| SPOTLIGHT |
Laura Martin and Theresa Kerr provide a legal perspective on how pupils with ADHD can be supported in school.
There has been a lot of talk in the media recently about ADHD. It’s an area that our School Support Service team are often asked to advise on from a legal perspective, for example, if a school wishes to issue a behaviour sanction to a pupil with ADHD or if they are defending a disability discrimination claim. Therefore, although we are not clinicians and cannot comment on the condition from a medical perspective, we have prepared this note on ADHD to share some of our legal insights. Equally, although class teachers and SENCOs cannot diagnose pupils, the SEND Code of Practice expects class teachers to identify children who may be experiencing difficulties and work with the SENCO to assess whether the pupil has SEN, “All those who work with children and young people should be alert to emerging difficulties and respond early.”
References to “child” throughout the article include young people.
Why is ADHD such a hot topic right now?
The BBC ran a Panorama investigation culminating in a programme which aired in mid May 2023, entitled “Private ADHD Clinics Exposed”. The programme investigated three private clinics offering ADHD diagnoses and prescribing medication. The programme focussed on the diagnosis of ADHD in adults. It has sparked a wider debate about NHS waiting times for adults and children, comorbidities associated with ADHD, and even whether ADHD is a “genuine” condition.
What is ADHD and how is it diagnosed?
The Royal College of Psychiatrists says:
Attention deficit hyperactivity disorder (ADHD) is a complex neurodevelopmental condition but there are clear ways to detect, diagnose and treat it.
The National Institute for Health and Care Excellence (NICE) advises that a ‘diagnosis of ADHD should only be made by a specialist psychiatrist, paediatrician or other appropriately qualified healthcare professional with training and expertise in the diagnosis of ADHD.’
This assessment should include a discussion of the patient’s symptoms, a full review of their mental health history and consideration of information about the patient that has been supplied by people who know them. Healthcare professionals cannot prescribe medication safely without the information that is gathered by a proper assessment.
People who think they might have ADHD should contact their GP who will be able to refer them to a specialist ADHD service.
How does this affect schools?
Schools need to be aware that ADHD is a neurodevelopmental condition that affects people for their lifetime. It is not something that children or young people grow out of. They may learn strategies to help them cope with some of the ways in which ADHD affects their daily living, and medication may help them to function more easily, but it does not go away.
When a person has a long-term condition that adversely affects their ability to carry out normal day to day activities (for example, attending school), this is likely to mean they have a disability and thus are afforded the protection of the Equality Act 2010. It is imperative that school leadership teams and school staff understand the implications of the Equality Act in terms of their duties to make reasonable adjustments for disabled people and not to discriminate against people with disabilities either directly or indirectly.
Some common misconceptions about ADHD
A child with ADHD is likely to be hyperactive
Not necessarily. This is very much a stereotype! Historically ADHD was assumed to be more prevalent in boys, and in hyperactive primary age children. We now know much more about ADHD and how underdiagnosed it is in women and girls, partly due to the differences in presentation between the genders. It is not unusual for pupils to be adept at masking their difficulties and hence diagnosis can come much later in their education, for example around GCSEs.
People with ADHD can present as predominantly hyperactive, predominantly inattentive, or a mixture of both.
Medication will stop the symptoms
Not altogether true. Medication (which is not a choice that everyone makes, especially parents of young children) can alleviate some of the difficulties that people with ADHD face, for example the racing thoughts, which can in turn help them to be more attentive. However, it takes time (and often trial and error) to find the right medication type and dosage, and it will need to be reviewed regularly by a psychiatrist. The medication wears off over the course of a few hours and may need to be topped up later in the day. Equally there is a maximum amount that can be taken in the course of 24 hours. This can in turn cause problems for the pupil who is struggling to maintain focus for homework at the end of the day, or revising for exams for example.
ADHD is just a lack of concentration
No, it’s not. There are many facets to ADHD, including for example poor executive functioning skills (planning, organising, prioritising, time blindness, difficulties with making decisions, attending to self-managed tasks), sensory processing difficulties, working memory difficulties, auditory processing difficulties (particularly listening and absorbing information), anxiety, low self-esteem, hyperfocus, inattentiveness, difficulty with impulse control, difficulties with social communication, the list goes on…
There are also many comorbidities, such as anxiety, depression, eating disorders, dyspraxia, hypermobility and other neurodevelopmental conditions such as ASD.
What do schools need to look out for?
Pupils that are frequently disengaged: those who daydream in class are often missed and people with ADHD frequently talk of being told in school “X is very bright, but just needs to try harder / focus more / do their homework” etc. For a person with ADHD, no amount of “trying harder” to pay attention will work: they need adaptations, and different strategies and ways of working.
Pupils who have a pattern of challenging behaviour: this can sometimes be dismissed as the pupil being “naughty” without the root causes being understood. In turn this can lead to frequent behaviour sanctions and other issues such as disengagement from learning or poor attendance, and culminate in school refusal, serial fixed term exclusions or even permanent exclusion. There is an obligation on schools to investigate the underlying causes of patterns of behaviour and to properly investigate whether SEND may be a factor.
Pupils who seek out sensory stimuli (e.g. constantly fidgeting, shifting position, doodling etc.) or who find certain sensory stimuli upsetting or difficult to manage (e.g. sensitivity to noise or certain sounds). This can be indicative of a variety of neurodevelopmental conditions and warrants further investigation by an Occupational Therapist and/or Educational Psychologist.
How could a school discriminate against a pupil with ADHD?
In the majority of cases that we advise on, it can be things like disciplining a pupil for something which arises in consequence of their disability (i.e. the ADHD). A simple but common example would be a pupil that interrupts without raising their hand, or leaves their chair repeatedly being constantly sanctioned. Some other common examples might be repeatedly sanctioning a pupil for disorganisation – forgetting homework or a PE kit, or for being late to a lesson, or for taking too much time to start a piece of work, all of which may relate to a person with ADHD’s difficulties with executive functioning. Any blanket application of a policy to a person with a disability without consideration of adaptations that could be made could mean that the school is discriminating against that disabled person.
Schools also need to be mindful of the support and adjustments that pupils who have (or may have – a diagnosis isn’t required for a pupil to rely on the protection of the Equality Act) ADHD may require. Not all pupils with ADHD will need an Education, Health and Care Plan – many will manage effectively in mainstream education with some simple adaptations. However, they may require access arrangements for assessments, and these should be put in place well before any external examinations.
Failure to make reasonable adjustments for a person’s disability could result in a disability discrimination claim being brought against the school or academy trust in the SEND Tribunal.
Laura Martin is a Legal Director and Theresa Kerr is a Partner at Winckworth Sherwood.
