WEEKEND READING: Parliament’s latest debate on duty of care: what problem are we really trying to solve?

This blog was kindly authored by Dr Emma Roberts, Head of Law, University of Salford.

The latest parliamentary debate on a statutory duty of care for universities did not break new ground in legislative terms. It did, however, provide a useful snapshot of where parliamentary thinking currently sits on student wellbeing, safeguarding and institutional responsibility.

What emerged was not a settled view on whether a statutory duty of care is the right mechanism, but a shared concern that the existing legal and regulatory framework does not operate with sufficient clarity or consistency to support prevention in practice.

The context for the debate

Prompted by a large public petition and the Government’s national review of higher education student suicide deaths, Members of Parliament discussed student mental health, suicide prevention and families’ experiences navigating institutional processes after serious incidents. Although the term ‘duty of care’ dominated the debate, the substance focused on systems, processes and accountability rather than tort law.

What Members of Parliament were actually describing

Several contributions focused on cases where harm arose not from a lack of concern, but from failures in institutional processes – such as errors in academic administration, uncertainty around escalation and restrictive interpretations of consent that limited information-sharing with families even at points of acute risk.

These examples are important because they illustrate a recurring pattern in this policy area. Student harm is often linked to governance and decision-making, rather than to the absence of wellbeing services alone. In that sense, the debate was as much about academic and organisational systems as it was about mental health support.

The national review findings cited during the debate reinforce this point. Incomplete serious incident reporting, limited family involvement, unclear ownership of action plans and weak senior oversight are not issues that turn on the existence of a general duty of care, nor are they problems that the creation of such a legislative duty would, of itself, resolve. They are indicators of regulatory and assurance gaps.

Why ‘duty of care’ has become the focal language

The appeal of a statutory duty of care is understandable. For some, it appears to offer a way of clarifying expectations and addressing inconsistency across institutions. Several Members of Parliament were careful to emphasise that this would not entail universities acting in loco parentis or assuming clinical responsibilities, but rather a requirement to take reasonable steps where serious harm is foreseeable.

At the same time, concerns were raised about unintended consequences. These included the risk of encouraging defensive practice, increasing proceduralisation and diverting attention from early, relational intervention towards liability management. These concerns are well-established in other professional contexts, such as healthcare and policing, and they deserve careful consideration here.

The Minister’s response reflected this caution, emphasising that students are adults, that universities already operate within multiple legal frameworks and that reform must avoid creating incentives that undermine professional judgement or proactive support.

This is one reason it is worth being clear about what ‘duty of care’ does (and does not) mean in law.

Clarifying the legal position

There is a risk that the debate itself rests on an oversimplification of the law. Universities are often described as operating in the absence of any duty of care, when – in reality – duties already arise at common law and under statute in particular circumstances. The more precise concern is not the absence of duty, but uncertainty about its scope and application in complex, real-world situations. Duties are assessed by reference to context, foreseeability and policy considerations, rather than arising automatically from the existence of a relationship. In that light, a statutory duty would alter the source of the obligation, but it would not remove the need for interpretation or guarantee greater clarity in practice, nor would it create an all-encompassing obligation akin to in loco parentis, which the courts have consistently resisted.

There is also a broader trade-off to consider. Common law duties evolve through judicial discretion, allowing principles to be applied flexibly to new and unforeseen circumstances. Statute can provide greater certainty, but often at the cost of rigidity, with meaning only becoming clear through subsequent interpretation and case law. In a context as varied and fast-changing as higher education, that balance between flexibility and certainty deserves careful consideration.

A regulatory question, not simply a legal one

Taken together, the debate suggests that Parliament is grappling less with the absence of duties, and more with the effectiveness of the current regulatory arrangement.

Universities are subject to a complex mix of legal obligations and regulatory expectations, but these do not always translate into clear operational standards around safeguarding, information-sharing, escalation and transparency. Where guidance exists, its uptake and implementation vary – giving rise to the ‘postcode lottery’ to which Llinos Medi referred. Where failures occur, learning is not always systematic or shared.

This is where much of the concern evident in the debate originates.

From a policy perspective, the central question is therefore not whether to add another broad legal duty, but how to design a framework that supports prevention, consistency and accountability in practice.

What regulation is better placed to do

Regulatory reform offers tools that a general duty of care cannot easily provide. These include:

• clearer expectations around serious incident reporting and review, including meaningful family involvement;
• enforceable standards and related staff training for information-sharing and consent in welfare contexts, reducing uncertainty at points of crisis;
• stronger requirements for candour and transparency when harm occurs;
• clearer lines of responsibility and assurance within institutions;
• mechanisms for the central sharing of learning across the sector, including systematic oversight of Prevention of Future Death reports, with an expectation that all universities engage with and respond to sector-wide lessons learned;
• regulatory oversight that focuses on systems, learning and improvement, rather than post-incident fault-finding.

These are the kinds of measures that address the failures described in the debate, without relying on litigation as the primary mechanism for change.

