principal.
Reasons in support of disclosure
5.35 The main reasons forwarded for disclosure of AIDS-related information in comments, are: the need to confirm the relationship of openness and trust within the school; proper regulation of contact sport; promotion of a better understanding of and support of learners with HIV; and protection of the "healthy learner". A number of commentators also referred to the need for clarity with regard to liability in the event of HIV transmission.
5.35.1 The Rhodes University Education Department stated that principals and educators need to be trusted and treated as professionals. It would be impossible for professionals to act professionally if they are not in possession of crucial information. NAPTOSA agreed that a relationship of trust with the school is necessary. The Association emphasised that many homes share with the school cases of terminal illness in the family and asks why AIDS should be any different. They suggested that disclosure be encouraged.
5.35.2 The Association of Professional Teachers also advocates a relationship of openness and trust, especially with regard to the proper regulation of contact sport. The Association maintains that if a principal excluded a learner with HIV from contact sport and is unable to supply reasons for such action, it will lead to speculation on the part of educators and learners and that such speculation could be harmful for the learner with HIV as well as his family. The Gauteng Education and Training Council supported this view. The Council added that ultimately the truth will come out. NAPTOSA observed that information regarding a learner's HIV status will become common knowledge when he or she becomes incapacitated. The Organisation asks what effect this would have on parents, educators and others who had contact with the learner but were unaware of his or her condition.
5.35.3 The Gauteng Education and Training Council stated that any illness (including HIV) influences a learner's school performance, his or her general happiness and development. Awareness of this problem allows the school to offer the learner support and understanding. NAPWA shared this view. The District Surgeons Society felt that it is important that learners with HIV be protected against common viral infections as they are more susceptible to these than healthy people and stated that this could only be done if such learners' HIV status was known.
5.35.4 The Principal of Rosenhof High School highlighted the problems regarding confidentiality of AIDS-related information in schools of industry. Many of the learners at these schools are sexually active. These activities pose a danger of transmission of HIV and cannot be controlled due to shortage of staff. In these schools the state is in the place of the parent and the question of liability in respect of HIV transmission arises. The Gauteng Education and Training Council is of the opinion that where information is not disclosed, neither the educator, nor the school, the principal or the governing body can be held responsible for cases of transmission of HIV in the school environment.
Who should be informed?
5.36 The Catholic Institute of Education contends that it may be in the best interest of the learner if those dealing regularly and closely with a learner, and in large measure responsible for his or her personal growth, are informed on a need to know basis about anything crucial to that individual's life and growth.
5.36.1 The South African National Council for Child and Family Welfare submitted that it should be compulsory for parents to inform the school principal in order to ensure the protection of "healthy learners". The Johannesburg Institute of Social Services and school principals from Greater Pretoria agreed with this. The South African National Council for Child and Family Welfare stressed that the need for disclosure would be even more paramount in the case of hostels and suggested that the hostel superintendent should also be informed. The Rhodes University Education Department is strongly in favour that either principals or other "care givers" should as a matter of course be informed of HIV/AIDS cases in their schools. The AIDS Legal Network however required clarity on the term "care giver". Prof Bondesio and SAFET were also concerned about the lack of clarity of this term.
5.36.2 The Gauteng Education and Training Council stated that an educator, as the person who spends most of the day with a learner with HIV, surely has a right to know that the learner has the potential to pass the infection on to him or herself or other learners. The Council was of the opinion that the parents of other learners would insist that the educator has this information. The Stilfontein Child Welfare Society suggests that the principal or class educator should be informed. The AIDS Law Project, although supporting the encouragement of voluntary disclosure, questions the emphasis being placed on the role of the principal. This organisation suggests emphasis to be placed instead on HIV-related information being disclosed to the class educator in view of the personal relationship and contact between this person and the learner with HIV, and in view of the fact that the class educator knows the exact whereabouts of each learner on a daily basis. The Department of Health also questions the need for the principal (as opposed to the class educator who is the first level of contact, and a possible carer) to be informed. Parents of learners with HIV who commented through NAPWA also expressed support for disclosing HIV status of learners to the class educator in addition to the principal.
5.36.3 In view of the increasing democratisation of education and participation of parent governing bodies, the Dental Association of South Africa submitted that governing bodies should be given "equivalent right of disclosure to information".[408]
5.36.4 The Gauteng Education and Training Council is in fact of the opinion that the entire staff must be allowed access to this information. NAPTOSA maintained that ideally the school should be informed of learners who have HIV.
5.36.5 The Rector of St Mary's Diocesan School for Girls, Pretoria suggests that the "relevant authorities" to whom HIV-related information should be disclosed are the school principal, matron or school nurse, and guidance teacher. The Department of Education, Mpumalanga suggested that "relevant authorities" could include counsellors and sports masters so that learners with HIV could be fully supported and "healthy learners" protected.
Reasons for not favouring disclosure
5.37 A substantial minority of respondents do not support the encouragement of disclosure of HIV-related information as provided for in clause 4(2).
5.37.1 The AIDS Legal Network believes that the policy should provide in clear terms that no learner may be compelled to disclose his or her HIV status - either to the school principal or other care givers - without his or her consent or that of his or her parent or guardian if below the age of 14.
5.37.2 The Western Cape AIDS and Life Skills Forum emphasised the current climate of discrimination in relation to HIV/AIDS within SA wich may not be conducive to disclosure and requested that this be recognised within the policy. The Forum suggested that this could be done by providing that each learner with HIV, or his or her parent or guardian, might want to consider the level of knowledge and prevailing attitudes of the specific principal or care giver in relation to HIV/AIDS, and determine whether their disclosure would receive positive support.
5.37.3 The Western Cape ATICC is of the opinion that disclosure to a principal may not be in the best interests of a learner as principals' level of knowledge and attitudes may vary. The AIDS Legal Network and the Western Cape AIDS and Lifeskills Forum agreed with this.
5.37.4 The AIDS Legal Network added that with an educator/learner ratio of about 1 to 70 it would be impossible to meet any special needs of individual learners with HIV (which would be the main reason for disclosure).
5.37.5 The Cotlands Baby Sanctuary for Abandoned and Abused Kids queried whether disclosure would generally be in the best interests of a learner with HIV - especially if universal precautions are adhered to.
The role of an enabling environment as an alternative to compulsory disclosure
5.38 The City of Bloemfontein Medical Officer of Health stressed that a supportive and enabling environment could encourage voluntary disclosure of HIV status by infected learners themselves. The AIDS Consortium agreed with this and suggested replacing the present provision encouraging disclosure to the school principal with a recommendation to develop an enabling environment in schools which would support voluntary disclosure.
Consent to disclose
5.39 The Catholic Institute of Education remarked that the possibility of divulging information only with written consent is likely to be too slow in the case of accident or emergency.
