Letter to college principal declining masks and tests

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Written by: Miri
March 9, 2021
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Dear [college principal],

I am writing to you in regards to my son, [name], who is due to return to the college on [date]. [Name] has immensely enjoyed his time at the college so far, so I'd like to thank you and the rest of the college staff for everything you've done to ensure his journey there so far has been a rich and rewarding one.

As you might imagine, and in common with most other young people, [name] has found the lockdown restrictions, and the impact they've had on his academic and social life, very challenging. He's extremely keen to re-engage with college life and "get back to normal" to the extent that it is possible. Neither he nor I wish to make life difficult for the college.

Nevertheless, the college has issued a number of communications which both [name] and I find troubling, and that I would like to address in writing before term re-commences. I am, of course, aware that [name] is over 16 and thus able to make many of his own decisions without requiring parental consent, but as he remains resident with, and financially reliant upon, me in order to complete his education, he still qualifies as a dependent in the eyes of the law. That renders me with some responsibility for ensuring his well-being, which naturally, as his father, I am very concerned about anyway.

In the first instance, [name] is exempt from wearing a mask. Although he has worn one in the past, he is now medically and legally exempt. The government guidelines regarding mask-wearing clearly state that those who are exempt from wearing a mask are not required to provide any medical certification of this (1), and furthermore, doctors have stated they will not issue such certification (2). To ask an individual to provide proof of medical exemption is in breach of the Equality Act 2010, which protects those with hidden disabilities from disclosing private medical information. 

By law, the mask-exempt are only required to self-certify by stating that they are exempt. If they are pressed for further details or "proof", this could result in the individual or organisation requesting this proof accruing a personal fine of up to £5,000, and punitive damages of between £900 and £9,000, as per section 112 (Aiding Contraventions) and section 119 (Remedies) of the Equality Act 2010 (3).

Please note as per the government guidelines (1), that there is absolutely no legal requirement for the mask-exempt to wear a lanyard, badge, sticker, or any other adornment drawing attention to their private medical issues. To be very clear - as it is important for all college staff to understand this in order to avoid potentially punitive legal action - all that is legally required of the mask-exempt is to state, if asked about a mask, that they are exempt. 

In regards to a face visor, these still constitute a covering of the face, and so exemptions from wearing face coverings would still apply in most cases, and certainly do in [name]'s. However, please be aware the government's own guidelines state that a face visor is not an adequate substitute for a conventional face covering, and may only be worn as well as, not instead of (1).

Moving on to the lateral flow tests: as the government has confirmed, these are voluntary and not compulsory (4). Therefore, by law, there is no "opt in" or "opt out" requirement. I do not wish there to be any formal record of [name]'s private and personal medical choices, especially in light of the requirements of the GDPR. It is not clear to me how this data, once recorded, might be used. I do very much hope the college has investigated these issues thoroughly and is ensuring it is not committing any GDPR breaches by collecting this information from students. 

Should [name] choose not to receive a lateral flow test, this is his private, personal choice, and I would certainly expect there to be absolutely no discrimination or disadvantage resulting from that choice. It is important that the college and all its staff are aware of UNESCO's Universal Declaration on Bioethics and Human Rights, which states at Article 6, section 1:

"Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice." (5)

In essence, I am very eager to ensure that the college is fully aware of its legal obligations to its students, and that discriminating against an individual because of their medical choices represents a breach of human rights and medical ethics legislation - please also refer to the Montgomery ruling, which informs the NHS' policy on informed consent (6). I also wish to underline that to penalise, interrogate, or single out a student because of their mask-exempt status represents disabilities discrimination and, therefore, a breach of the law. 

It is critically important that all students, regardless of whether they can wear a mask or wish to receive testing, are treated completely equally, and are not judged, discriminated against, or persecuted by the college or any of its staff.

I am, of course, aware that the college is restricted in the number of places it can grant to students, and would appreciate your confirmation that a student's mask-exempt status, or their decisions regarding medical testing, would not influence the college's decision-making process where it comes to allocating places.

I look forward to your written reassurance that the college values equality and inclusion as highly as [name] and I do, and that we can feel confident he will be as welcome and included as any other student, both as term re-commences now, and for the remainder of his time with you.

Best wishes,

[Name]

References:

1) https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own
2) https://www.burtondocs.co.uk/2020/07/21/face-mask-exemption-letters-no-gp-medical-letter-needed/
3) https://www.laworfiction.com/2020/07/face-covering-for-6-to-12-months-from-24th-july/
4) https://www.theguardian.com/world/2021/feb/25/covid-tests-masks-not-compulsory-english-schools-nick-gibb
5) http://portal.unesco.org/en/ev.php-URL_ID=31058&URL_DO=DO_TOPIC&URL_SECTION=201.html
6) https://www.themdu.com/guidance-and-advice/guides/montgomery-and-informed-consent

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