We are one of twenty-five bereaved families that have launched a petition, calling on the government to establish a statutory legal duty of care for students in higher education.
In the case surrounding our daughter, a judge ruled earlier this year that her university had not made reasonable adjustments to the way she was assessed as part of her course.
The judge did not find that the university owed Natasha a more general duty to take reasonable steps to avoid causing her psychiatric injury and harm, although he did say:
… if I am wrong on the matter of the existence of a relevant duty of care … [t]here can be no doubt that the University would have been in breach; the main breach would be continuing to require Natasha to give interviews and attend the conference and marking her down if she did not participate when it knew that Natasha was unable to participate for mental health reasons beyond her control.”
So, what exactly is meant by “duty of care”? There is a lot of confusion around. In response to our group’s petition calling for a change in the law, the sector’s representative body says:
[Universities UK] does not believe that a statutory duty of care is necessary, as universities are already subject to health and safety regulations and duties under the Equality Act.”
Universities go beyond their legal requirements to prioritise the mental health and wellbeing of their staff and students, to provide support services for those in difficulty, and to work closely with NHS services…If additional legal duties are to be placed on universities, above what is required in other adult work or education settings, it needs to be accompanied by better mental health care across the health service and additional funding.”
The Department for Education (DfE) adopts a similar position, saying:
The mental health and wellbeing of students, including suicide prevention, is of paramount importance to the Government which is why this year we asked the OfS [Office for Students] to allocate £15m towards student mental health… We expect all universities to engage actively with suicide prevention and last year the DfE co-chaired a new roundtable on suicide prevention in higher education with Universities UK, which combined with the mental health charter has led to tangible action – including the commissioning of a new dataset which will better inform universities’ prevention work.”
On social media and in comments underneath media articles, more critical postings refer to hand-holding, treating young adults as children etc. – no “mollycoddling” allowed.
Are universities parents?
One of the phrases in the background to many cases, and the appropriate policy response, is the phrase “in loco parentis” – or the “prudent parent” standard of responsibility. As was made clear by David Malcolm on Wonkhe in 2018, no rational person these days would advocate that we should return to the paternalistic restrictions that were placed on student freedoms and responsibilities in the 1950s and 1960s. That isn’t the nature of the legal duty that is being sought by our group.
“Care” in this context is about giving serious attention, or proper consideration, to doing something correctly and in such a way that causing damage or creating a risk is avoided. It would cover both acts and omissions – what is done to, or not done to others, and doing things in a timely manner.
And “duty” in this context would mean placing legal obligations on universities to act towards others in a certain way, in accordance with certain standards, and to consider the effects of their actions upon other people who may be affected by what they either do or don’t do. In this case, our petition is simply arguing that universities should owe a legal duty to exercise reasonable care and skill when teaching students and providing support services.
As such, we are only seeking a legal duty for educational institutions to do what might reasonably be expected. Our campaign is not about duplicating the NHS, asking for an injection of government funding or asking for new facilities to be built. Nor is it asking for greater mental health support, for more wellbeing advisors to be appointed, or for shorter waiting times for students to see counsellors – although some of these things are desperately needed.
Consistency and clarity
Our campaign calls for consistency of practice, compliance with standards, and accountability. It is about ensuring obligations to avoid harm are implemented, universities taking responsibility for the activities that they have control over, and clarifying staff, student and family expectations.
It would end discourse on where duty does or doesn’t start, and ensure that organisations are clear about who is responsible for what – something that Simon Phillips, Deputy Director of Student and Academic Services at UWE, has said would ”really help”.
There would be no need for individual regulation of different activities since everything would be covered – policies, processes and procedures, as well as day-to-day practices. Due regard would need to be paid to relevant national guidelines.
Importantly, it would also put students on an equal legal footing with staff, who are protected under employment law, and protect vulnerable young adults. How can anybody possibly argue that there should not be parity in legal protection for staff and students – the latter also being high fee-paying customers? This discrepancy obviously needs to be corrected.
Tertiary educational institutions are also out of sync with primary and secondary providers.
As lawyer Gus Silverman has explained:
It seems very strange that if a school owes a duty to act with reasonable care and skill in relation to its pupils that a university shouldn’t owe a similar duty to its students, particularly when universities, including the University of Bristol, regularly claim publicly that they do owe that kind of duty.”
In this article on the BBC website, UUK president Steve West is quoted as saying that universities have a duty of care around health and safety, and equality and diversity, but that “there isn’t a legal framework for that for universities, for [their] students, in terms of mental health.” However, a specific obligation to address student mental health and wellbeing issues would be completely different from the more general type of legal duty that our group is seeking.
Our daughter’s case has exposed the fact that 2.7 million students have limited statutory protection. Every professional has a duty of care to their client – a requirement to meet certain standards and to do what might reasonably be expected. So why not higher education providers?
Our proposal would create a degree of respect, and possibly a healthy obsession, for doing the right thing. Improved practices, shared learning, and a more compassionate education sector will follow, in which all students can thrive and be successful. And more importantly – it will save lives. It would have saved our daughter.