Westminister Hall debate on statutory duty of care

The resounding message raised by multiple MPs was that there is significant confusion in what students and parents believe there to be in terms of a statutory duty of care over students’ wellbeing and what exists in legislation.

Labour shadow minister Matt Western said that while he appreciates the time and money universities currently put into student support and that support staff are doing the best they can, there is a “big gap” between the care students and parents expect and the reality of what they receive – backed up by a survey accompanying the original petition where the majority of parents who responded believed the university would contact them if their child were in crisis.

Nick Fletcher argued that with a statutory duty of care, “all parties would know where they stand.” Which makes sense. Even without a statutory duty of care, it would be in everyone’s best interest to clear up that universities do not have one – not least so parents and students that currenty think there is one can make alternative arrangements.

The government’s response in January, which rejected a need for a statutory duty of care as “Higher education providers already have a general duty of care” was labelled “insensitive and frustrating”. Kit Malthouse described the response of universities as “retreating to a defensive position”.

Mary Foy noted that had this “general duty of care” been sufficient, this debate would be unnecessary (Wonkhe readers will know that the Abrahart case – which failed in its negligence claim – shows that the current law, when tested against the application, proves limited).

Several MPs gave compelling examples of where universities – had there been a statutory duty of care – could arguably have been in breach of one. Among other anecdotes of alleged negligence, Andrew Western cited a case of a student who had eight outstanding pieces of coursework overdue when he died by suicide; George Eustice spoke of a student who died after his poor grades were released during the vacation period; and Kit Malthouse described how a student in his constituency died by suicide after “unexpected disengagement” from his exams. All three argued there should have been welfare interventions.

This should reassure those concerned about staff being made to become stand-in crisis responders and demonstrate that there are reasonable, practicable, and appropriate solutions to student well-being support – such as no automated emails with low or failed grades or using engagement analytics to flag vulnerability.

Tim Farron suggested that suicide awareness be “built into the curriculum” and training staff in spotting signs of and reporting poor mental health – similar, I imagine, to the legal requirement to train them in spotting and reporting the signs of extremism.

Closing the session, universities minister Robert Halfon said that despite the resounding support for the petition, he would not introduce a statutory duty of care – referring to a letter he had sent to MPs earlier. Instead, he will monitor the application of current legislation, and brought forward his predecessor’s expectation that HE providers will sign up to the Universities Mental Health Charter by September 2024.

The glaring concern raised by MPs was is that to test the current voluntary approach, bereaved loved ones need to continue to litigate against universities in cases of student suicides – meaning that a student would first need to die by suicide. And this litigation can take up to a decade. Helen Grant also pointed out earlier in the session that only 61 institutions had signed up to the Universities Mental Health Charter framework, with only five achieving the high mark of status. And that there is no requirement for universities to sign the charter anyway.

Halfon suggested in the letter that because the sector is still “innovating and improving” on approaches to mental health, there is “not yet consensus” on which interventions are most effective – and that a “one size fits all approach” would risk “stifling new and innovative practices”. It seemed an odd position to take when simultaneously arguing that the UMHC and national established best practice was the universal and comprehensive answer to the questions raised in the debate – citing a need to universally adopt existing UUK guidance in the process.

He also argued that students are already protected under the Equality Act 2010 – all very well and good, but students must occupy a protected characteristic to be protected.

One interesting aspect announced was a national case review of university suicides to identify learning – and also discussed taking up Student Support Champion Edward Peck’s recommendation on better analytics, and a new university commitment on “compassionate academic processes”. Who will lead those and how they will work remains unclear – DfE itself hardly has a great record on such projects.