Can Schools Refuse to Accept an NHS (or other) Diagnosis of a Condition?

A.E. made this Freedom of Information request to Department for Education

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Dear Department for Education,

when a diagnosis, such as ASD is made, what legal rights if any, do any teaching or other staff within any school have, to reject or refuse to accept that the diagnosis is correct or valid?

To clarify I do *not* need details of complaints procedures.

Obviously a teacher, or other school staff, are not legally qualified to assess and diagnose ASDs and therefore it follows that they are not qualified to recognise or reject such a diagnosis. Many autistic children also mask their difficulties in school through anxiety, being scared to be seen as different or difficulty in speaking up etc. Until very recently there was no autism training* provided to teachers and even if there was, it in no way equates to the training psychologists, psychiatrists, speech and language therapists, paediatricians and occupational thereapists have, who are the type of professionals included in a multi-disciplinary assessment for ASD.

* "Every Teacher campaign"
http://www.autism.org.uk/get-involved/ca...

"Autism to be part of core teacher training, Government says"
https://www.telegraph.co.uk/education/20...
"Yet, autism training is not mandatory for teachers and some have no special educational needs training at all, leaving them unable to deal with complex issues that could damage a child’s education."

Yet this training seems to be only for new teachers not the thousands of existing teachers and it will only be a basic training on recognising some autistic difficulties in school it will not be training in assessing and diagnosing autism, for which you have to be clinically qualified in law. Only a psychologist or psychiatrist can legally diagnose ASD, either on their own or as leader of the MDT.

A very high proportion of teachers recognise their lack of autism knowledge and how this impacts children in education. It would appear that teachers who refuse to accept a child's medical diagnosis have ulterior motives, such as avoiding resources being spent on the child.

Bearing in mind there is a legal duty on schools to ensure children reach their potential. So even if a child has not slipped below average, if they are capable of a lot more but are not reaching it because of their difficulties and schools are ignoring this because it doesn't affect their ratings, they are breaching that duty.

There are parents facing this scenario and it is causing direct failings towards vulnerable children:
"When School Staff Refuse to Accept a Diagnosis – some key questions to ask"
https://itmustbemum.wordpress.com/2017/0...

So I need to know what procedure or law exists that allows a teacher, who is only qualified in educating children and has no medical or clinical psychology training, to reject a diagnosis. Please provide URLs to the relevant laws or procedures that apply, providing numbers of specific clauses or parts.

If no law exists and teachers or other school staff committing this behaviour are acting outside of their authority and remit, please could you confirm this to be the case also.

Yours faithfully,

A.E.

ACCOUNT, Unmonitored, Department for Education

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ACCOUNT, Unmonitored, Department for Education

Dear  Sir or Madam

Thank you for your email of 16 March about the right or otherwise of
teachers to ignore a pupil’s medical diagnosis.

There are no laws that give teachers such a right – rather, as you
mention, schools have a statutory responsibility to use their best
endeavours to support pupils who may have special educational needs. They
should adopt the ‘assess, plan, do, review’ graduated approach described
in the [1]SEND Code of Practice, to which all schools must have regard.
This involves identifying a child’s special educational needs (SEN),
planning and implementing appropriate support and reviewing it regularly
to ensure it continues to meet the identified needs.

The school should not wait for a formal diagnosis to put support in place,
but should make use of expert advice, where appropriate. Where there is a
formal medical diagnosis, a school would be expected to take this into
account when planning support.

If a school ignores a medical diagnosis and does not put appropriate
support in place for a child’s SEN, parents would be able to use the
school’s published complaints procedure. You mention that you do not
require details of complaints procedures, but it may be worth mentioning
that once a school’s complaints procedure has been exhausted, if the
complaint has not been resolved satisfactorily it can be referred to the
Secretary of State for a determination under Sections 496 and 497 of the
Education Act 1996.

These provisions give power to the Secretary of State to intervene where a
school governing body or a local authority has failed to discharge a
statutory duty or is acting unreasonably in the exercise of any of its
functions. Acting ‘unreasonably’ in this context means acting in a manner
in which no other reasonable governing body or local authority would do,
having regard to its statutory responsibilities and the facts and
circumstances. The Secretary of State can intervene only where it would be
expedient to do so – there must be something he could instruct the school
governing body or local authority to do to put matters right.

In your email you mention the need for teachers to have autism training.
As you are aware, the new framework of content for Initial Teacher
Training specifies that courses must include training on autism and other
types of SEN. For teachers already in schools, the Department is funding
the Autism Education Trust (AET) to deliver autism awareness training to
education staff in early years, school and further education settings.

