The mental health and wellbeing of university students has been a focus of growing attention, with consequent scrutiny of the supportive measures taken by universities. In the case of tragic student suicides, questions have been asked about whether universities could and should have done more. Against this backdrop, the existence and scope of universities’ duty of care towards students has been tested, with campaigners calling for a new statutory duty of care.
On 5 June 2023, Parliament debated a new statutory duty of care for students in Higher Education. The debate was triggered by an online petition, which received 128,292 signatures, calling for a statutory duty of care akin to universities’ existing duty of care for employees and students under the age of 18.
The Department of Education (“DfE”) stated in their response to the petition that universities currently have a general duty of care “to deliver educational and pastoral services to the standard of an ordinarily competent institution” and that in doing so “they are expected to act reasonably to protect the health, safety and welfare of their students”. They said that: “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”.
The limited nature of the current duty reflects the judgement in the Natasha Abrahart case (see our previous article). It was argued on behalf of Natasha’s estate that the university owed a duty “to take reasonable care for the wellbeing, health and safety of its students. In particular, the [University] was under a duty of care to take reasonable steps to avoid and not to cause injury, including psychiatric injury, and harm”. The Court described this as essentially an argument that the university owed a duty of care to protect Natasha from herself. The Court found that no such duty was owed. The Court noted that Natasha was not in the care of the university, in contrast to a pupil in the care of a school. We understand that this case is being appealed, though it remains good law at the time of writing.
The DfE concluded in their response that further legislation to create a statutory of duty of care on universities would be a “disproportionate response”.
Universities UK response
Universities UK (“UUK”) echoed the Government’s response in their briefing. UUK believes that the current statutory framework (including the general duty of care, Equality Act 2010, and contractual duties) is “proportionate and practical, commensurate with [universities’] role in education settings” and that a further statutory duty would not be the best approach to improve student outcomes. Nonetheless, UUK emphasised that universities need to show that they are implementing good practice and to demonstrate progress against agreed frameworks (see further below).
In the parliamentary debate, Robert Halfon, the Minister for Skills, Apprenticeships and Higher Education confirmed that while it shares the petitioners’ fundamental aim to protect students and prevent future tragedies, the Government does not support the introduction of a statutory duty of care.
Mr Halfon set out other measures, short of a statutory duty, to improve student outcomes. He said he had written to all universities urging them to sign up for the University Mental Health Charter by September 2024. To ensure that lessons from student suicides are shared more widely, he explained that the Government would commission an independent national review of student suicides. He referred to the appointment of Professor Edward Peck as the first “Student Support Champion” in 2022 (and areas for development identified by Professor Peck are referred to in our practical tips below). He also referred to a new Higher Education Mental Health Implementation Taskforce, to be chaired by Professor Peck, which will prepare an interim plan by the end of 2023 and a final report by May 2024. The report will cover early identification of students at risk, a University Student Commitment on dealing with students sensitively on disciplinary issues, and a set of clear targets for improvements in practice.
Significantly, Mr Halfon indicated that if universities’ responses are not satisfactory, he would ask the Office for Students (“OfS”) to look at the merits of a new registration condition on mental health. As discussed in our previous article, the OfS has recently consulted on the introduction of a new registration condition related to harassment and sexual misconduct. This is therefore potentially part of a wider shift towards a more interventionist regulatory approach and universities should act now if they want to persuade the Government and regulator that a new registration condition is not required.
What should universities be doing now?
In view of the parliamentary debate, here are the key steps universities should be taking now:
- First and foremost, ensure that student wellbeing and mental health is a strategic priority and has appropriate leadership attention and resources. This underpins the other steps below.
- Commit to the University Mental Health Charter, which supports universities to adopt a whole-university approach to mental health. This is not a silver bullet but a programme for continuous improvement.
- Familiarise yourself with and adopt UUK’s Suicide-Safer Universities Guidance, and supplementary guidance on Sharing Information with Trusted Contacts, Support for Placement Students and Postvention (responding to a student suicide).
- Create an action plan for identifying students at risk early, with pastoral support being offered before they reach crisis point.
- Review and update student policies and procedures (including your student disciplinary policy, fitness to practice policy, and process for delivery of academic results) through the lens of providing a personalised and compassionate academic experience.
With thanks to Arisa Terada, Legal Assistant, for contributing to this article.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, June 2023