5.40 As regards the age of consent, the Kleinmond Child and Family Welfare Society doubted whether 14-year-old learners would be able to handle the matter themselves and suggested that parents or guardians give the necessary consent up to the age of 16 years. The Cotlands Baby Sanctuary for Abandoned and Abused Kids shared this view.
Protection of confidentiality
5.41 The Department of Community Health, Faculty of Medicine at the University of Natal requested that the consequences of unauthorised disclosure be clarified in the policy (suggestibly in clause 4(3)) so that the privacy of learners is recognised as paramount. The Department of Health likewise expressed concern about the protection of confidentiality in instances where information is indeed disclosed.
5.41.1 The Faculty of Education at the University of Durban-Westville expressed the opinion that educators should be trained to respect their position of trust and support.
5.41.2 The Gauteng Education and Training Council suggested that to maintain confidentiality SACE should have a system to take action against any educator who abuses the disclosure of HIV-related information.
5.41.3 Both the Western Cape ATICC and the Western Cape AIDS and Lifeskills Forum further suggested that clause 4(3) be expanded to expressly provide that a school principal to whom information has been disclosed may not inform other education department officials of the HIV status of learners.
Disclosure and public health
5.42 Various commentators expressed concern about the lack of clarity of clause 4(4) which provides that schools must inform all parents of the incidence of infectious diseases in the school and of all inoculation programmes that are implemented at the school.
5.42.1 The Western Cape ATICC, the South African Paediatric Association and the Dental Association of South Africa commented on the vagueness of the term "infectious diseases" and expressed the fear that it could be understood to include HIV infection. According to the ATICC this could lead to schools experiencing unnecessary problems regarding disclosure of AIDS-related information.
5.42.2 The Western Cape ATICC however supported the proposal that parents and guardians be informed about inoculation programmes that will be implemented at the school. This would allow parents or guardians of learners with HIV to make the necessary arrangements with the principal or care giver to exclude the learner with HIV from the inoculation programme if it is not considered beneficial to such individual. The District Surgeons Society observed that a normal school going child has about six to nine episodes of a viral infection per year for the first twelve years of his of her life, not counting measles, mumps and chickenpox. They felt that it therefore seems important that learners with HIV should be protected against these infections as they are more susceptible to infection than healthy people, especially in a crowded environment like schools.
+ School attendance by learners with HIV/AIDS (Clause 5)
5.43 Dr Martie Lane of the Department of Education observed that the requirement in clause 5(2) that learners with HIV should supply written reasons for any absence creates the impression that they alone should supply reasons for absence (while learners absent with other diseases should in practice also supply reasons). The Department of Health and the South African Paediatric Society endorsed this view.
5.44 The MEC for Education and Cultural Affairs, Western Cape emphasised the fact that children of school-going age have the right to basic education. In view of this, learners should be supported in the learning process and provision is consequently made for home education in the Western Cape Education Department's interim AIDS Policy. This concept was supported by the Bloemfontein Medical Officer of Health who suggested that curricula should be written in such a way that learners with HIV could do self study at home if they are too ill to attend school. The District Surgeons Society submitted that supportive education by computer can secure a continued education on the same level - even when a learner is being hospitalized.
5.45 Several respondents[409] strongly questioned the viability of providing that learners with HIV who develop HIV-related behavioural problems or neurological damage, could be accommodated "within alternative structures in the same institution" (clause 5(4) of the proposed policy).
5.45.1 Prof Bondesio and SAFET commented on the vague terms used in the policy which provides that learners with HIV-related behavioural problems "could, if necessary" be accommodated in alternative structures. The South African National Council for Child and Family Welfare likewise requested clarity on when a learner with HIV would be regarded as a health risk and who would determine this. The Cotlands Baby Sanctuary for Abandoned and Abused Kids also raised this concern. The Catholic Institute of Education expressed concern on whether behavioural problems would only become apparent when it may be too late. The Department of Health suggested that guidelines and protocols are needed to ensure that arbitrary decisions and actions are not taken with regard to whether a leaner with HIV is a health risk.
5.45.2 The Bloemfontein City Medical Officer of Health asked for clarity on what "alternative structures" would be in view of current overcrowding and shortage of school buildings in most of the schools in our country; whether these structures would be stigma-free and whether there would be alternatives should learners with HIV not want to be accommodated in this way.
5.45.3 The Department of Community Health at the Faculty of Medicine, University of Natal added that the present high educator/learner ratio would influence the viability of the proposed provision. Prof Bondesio and SAFET also question the silence of the policy on how ordinary schools are supposed to deal with this daunting task in practice in view of the lack of space and human resources in most schools. The Newlands Education Support Centre agreed and stated that in practice there would be little likelihood of less affluent schools having the personnel to provide support in alternative structures. The Centre suggested that hospital schools be looked at as an alternative proposition.
5.45.4 The Catholic Institute of Education requested clarity as to who will finance accommodation within alternative structures. The District Surgeons Society stated that special measures needed to accommodate learners with HIV should not place an additional financial burden on schools and local communities. Financial and other assistance should be forthcoming from provincial or central government in respect of each learner with HIV being thus accommodated. Dr Martie Lane of the Department of Education submitted that lack of funds would render it impossible to supply all institutions with alternative structures. Providing for alternative accommodation "within the education system" would be more realistic and attainable. The Department of Health echoed these concerns and suggested that it rather be provided that learners with HIV/AIDS-related behavioural problems be accommodated in alternative structures "which are conducive to effective learning".
5.46 The Department of Education, Province of the North West observed that "healthy learners" should also be taken into account. The Department seems to favour accommodating learners with behavioural problems in separate institutions.
+ Education on HIV/AIDS (Clause 6)
The role of parents
5.47 Commentators' major concern with regard to HIV/AIDS education was that parents should not merely be informed about such education but should actually be consulted on the contents of what is relayed to their children.
5.47.1 The Religious AIDS Programme expressed strong concern about the proposed formulation of the policy namely that parents and guardians will be "informed" about all HIV/AIDS education as opposed to being consulted. Although the Programme agreed that parents should be informed, it was concerned that the role of parents in sexuality and life-skills education should not be underestimated. It is therefore proposed that the policy ensure that consultations (on the content and methodology of an HIV/AIDS Education Programme) with parents and other important role-players in the community should take place as opposed to mere information-giving sessions. Moreover, the Programme suggests that each school should have the right to compile its own sexuality and lifestyles curriculum in consultation with parents and other role players from the community as well as with student leaders. The Department of Education of the North West Province suggested that traditional healers be included in the role players to be informed of HIV education being offered in schools. The Department of Environmental Affairs, the Dutch Reformed Ministry of Caring and the South African National Council for Child and Family Welfare agreed that parents should not be merely informed but be directly involved and included in the education programme. The Council also saw a need for parents to be informed of the credentials of the experts who will present HIV/AIDS education.
