Duty of care is not just about suicide prevention

With a petition presented to parliament seeking the creation of a statutory duty of care for universities towards their students, the conversation has quickly turned to student suicide, and what responsibility – if any – should universities have in preventing it.

(TW: student death by suicide)

The Learn Network, a community of bereaved families, are seeking through their #ForThe100 campaign to establish a duty of care for students under the law.

Their case rests on the argument that while there is plenty of good practice guidance for universities on supporting student wellbeing, there are no universal minimums or consistency in practice.

Students and their families do not necessarily know what to expect or have access to redress if they do not get it.

Universities and student support staff, as represented by Universities UK president Steve West and AMOSSHE chair Jill Stephenson at the recent parliamentary Petitions Committee hearing on the subject (summarised here by Jim Dickinson), are less keen on the idea.

That’s not due to a lack of will to implement practices that could protect students from harm. It’s likely more a worry that university staff are often already overwhelmed, and overworked, and a concern that extra responsibilities could blur educational and pastoral boundaries beyond the scope of universities’ expertise or capability to influence.

I’m mindful of these concerns – but I still think that there’s a case for a more explicit duty of care in relation to harm prevention, as distinct from suicide prevention.

The focus on suicide is blurring our vision

That the debate inevitably touches on actual examples of, and worries about the risks of, student suicide makes it much more heightened and emotive. There are complex realities to grasp – one is that students are dying by suicide at a lower rate than the rest of the population – possibly due to the greater likelihood that they live with others who can raise alarms or notice a change in behaviour, and possibly due to other socio-economic or demographic factors.

Despite these headline stats, students still aren’t always having a great time. They are more likely to experience sexual assault and racial harassment and have lower levels of overall happiness and higher levels of anxiety. They are more likely to be impacted by the cost of living crisis and live in poor quality housing. Of course, suicidality is complex, and no individual tragic case can be directly attributed to them – but those things do cause harm to students (and universities are taking steps to address them).

Another issue is the difference between “activities that support wellbeing or seek to avoid harm” and “suicide prevention”. Physically restraining a student seeking to harm themselves is suicide prevention – clinical intervention and therapeutic pathways, which in my view should not be administered by universities, are suicide prevention.

A Universities UK note in response to the petition said,

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.

And this does not mean universities can dismiss the responsibility of not causing harm – which can be combined with various complex factors that lead to someone feeling suicidal, but not always. I am not saying that one instance of bad feedback, or an unpleasant assessment, is the sole reason for someone dying by suicide, nor should a university ever be blamed in this way. That would be preposterous. But universities might have a role in, for example, offering compassionate, trauma-informed feedback on assignments.

Universities are also already taking significant steps towards addressing racism, sexual harassment, the cost of living, and poor student housing. All of these can be argued as external to the “core educational experience”, but all of which universities acknowledge can have an impact on students’ mental health. Universities might reasonably point to all this work as evidence of why a statutory/legal framework is not required. But it doesn’t really address the problem of standards, consistency, and accountability.

The work being done on student suicide is top-level. It is right and appropriate that most of this work involves reducing direct responsibility on universities. Yet the focus on the end-point of suicide – which warrants a look at wider and more complex support systems as well as things like NHS systems and partnerships – has taken the debate away from the fact that there is a lot that universities can do to prevent students from experiencing harm.

Learning

What the Learn Network is asking for is what can reasonably be done and accommodated that avoids harm to students. This is not to say that universities will necessarily be liable if a student does experience harm but that universities should, at the very least, give consideration to the ways that students may experience it, endeavour to mitigate this, and demonstrate it has done this working if something does happen.

The nuance needed here is a way for universities to reflect upon properly and assume some responsibility for the way they interact with their students in light of tragedies – without fearing that by doing so, they are assuming liability for the tragedy. This is part of making a university campus a safe and respectful environment where all in the community can exercise autonomy over their own wellbeing.

