UK parliament to debate university statutory duty of care towards students

Higher education expert Julian Sladdin of Pinsent Masons said that providers in the UK should take note of a petition calling for a change in law to impose upon universities a statutory duty of care towards students in the same way an employer has towards its employees. Such a law, if introduced, would mean that universities would have a duty to protect their students from reasonably foreseeable harm, caused by either direct actions or a failure to act. The petition highlights the growing pressure on universities to provide more efforts and resources to support student wellbeing and prevent student from harm and suicide.

Sladdin said that universities currently do not have the same defined legal duty for safeguarding their students as colleges and schools have. They have a more limited duty of care to ensure that students have a safe environment in which they can live, work and study.

“This duty of care may apply when a student is physically on campus, in student accommodation, undertaking placements or overseas study, participating in sports or social activities away from campus, or when studying online depending on what responsibilities have been assumed. Whether a duty of care arises, or has been breached, will depend on the facts of a case,” said Sladdin.

However, a duty of care does exist for staff and for students under the age of 18 in higher education. Families behind the campaign are seeking parity and legislative clarity on a duty of care for all students in the higher education sector. The petition has reached the 100,000 signature threshold at which a debate in parliament is considered, and this has been scheduled for 5 June.

The Department for Education stated in its response to the petition that “higher education providers do have a general duty of care to deliver educational and pastoral services to the standard of an ordinarily competent institution and, in carrying out these services, they are expected to act reasonably to protect the health, safety and welfare of their students. 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.”

Also in its response, the Department for Education referred to data provided by the Office for National Statistics (ONS) on suicide among higher education students in England and Wales, which showed a significantly lower suicide rate in HE students compared with the wider population of similar age.

The government body said that “further legislation to create a statutory duty of care, where such a duty already exists, would be a disproportionate response.”

The duty of care owed to students by universities was explored in detail recently in a case brought against The University of Bristol by the family of a student named Natasha Abrahart, who died by suicide while studying at the university. In this case, the judge found no duty was breached by the university, although he said that if there had been a duty of care it would have been breached for the same reasons as the claim which succeeded under the 2010 Equality Act.

“While it remains to be seen whether parliament consider a change in the law is required, student wellbeing will continue to be high on the agenda for universities. Since the Abrahart case, universities are being subject to further scrutiny at inquests and could be open to further challenge in the civil courts for claims under the Equality Act,” said Sladdin.

“As the law continues to develop in this area universities should ensure greater clarity around roles and responsibilities when it comes to student wellbeing and more joined up thinking and cross departmental collaboration to avoid the types of issues the Abrahart case highlighted. There would undoubtedly be a benefit to providing better funded NHS mental health support to enable easier and more effective referrals for students experiencing poor mental health while at university,” he suggested.

Health and safety law expert Sean Elson of Pinsent Masons said: “Recently, we have seen various coroners’ courts across the UK conduct complex and in depth inquests into the deaths of students that have died by suicide. Universities are being required to play an increasingly central role in such inquests often being asked to provide witness evidence and submit detailed information about their policies and procedures in relation to student wellbeing for review and consideration by the coroner”.

“Whether or not a statutory duty is imposed, we expect in depth assessments of how universities manage student wellbeing including the steps they take to learn from any student death will continue to be high on the agenda in inquests into student deaths by suicide,” he said.