5.47.2 Dames Aktueel, while stressing the important role of parents, expressed concern that learners could be exposed to information at an age before they are psychologically ready for it. The respondent requested that the policy provide for parents to be directly involved, for instance, in the decision at which school level learners should be confronted with information on the use of condoms.
5.47.3 Prof Bondesio and SAFET noted that no reference was made to governing bodies of schools, associations of governing bodies and other bodies representing the interests of parents in respect of HIV education. They also observed that the position of other role players in the community in respect of HIV education is not defined clearly enough in the proposed policy.
Content of HIV/AIDS education
5.48 Several commentators offered suggestions on the content of an education programme on HIV/AIDS.
5.48.1 The South African National Council on Alcoholism and Drug Dependence expressed itself in favour of an integrated approach in which HIV education forms part of a balanced curriculum together with other issues such as drugs, alcohol, smoking, sexuality and mental health issues. Prof Hobdel suggested reformulating clause 6(4) to include the promotion of positive health behaviour and social norms against alcohol abuse. Prof Bondesio and SAFET however warned against referring to drugs, sexual abuse and violence in the same policy (as in the proposed clause 6(4)) since, according to them, this would strengthen popular notions that HIV/AIDS is somehow generally linked to immoral and antisocial behaviour.
5.48.2 The Catholic Institute of Education mentioned the need for an education programme on HIV/AIDS to be complemented by guidance on the meaning and value of life, health and sickness, relatedness and loneliness, and dying and death. NAPWA and the Religious AIDS Programme supported this. NAPWA submitted that such information would help prepare learners for the loss of friends and family members to AIDS and would ensure better coping skills. In this context the Religious AIDS Programme submitted that core values and the institutions of marriage and family should be promoted by educators.
5.48.3 The City of Cape Town Medical Officer of Health suggested that values and ethics of specific communities should be taken into account. Dames Aktueel also emphasised that the cultural differences in background and community values should be respected and considered in presenting HIV/AIDS education. The South African National Council for Child and Family Welfare supported this view.
5.48.4 The Newlands Education Support Centre stressed that issues related to general lifeskills should be included in an education programme on HIV/AIDS. These would include issues such as decision making, assertiveness, building self-esteem, and understanding and controlling emotions.
5.48.5 Several commentators stressed the need for the cultivation of a non-discriminatory climate with regard to HIV/AIDS. The Department of Environmental Affairs emphasised the importance of proper education on the integration of persons with HIV into society. The North West Province Department of Education requested that appropriate positive attitudes towards the epidemic and persons with HIV/AIDS be promoted. The Institute for Human Rights Education stressed the need for education on how to relate to persons with HIV. The Institute insists that the responsibility not to discriminate should be expressly referred to in the policy itself. The Western Cape Education Department already expressly encourages supportiveness towards persons with HIV and discourages prejudice and stereotyping in its AIDS policy.
5.48.6 Ms Catherine Matthews on behalf of the Medical Research Council and the Department of Community Health, University of Cape Town, suggested that education should focus on gender roles, and should attempt to strengthen young women's ability to prevent becoming infected. The Catholic Institute of Education also favoured gender education since it saw a direct connection between the spread of AIDS and the low status of women in African societies.
5.48.7 The Stilfontein Child and Welfare Society requests that an HIV/AIDS education programme include information on the physical as well as the emotional treatment of the infection. The City of Cape Town Medical Officer of Health stated that the formation of support groups for learners with HIV should be encouraged in AIDS education. Funding should be made available to develop and encourage this process.
5.48.8 NAPWA suggested that, given the high levels of sexual abuse in South Africa, part of the curriculum should explore sexual abuse and the possibility of HIV transmission in this context. The Western Cape AIDS and Life Skills Programme believes that educators and facilitators should not only be able to provide information on HIV/AIDS but also to give support and guidance in relation to sexual violence, sexual abuse and rape.
5.48.9 The City of Durban Health Department suggested that any HIV/AIDS education programme should include appropriate information regarding the use of universal precautions and protective measures, (for instance, learners are to be trained to manage their own bleeding or injuries). The Department of Environmental Affairs expressed the opinion that basic first aid principles, including how to deal with bleeding, should be part of a life skills curriculum from a very early age (preferably grade 1) and that this should be reinforced on a yearly basis until it is part of the child's basis knowledge.
5.48.10 The South African Paediatric Association stressed that the policy should provide for an HIV education programme to have a uniformly standardised content, provided or accepted by the Department of Health's Directorate: HIV/AIDS and STDs in order to ensure proper control over what is actually taught. The Department of Environmental Affairs supported this and suggested that the exact teaching content of the programme should be stipulated by the Departments of Health and Education.
Educating staff
5.49 The Early Learning Resource Unit requested that compulsory education on HIV/AIDS should also be aimed at staff and educators.
5.49.1 The Tongaat District's Child and Family Welfare Society and Community Centre stressed the urgency of ongoing and compulsory training for educators and requested that the policy should provide accordingly. The Faculty of Education of the University of Durban Westville supported the proposal for such training which should include skills necessary to handle learners with HIV and to support and prepare learners who wish to be tested for HIV.
5.49.2 The South African National Council for Child and Family Welfare is in favour of HIV/AIDS education on condition that the information will be given by experts in the AIDS field and/or by specially trained educational staff. The City of Durban Health Department stressed that HIV/AIDS information should be given in an accurate manner, in clear language and in understandable terms. The Newlands Education Support Centre stressed the importance of the posts of guidance councillors to be filled by trained personnel. The Rhodes University Education Department however strongly advocated that all educators need to have the capacity to make some contribution towards HIV/AIDS education as many schools do not have guidance councillors.
5.50 The Department of Environmental Affairs raised the question as to who would be responsible for training educators to empower them to relay information regarding HIV/AIDS. The Department stated that the policy lacks any information on the training of educators.
5.51 The Gauteng Education and Training Council raised the question whether an educator may decline to teach this content.
Educating parents
5.52 The Rector of St Mary's Diocesan School for Girls, Pretoria stated that one cannot simply ignore the perceptions and fears of society in respect of HIV/AIDS - however unfounded. He suggested that the implementation of the policy be preceded by a very strong educational programme to address these perceptions and fears.