The Trust has already trained more than 150,000 people – not just teachers
and teaching assistants, but also support staff such as receptionists,
dining hall staff and caretakers, fostering a ‘whole school’ approach to
supporting pupils with autism. While this training is not compulsory, the
Department would encourage as many schools as possible to take up the
training through their local AET training hub. Details are available on
the AET’s website here: [2]www.aettraininghubs.org.uk/schools. School
governing bodies have a responsibility to promote continuous professional
development for teachers and other school staff, so if teachers lack the
skills to support pupils with autism or other types of SEN, the governing
body should address this by commissioning relevant training, such as that
provided by the AET.

I hope this information is useful and answers your query.

 Your correspondence has been allocated reference number 2018-0013542. If
you need to respond to us, please visit:
[3]https://www.education.gov.uk/contactus and quote your reference number.

As part of our commitment to improving the service we provide to our
customers, we are interested in hearing your views and would welcome your
comments via our website at: [4]http://www.smartsurvey.co.uk/s/8IW1A/

Yours faithfully

Kathleen Tarrant 

Web: [5]https://www.education.gov.uk
Twitter: [6]https://www.twitter.com/educationgovuk
Facebook: [7]https://www.facebook.com/educationgovuk

References

Visible links
1. https://www.gov.uk/government/publicatio...
2. http://www.aettraininghubs.org.uk/schools
3. https://www.education.gov.uk/contactus
4. http://www.smartsurvey.co.uk/s/8IW1A/
5. https://www.education.gov.uk/
6. https://www.twitter.com/educationgovuk
7. https://www.facebook.com/educationgovuk

Dear ACCOUNT, Unmonitored,

Many thanks for your reply to my FOI request entitled "Can Schools Refuse to Accept an NHS (or other) Diagnosis of a Condition?" and your replydoes give me a clear answer as to whether a legal right exists.

What concerns me however, is your use of arbitrary phrasing such as "best endeavours""should" "have regard" "identifying" "appropriate" "would be expected" "take this into account" because all of these are wide open to abuse and misuse of discretion and where no staff understanding of ASD exists and presentations such as "masking" are involved, schools are able to deny difficulties exist. This is further illustrated by my point: "Many autistic children also mask their difficulties in school through anxiety, being scared to be seen as different or difficulty in speaking up etc.".

As I said in my request: "So even if a child has not slipped below average, if they are capable of a lot more but are not reaching it because of their difficulties and schools are ignoring this" many autistic children are academically capable but are still under-achieving whilst being what the school considers on target. Where is the incentive for them to put in place supports which cost them to do so, with no safeguarding within SEN law against failure to meet the requirements?

So, if parents formally complain at a school's failure to recognise their child's SENs and difficulties (or correct level of same), without absolute or mandatory instructions preventing this, a complaint is likely not to be upheld. The school will respond that they followed 'procedures'. E.g. they might have undertaken an assessment and decided the child had no needs, or less needs than they did, but the fact that they have ticked the box of undertaking an assessment, means parental complaints will not be upheld. This means that even if they escalate it to the Secretary of State, it is quite feasible that their complaint will still not be successful. Especially as you say "there must be something he could instruct the school governing body or local authority to do to put matters right." which again could be arbitrarily decided.

What protections exist to prevent this happening?

Yours sincerely,

A.E.

ACCOUNT, Unmonitored, Department for Education

Thank you for contacting the Department for Education. We can confirm that
we have received the Freedom of Information request you submitted.

We will respond to you within 20 working days.

 

ACCOUNT, Unmonitored, Department for Education

Dear Sir or Madam,

 

Thank you for your email regarding children with SEN who are not getting
the support they need to meet their full potential, and your concerns
about school complaints.

 

Whether the child is working at an ‘average’ level or not the school
should still employ the ‘assess, plan, do, review’ graduated response to
ensure that the support provided continues to meet the identified need.

 

All schools are incentivised to ensure each pupil reaches their potential
and this is evidenced by the primary progress measures and progress 8
which hold the schools to account for the progress of all of the children
in their school including those with special educational needs.

 

In addition when Ofsted visit schools they assess them on four areas one
of which is the quality of leadership and management. Under this area the
inspectors will consider whether the school’s leadership provides a broad
and balanced curriculum that meets the needs of all pupils and enables all
pupils to achieve their full educational potential, this will include
those children with special educational needs.

You express concerns about the limitations of the system of complaints. At
the heart of the SEND system is a commitment for schools to work closely
with parents over the meeting of their children’s SEN, as part of the
‘plan, do, review’ cycle. The relationship between school and parents
should allow for any issues to be addressed long before there should be
any need for a formal complaint.

