Should there be a new statutory duty of care for students in higher education?

This post has been kindly written for HEPI by Bob Abrahart.

Parliamentary petition …..

Twenty-five bereaved families have petitioned Parliament, wanting a statutory duty of care for students in higher education. University documentation frequently refers to a duty of care, so most people will be astonished to learn that it is only a ‘moral intention’. The call comes after a judge ruled that no relevant common law duty of care existed in the case of Abrahart v University of Bristol.

Ministers are naturally confused. Michelle Donelan, for example, speaking on behalf of the Department for Education in October 2021, said: 

Higher education (HE) providers … have a duty of care to students when delivering services, including the provision of pastoral support, and taking steps to protect the health, safety and wellbeing of students.

Lost rights, should be restored

Before the 1960s, universities were held as standing in loco parentis, with the assumed responsibility of a ‘prudent parent’. There was an unwritten expectation that our children would be looked after — both physically and mentally. They were minors. Education law applied. Legal protections existed. Following three years of study, university students would have reached adulthood, and after graduation got a job. Employment law thereafter applied. Legal protections continued uninterrupted.

In 1970, the legal age of adulthood was lowered from 21 to 18. Ten weeks after leaving school or college, university entrants were henceforth deemed to have transitioned into adults. Left stranded in no man’s land, with no statutory duty of care entitlement. University staff are also adults, and yet the sector has a statutory duty of care to protect the health, safety, and welfare of its employees — including an obligation to ensure that nobody on the payroll suffers stress-related illness as a result of their daily toil. 

Duty of care sets a standard, against which actions can be measured

Twenty years ago, the nature and meaning of ‘duty of care’ was recognised and explained by the student services organisation AMOSSHE in its Good Practice Guide – Duty of Care responsibilities for student services in higher education. Their understanding of matters was further clarified 14 years later in a Futures Report: 

In essence, a university has a general duty of care at common law: to deliver its educational and pastoral services to the standard of the ordinarily competent institution, and, in carrying out its services and functions, to act reasonably to protect the health, safety and welfare of its students.

Broadly speaking, a statutory ‘duty of care’ would place sensible and justifiable obligations on institutions and their staff to act towards others in a certain way, in accordance with certain standards. Law Lord Baron Atkin, who delivered the ‘leading judgment’ in a House of Lords ruling upon which our modern law of negligence is based, could not however have been clearer:

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. 

The petition is seeking a professional standard of behaviour in everything that is being provided. It argues that higher education institutions should owe a legal duty to exercise reasonable care and skill when teaching students and providing support services. The group is only seeking a legal duty for organisations to do what might reasonably be expected. It is a low threshold test and something that institutions should already be doing irrespective of any legal necessity. 

Enhanced duties, over and above the general duty that is being sought, would still be needed for specific categories of student. In particular: ‘safeguarding’ obligations, for any students who are under the age of 18, and for ‘adults at risk’; and ’corporate parent’ obligations for ‘looked after children’ in Scotland. 

Naysayers have surfaced. Universities UK, Universities Wales and AMOSSHE have issued statements opposing our petition, making it about student support services and it is not. Moreover, additional investment in services, which many students do not use, will not on its own deliver a ‘campus solution’. Health and Safety regulations are of limited value, being less stringent for students, who are not employees. The Equality Act is discrimination law. It protects qualifying individuals from being treated unfairly, and promotes a just and more equal society. It does not protect students more widely. For example, it would only apply in cases of ‘bad practice’, if such acts or omissions were also discriminatory.

Fresh thinking, positive changes, anticipated rewards 

It is time to start a new conversion, on how a legal duty of care would drive improvement, and how progress could be measured.

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. 

Success is easily measured. Fewer overall students will require support. A larger proportion of students would reach support services early, ideally preventing further deterioration of their mental health and wellbeing, and avoiding any need for subsequent contact with NHS services, which are already massively overstretched. 

A general duty of care would require all universities to consider and review their internal policies, processes and procedures – as well as day-to-day practices – to ensure they are delivered in a safer way, one that does not harm, or is not likely to harm, anybody. This would include causing psychiatric injury, and not sharing concerns with nominated others, who could intervene and help young adults when problems are disclosed. Dodgy internal processes and practices are known to have contributed to feelings of despair among students, creating an associated fear of being unable to cope, or of being kicked out. Student deaths have been linked to university mechanisms for dismissal, fitness to study, and communication of results. These are not medical, healthcare or wellbeing modus operandi.  

Institutions would be required to comply with government expectations and have due regard for evidenced-based recommendations. Take up rates for key national guidance, remains disappointingly low, despite longstanding expectations of previous ministers and recent encouragement from Andrea Jenkyns who said: 

The department supports the Suicide-Safer Universities framework… 

Its approach has been widely adopted and is a key component of the University Mental Health Charter, led by Student Minds, which aims to raise standards in mental health provision across the sector.

A statutory duty would also provide much needed clarity and consistency across the sector. Especially on roles and boundaries. Everybody would know who is responsible for what – something that would ‘really help’. Parents obviously need to understand what their role is. Students need to know what they can expect. If something is not going to be provided, then relevant warnings and appropriate precautionary measures will be essential.

The clock is ticking

There is a student mental health crisis. Urgent action is required.  ‘It’s no use saying “we’re doing our best”. You have to succeed in doing what’s necessary’.

The sector is apparently objecting to the imposition of a duty to students which it regularly states is already owed [sic]. A statutory duty that would create a healthy respect for doing the right thing. A duty that could save lives.

There is nothing to be afraid of. Society expects accountability. It is part of our modern world. Is it fair, just and reasonable for legislation to ensure that advertised promises on duty of care will be delivered? If not, every institutional product should perhaps display a prominent disclaimer: ‘This institution has no legal Duty of Care’.