A judge has ruled that universities do owe a duty of care to students

If you attended the Liberal Democrat Party Conference – or are attending the Labour Party Conference – you may have seen/may see a fringe event run by the #ForThe100, a group of bereaved families seeking to establish a statutory duty of care for students under the law.

The debate surrounding this campaign focuses largely on responsibilities around suicide prevention – which Sunday has previously argued often means nuance is lost around the responsibilities of universities in wider matters of harm prevention.

So the Feder and McCamish v The Royal Welsh College of Music and Drama (RWCMD) case is an interesting one because it does not involve suicide. Rather, the student claimants argued that they experienced harm caused by the institution’s negligent investigation into their complaints of sexual misconduct – and that the institution failed in its duty of care.

The judge found in their favour – ruling that the college was negligent in its response to the sexual assault allegations, and had failed in a particular duty of care relating to the processes surrounding the allegations.

Ms McCamish has been awarded £14,000 in damages, and Ms Feder £5,000, with the RWCMD (a part of the University of South Wales Group) also having to pay court costs which have yet to be determined.

Background

The judgement itself is a long, tough read – with all sorts of worrying detail. But by way of summary, Alyse McCamish moved to Wales when she was 19 after auditioning for RWCMD in Chicago. She alleged that she was sexually assaulted by a fellow student in 2016 – an allegation he denied. And during the trial itself, she claimed that college staff were “dismissive” when she initially reported the alleged assaults in 2017:

When I first reported that I had been repeatedly sexually assaulted by a student who was violent and coercive and had carried out the first attack when I was incapacitated, the immediate response from RWCMD was “it sounds like a relationship gone wrong”. I wasn’t believed then and right up until the trial RWCMD said that they would put me to proof and that they would cross examine me about those assaults.

Feder, from Connecticut in the United States, moved to Wales to study at the college when she was 18. She alleges that she was assaulted in a dressing room by the same person who assaulted McCamish in 2016. The RWCMD investigation found that McCamish’s allegations were “not proven” – in Feder’s case, complaints were upheld by a Disciplinary Committee although RWCMD concluded that they were not sexual misconduct.

Alarmingly, RWCMD did not appear to have a policy that defined “sexual misconduct” or “sexual harassment” between students – even though it had jointly signed an open letter to The Stage magazine in November 2017 declaring it had:

…robust measures, policies and mechanisms in place to prevent unacceptable or inappropriate conduct including sexual harassment.

The Disciplinary Committee imposed a two week suspension and a written warning on the male student (who has since graduated and turned professional) but this was reduced on appeal to one week and the written warning appears not to have been given. RWCMD did not enforce the one week suspension – and the male student was on campus throughout.

During the trial the Court heard evidence from two other former students who had been raped by other students whilst at RWCMD prior to the complaints made by McCamish and Feder. Both gave evidence that they had reported their ordeals to RWCMD – but said it took no steps to safeguard them and other students and gave them no information that they could request disciplinary action against their attackers.

Both claimants then alleged in court that the investigation carried out by RWCMD was negligent and had caused them harm.

In court, RWCMD denied it owed any relevant duty of care to Ms. McCamish and Ms. Feder. When the use of the term came up during the trial, the defence argued that any “duty of care” was moral rather than legal.

But Recorder Halford, hearing the case, reached a conclusion that the college did in fact owe a legal “duty of care” to the students concerned, and that it had failed this on account in the areas of protection, support, disciplinary investigation and action, and communication.

How did we get here?

In the coming months, the 160-page judgement is going to need some careful unpicking – but the big question that will surround the news, not least because of the wider debate over the concept, is how the judge managed to reach a relatively unprecedented conclusion.

The claimant students argued that the college’s “duty of care” should encompass steps to safeguard their wellbeing, protect them from abuse, and provide pastoral services. Countering, the college focussed on the provision of education – and denied any duty over anything wider relating to “wellbeing” or “pastoral services.”

The case law here is interesting. Public authorities are usually under no duty to prevent harm – but there are exceptions involving where they have assumed a responsibility or made matters worse through negligence.

Also central to Recorder Halford’s thinking was a case heard in the High Court involving a student ascribing a low mark to “negligently inadequate teaching” and the failure of his personal tutor to alert examination authorities to the “insomnia, depression and anxiety” that he’d been suffering at the time of the examination.

In that case, the judge determined that the exercise of academic judgment (in his case, the decision to award a particular grade to a student sitting an exam) by a university’s professional teaching staff was liable to be struck out. But, crucially, he resolved that claims alleging the use of negligent teaching methods in the “devising of courses” or the “means of acquainting students with the content of courses” are actionable in principle.

The student didn’t win because having established that the judge did not find that the university had failed to reach the standard of a “reasonably competent professional education provider” in the teaching – but did say that evidence of “simple operational negligence in the making of educational provision” would have been an issue.

In another case (Phelps v. Hillingdon London Borough Council [2001]), the House of Lords clarified the responsibility of professionals like educational psychologists. The reasoning there was that the law imposes a “duty of care” when a professional is in a specific situation that leads to foreseeable harm if due care is not exercised – and isn’t limited to academic teaching but also extends to educational support services like psychological assessment.

And that doesn’t hinge on a formal contract – or the inclusion of things like welfare services in that contract – but instead on the objective situation where a duty is either assumed or imposed by law.

