Universities and their staff should be under a “duty of candour”

It called for improved funding and resources for mental health services, better integration of mental health care with general health services, increased support for early intervention and prevention programs, and greater emphasis on community-based care and support systems.

On the podcast this week, Universities UK’s Vivienne Stern notes that given the Liberal Democrats have a manifesto commitment to introduce a statutory duty of care in higher education, we may well see a push towards that being established during the passage of the bill through parliament.

That would not be as opportunistic/”bolted on” as it might sound. Although the proposed bill is aimed at mainly at modernising the Mental Health Act 1983 what that means for detention, statutory support roles and the management of patients under restriction orders, the review also reflects heavily on the interaction(s) between statutory and “community” support – especially for those with a learning disability and/or autistic people.

The ongoing problem when working out who should be responsible for what is not that anyone expects universities to be “in loco parentis” – it’s that it’s hard to determine any standard of care or communication that a university can be held to at all.

The argument for is that higher education providers should owe a legal duty to exercise reasonable care and skill when teaching students and providing support services:

Staff obviously care about their students, but are constantly confronted with decision-making challenges, and have no clear direction. Duty of care would address this issue: 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.

Whether such a push will appear, and whether the government accepts or refuses, remains to be seen. But there’s another bill mooted in the King’s Speech that relates.

In 2017’s report on the Hillsborough disaster and its aftermath, the former Bishop of Liverpool called for a duty of candour, emphasising the need for openness and honesty within institutions, especially regarding past mistakes and wrongdoings.

The aim was to build trust, promote transparency, and ensure accountability – admitting errors, offering apologies, and taking corrective actions to prevent future occurrences.

The apology part is parrticularly important. In “Broken trust: making patient safety more than just a promise”, former OIA adjudicator and Parliamentary and Health Service Ombudsman Rob Behrens notes that:

…organisations may say sorry and accept that failings happened, but it is rarer that they offer a clear and unreserved apology that shows they have understood the impact of those failings on the patient.

Last week the parents of Natasha Abrahart, a student who died by suicide at the University of Bristol six years ago, said they were “deeply offended” at the way their request for an apology from the university has been handled. Robert Abrahart:

Over the last six years the University of Bristol have fought tooth and nail to avoid taking responsibility for Natasha’s death. Perhaps it was naive of me but I thought the High Court’s judgment would finally make them say sorry for what they did, but it hasn’t. I just don’t understand why Professor Welch has instructed her lawyers that she has “no additional comment to make”. Can’t she see how hurtful that is? Can’t she see that just saying sorry, without saying what you’re sorry for, is meaningless?

A University of Bristol spokesperson said:

The vice-chancellor has written to Mr and Mrs Abrahart to offer a personal and heart-felt apology with an invitation to meet with her at any point – an offer which remains open.

A draft Public Authority Accountability Bill had actually been introduced by Andy Burnham in 2017 (when he was MP for Leigh) before becoming a casualty of the snap General Election in May 2017 – but calls for progress have recently intensified following the introduction of similar duties within health sector, as well as a number of high-profile incidents, including the Grenfell Tower fire and, more recently, the inquest into the death of Awaab Ishak.

We’re very much in the slipstream of Keir Starmer’s drive to “rebuild trust and foster respect” here – the background briefing for the King’s Speech says the bill would “change the culture of defensiveness in the public sector” that has:

…denied families the justice they deserve and contributed to their suffering… improving transparency and accountability, we will make sure the public is truly at the heart of the public sector.

If the government picks up the Burnham confection, universities (as public authorities) and their staff would be required to:

• act at all times in the public interest and with transparency, candour and frankness, and to detail the measures taken to further to these objectives in a published Code of Ethics;
• assist court proceedings, official inquiries and investigations where their own acts or omissions are (or may be) relevant; and
• disclose information which may change the scope of any proceedings, inquiry or investigation.

In its student suicide guidance, Universities UK mentions candour as follows:

The review process should not be used to identify fault or blame. Every effort should be made to support those involved and encourage a culture of honest reflection, identification of relevant learning points and of positive and tangible actions that directly reduce the risk of a recurrence. Each review should therefore be conducted with due candour.

That, I suspect doesn’t quite go far enough for many – not least universities’ insurers and legal teams who may well be advising the opposite, depending on the situation.

We know, for example, that the ongoing University of Manchester-led National Confidential Inquiry into Suicide and Safety in Mental Health (NCISH):

…may consider a university “duty of candour” similar to the NHS and workout a way of feeding back findings from the study to the national coroner’s network.

There’s a question of what sorts of scenario a candour duty would apply to. There is currently a professional duty overseen by regulators of specific healthcare professions such as the General Medical Council (GMC), Nursing and Midwifery Council (NMC) and the General Dental Council (GDC) that requires health care professionals to be open and honest with patients when something that goes wrong with their treatment or care that “causes, or has the potential to cause, harm or distress”.

There are therefore a whole range of complaints that students make that go well beyond episodes of student suicide that feel like they might fit that “harm or distress” bill, and where complainants often feel that “candour” is only really achieved if a complaint gets as far as the OIA – if at all.

If nothing else, if the OIA is caused to reflect on compliance with a candour duty during the investigation and processing of a complaint, recommendations could end up being much crunchier than they often are now.

This doesn’t, of course, have to mean more litigation – as one lawyer puts it:

The Duty of Candour seeks to bring about cultural change, and to create an environment where staff are not afraid to talk about mistakes, and where lessons can be learned. When mistakes are made, staff will be encouraged to talk to patients, and to be open about what went wrong.

This in itself is likely to reduce the number of potential claims against the NHS. Often prospective clients approach us, because something has gone wrong, and they are simply not getting an effective explanation from the hospital concerned.

If we’re really focussing on learning from when things go wrong and the complaints that surround them, some additional tidying up would see the Office for Students (OfS) amending Condition C2 (which requires providers to use the OIA scheme) by including both a duty of candour and a duty to report publicly on lessons learned from complaints.

Oh – and if anyone can explain why, in pursuit of “freedom of speech”, the Higher Education (Freedom of Speech) Act 2023 prevents universities from entering into non-disclosure agreements over harassment and bullying complaints, but still allows them for pretty much any other complaint, a Wonkhe mug is on its way.