As the debate surrounding a statutory duty of care for students enters Parliament, it becomes even more important to understand what such a duty might mean, entail or include.
(TW: Suicide, depression, mental health)
For many, it conjures up a problematic image of a university being asked to “look after” adults – in loco parentis by another name, in a situation where universities and their staff might only have a limited impact on students’ lives.
We’ve covered before here the way in which the Learn Network (the group of bereaved parents of students who have died by suicide at university) and the sector (represented here by Universities UK or here by AMOSSHE) often seem to be talking at cross-purposes when responding to the call for such a duty.
Now adding intel and perspective to the debate comes a note commissioned by the #ForThe100 campaign – set up to advance the cause for the statutory duty of care by the Learn Network – and written by Jamie Burton KC, and Sarah Steinhardt from Doughty Street Chambers, and Gus Silverman from Irwin Mitchell LLP, the legal firm that supported the family of Natasha Abrahart in the legal case surrounding their daughter’s suicide at the University of Bristol.
We explained the case on the site almost exactly a year ago when the judgement in it was handed down by the county court.
There are often cries from the sector that in cases like that of Natasha Abrahart, there is insufficient focus on any failings in the NHS – and as such it’s worth remembering that coroner Maria Voisin found that Natasha’s death was contributed to by “gross failures” by the Avon and Wiltshire Partnership, ordering the Avon and Wiltshire Partnership to pay substantial damages to the family.
But blame and accountability aren’t a simple binary, and the parents were frustrated at the lack of focus on the university in the inquest – hence the separate civil case in which the parents argued that Natasha has both been discriminated against in relation to her (mental health) disability, and that the university had failed in its duty of care.
This is important not just because of the debate surrounding the existence of and nature of such a duty is in Parliament via the petitions committee – it’s important also because we learn here that in March, the university was granted permission to appeal some of the judge’s findings regarding the Equality Act to the High Court, which is expected to happen some time this year. Natasha’s parents will ask the High Court to uphold the claim in negligence, as well as the Equality Act claim.
The arguments surrounding the Equality Act claim were summarised in the piece on the case from last year. Here we look at the “duty of care” argument in more detail.
Do wider services count?
It is worth noting at the outset that no claim in contract was pleaded in the Abrahart case. Judge Ralton found that to be “not surprising” given the absence of any “relevant express or implied term in the contract” between Natasha and the university – after all, this is “not a case about the quality of the teaching.”
Before we get into the wider detail here, I do find that surprising. In the Competition and Markets Authority guidance on students and higher education from 2015, the regulator makes clear that “tuition fees” aren’t just about the course:
[While] the focus of this advice is on the provision of educational services by HE providers to undergraduate students, consumer protection law will also apply to the provision by HE providers of other services such as accommodation, and the availability of funding and other support to students, but that is not covered in detail in this advice.
It’s also long been the case that Office of the Independent Adjudicator (OIAHE) compensation recommendations imply that the tuition fee in the contract covers other services:
We recommended that the University should offer to refund £300 in tuition fees. This was based on the notional cost of the affected module (£677.08), reduced to take into account the (limited) value the student had from the module, and that higher education providers have to provide and maintain buildings, IT and library facilities, wellbeing and other student support and administration. We also recommended a payment of £400 for distress and inconvenience.
But I digress. In the judgement, Ralton notes that the the Abraharts’ Particulars of Claim pleaded a general duty as follows:
… to take reasonable care for the wellbeing, health and safety of its students. In particular, the Defendant was under a duty of care to take reasonable steps to avoid and not to cause injury, including psychiatric injury, and harm.
I suspect that if someone on the Clapham Omnibus was to read the Department for Education’s response to the petition that has led to the debate in parliament, they would assume that the duty pleaded in the Abrahart Particulars of Claim was the same as this:
Higher education providers do have a general duty of care to deliver educational and pastoral services to the standard of an ordinarily competent institution and, in carrying out these services, they are expected to act reasonably to protect the health, safety and welfare of their students. This can be summed up as providers owing a duty of care to not cause harm to their students through the university’s own actions.
So is the government wrong – and if not, what’s the difference between the duty of care that the DfE says universities do have, and the duty of care that Judge Ralton said they don’t have?
What kind of duty?
In the case, Natasha’s estate argued that the university was under a duty of care to take reasonable steps to “avoid and not to cause or contribute to” her injury, including psychiatric injury when providing her both with education or education-related services.
In response to the claim, the university argued that it did not owe “any relevant duty of care” to Natasha. It contended, amongst other things, that “no such duty of care has hitherto been recognised authoritatively in the decided case law” and that “students are adults and as such, can generally be expected to take proper care for their own health.”
The legal note therefore points out that while the Abraharts succeeded on the Equality Act components of the claim, not all students, or families of deceased students, would be able to succeed – because not all students who die by suicide are disabled.
And even where a student was disabled, if the only route is to argue discrimination, that would places a big burden of risk on families seeking justice:
Claims under the 2010 Act do not benefit from the Qualified One Way Costs Shifting (‘QOCS’) regime, meaning claimants face a substantial risk that if they lose or abandon their claims they will be liable for the defendant’s legal costs. These costs commonly amount to tens of thousands of pounds, and costs over £100,000 for claims lost at trial are not at all uncommon. In contrast, claims for personal injury caused by negligence do benefit from QOCS, meaning a court is unlikely to order an unsuccessful claimant to pay the defendant’s costs. A lack of QOCS protection is very likely to deter students or their families from pursuing even meritorious claims against universities due to the risk of having to pay substantial adverse costs.