5.52.1 The Religious AIDS Programme suggested that the proposed policy encourage voluntary parental education on HIV/AIDS and that such programme should precede the implementation of any sexuality and lifestyles education offered to learners. The Department of Environmental Affairs supported educating parents and saw this as an opportunity to allay community fears pro-actively. The City of Bloemfontein Medical Officer of Health and the South African Paediatric Association agreed with this. The Association stated that where AIDS information and education are to be a compulsory part of the curriculum of primary school learners, it is absolutely essential that the school management bodies be obliged to make adequate factual information available to the parent communities of such schools since it is the adult community that is suffering from ignorance, which leads to prejudice and stigmatisation. In addition, at the junior primary stage, parents are likely to be at least as influential in educating their children as the educators, and consequently they need appropriate guidance and information:
5.52.2 Parents should not only know of the fact that HIV education is being provided but also be given access to adequate factual information themselves. In this way the Education Department could easily reach much larger groups of people than the Health Department, and also attempt to reinforce at home what is being taught at school.
5.52.3 The Faculty of Education of the University of Durban-Westville agreed that the onus is on the authorities to see to it that communities are educated - to allay fears and improve understanding of the disease. This was supported by the South African National Council for Child and Family Welfare. The Department of Health also agreed with these sentiments, suggesting that information on HIV/AIDS could be given through parent-educator organisations:
A great deal of prejudice and discrimination does not come from children but from ill-informed parents who then incite children to practise discrimination.
5.52.4 Mrs Prozesky suggested that all parents should receive information about the general policy of schools and more specifically about the precautions taken at each school to prevent the spread of HIV.
HIV/AIDS education to be compulsory?
5.53 The Gauteng Education and Training Council raised the question whether parental authority should be a prerequisite for teaching sensitive material regarding transmission of HIV.
5.53.1 The Klipriver Women's Institute and the Faculty of Education of the University of Durban-Westville stated that parents should not be allowed to withdraw their children from HIV/AIDS education and that such a programme should be made part of the compulsory curriculum. The AIDS Legal Network, the AIDS Law Project and the Johannesburg Institute of Social Services agreed with this. The AIDS Law Project maintained that should parents be allowed to remove their children from these important lessons, the basic education of a child will be hampered in the sense that HIV/AIDS as a health issue will seldom be addressed. The AIDS Legal Network added that an HIV education programme should be examinable otherwise it will never be taken seriously. The Mpumalanga Education Department supported these views.
5.53.2 The South African National Council for Child and Family Welfare expressed the contrary opinion that parents should retain the right to decide whether or not they want their children to take part in HIV/AIDS education.
5.53.3 The Religious AIDS Programme suggested that factual information regarding HIV/AIDS be compulsory but that parents retain their authority to decide what core values be taught to their children as those promoted in the school environment may be contradictory to values supported by parents. Although the AIDS Legal Network is in favour of compulsory AIDS education, it suggested developing a core curriculum which would allow parents and guardians to determine the learning content and methodology.
5.54 The City of Durban Health Department emphasised that the policy must anticipate and cure potential detrimental effects of educators' value systems on the content or effectiveness of AIDS education.
Need for a multi-disciplinary approach
5.55 The City of Durban Medical Officer of Health queried whether other organisations could assist with developing and implementing educational programmes.
5.55.1 The Family and Marriage Society of South Africa stated that it is equipped to assist with relaying information, training and education either directly or in training trainers for this purpose.
5.56 The ACVV is of the opinion that social organisations can play an indispensable role in educating communities on HIV/AIDS. Social workers know their communities and are already intensively involved in empowerment actions. It should therefore be recognised that they form an important part of the multi-disciplinary team at clinics and health forums. The ACVV requested that social workers be expressly identified as role players in the proposed policy.
5.56.1 The AIDS Law Project and the Department of Health supported a multi-disciplinary approach in implementing the proposed policy. The Project suggested that the assistance of ATICC counsellors be utilised. It observed that people from service organisations will perhaps be more suitable to relay information to learners who may feel threatened or who may feel uncomfortable with asking their guidance counsellor certain questions. The Department of Health stated that where visiting school health nurses are available (especially in urban areas) these nurses should become part of the education programme.
5.56.2 The North West Department of Education requested that a comprehensive school health service be established within the Department of Education to address HIV/AIDS issues in schools.
Evaluation of an HIV/AIDS education programme
5.57 The City of Durban Medical Officer of Health raised the question as to how the efficacy of an HIV education programme would be evaluated. He questioned whether attitudes can in fact be dealt with effectively.
+ Universal precautions (Clause 7)
5.58 Although the vast majority of respondents strongly approved of the principle of universal precautions in schools to prevent the transmission of HIV, many commentators[410] regarded the proposed policy as inadequate mainly because it was not supported by provisions regarding training; responsibility for implementation, upkeep and monitoring in practice; and improvisation in the case of lack of resources.
Need to define universal precautions
5.59 The Department of Health suggested that any information on universal precautions or infection control should be preceded by a definition of universal precautions, namely that in situations of potential exposure to HIV all persons should be considered as potentially infected and all blood and body fluids treated as such.
Financial implications
5.60 Several commentators stressed the financial implications of implementation and adherence to universal precautions and doubted whether their successful implementation would be attainable in our country.
5.60.1 The Department of Community Health, Faculty of Medicine at the University of Natal observed that the implementation of universal precautions is likely to be difficult with the current financial constraints affecting the Department of Education. A study done by the respondents indicated that many schools in Kwa Zulu-Natal have no first-aid facilities whatsoever. Many schools in this region also lack water. The Catholic Institute of Education likewise questioned whether many schools are in a position to implement the universal precautions proposed. The Institute observed that while for some schools it might not be a great problem, schools with dilapidated buildings may not even have a place where first aid kits can be kept safe; poorer schools would not be able to afford everything proposed; and sufficient staff would not always be available to attend to every cut, scratch or wound. The Gauteng Education and Training Council shared the concern in respect of the financing of universal precautions.
5.61 The Department of Environmental Affairs stressed that resources would be necessary for implementation of the policy and emphasised that with basics like electricity, phones and running water lacking in many schools in South Africa, items like first aid kits and other precautionary activities may not be a priority if it is not enforced by regular checking.
5.62 The Dental Association of South Africa expressed reservations about the necessary resources being available for the maintenance and replacement of first aid kits. Having regard to student population in public schools, the Association submitted that it would be preferable for all classrooms to have a first aid kit and that these kits should not be limited to two per school as proposed in the policy.
5.63 CORE stated that due to lack of facilities many urban and rural schools will be unable to adhere to the specific provisions proposed. Provisions on universal precautions should rather be prescribed in terms of general principles.
5.64 Contrary to these concerns the City of Durban Health Department stressed that universal precautions are mainly basic precautions to prevent the transmission of infections when dealing with blood or bodily fluids, and requested that the proposed policy should mandate the application of these precautions. The Department further noted that the precautions are neither time consuming nor significantly expensive. It requested that the proposed policy should be practical, feasible, sustainable, and enforceable.
