The sector and families of students who died by suicide are talking at cross purposes

The families argue that at present, there is a lack of clarity about the extent of any duty owed to students by their universities – and that as such “negligent” institutions cannot be held accountable in cases where they have caused a student harm by their own acts or omissions.

Bob Abrahart explained the campaign on the site back in October. Since then the wider network has been working to gather support for a national parliamentary petition, which has now secured over 100,000 signatures – and so a formal parliamentary debate cannot be far away.

This matters because in the high-profile case surrounding the death of his daughter, the county court judge could not find that the university was negligent because it did not owe Natasha a “common law duty of care”. Abrahart argues that that is likely to create confusion among students, universities and parents – especially when ministers routinely say things like this:

Higher education (HE) providers are autonomous institutions and 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.

More recently the government’s template position whenever a question comes up in parliament on the issue has been to ignore the central question over the nature of any duty of care – preferring instead to detail various pieces of work undertaken by the Office for Students and Universities UK.

Meanwhile ahead of the reception, Universities UK has published a briefing that highlights its work to support the mental health of students and staff, and explains why UUK believes there should not be any new legislation.

Its central line is that universities already have a general duty of care to their students:

…not to cause harm by careless acts or omissions – corresponding to their role and capabilities as settings for adult education. They also have further legal duties relating to contract, health and safety, human rights, the safeguarding of vulnerable adults and equalities legislation.

You can imagine how frustrating that would be for the parents of a student who has died by suicide when the coroner says:

There is no statute or precedent which establishes the existence of … a duty of care owed by a university to a student.

In setting out that position, UUK refers readers to a briefing note from sector law firm Shakespeare Martineau, which explains the general legal duty of care owed by universities to persons to whom they are closely connected, including their students. There are three requirements:

• The duty applies to persons who might reasonably foreseeably be harmed by the HEI’s careless acts and omissions;
• The act or omission must cause or contribute to the harm that ensues;
• The circumstances must be ones the courts regard it as just, fair and reasonable for there to be a duty.

As such it says the duty does not, and could not reasonably, apply to all aspects of HEIs relationships with its students, but only where:

• HEIs can exercise real control;
• a failure to exercise that control causes injury; and
• the courts regard it as reasonable to impose a duty.

Here’s where things get confusing. Both UUK and AMOSSHE effectively argue that universities cannot be “in loco parentis”, and point to duties owed by the NHS. The Shakespeare Martineau note also reminds us that “persons of sound mind engaging in acts of deliberate self-harm” are generally regarded as the legal cause of the injury they inflict on themselves:

The courts do not regard it as fair, just or reasonable to impose liability on a third party for the injury suffered, except in certain very rare circumstances.

I say it’s confusing because it feels like the opposition here is arguing against universities being held responsible every time there’s a death by suicide:

Given the size, diversity, and dispersal of student populations, we believe that these
existing duties provide a proportionate and practical regulatory framework for student safety and health. We do not believe a further statutory duty would be the best approach to improve outcomes for students… higher education providers exercise limited control over students’ wider lives.

But when, for example, UUK says:

If the proposed additional statutory duty is to prevent self-harm, this would only really
be feasible under different conditions of control such as a custodial, health care or military setting. Imposing such an approach within a university setting would therefore be disproportionate and inappropriate.

…that isn’t really what the network is calling for.

Effectively the network is arguing that staff that come into contact with students should be required to exercise “reasonable skill and care” when teaching students and providing support services, and for the law to recognise any professionally developed standards. As Abrahart said on the site last year:

…this is about giving serious attention, or proper consideration, to doing something correctly and in such a way that causing damage or creating a risk is avoided. It would cover both acts and omissions – what is done to, or not done to others, and doing things in a timely manner.

And “duty” in this context would mean placing legal obligations on universities to act towards others in a certain way, in accordance with certain standards, and to consider the effects of their actions upon other people who may be affected by what they either do or don’t do.

In other words, the campaign is not (as might be implied from the UUK briefing) about duplicating the NHS, or even asking for more mental health support, shorter waiting times or for students to see counsellors – even though they note many of those things are needed. It’s really about there being professional standards for key roles that come into contact with students, proper policies, and putting students on an equal legal footing with staff – whose protection under employment law is stronger.

This is interesting partly because a general requirement for university staff to undertake their duties with “reasonable skill and care” is also a key feature (at least for me) in the ongoing marking and assessment boycott. I’m not suggesting Machievellian motivation here, but when staff do not have formal codes of professional standards that cover student support (however hard they may be to implement), students can’t hold them to those standards.

Both academic and professional services staff that come into contact with students might reasonably argue that workload models, budgets and wider Ts and Cs mitigate against enhanced (and legally crunchy) professional standards. But it’s also clear, I think, that students (and parents and wider society) expect professional roles to operate in accordance with codes that are enforceable.

And that appears to be what Abrahart and others are arguing for – not for the personal tutor to become the NHS, but when being the personal tutor for everyone to understand what can go wrong and the standard that role should be performed to.

That actually ought to stop too much expectation being placed on stretched academic and professional services staff rather than make the problem worse.

I should also say that the “cut price” providers lingering around the edges of the OfS register (or indeed those who aren’t on it that universities franchise provision to) that seem to be better at making profits than delivering student support services really do need to come into focus on issues like this at some stage.