The South African Schools Act says that schools must admit all learners and must not discriminate against any learner. Therefore a child cannot be excluded from school only because of their HIV status. This is the law for private and government schools. The Constitution also says that everyone has the right to a basic education. If a child is stopped from going to school because of their HIV status, this can be challenged in court.

Parents do not have to tell the school authorities if their child has HIV, even if the school asks them to fill this in on the application form. Schools are also not allowed to test learners for HIV before they are admitted to the school or while they are at school. A learner cannot be tested for HIV without their consent (if over 12 years) and/or a parent’s or guardian’s consent (if younger than 12 years.)

With the increasing numbers of learners and teachers becoming infected with HIV and AIDS, all schools need to have an HIV/AIDS policy so that:

• The rights of all learners and teachers are respected
• Learners and teachers with HIV are managed in an appropriate way
• Further HIV infection is prevented
• A non-discriminatory and caring learning environment is created

THE NATIONAL POLICY

The National Policy on HIV/AIDS for Learners and Educators in Public Schools, and Students and Educators in Further Education and Training Institutions (1999) sets out some important policy issues on children with HIV or AIDS in schools.

IMPORTANT PRINCIPLES

• Learners and students with HIV or AIDS should live as full a life as possible and should not be denied an opportunity to receive education that fits their ability
• No learner or educator can be forced to disclose their HIV status If anyone knows about the HIV status of a learner or educator, this information must be kept confidential
• No learner or educator may be asked to have an HIV test
• Learners and educators should not be discriminated against, for example, this means that no learner or educator can be refused to join or stay at a school because of their HIV status
• If a learner becomes incapacitated through illness, the school must take steps to arrange home study for the learner.

RULES REGARDING TESTING AND CONFIDENTIALITY

Rules regarding testing and confidentiality for children include:

• Children who are 12 years or older can consent to medical treatment or a surgical operation on their own
• If the child is younger than 12 years, the child cannot consent to an HIV test without the consent of the parent or guardian. The test results must be given to the parents or guardian unless the child is of sufficient maturity to understand the benefits, risks and social implications of such a test.
• If a child consents to an HIV test, they have the right for the information to be kept confidential, even from the child’s parents
• A school does not have to be told about a child’s HIV status
• A children’s home or place of safety can be told of a child’s HIV status if the child is under 12 and it is in the child’s best interests for this information to be passed on. The information must be kept confidential by the staff of the home, and the child must not suffer any kind of discrimination because of it.

Confidentiality is a common law right and also protects children. The law does not say that a child’s HIV status must be disclosed to a school. We recommend that parents or caregivers think carefully about what is in the child’s best interests before deciding whether to disclose this information. (See Confidentiality)