5.65 The Catholic Institute of Education stated that if the government enacts a national policy, it should also ensure that schools are in a position to implement it. The South African National Council on Alcoholism and Drug Dependance suggests that in instances where schools cannot finance implementation of the policy itself, financial arrangements should be allowed for (presumably through government assistance). The District Surgeons Society also submitted that the financial burden implicit in accommodating learners with HIV should not have to be borne by the relevant school and local community. Financial and other help should be given by provincial or central government for each child with HIV accommodated in a school.
Implementation
5.66 Some commentators stressed the need for a specific person or body to be made responsible for the implementation of universal precautions in general and the upkeep of first aid kits.
5.66.1 S G Abrahams was concerned that unless a person is designated in each and every school to supervise the implementation of universal precautions, a budget and funding for the replacement of consumable items are provided, and a quarterly report to the Department of Education by each and every school is submitted, the policy runs the risk of being a dead letter in some schools. Mr Abrahams suggested that a working plan should be formulated and attached as a schedule to the proposed policy. The working plan should contain details on the practical implementation of universal precautions. He also suggests that such a plan be devised with the assistance of the people who would in practice be called upon to implement the policy.
5.66.2 The Department of Environmental Affairs shared this concern:
Either the provincial or the national Departments of Education will have to assume responsibility for ensuring that (precautionary measures) are in place in each and every school both in the form of first aid equipment, as well as trained staff. This could be done by an audit of all schools on an annual or business and industry-annual basis, and should be open to the public for their information, as part of the community education programme. If an audit is to be done on a regular basis, the policy should spell out who the responsible party is, when it should be done, and what should be audited. This will at the same time provide a measure for the success in implementing the policy.
5.66.3 CORE advised that the policy should be disseminated through the school governing bodies on an annual basis rather than centrally through the Department of Education.
5.67 The City of Bloemfontein Medical Officer of Health requested clarity on who would enforce and monitor the implementation of and adherence to universal precautions during contact sport.
5.67.1 The Gauteng Education and Training Council, the ACVV, Prof Bondesio and SAFET were equally concerned about adherence to universal precautions in contact sport and regarded the proposed procedure for contact sport as impractical, unrealistic and even "pathetic" (the latter in the case of SAFET). These commentators raised the following questions: Who should check learners for open wounds or infected skin lesions before they participate in contact sport? Who would be responsible for cleaning up surfaces contaminated by blood? Is covering a bleeding wound with a dressing, as proposed, realistic in view of the real danger of such dressing becoming unsettled by the learner during his or her further participating? The Council, Prof Bondesio and SAFET also raised the question of legal responsibility after a sporting event if a learner participated with open wounds or infected skin lesions and HIV was transmitted: Who will be legally responsible - the principal or the sports coach? The Council stressed that allowing learners with HIV to participate in contact sport increases the possibility of HIV transmission and concluded that the proposed precautions in respect of contact sport are inadequate.
5.67.2 Prof Hobdel suggested that clause 7(11) include directions on cleaning blood contaminated scissors and the Department of Health suggested that in the sporting context, soiled clothes should be changed before the player is allowed back on the field.
5.68 The Gauteng Education and Training Council however stressed that injuries to learners at school can take place at any time during the course of the day and not only during contact sport. This being the case, it would be necessary to regulate all physical contact (play, classroom situations and all sport and excursions) that learners with HIV have with others. The Council observed that the important issues raised in comments on the Commission 's Working Paper 58, namely that "proper regulation of contact sport had to take place", that "more consideration had to be given to children at risk of exposure to blood in play situations and contact sport and that the protection of the HIV negative child was necessary", and that "a child with HIV should be prohibited from taking part in contact sport" as recorded in paragraph 1.13 of Discussion Paper 73 appear not be reflected in the proposed policy. The Association of Professional Teachers supported this view.
5.68.1 Along the same lines the Catholic Institute of Education suggested that the policy should expressly provide that a first aid kit with rubber gloves should not only be available at every sporting event but should also be carried by the playground supervisor. The City of Durban Health Department also advised that first aid kits be available on the playground where bleeding accidents are more likely to happen. The Department of Health added that it should be provided that first aid kits be available and accessible at all times, also during breaks and whenever learners are present at school. The AIDS Legal Network recommended that first aid kits also be kept in school busses or vehicles during school outings or sports tours.
5.69 The Gauteng Education and Training Council raised concerns about the fact that protection in the form of universal precautions appears to be provided for only at the point where there is a very real danger of transmission of HIV: "More attention should be given to the prior protection of other learners, educators and support staff".
5.70 The Early Learning Resource Unit requested that the policy should include some suggestions on improvisation for dealing with blood (for instance the use of undamaged plastic bags to protect hands in the absence of latex gloves). The City of Durban Health Department shared this view and suggested that the policy should clearly describe universal precautions for practical application and should include specific recommendations. The Gauteng Education and Training Council also pointed out the that "strict adherence" to universal precautions (as in the preamble to the proposed policy and in clause 7(1)) would not always be possible in emergency situations and that the prescribed precautions may not be available in the case of an accident off school premises, for instance.
5.71 NAPTOSA suggested that to ensure proper implementation, specific rules and procedures should be prepared as an instruction manual for schools. The Organisation also suggested that regular feedback on the implementation of the policy be requested in order to monitor success and to initiate amendments where needed. NEWTO suggested that an evaluation board should monitor whether the national policy has been effectively implemented and see to it that school level policies do not deviate from the national policy.
Training
5.72 Some commentators identified fear, ignorance and misunderstanding as factors which may stand in the way of implementing the proposed policy. They refer in this regard to the need for proper training which will enable schools to implement the policy and to provide HIV education.
5.72.1 The Department of Environmental Affairs and Tourism refers to the lack of express provisions in the policy regarding the training of educators while the Dental Association of South Africa suggests that the implementation of the proposed policy should be preceded by an intensive training campaign. The Mpumalanga Education Department suggested that pre-service and in-service teacher training should include training on universal precautions.
5.72.2 The AIDS Legal Network recommended that learners should also be trained on the use on universal precautions so as to enable them to handle emergencies if necessary.
5.72.3 The Durban City Health Department appealed that educators, staff members and learners should all be given appropriate information regarding the use of universal precautions. It suggested that learners should, for instance, be trained to manage their own bleeding or injuries.
5.72.4 The Catholic Institute of Education stated that with the expected increase of numbers of very young children with HIV, young children need to be given more guidelines on dealing with cuts and scrapes at school than is presently provided for in clause 11(9). The Institute further observed that it might not be in anyone's interest to cause a non-bleeding wound to bleed (as is prescribed with regard to biting or scratching incidents in clause 11(10)).
5.72.5 On the question of whom should provide the training, the South African National Council on Alcoholism and Drug Dependance recommended that the Department of Education should ensure basic training for all educators on the issues covered by the policy. More specific programmes and training could then be arranged for identified educators to ensure an updated and ongoing process.