 

I attach an extract from the SEND Code of Practice that sets out good
practice over involving parents and pupils in the planning and reviewing
progress. Where the text uses the word ‘must’ it refers to a statutory
requirement under primary legislation, regulations or case law

 

Involving parents and pupils in planning and reviewing progress

6.64 Schools must provide an annual report for parents on their child’s
progress. Most schools will want to go beyond this and provide regular
reports for parents on how their child is progressing.

6.65 Where a pupil is receiving SEN support, schools should talk to
parents regularly to set clear outcomes and review progress towards them,
discuss the activities and support that will help achieve them, and
identify the responsibilities of the parent, the pupil and the school.
Schools should meet parents at least three times each year.

6.66 These discussions can build confidence in the actions being taken by
the school, but they can also strengthen the impact of SEN support by
increasing parental engagement in the approaches and teaching strategies
that are being used. Finally, they can provide essential information on
the impact of SEN support outside school and any changes in the pupil’s
needs.

6.67 These discussions should be led by a teacher with good knowledge and
understanding of the pupil who is aware of their needs and attainment.
This will usually be the class teacher or form tutor, supported by the
SENCO. It should provide an opportunity for the parent to share their
concerns and, together with the teacher, agree their aspirations for the
pupil.

6.68 Conducting these discussions effectively involves a considerable
amount of skill. As with other aspects of good teaching for pupils with
SEN, schools should ensure that teaching staff are supported to manage
these conversations as part of professional development.

6.69 These discussions will need to allow sufficient time to explore the
parents’ views and to plan effectively. Meetings should, wherever
possible, be aligned with the normal cycle of discussions with parents of
all pupils. They will, however, be longer than most parent-teacher
meetings.

6.70 The views of the pupil should be included in these discussions. This
could be through involving the pupil in all or part of the discussion
itself, or gathering their views as part of the preparation.

6.71 A record of the outcomes, action and support agreed through the
discussion should be kept and shared with all the appropriate school
staff. This record should be given to the pupil’s parents. The school’s
management information system should be updated as appropriate.

 

I hope that you find this answer useful and that it answers your query.

 

Your correspondence has been allocated reference number 2018-0017117. If
you need to respond to us, please visit:
[1]https://www.education.gov.uk/contactus and quote your reference number.

As part of our commitment to improving the service we provide to our
customers, we are interested in hearing your views and would welcome your
comments via our website at: [2]http://www.smartsurvey.co.uk/s/8IW1A/

Yours faithfully

Mia Spreadbury 

Web: [3]https://www.education.gov.uk
Twitter: [4]https://www.twitter.com/educationgovuk
Facebook: [5]https://www.facebook.com/educationgovuk

References

Visible links
1. https://www.education.gov.uk/contactus
2. http://www.smartsurvey.co.uk/s/8IW1A/
3. https://www.education.gov.uk/
4. https://www.twitter.com/educationgovuk
5. https://www.facebook.com/educationgovuk

Dear ACCOUNT, Unmonitored,

many thanks for your reply. You say "Where the text uses the word ‘must’ it refers to a statutory requirement under primary legislation, regulations or case law" but then all the quotes you provided (many of which I was already aware) only state "should" and this is where the system falls down.

Anywhere that a "should" is used, schools can and often do, opt not to follow it. Some of the recommendations are also somewhat vague and umbrella recommendations (such as "involving parents and pupils in the planning and reviewing progress") and do not address individual difficulties an SEN pupil may face and it is pretty common for schools to resist providing support at a level a parent knows their child needs. The attitude is that they are the professionals and they know best.

Nobody will adequately police a "should". Where parents persist in trying to obtain the support their child needs increasingly schools will label them with having FII or emotional harm and things are taken down a child protection path, this is happening to a huge amount of families (nobody is collating the statistics but support forums are awash with stories of it). There is no safeguard against such harmful actions by teachers and other professionals.

Taking the child's views into account is meaningless, because they collect the views e.g. on EHCP forms but then refuse to act on them. It's one thing recording parent and child views, but quite another entirely, actively listening and acting on them. There has been a case where a parent was told by an upper SEN tribunal judge that LAs don't have to write anything into EHCP provision based on either child or parental views, which just about sums up how the system is working.

Thank you for your response anyway.

Yours sincerely,

A.E.

ACCOUNT, Unmonitored, Department for Education

Thank you for contacting the Department for Education. We can confirm that
we have received the Freedom of Information request you submitted.

We will respond to you within 20 working days.