The Government’s reference to the next phase of the higher education mental health implementation taskforce, including consideration of accountability mechanisms and the role of the regulator, is therefore a significant part of the policy landscape. Whether that route delivers meaningful change will depend on how far it moves beyond guidance towards enforceable standards.

Keeping the focus on prevention

One risk in framing reform primarily through the language of duty of care is that it can obscure these regulatory questions. Another is that the concept becomes stretched to cover a wide range of concerns, as we heard cited in the debate – from suicide prevention to harassment, cost-of-living pressures and campus safety – making it harder to define what the duty would actually require.

If the objective is to prevent foreseeable harm, then clarity, consistency and early intervention matter more than legal symbolism.

A more precise question for Parliament

The Westminster Hall debate usefully surfaced a shared unease about the current position. It did not, and perhaps could not, resolve the question of mechanism.

A more productive way forward may be to ask not whether universities should have a statutory duty of care in the abstract, but what statutory and regulatory arrangements are capable of delivering the standards of prevention, candour and accountability that Parliament clearly demand – and that students and parents can reasonably expect.

That is a question that invites careful design rather than rhetorical commitment and one that aligns more closely with the practical realities faced by students, families, institutions and regulators alike.

Recommendations

The Westminster Hall debate highlights concern about the clarity and effectiveness of universities’ legal responsibilities to students. As this note has argued, a duty of care already exists at common law, but the scope and application of this duty remain uncertain in practice. That uncertainty is shaped less by the absence of a legislative framework than by weaknesses in the surrounding regulatory and governance context.

The recommendations below, therefore, focus on the regulatory conditions within which the existing duty of care operates. Strengthening those conditions is necessary both to address the systemic issues identified in the debate and to provide a clearer, more coherent framework in which any future statutory articulation of duty could meaningfully develop. Without such reform, a statutory duty risks adding a new legal source without resolving the underlying causes of inconsistency and uncertainty.

1. Strengthen regulatory standards for serious incidents and safeguarding governance

Regulators should establish clear, enforceable standards governing how universities respond to serious incidents involving student harm. These standards should address the timeliness and consistency of serious incident reporting, set minimum expectations for internal review processes and require senior leadership oversight and sign-off. They should also ensure that effective assurance mechanisms are in place so that actions identified through reviews are implemented, monitored and revisited as necessary. Improving governance and oversight in this way would directly address the failures highlighted in the national review and provide a more stable foundation for the operation of existing legal duties.

2. Introduce a statutory duty of candour tailored to higher education

There is a strong case for embedding candour explicitly within the regulatory framework for higher education. A statutory duty of candour should require providers to act openly and transparently with students and families following serious incidents, to provide timely, accurate and complete information, and to avoid defensive or obstructive practices. It should also support meaningful engagement with families as part of review and learning processes. Such a duty would strengthen accountability and trust, while supporting the effective operation of duties of care without relying on litigation to define their scope.

3. Clarify and standardise information-sharing and consent frameworks in welfare contexts

Uncertainty around consent and information-sharing presents a significant barrier to early intervention and effective safeguarding. Regulators should therefore clarify expectations around how consent is obtained, recorded and interpreted in welfare contexts, and set standards for lawful and proportionate information-sharing where there is foreseeable risk of harm. This should be supported by requirements for staff training to reduce uncertainty and overly restrictive interpretations of consent. Greater clarity in this area would help to reduce nervousness and defensive practice for fear of litigation and enable duties of care to be exercised more consistently and confidently in practice.

4. Establish a centralised mechanism for sector-wide learning from student deaths and serious harm

To move from isolated institutional responses to systemic prevention, there is a need for a centralised system for sector-wide learning. This should include oversight of Prevention of Future Death reports and other relevant findings, structured dissemination of lessons learned across the sector and an expectation that all universities actively engage with, reflect on and respond to those lessons within their own safeguarding frameworks. Without such mechanisms, legal duties – whether arising at common law or under statute – will continue to operate in fragmented and uneven ways.

5. Re-calibrate regulatory oversight towards systems, prevention and early intervention

Regulatory oversight should place greater emphasis on the quality of institutional systems, escalation pathways and decision-making structures that support student wellbeing and safeguarding. This includes early identification of governance weaknesses and emerging risks, as well as a focus on continuous improvement and prevention rather than post-incident compliance alone. Such an approach better reflects the realities of student wellbeing and safeguarding and supports the meaningful exercise of legal duties in practice.

6. Make the scope and limits of institutional responsibility explicit

Any development of the legal framework should be accompanied by clear articulation of the scope and limits of institutional responsibility. This should recognise the continued importance of student autonomy and avoid assumptions that would place universities in a position akin to in loco parentis. Clarity on scope is essential both to support professional judgement and to ensure that duties of care, however articulated, operate predictably and proportionately.

Addressing these regulatory and governance conditions is essential not only for improving current practice, but for creating the legal and regulatory environment in which a clearer statutory articulation of duty, if pursued, could operate effectively and as intended.