Interpretation

In the judgement, Halford then draws on other interpretations of that case that suggest “duty of care” can go beyond the direct provision of educational services to include services that support education. Whether or not this duty exists, he reasons, depends on the relationship between the provider and recipient and if the latter relied on the service being provided competently.

The students had listed various ways in which they believed the college failed to protect them from harm – failing to have adequate safeguarding processes in place, neglecting to follow existing safeguarding policies promptly, and not treating their disclosures of assault as official complaints that triggered the institution’s safeguarding policy.

They also argued a lack of emotional and psychological support (failure to provide counselling and allow time off to seek outside help) and a failure to conduct meaningful investigations into the complaints (including not heeding the complaints adequately, not speaking with key witnesses, and failing to apply the correct definitions of misconduct) – and that they had been relying on those things being done properly.

The judge found that the claimants could succeed in establishing a duty of care if they were able to show that positive acts undertaken by the college could lead to harm. But crucially, Halford was also convinced that the claimants showed that there was an “assumption of responsibility” for the “operational matters” in the particular case – supported by evidence that showed the college had made specific commitments and assurances to students about how these “operational” matters would be handled – regardless of whether those matters were closely connected to the college’s primary function of education.

So on the question of whether the college should bear responsibility for the harm the students came to, a three-part test from another case (checking foreseeability, proximity, and reasonableness) all, in Halford’s view, applied.

Defining factor

Then, in defining the “duty of care” owed, Halford’s summary was that it involved “reasonable protective, supportive, investigatory, and disciplinary action steps and in associated communications, including by honouring confidentiality assurances” – all meeting the standard of a “reasonable higher education provider.”

As such, the college was found to have assumed a duty of care, particularly when it had committed to safeguarding and investigatory actions in its policies and guidelines. And given the evidence from the students on failings, that led to the judgement we now have.

Halford concluded the college breached its duty of care towards Ms McCamish in 12 respects, which reads like a a complation of issues we’ve heard about in similar cases around the UK:

Protection

• omitting to include sexual misconduct in its disciplinary procedure (by not including the definition in the regulations, the Dignity at Work Policy or another meaningful definition);
• failing to give Ms McCamish sufficient information about the 2016 Conduct Policy in June 2017;
• failing to suspend the male student at the end of January 2018;
• failing to keep Ms McCamish in separate morning classes from the male student for
• a second time in the September 2017 term;
• failing to enforce the terms of the suspension imposed by the Disciplinary Committee;
• failing to enforce the understudy arrangement, honour the assurances given about it or at least explain why it would not, and not seeking to persuade the male student he should not attend when Ms McCamish was performing;

Support

• failing to support Ms McCamish by arranging EMDR counselling or offering to meet
• the cost if she made arrangements herself;

Disciplinary investigation and action

• failing to identify sexual misconduct, including sexual harassment, as a specific form of misconduct, define those concepts and then apply that definition when investigating and determining what had occurred (and so miscategorising the conduct under consideration);
• failing to assess the credibility of the male student’s evidence at the investigation stage including by giving Ms McCamish an opportunity to comment on his account and the material he supplied and to supply further evidence of her own before assessing the two accounts;
• failing to assess the credibility of the male student’s evidence at the Disciplinary Committee stage including by failing to call Ms McCamish as a witness and assessing her account against the male student’s and then reaching a reasoned conclusion on her allegations;
• failing to reconsider whether the investigation ought to have been reopened once the College received the male student’s draft statement; and

Communication

• supporting the male student in drafting his statement and reading it out to the BA 2 group.

For Feder, (1), (3), (5), and (8) are also relevant along with three further breaches that apply specifically to her:

Protection

• failing to treat Ms Feder’s report as a complaint under the 2016 Conduct Policy or offering to do so (which meant she would not be told the outcome);

Support

• failing to offer any form of support to Ms Feder in any way after her report was made, including counselling; and

Communication

• failing to communicate the outcome of the investigation to Ms Feder.

Wider implications?

A civil case in a County Court doesn’t set a legal precedent in its own right. The case took over 7 years to reach a ruling. And not every student will have the time, energy, and resources to pursue such a challenge. Plus, we have to assume that there’s a distinct possibility that the college will appeal to the high court.

But the implications – especially in England – could nevertheless be huge.

As well as guidance notes from the likes of UUK and the OIA, the proposals in the Office for Students’ consultation on harassment and sexual misconduct basically set out all sorts of expectations on what a reasonably competent provider should do in cases like this.

Given OfS’ central proposal is that all providers in England will have to have a “single document” on everything from prevention to case handling, if this judgement applies, all sorts of failings in processes could be actionable by students when comparing their own treatment to both what’s said locally and what OfS says nationally.

If nothing else, if Edward Peck’s Student Support review is overseeing DfE-backed case review of student suicides, the judgement ought to trigger similar work surrounding the handling of harassment and sexual misconduct cases.

The judgement also potentially opens up the prospect for all sorts of other types of cases to claim this specifically constructed “duty of care” where the issues aren’t specifically about teaching or assessment. The inability to guarantee the quality, consistency, and standard of pastoral care from academic staff, for example, is central to the higher education sector’s argument against a legal “duty of care” applying in HE.

But regardless of any new legislation, Halford may well have found one anyway.

When approached for comment for this piece, the RWCMD referred to a statement published on their website.