It’s time for regulation on mental health

One of the thornier issues arising from the emergence of England’s HE regulator is the gap between ministerial rhetoric and reality.

Over on Twitter, Sam Gyimah rarely hesitates to invoke his “tough new regulator” as the answer to any number of media themes – freedom of speech, grade inflation, unconditional offers, and even essay mills have all had the treatment. The usual retort from sector types is to then quote bits of the Higher Education and Research Act to demonstrate the limits, rather than the powers of the Office for Students over autonomous providers.

There is a sensible theory of change in all this. When a policy problem starts to emerge, most market regulators and their sponsoring minister have a go at first urging the relevant sector to take action themselves, with the lingering threat of actual regulation if folks don’t get their house in order. Before he moved to health, Matt Hancock did this for a few years over the actions of social media companies. Jeremy Hunt spent a few years urging action on sugar as health secretary. Arguably, this is what Sam Gyimah is doing right now over mental health.

Leave me alone

Solutions to complex policy problems usually involve different cultural understandings. Egalitarian solutions tend to cultivate norms and community values. Individualist solutions involve the design of incentives and support structures. And then if all else fails, hierarchists tackle problems by implementing stringent rules and punishments. In a sector that prizes academic freedom and institutional autonomy, we are bound to prefer solutions fostered around norms and values – and both Universities UK’s Step Change framework and the emerging Student Minds charter ought to be good examples of this.

But there is a problem for ministers. We might believe that egalitarian solutions are the best, but the need to “look tough” and get “crackdown” headlines often means that hierarchical solutions win out – not least because we then mock ministers who merely nudge or incentivise. And even if the sector as a whole makes a serious effort, you only need a couple of providers to refuse to play ball or a handful of case studies of individuals for whom self-regulation or nudging didn’t work, to bring the whole thing into disrepute.

Blame it on the baseline

The result is a need to look carefully at regulatory design, and an OfS emerging from Michael Barber’s thinking has some distinct features. First, the framework involves a baseline quality standard for all providers to meet. Then providers are free to go beyond this, with competition driving up standards. Metrics serve to both incentivise and signal provision below a baseline. And providers get risk-based regulated on their outcomes rather than their processes.

But there are problems here. Bean bags and puppy rooms are one thing, but when it comes to the “harm” that a provider might cause in relation to student mental health, students are unlikely to be reassured that competition will provide the answer. Some will bemoan a wellbeing metric, but how will we know how we’re doing (and whether the money we’re spending is wasted) if we can’t measure if the puppies have an impact?

We might want different providers to tailor different solutions on the issues to their context, but it’s easy to argue that when it comes to mental health, it’s in the student interest for all providers to be up to a baseline standard. And if we only see mental health initiatives as a process that supports other outcomes, we’ll miss both the potential harm to students and the opportunity to recognise that experiencing HE can have a positive impact on students’ mental health.

I come from a land down under

So what could regulation look like? Over in Australia “Domain 2” of the Higher Education Standards Framework (a sort of mix of our Regulatory Framework and Quality Code) centres the “nature, access to and fitness for purpose of the learning environment under the control of the provider (without presupposing any particular model of participation or delivery), diversity of participation and the wellbeing of staff and students”.

Into this mix goes expectations on sexual misconduct, equality and diversity and mental health. The “threshold standard” with Domain 2 then requires “timely and accurate advice on access to student support services” and to “promote and foster a safe environment on campus and online”. It would be quite straightforward for the UK Standing Committee for Quality Assessment (UKSCQA) to write something similar into the UK Quality Code, and easy for the OfS to accept that as a key element of the baseline within Objective 1 – “students are supported to access, succeed in, and progress from, higher education”. In fact it’s strange that this hasn’t happened already.

I fought the law and the law won

There’s a consumer law aspect to this too. A glance across prospectuses suggests that mental health has started to come up in prospect conversations. I’ve lost count of the number of pages I’ve seen that talk about a provider offering a “supportive environment” that go on to illustrate support services on offer.

But with the Competition and Markets Authority still issuing advice that centres on the contract being about the course to the exclusion of all the other things making up the HE experience, students are left legally short when the reality doesn’t meet the vague promises to parents on open days. If most of the sector is arguing that “tuition fee” is a narrow misnomer, it really should make some more explicit promises on the standards that students can expect from the breadth of the spend, egged on by a CMA that really ought to know what students are buying.

There are other legal aspects. We’ve started to notice a number of universities issuing suicide prevention policies, but sadly none we’ve seen so far include standards for the way in which a university might learn lessons from a suicide or a near miss. The complexity of what might lead to an incident suggests a need to involve multiple actors – academics, support services, students’ unions etc – but the threat of legal liability usually means that providers are reluctant to be open about the kind of soul searching required. A way through this is needed.

Celebrate good times come on

Overall the press tends to view universities’ impact on mental health as harmful, but there are surely things that HE does (or could do) that are ultimately hugely beneficial on students’ and graduates’ long-term mental wellbeing.  Maybe one day we’ll stop thinking about the harm and instead we’ll be able to celebrate the positive contribution that its environments, people and programmes make to it. Sadly that day still feels like a long way off.