+ School level policies (Clause 8)
5.73 NAPWA supported the provision for school level policies. The Association indicated that parents of learners with HIV felt that such policies would create an opportunity to involve all sectors of the school community in debate and that as such it would be a forum for HIV/AIDS education and information distribution.
5.74 As regards the establishment of a health advisory committee, the Department of Community Health of the Faculty of Medicine, University of Natal expressed concern that, particularly in rural areas, there may be few personnel with the requisite skills to convey relevant information to the principal and the Governing Body. The Medical Officer of Health of the City of Cape Town also stressed the need for proper training of the proposed health advisory committee.
5.75 The Medical Officer of Health of the City of Cape Town questioned the need for the health advisory committee to be chaired by the principal. The Religious AIDS Programme, the AIDS Law Project, Prof Bondesio, SAFET and the Dutch Reformed Ministry of Caring shared this view. The Religious AIDS Programme would prefer the committee to be chaired by a person with knowledge on HIV/AIDS, and only where such a person is not available, by the principal. In the AIDS Law Project's experience the main source of discrimination and unfair treatment in schools is often the principal. It therefore felt that undue emphasis should not be placed on the role of the principal in setting up committees and formulating particular policies.
* Suggestions in respect of additional matters
5.76 According to certain respondents the following matters need also to be addressed (or to be addressed more clearly) in the proposed policy or through some other mechanism.
+ Extension of policy to other institutions, educators and administrative staff
5.77 Several respondents requested that the proposed policy be applicable also to other institutions where children are gathered in groups, as well as to educators and administrative staff.
Pre-schoolers and day-care centres
5.78 The Early Learning Resource Unit's main criticism of the proposed policy was that no reference is made to children between birth and nine years of age. The Unit submitted that it is of importance to include pre-school children in HIV information and education. Support for this suggestion was found in the statement in par 3.18.1 of Discussion Paper 73 that the window of opportunity in Africa (with respect to HIV education) is said to refer to children under nine years of age. The Unit further observed that most childcare facilities are unsubsidised by either the Department of Education or the Department of Welfare and proposed that the policy should apply to all schools and facilities where young children are cared for - not just the registered ones. The Cotlands Baby Sanctuary for Abandoned and Abused Kids supported extension of the policy to cover crPches while the City of Bloemfontein Medical Officer of Health submitted that day care mothers should be included in HIV education.
5.79 However, some respondents did not share this view in that they found the policy to be unsuitable for very young children.
5.79.1 Comments by the ACVV implied that the proposed policy would not be suitable for pre-primary schools and care centres for pre-school children as these children are not physically or emotionally able to protect themselves against transmission of HIV. They would for instance indiscriminately assist another child who bleeds rather than adhere to precautionary guidelines.
5.79.2 rozesky stated that although many of the aspects mentioned in Discussion Paper 73 are relevant to the pre-primary situation, the solutions or suggestions proposed in both the Discussion Paper and the policy are not. According to the respondent the reason for this is that teaching staff work very much more closely with younger children on a physical level than is the case in primary and other schools. Moreover, younger children themselves are more exposed to viruses and diseases because of their close proximity during play. Mrs Prozesky's comments supported those of the ACVV in so far as she mentioned that young children (who often have open wounds and nosebleeds) react impulsively when faced with these kinds of situations and touch blood and wounds in their effort to help. She added that education on HIV in the pre-primary stage is limited to the basic rule "don't touch because of germs" which young children tend to forget during stressful situations.
Tertiary institutions
5.80 The City of Bloemfontein Medical Officer of Health observed that HIV education at tertiary institutions should form part of any intervention strategy. NEWTO also strongly supports extension of the policy to tertiary institutions.
5.81 The Western Cape AIDS and Life Skills Forum suggested that educators' training institutions, technikons, and universities be encouraged by the Law Commission to develop HIV/AIDS policies similar to the proposed policy.
5.82 The Western Cape Department of Education pointed out that it already has an HIV/AIDS Policy in place. The policy has broadly the same ambit and content of the proposed national policy. It is applicable to schools as well as colleges and it applies in the absence of a national policy.
School hostels
5.83 Comment was specifically invited in Discussion Paper 73 on whether the proposed policy should also apply to school hostels, and if so, whether additional measures are necessary.
5.83.1 The vast majority of respondents commenting on this, felt that a policy is needed. However, commentators were not unanimous on the terms of such policy. Some felt that the proposed national policy is appropriate and adequate for hostels;[411] others stressed the necessity for additional or stronger measures, or different measures more appropriate to the residential situation as the latter may create a greater risk for HIV transmission - especially among sexually active learners.[412]
5.83.2 Many commentators also stressed the need for an HIV/AIDS policy that would be applicable to other residential situations where children are housed.
5.84 Several commentators expressed themselves in favour of a uniform policy to be applicable in respect of all institutions that care for children gathered together in groups.
5.84.1 The South African National Council for Child and Family Welfare suggested that the best option would be for one policy to cover all institutions that care for children gathered together in groups (hostels, reform schools, schools of industry, crPches and children's homes). The Gauteng Education and Training Council shared this view and added special schools, hospitals and clinics to this list.
5.84.2 The Western Cape AIDS and Life Skills Forum suggested that the proposed policy should apply to hostels, schools of industry and reformatories as the underlying principles would be appropriate and adequate. The Forum further suggested that a schedule should be added to the policy which clearly refers to the various learning institutions which will be covered by the national policy since health care workers, parents and educators are not familiar with the various categories of schools falling under the authority of the Department of Education. The Western Cape ATICC supported this view.
5.84.3 The Bloemfontein ATICC also supported the need for a uniform and universal policy, basing its view on the fact that schools frequently take learners on tours where all learners would be in a residential situation similar to that in hostels. The ATICC submitted that different sets of rules relating to HIV would confuse learners.
5.84.4 Parents of children with HIV responding through NAPWA felt that as hostels are integral to the school environment the national policy should apply to hostels. They were of the view that if additional policy measures should be required, these could be included in a school level policy.
5.85 Some respondents strongly felt that added precautions are needed with regard to the hostel setting.
5.85.1 The Dental Association of South Africa submitted that the proposed policy should not apply to hostels as added precautions and special measures are needed. The Association believes that the risk of transmission of HIV in hostels is greater and that governing bodies should therefore be given the right to make decisions in this regard. Parents could also be given a greater participating role in taking policy decisions regarding hostels. CORE suggested that the controlling structures in respect of hostels should elaborate or add policy measures as may be necessary or appropriate.
5.85.2 The Vryheid Child and Family Welfare Society expressed the opinion that strict measures should be implemented in the hostel situation in order to protect both learners with HIV and "healthy learners".
