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Legal challenge to school Covid-19 tests mounted

Peter Sanderson (File photograph)

A parent has challenged the education minister over the need for schoolchildren to be tested for Covid-19 before they can be taught in a classroom.

Peter Sanderson, the lawyer for the man, who cannot be identified for legal reasons, told the Supreme Court that the requirement, along with the need for Government schools to get 80 per cent pupil participation in the Covid-19 screening programme to remain open, should have legal authority and that the minister had sidelined Parliament.

Mr Sanderson said: “Unlike the circumstances under which a child can be drug tested under the Education Act, there are no clear statutory provisions in the case of Covid-tests whether under Public Health regulations, whether under the Occupational Safety and Health Act, or whether under the Education Act.

“There is nothing anywhere to specify how this power is to be exercised.”

Mr Sanderson added that the Education Act ruled that every child should have the right to free education up to senior school level.

He said: “My submission was that the right to education ‘at’ a school signified something very important – that people do have the right to an education at a school place.”

The education ministry has required routine testing of children as a condition of entry to Government schools since last September.

Mr Sanderson said: “The Covid testing regime is not something inconsequential – it does fall under something that would be considered a search for the purposes of the Bermuda Constitution.

“When the minister is seeking to make the students’ access to a school building conditional upon undergoing a search, that is the exact thing that should be covered by express law.

“Rule of law requires that these things are done under law, not simply by policy announced by a single minister.”

Mr Sanderson added the Chief Medical Officer could direct a person suspected of infection with a communicable disease to undergo a medical examination under the Public Health Act.

But he said: “It has to be done by rule of law, Parliament is to consider these things – whether a particular constitutional breach is acceptable or not.”

Mr Sanderson added: “Him and his wife are both employed so they are not just at home with the time to supervise a child.”

The father submitted an affidavit that said he believed his 10-year-old daughter took the tests under duress.

He added he was concerned about the quality of remote learning compared to classroom learning and that the test regime would worsen his daughter’s anxiety.

The father has asked for damages for the harm suffered and on Constitutional grounds.

The harm done included his daughter’s anxiety around her feeling that it would be her fault that her school could not resume normal teaching.

Mr Sanderson said: “The purpose is to vindicate the right of the complainant whether a citizen can carry on with his life free from unjustified executive interference.

“The minister is sidelining parliamentary scrutiny – he had the option to sort out regulations but didn’t bother.”

Mr Sanderson added his client and his wife were “both employed so they are not just at home with the time to supervise a child”.

But Shakira Dill-Francois, for the education minister, said that the Occupational Safety and Health Act imposed a duty on employers to protect the health and safety of people in their buildings and that gave the minister the authority to introduce the policy.

Ms Dill-Francois said that the use of the word “at” in the Education Act did not mean a right to free education in a school building.

She added: “We say if Section 51 intended that you could only receive an education in a school building it would have said, ‘by regular attendance at an aided or maintained school’.

“We would say they are having free education at the school – the school is providing them with learning.”

She emphasised that Covid-19 testing under the Government’s policy was not mandatory.

Ms Dill-Francois said: “Our main issue is it is not duress.

“They will still be provided with an education – we are not taking away a right of the students.

“They have the option of having their education at home. If they do not wish to provide the sample, they do not have to.”

She added the requirement for legal authority risked could make the situation worse.

Ms Dill-Francois said: “With these types of legislation, if you don’t do something you have fines, you have terms of imprisonment. That has been avoided.”

But Mr Sanderson said that legal authority was still required even if the tests were not mandatory.

He added: “My position is that a scheme such as this, making entry to a school conditional upon testing, should have sufficient legal authority.”

Ms Dill-Francois highlighted there was a higher possibility of Covid-19 outbreaks without regular tests and that children’s education would be disrupted if they were switched to remote learning.

She added that the Occupational Safety and Health Act permits an employer to take the extra steps the education minister decided on.

Chief Justice Narinder Hargun reserved judgment.

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Published March 29, 2022 at 5:32 pm (Updated March 29, 2022 at 5:32 pm)

Legal challenge to school Covid-19 tests mounted

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