Government rejection of legislation will not be the last word on universities’ duty of care

University leaders and staff, as a rule, feel a sense of responsibility for their students’ wellbeing and recognise that the ways that institutional policies and pedagogical practices play out can sometimes cause students distress, or even harm.

But university representatives have thus far resisted the idea that universities should be subject to a statutory duty of care towards their students. And skills and further and higher education minister Robert Halfon has supported their position – in a letter to MPs, he said “this government does not believe that [a statutory duty of care] is the most effective way to improve outcomes for students” and argued that a general duty of care already exists in common law, and a specific one in relation to protected characteristics through the Equality Act of 2010.

Halfon pointed instead to a raft of initiatives including a national review of student suicides, and a new higher education mental health taskforce chaired by student support champion and Nottingham Trent University vice chancellor Edward Peck which will set out to develop a new university-student commitment by the end of the current calendar year.

Campaigning groups – including those representing parents of students who have died by suicide – are bitterly disappointed at this outcome. And at the recent Westminster Hall debate on the topic, members of parliament – many of whom reported that a student in their constituency had died by suicide – characterised the attitude of universities as defensive, and the government’s argument that a general duty of care already exists as simplistic.

The door is open

So is this a story of the establishment closing ranks to preserve the status quo? I don’t think it has to be. Nor do I think that the failure of past government-led mental health taskforces necessarily points to the failure of the next one – though Jim’s Twitter thread on the topic is pretty essential reading for anyone who wants to make sure this taskforce actually lands. There is an open door here to accelerate progress on student support – in a way that’s as impactful and sustainable as possible.

Campaigning groups are entirely correct to point out that without a statutory or regulatory articulation of such a duty it is hard to have confidence that every single provider of higher education is meeting a shared minimum standard, or hold those who do not meet shared standards accountable for their actions (or failure to act, in some cases).

But dodging legislation isn’t simply about preserving university autonomy for its own sake. It’s about trying to deploy the best tools to achieve the objective at hand. If the consequence of this iteration of the debate is that it is agreed that there probably is a duty of care of some sort, but that it’s not very well articulated anywhere, it’s not clear which bits of legislation might contribute to it and where the resulting gaps might be and, crucially, what the implications are for universities’ actual practice, then that is a meaningful result – because the next stage is to acknowledge and begin to work through those challenges.

Clearly the sector has made a promising start with the Universities UK Stepchange framework and the gradual adoption of the Student Minds University Mental Health Charter. As these collections of good practice become established – along with other suggestions like the recent core specification for student engagement and wellbeing analytics Edward Peck has produced with Jisc – they will establish a de facto standard of practice. Not a legal framework as such, but an accepted body of work that can act as a reference point for bodies like the OIA, and even the courts, in arriving at judgements about whether a university has met an appropriate standard.

Writing something into law does not make it achievable; standards also have to be embedded in practice – and the embedding process is not nothing. It’s genuinely not clear how, in the current formulation of the academic role, student pastoral support and welfare can be appropriately integrated. If I were a registrar tasked with implementing a duty of care policy I would be very concerned about whether the institution’s current staff had the will, the competence, or the capability to adopt it. Different models and structures will need to be developed and tested – and a credible evaluation framework created. Impatience is understandable – even virtuous in this context – but it won’t substitute for the work that needs to be done.

In passing, some of that work might be hastened with some additional carefully targeted direct funding. In the Netherlands, the minister for education and science has just announced a €4m investment in a national programme to improve social safety at universities over four years, and the intention to explore both a legal duty of care and the interrelationship between social safety and teaching quality.

Revolution

It may yet be that a statutory or, more likely, regulatory duty is where England gets to in this debate – the idea that grieving families should be forced to test the limits of the law as it is currently constituted in their efforts to seek redress is most likely as distasteful to universities and policymakers as it is to the families themselves.

So assuming that the case has been adequately made that practice is inconsistent, that some historical structures and pedagogic cultures are no longer fit for purpose, and that universities do have a level of responsibility in student wellbeing, then the clarification of the nature of that responsibility must be welcome to all parties. But when any statutory duty needs to stand on words like “reasonable” or “pay due regard”, then the effective application of that duty requires there to be a reference point for judgements about reasonableness – which is where the basket of established good practice comes back into play.

Universities know that students in general struggle with low mood and anxiety. They know that some have diagnosed mental health conditions, and others may slip in and out of mental health crises. If curricula, learning and teaching structures and processes, and student support systems are to be revolutionised – which seems to be the direction of travel here – then it will take time. The onus now is on the sector to work in partnership with policymakers and campaigners to show how it’s making a real push to deliver on those needed changes.