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Rejection of legal duty of care marks a bad day for students’ rights

Campaigner Robert Abrahart expresses his disappointment in the government's decision not to pursue a statutory duty of care for universities
This article is more than 1 year old

Robert Abrahart is a retired university lecturer

Last Monday, closing a Westminster Hall debate, skills, FE and HE minister Robert Halfon announced that he would not, currently, be bringing in a statutory duty of care for university students – despite unilateral cross-party support for the motion.

In doing so, he has denied 2.8 million higher education students the minimum standard of legal protection afforded to most other adults – and enjoyed by 913k adult students in further education and by every member of staff at a university.

The Learn Network – a group of 25 families bereaved by student suicide – argues that duty of care is a fundamental civil rights entitlement, alongside the right to vote, to a fair trial, and to equal protection under the law. The petition we launched in September 2022 for a statutory duty of care received 128,292 signatures from registered voters – significantly exceeding the numerical threshold needed to trigger a debate in parliament.

Closing the debate – which saw resounding support for immediate action from MPs contributing – Halfon outlined his expectations on how the sector might deliver improved interventions for student mental health support, noting:

If we do not see a proactive and positive response from the sector, we will not hesitate to ask the Office for Students to explore targeted regulation to protect student interests.

He did not say how the required progress would be monitored or assessed – what a relief for sector leaders.

The principles at stake

However, the greater tragedy is that Halfon appears to have completely misunderstood the petition. We are asking for a general duty of care. Duty of care is the responsibility of an organisation to avoid any behaviours (things you do) or omissions (things you fail to do) that could reasonably be foreseen to cause harm to others.

While Halfon’s closing statement touched upon important topics such as suicide prevention, mental ill-health, adequate provision of support services, adoption of sector guidance, and charters, these are not a “duty of care” – rather, they would be underpinned by one. Duty of care is about setting a minimum standard of professional behaviour across the board. It is about taking reasonable steps and acting reasonably. It would underpin everything he is now proposing; both are required, not one or the other.

A statutory duty of care would set a bar for acting reasonably – which most providers already claim to be doing – as well as setting a required standard of interaction with students in a non-prescriptive manner. Vitally, higher education providers would maintain autonomy in deciding exactly how that standard would be achieved. This would be the opposite of a “one-size-fits-all prescriptive approach” that “might stifle new and innovative practices”, as mischaracterised by Halfon.

Duty of care would, by definition, accommodate innovative and improved approaches to supporting student mental health, including interventions still in development and encourage – not suppress – the adoption of original pioneering “best practice.” It would assist in consistently embedding evidence-based best practices across providers and implementing solutions developed by the Student Support Champion and informed by the lived experience of bereaved families. This is not about placing “a duty on providers which requires them to provide services the NHS has more specialism in delivering.”

Duty of care, moreover, is entirely flexible, it is pre-tailored to suit the internal workings of both small and large institutions, and there is no need to monitor or police it. No update mechanism or modifications are required. It runs all by itself. It is not prescriptive, and if certain national evidence-based practices are considered reasonable, one would expect them to be followed.

Notably, the duty would cover all aspects of the student journey, encompassing various types of student interaction and the potential ways students could be harmed – not just those with suicidal ideation. Whereas the minister’s proposals did not, for example, address failings in the student complaint procedure for cases of sexual misconduct – an area in which many students are harmed.

Legal turmoil

Most worryingly, the minister has opted to maintain a watching brief on legal outcomes to establish whether or not a common law duty of care exists, essentially leaving everything to the judiciary. So, instead of stepping up and developing a set of legal norms, the government has passed the baton to grieving families and wronged students to fight it out in court – on behalf of others – at huge personal cost and with scarce legal framework. This could not be a more unhelpful position for students, staff and parents.

Two common law court cases currently in progress are the University of Bristol vs Abrahart and Feder vs the Royal Welsh College of Music and Drama. Both institutions deny the existence of any relevant common law duty of care – the opposite of what many in the sector claim in response to our petition. The Abrahart case has now been appealed to the High Court; a Country Court judgement is awaited on the second.

Whatever the outcomes, the tragedy here is that each judgement under common law principles will only ever be able to recognise whether or not a relevant duty of care is applied in the circumstances of the case under court consideration. Neither case will deliver a general duty of care.

To develop anything approaching a general duty this way would take decades, made up piecemeal case by case, as future students are wronged or endangered by their institutions, with much associated suffering and tragedy. This system essentially uses future students as sacrificial lambs in pursuit of justice.

#ForThe100 will not go quietly into the night.

5 responses to “Rejection of legal duty of care marks a bad day for students’ rights

  1. It’s entirely sensible that our universities should have a legal duty of care to students. Thank you for this thoughtful and persuasive case.

  2. Common sense meets the common grief shared by too many families and cries out for a duty of care to be made explicit in law. Only the deliberately deaf or wantonly stupid can deny this!

  3. How do so many seemingly intelligent people miss the point so badly! Duty of care would cover disengagement, non attendance, unusual behaviour as well as mental health. Not every student walks up to the door of student wellbeing and asks to come in. Students are failed in so many other ways! Duty of care would ensure that establishments have systems in place to catch all of these behaviours and potentially save students before they fall!

  4. What an excellent thoughtful article. I fully support the work of the Learn Network.

    I am a retired solicitor and have just written an article on an analysis of the relationship in law between a university and its students in respect of HEI’s safeguarding obligations. Reference to university includes all institutions of higher education. I refer in my article to how that relationship has been characterised in our and other jurisdictions and trace developments from in loco parentis to a contractual relationship and now a consumer model. A university is an hybrid and sits between a private body and a publicly accountable one. Thus as a public body it is subject to judicial review which I believe could be a forum that is best suited to explore issues between a student (or as bereaved their family parent/member) and a university Questions could be asked of what went on prior to a students suicide and what measures (if at all) in a safeguarding context a University did or did not do.

    I reference in my article to the sad suicides of Natasha Arbrahart and Harry Armstrong Evans, as well as Dr Robert Abrahart’s previous article. Valuable comments were made by each Coroner.

    The government has resisted a statutory duty of care, but in society bodies and individuals are all aware of statutory duties. For example we all have to comply with the Occupiers Liability Act if we own residential or commercial property, a duty of care when we drive our motor, health and safety and disability legislation. Thus institutions are highly familiar with a ‘duty of care’ concept.

    A statutory duty of care would enable bereaved families to point to that statutory duty of care. It would be a valuable addition to the legal armoury already available and thus enshrined in law will mean it has added potency to influence the framework of ‘soft law’ instruments, such a guidance notes and policy statements issued by universities.

    The lesser number of hurdles the bereaved family circle has to face in seeking some form of redress for the death of their loved one can only benefit clear outcomes which in the long run also has societal benefit.

    At the moment I am considering what journal to publish my article in as it is presently over 12000 words.

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