As well as that, while claims in negligence can be filed no more than three years from the alleged breach where the claim is for personal injury – with a limitation period of six years where there is no claim for personal injury – claims under the Equality Act have to usually be filed within six months of the act to which the claim relates. That, the note points out, may well therefore serve to exclude otherwise meritorious claims from court:
It may be particularly difficult for the family of a deceased student to find the wherewithal in the first 6 months following the death to instruct solicitors in good time prior to the expiry of the Equality Act limitation period.
What’s the difference?
But none of the above explains why there appears to be a discrepancy between the government’s position on duty of care, and Judge Ralton’s.
Later in the note, the authors advance an argument that they suggest explains the difference. It surmises that the language in the DfE petition response seems to have been taken from a 2015 paper published by AMOSSHE which notes that “student law is still evolving” and includes a line also given in the government’s response to a question raised by shadow universities minister Matt Western on the issue:
The existence and application of a duty of care between HE providers and students has not been widely tested in the courts.
So is there a duty – and if there is, what is its nature? We are familiar with the idea that while a student can’t challenge academic judgement, claims can allege the use of negligent teaching methods.
As a result in Faiz Siddiqui v University of Oxford, the note reminds us that the “reasonable care and skill” standard that would applied in that kind of case is that of the “reasonably competent” professional education provider – and so usually expert evidence regarding accepted professional standards would be likely to be necessary, save that:
…this later requirement might not apply where what is alleged is “simple operational negligence in the making of educational provision.
That’s why a claim that the University of Oxford had failed to ensure adequate resources were available to ensure a course was taught properly was allowed to proceed – because it was about “the insufficiency of teaching capacity and the alleged failure to remedy that” rather than “an attack on a conscious choice of teaching style.”
So what has all of that got to do with Abrahart? Unlike that Oxford case, the note points out that Ralton found the case to be novel for two reasons – first because it concerned alleged failures to act (i.e. omissions), and second because damages claimed were for psychiatric harm rather than loss of educational attainment (and in Siddiqui’s case, associated economic loss).
So part of what this all comes down to is about whether there’s a duty to be proactive. In the Abrahart case the judge decided that there is no duty on universities to take reasonable steps to protect the welfare of their students “even when it is reasonably foreseeable” that a failure to act would result in harm:
This is because generally whilst the law does impose obligations not to cause harm, it does not require persons (natural or legal) to “provide … benefits.”
In other words, as the note points out, Ralton decided that the relationship between the university and its students was like that that of a school and its pupils or an employer and its employees because there was no “assumption of responsibility” for students’ welfare – and so for the same reasons, the university was not responsible for any psychiatric harm arising from its actions or omissions.
And so as a result, although it was arguably foreseeable that continuing to subject Natasha to oral assessments would exacerbate her poor mental health:
…the university was under no duty to take reasonable steps to change the form of assessment in order to avoid causing her harm. As regards the provision of pastoral care, this did not extend to an obligation “by non-medical staff to tend to Natasha’s mental health.”
And that’s why in parliament, when the campaign group was providing evidence on the issue for MPs, the employer-employee relationship came up. Under common law, employers’ duty of care means that they:
…must take all reasonably practical steps to ensure the health, safety, and wellbeing of their employees in all the circumstances of the case so as not to expose them to an unnecessary risk i.e. to prevent reasonably foreseeable harm. This duty of care extends to the employee’s physical and mental health.
And importantly, that duty on employers doesn’t mean that they have to treat staff like children, and does flex for different types of employment (ie the difference between part and full time employment):
The law on the duty of care owed to employees by their employers is not prescriptive in that it does not give a specific list of steps an employer must do to comply with the duty. The specific steps that must in fact be taken in any individual case will be defined by what is reasonable in the specific circumstances of that case, and this changes from case to case (which is essential to allow the law to fit flexibly into any number of scenarios).
As I note at the top of the piece, the family will use the impending appeal to argue that a relevant duty of care did exist, and to some extent is arguing in conjunction with other families that one should exist. And you can understand why, when Ralton says that if such a duty had existed:
There 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.
Subtlety and complexity
This is all helpful, I think, because it moves us away from simplistic and unhelpful binary debates about “students being adults” and moves us towards more important questions – like whether students have rights over aspects of the student experience that aren’t the teaching part, the rights that students do or don’t have to have services carried out to a minimum and defined standard, and whether a university should be under a duty to take reasonably practical steps to ensure the health, safety, and wellbeing of their students and not to expose them to an unnecessary risk – including preventing reasonably foreseeable harm.
It helps explain the Abraharts’ position, outlined here, that a more clearly defined “duty of care” would mean universities and their staff being clearer that they must do what might reasonably be expected, using common sense, understanding, and compassion:
Staff will feel empowered and compelled to follow their instincts. Duty of care trumps reasons for doing nothing, because of a misplaced fear over getting or doing something ‘wrong’. Duty of care, hopefully, will also trump fear of GDPR. In all cases, it would establish a culture of prevention, ideally one in which crisis is avoided, leading to safer operational systems and safer daily practices, delivering ways of working that are less risky for vulnerable individuals.
Above all else, if students really are adults, it matters that when they enrol on a programme of study which is surrounded by additional services, and a message from government they the university providing it all has a “duty of care”, that those adult students know exactly what that does and doesn’t entail.
Leaving it all as confused as it is now could barely be a more unhelpful position to be in for students, staff and parents.
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