5.85.3 The AIDS Law Project submitted that a specific and more developed policy has to be compiled for hostels in that the conditions in school hostels, as opposed to day schools, are different.
5.85.4 The City Health Department of Durban is strongly of the opinion that additional policy measures should be applicable in respect of hostels since older learners in hostels may be sexually active. The Department suggests that a measure to reduce the risk of HIV transmission may be to separate older and younger learners and to provide condoms. The AIDS Consortium supported the provision of condoms for sexually active learners as part of additional policy measures which may be needed in respect of hostels. The AIDS Legal Network recommended that a policy for hostels should include provision for access to condoms unless measures are taken to prevent sexual intercourse between learners in the hostel setting.
5.85.5 The Witbank Child Welfare Society stated that all learners resident in hostels should be tested for HIV as a prerequisite for admission to any hostel in view of the fact that sexually active learners are accommodated in hostels. The Society stressed that universal precautions should be applicable in hostels in view of the heightened risk of HIV transmission.
5.85.6 The Tongaat and Districts Child and Family Welfare Society and Community Centre suggests that adequate training which focusses on prevention and infection control, should become compulsory for caregivers in the hostel situation. This view was supported by the South African Paediatric Association which stressed that staff training and education are vital for unbiased and nonjudgmental care and for ensuring that hostels are adequately equipped for universal precautionary wound management.
5.86 The Department of Welfare stated that the basic principles enunciated in article 3 of the United Nations Convention on the Rights of the Child (1989) could be used as a guideline on the question whether additional policy measure for hostels are necessary. According to the Department the article emphasises the child's best interest above all other considerations - political, social, religious or otherwise. It further requires that a child be treated as an individual whose particular needs and circumstances must be considered and that a child's developmental needs, as well as basic needs and security, should be provided for.[413]
Institutions for the physically and mentally handicapped
5.87 A few respondents representing different interests especially enquired as to the suitability of the proposed policy for institutions for physically and mentally handicapped children, or expressed a need for a suitable policy to be developed for these institutions.
5.88 The North West Department of Education enquired as to the availability of a policy for institutions for mentally and physically handicapped children while the Triangle Project expressed a need for a policy to be developed in respect of special schools such as reform schools, schools of industry and centres for the handicapped. The Western Cape AIDS and Life Skills Forum also requested that the proposed policy should make provision for the needs of learners with mental handicaps.
5.89 School principals from Greater Pretoria were concerned about the accommodation of handicapped learners with special problems in the educational setting.
Independent schools
5.90 The South African National Council for Child and Family Welfare raised the question whether the proposed policy would also apply to private (independent) schools, and if not, requested as to how the education system will protect learners in independent schools from HIV-related discrimination. The Catholic Institute of Education observed that although the policy is clear on the fact that HIV testing may not be done on learners in public schools it is very unclear whether this also applies in respect of independent schools.
5.91 The Gauteng Education and Training Council suggested that the same policy applies to public and independent schools. Parents of children with HIV commenting through NAPWA strongly supported a national policy on HIV/AIDS in schools being applicable to all schools, both public and private (independent), as pupils within both systems should be afforded the same protection.
All institutions of learning
5.92 The City of Cape Town Medical Officer of Health submitted that, despite the arguments given in Discussion Paper 73 as to why application of the policy is limited to schools, it should be applicable to "all institutions of learning". The respondent argued that the same problems facing "schools" as contemplated in the policy will also be experienced by, for instance, independent schools, technikons, and universities: all these institutions require policies on how to deal with HIV/AIDS. He noted that already a significant number of young adults are HIV positive.
5.93 The Gauteng Education and Training Council as well as the Department of Health supported this view. The Council added that state as well as private institutions, hostels and schools for learners with special education needs (for instance hospital schools, clinics and remedial schools) should be covered by the policy.
Youth organisations and day care centres
5.94 The City of Durban Medical Officer of Health believed that the policy should be promoted as recommended practice to youth organisations (for instance, Boy Scouts and Girl Guides), sports clubs and youth groups.
5.95 The Cotlands Baby Sanctuary for Abandoned and Abused Kids enquired as to how other children's facilities, for instance day centres and children's institutions, will be affected by the policy.
Educators and administrative staff at schools
5.96 The Western Cape AIDS and Life Skills Forum believes that it would be a critical omission to exclude school staff with HIV from the policy. The Forum remarked that no indication or motivation was given in Discussion Paper 73 as to why this did not receive attention. The Forum argued that in developing issues in relation to learners with HIV, one cannot omit the identical or similar issues that need to be addressed in relation to educators and administrative staff with HIV who share the same environment with learners. It is proposed that a policy for school staff be included in the national policy on HIV/AIDS for schools.
5.97 The Department of Health, the Durban City Medical Officer of Health, the Institute for Human Rights Education and the Western Cape ATICC supported this view.
5.97.1 The Institute for Human Rights Education felt that it is equally important for educators and administrative staff with HIV to adhere to the same policy proposed for learners in order to ensure the safety of all at school.
5.97.2 The Western Cape ATICC recorded that they have been requested to intervene on more than one occasion in situations where educators with HIV have been unfairly discriminated against and have experienced breaches of confidentiality by education officials in relation to HIV. Intervention in such cases was made extremely difficult in the absence of a clear and rational policy. The ATICC believes that the omission of staff in the policy is a major shortcoming and that this will not assist in the development of non-discriminatory and rational responses to staff with HIV.
5.98 Although the AIDS Legal Network accepted that the proposed policy will deal primarily with learners and not educators, they suggested that a preceding paragraph be added to the policy which highlights this more clearly, and that mention should nevertheless be made in such paragraph that discrimination against educators with HIV cannot be condoned.
+ Condoms
5.99 The Bloemfontein ATICC felt that learners in hostels should have access to or be supplied with condoms. The AIDS Legal Network supported this unless measures are taken to prevent sexual intercourse between learners in hostels.
5.99.1 The AIDS Consortium noted the possibility of increased sexual activity among learners who are older than the norm for their grade and submits that if sexually active learners do not have access to condoms, they are prevented from protecting themselves against HIV transmission - this would be particularly pertinent in hostels. The Consortium stressed that an education programme on HIV/AIDS will only be taken seriously if the form of protection which is advocated is available at the school itself.
5.100 The Western Cape AIDS and Lifeskills Forum recommended that learners should, within an AIDS education programme, be provided with information on where condoms are available and accessible.
5.101 NAPWA felt that education on HIV/AIDS should examine and explore the use of condoms to prevent HIV and STD transmission. Ms Catherine Matthews, on behalf of the Medical Research Council and the Department of Community Health, University of Cape Town supported this.
