A Study on the Protection of Fundamental Rights of Children with Health Impairments: Focused on the legislation of hospital schools
Authors:   European Constitutional Law Association, Bae Gun Yee 
Published: January 2023

Traditionally, expanding the infrastructure to guarantee children’s health right has been under the national responsibility. In addition, how to protect the learning right of children hospitalized for a long time, like paediatric cancer patients, has been recognized as a national project in the educational continuity dimension where the education of children should not stop due to external environments, in order for children’s growth ad development. Hospital school is an educational institution in hospital for the children with health impairments(the students who need to be hospitalized for more than three months due to their chronic diseases, or continue to need medical support like outpatient treatment, and thereby have difficulty with school life and learning). In accordance with ｢Act on Special Education for Persons with Disabilities｣, it is defined as a special school under Office of Education, or a dispatch class of general school(special class). In order to guarantee the learning right of children with health impairments, who should have compulsory education, it is required to recognize the operation of hospital school as an essential national project. Nevertheless, whether to open a hospital school depends on a hospital’s policy, and dispatching a special education teacher to a hospital school relies on the educational finance of a local government. There is a possibility that the children are able to set the required number of school days through distance education in hospital and to complete their curriculum. However, face-to-face class in hospital school makes it possible to provide the individual guidance through interaction with children, which is impossible in distance education, and to serve as the preparation process to return to their original classes after discharge. From the standpoint of child students, it is a very important way to guarantee their learning right. Opening and closing a hospital school should not be determined according to the current hospital policy. Instead, it is required to legislate on hospital school as an essential institution secured for treatment and education at the time when a hospital with a certain wards is open or when a medical institution for children is designated. In accordance with ｢Act on Special Education for Persons with Disabilities｣, an educational institution is classified into a special educational institution(special school and special class) and a special education support center. In the current system, such institutions like hospital school where education is provided in a separate space of medical institution have no classification. From the standpoint of school institutions, hospital school is the class of itinerant education, but is an institution in hospital. For this reason, it is necessary to consider the safety and operation criteria of both hospital and educational institution. To do that, there are limitations in following the system in accordance with ｢Act on Special Education for Persons with Disabilities｣. Hospital school is highly likely to be the subject of co-management in association with the Ministry of Health and Welfare and the Ministry of Education. Given the speciality of practical control, it is effective to enact separate legislation. In Germany, a law related to county schools lays the foundation for hospital schools, and detailed standards are separately set forth in legal orders. Given that, maintaining the provision about itinerant education in ｢Act on Special Education for Persons with Disabilities｣ and enacting a law about the operation of hospital school, etc. will become a long-term alternative from the perspective of management and supervision.