And yes – perhaps in an age of destigmatising suicidal ideation, “it’s safe to talk” campaigns and mental health awareness weeks, it seems odd to be saying “downplay the suicide bit”. But when I spoke to Bob Abrahart, the father of Natasha Abrahart and member of the Learn Network, he articulated it in a way that makes a lot of sense:

Everyone thinks we’re talking about suicide because of Natasha. We are not – we are talking about compassion in assessment and grading. When we talk about ‘harm’, we’re talking about all harm, not just the extreme cases like ours.

Universities are understandably concerned about taking responsibility for student harm in the wake of these cases because of their severity.

Universities already have duties under the Equality Act (2010) to put in place support for people with disabilities (including mental health conditions), section 75 of the Northern Ireland Act 1998, and duties around the protection of children and vulnerable adults. But in Natasha Abrahart’s case, despite debilitating anxiety, she was denied alternative assessment because she did not have an “official” diagnosis. Natasha’s parents have managed to succeed on the Equality Act components of their claim legally. But not all who die by suicide are disabled, and not all students who are harmed die by suicide.

Students should not have to be “officially disabled” or “vulnerable” in order to protect their wellbeing. Funnelling students into a narrow definition – which can take months, or even years, to obtain from an external source – of who can and who cannot get reasonable adjustments is not “establishing a whole university approach to wellbeing.”

Universities (reasonably) claim that “students are adults and, as such, can generally be expected to take proper care for their own health.” Arguably, taking care of your own health involves making independent choices to protect your wellbeing – so is it not then reasonable that universities could be expected, at the very least, to give consideration to the range and kinds of choices and adjustments that might enable students to exercise that capability?

Show your workings

A statutory duty of care could stop short of assigning responsibility for suicide prevention and focus on how the institution can robustly demonstrate the ways it has given serious consideration to how it acts towards its students and how it can mitigate the potential for harm. A move away from – rightfully – opposing the role of being crisis responders or health workers, and a move towards thinking deeply about wellbeing culture on campus. Legal recognition matters but only alongside systematic change.

A survey of signatories to the petition conducted to inform the parliamentary debate on statutory duty of care saw respondents calling for initiatives that good universities already have – an opportunity to provide details of a “trusted contact”, study skills training (such as courses on coping with stress), arrangements to accommodate the needs of students with poor mental health such as extensions to assessment deadlines, mental health training for all student-facing staff (including training on neurodiversity), disability support, and student advice and counselling services.

Despite most of these being uncontroversial and widely adopted, 40 per cent of the students responding considered their university to be unsupportive or very unsupportive of their mental health. While obviously not representative of the wider population, there is some degree of disconnect here between what is notionally available to students to support mental health and how able they have been to access it.

Even if there was consensus on the minimum standard of provision, the accountability question still looms large.

This week a case was heard at the Royal Courts of Justice in which a student brought a case against their provider because she had not felt able to undertake her final assessment – a showcase that would have put her into proximity with another student against whom she had made a claim of physical and sexual assault. As a result, she withdrew from her course early and did not graduate with honours.

The case has yet to conclude – but the defence team are arguing she was not labelled “vulnerable,” and in absence of a legal framework for judging duty of care makes it much more difficult to determine what the reasonable responsibilities of the provider were to that student.

Whatever the outcome of this particular case, in the absence of a (well-articulated and thoughtful) statutory duty of care, cases like these will be decided in a piecemeal fashion, building up a body of legal precedent that may or may not be applied appropriately in future cases. There would be no practical, general framework – or set of agreed principles – to which universities can refer when dealing with complex cases moving forward to avoid future harm, and lengthy legal interventions when harm does occur.

There are still arguments that I’m not convinced by – for example, I don’t think that publishing the number of student deaths by suicide each year would help the sector to draw useful conclusions about its practice. Universities also need to be careful about the idea of “trusted contacts” – one aspect of the petition – as many students with mental health problems may find parents exacerbating them and wish to name an alternative. This would need to be clearly explained as to them as an option.

But the Learn Network’s call for serious consideration around universities’ duty of care and ensuring that students can engage in their learning fully and without hindrance or risk of harm should be heeded.