5.102 The Western Cape ATTIC, although realising the controversy of the issue, suggested that even if the policy does not expressly provide for condom distribution, the policy should provide for governing bodies to discuss the issue. The Department of Health suggested that, in view of the sensitivity of the issue, the governing body should at least be able to decide whether condoms should be provided in the school environment. Such decision should be based on the current knowledge of options for protection and the expressed needs of learners. NAPWA also acknowledged the controversy involved in condom supply to learners: The supply of condoms to secondary schools was seen by some of the respondents commenting through NAPWA as an integral and essential component of and education programme on HIV/AIDS while others felt that learners should rather be made aware of local sources of supply.
5.103 In contrast to the above comments, Prof Bondesio and SAFET fears that the proposed policy supports sexual promiscuity or sexually deviant behaviour by providing in clause 6(3) thereof for education regarding reproductive health care - which they fear may refer to the distribution of condoms. They observe that this provision may be repugnant to many parents who still believe that the condom is not the ultimate answer to AIDS and that its use is indicative of a life-style which may have extremely negative consequences.
+ Refusal to study with a learner with HIV
5.104 The Western Cape ATICC stressed the importance of a policy dealing with the refusal to study with someone who has HIV. The ATICC states that such situations are likely to arise in educational settings, are usually extremely emotive and are likely to be poorly managed without guidelines for decision making. The Western Cape AIDS and Life Skills Forum supported this submission. The ATICC suggests that a clause on this issue be included in the proposed policy to the following effect:
The refusal of students to study with fellow students with HIV or AIDS is a potentially emotive situation and shall be preempted by providing accurate and understandable information to them and their parents. If, despite all attempts to educate them, students still refuse to study with infected individuals, the objectors should be transferred to other classes.
In the event of student and parental emotions becoming unmanageable, outside experts should be called in. However, at no point should concessions be made which would result in unconstitutional discrimination against the HIV infected individual(s).
+ Coercive measures
5.105 The Department of the Premier, North West Province perceived the policy as lacking coercive measures with regard to the protection of the rights of learners with HIV. The Department wondered what would compel an educator who knows that a learner has HIV, to treat such learner equally with his or her fellow learners.
5.105.1 The Child, Family and Community Care Centre of Durban suggested that disciplinary codes of educators be modified to deal with HIV-related discrimination and prejudice against learners with HIV and with breach of confidentiality. The Cotlands Baby Sanctuary for Abandoned and Abused Kids shared this view.
5.106 On the other hand some commentators were concerned about the lack of coercive measures which would ensure the protection of "healthy learners". The Religious AIDS Programme suggested that a school should have the right to refuse a learner schooling privileges (i e the right to attend that particular school) if such learner through irresponsible or negligent behaviour, unnecessarily exposes other learners to HIV. In this regard the Programme stressed the need for guidelines on expulsion from school. The Dutch Reformed Ministry of Caring supported this view.
+ Access to health care
5.107 The AIDS Legal Network requested that the proposed policy should deal with the question of accessibility of health care and counselling facilities to learners. The Network stated that most public facilities are not accessible to learners since they are not open after school hours. For schools that do not have counsellors, access to outside counsellors is therefore not guaranteed. It recommended that schools should negotiate specific times with local clinics in order that learners would have access to their facilities.
5.108 The Western Cape AIDS and Life Skills Forum saw special urgency in stronger links being secured between the Departments of Education and Health, and that these Departments should take co-responsibility for providing an environment that promotes the physical, mental and spiritual health of learners. It is suggested that this principle should be expressly enunciated in the proposed policy and that specific reference should be made to the need for the development of mechanisms that will ensure that the Health and Education Departments work in collaboration to secure the well-being of learners.
5.108.1 The Mpumalanga Education Department submitted that for purposes of implementing universal precautions all schools should have clinics and school nurses where possible.
5.108.2 The City of Durban Medical Officer of Health suggested that the possibility of certain needs of learners being met by outside organisations should be considered. For instance, hospitals can meet more serious medical needs while AIDS service organisations can meet counselling needs.
+ Need for facilities for terminally ill learners with HIV/AIDS
5.109 The Faculty of Education, University of Durban Westville suggested that there should be (government?) centres where learners with HIV can be housed - especially those rejected by their families and friends. The Faculty stressed the financial difficulties experienced by private centres of this nature, as well as the need for centres to care for the ill where poor families cannot afford hospices and medical care for the terminally ill.
5.109.1 The Kleinmond Child and Family Welfare Society supported this proposal. The Society pointed out that children's homes often do not have the facilities for educating sick children, nor the financial means to cover the considerable medical expenses involved in caring for children with HIV once they become ill.
[397] Life Skills and HIV/AIDS Training Session of 20 school principals from Atteridgeville, Laudium, Pretoria West and Pretoria Central presented by the Gauteng Education Department on 17 October 1997.
[398] These include the comments of the Medical Association of South Africa (MASA); the South African Paediatric Association; the Medical Officers of Health or City Health Departments of Bloemfontein, Durban, and Cape Town; various branches of the South African National Council for Child and Family Welfare; school principals; education/health/medical departments of the Universities of Rhodes, Natal, Port Elizabeth, Western Cape, Cape Town and Durban-Westville; the National Professional Teachers' Organisation of South Africa (NAPTOSA); relevant government departments (i e the Departments of Education, of Health and of Welfare); and parents of learners with HIV (commenting through NAPWA).
[399] Eg the comments numbered 12.
[400] Eg the comments numbered 16.
[401] Eg the comments numbered 34.
[402] In a country like Rumania, for instance, which has the largest number of children with HIV in Europe, there are still no policy guidelines given by the Ministers of Education or Health relating to the admission of children with HIV to schools. Medical files, which are held by the district doctor, are on enrollment to school passed on to the school where they are not kept confidential. School staff still discriminate against children with HIV (AIDSScan December 1997 11).
[403] Departmental letter of 23 January 1998.
[404] See fn 405 below.
[405] Many respondents to Discussion Paper 73 used the term "healthy learners" to refer to learners without HIV. In this Chapter the term is used to reflect these comments.
[406] See eg the comments numbered 7, 12, 17, 19, 23, 25, 26, 31, 32, 34, 53, 56 and 63.
[407] See eg the comments numbered 6, 7, 12, 14, 15, 19, 25, 34, 37, 38, 49, 50 and 66.
[408] Presumably this meant that HIV-related information should also be disclosed to such bodies.
[409] See eg the comments numbered 9, 21, 22, 25, 29, 43, 56, 59 and 63.
[410] See eg the comments numbered 1, 2, 3, 5, 9, 15, 19, 20, 21, 24, 25, 26, 27, 34, 41, 54 and 56.
[411] Eg comments numbered 9, 16, 18, 24, 42, 46, 49 and 53.
[412] Eg comments numbered 13, 15, 28, 41, 57 and 59.
[413] See fn 191 above for more detail.
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