Where’s the line? How far should universities go in providing duty of care for their students?
As part of its policy work, AMOSSHE hosts a series of strategy and policy discussions, called AMOSSHE Futures. This AMOSSHE Futures policy breakfast took place from 10:00 to 12:00 on Friday 29 May 2015 at the AMOSSHE National Office, London.
Here’s AMOSSHE’s latest position on a proposed additional statutory duty of care from June 2023.
The topic was ‘Where’s the line? How far should universities go in providing duty of care for their students?’ Mandi Barron, AMOSSHE Executive Member and Head of Student Services, Bournemouth University chaired the discussion.
Participants included representatives from the following organisations:
Association of University Legal Practitioners
Brunel University
Buttle UK
City University London
Eversheds LLP
NAMSS (National Association of Managers of Student Services)
New College, Oxford University
Nottingham Trent University
University of the Creative Arts
USHA (University Safety and Health Association)
Winchester University
The discussion covered a number of areas, including the conflict between legal and moral responsibilities on universities, the difference in the challenges based on the size of the organisation, and the challenges of running further education services (with under 18s) in a higher education-based environment.
This paper does not represent the policy stances or convictions of AMOSSHE or any of the groups in attendance. The paper is intended as a record of the issues considered and a starting point for further conversations.
What is the impact and understanding of duty of care from a legal perspective?
Part of the difficulty in providing a legal definition of an institution’s duty of care within a higher education environment, especially surrounding student mental health, is that student law is still evolving and on many issues is largely untested in the courts.
In essence, a university has a general duty of care at common law: to deliver its educational and pastoral services to the standard of the ordinarily competent institution, and, in carrying out its services and functions, to act reasonably to protect the health, safety and welfare of its students. Generally, as a minimum a university should offer a basic welfare service to students to provide confidential guidance and support on health and disability as it may affect their academic studies and progression. That basic service should include some form of effective triage system by which the university can identify those cases in which it is able to provide appropriate assistance itself, and those in which it needs to direct / refer students to external specialist and/or emergency support services.
Institutions also have a duty under the Health and Safety at Work Act 1974 to do everything reasonably practicable to ensure the health and safety of their students.
In order to assist it to discharge its duty of care, a university needs to ensure that it has in place effective and robust systems, policies and procedures for supporting and managing students, and that training and awareness-raising is provided for staff.
The group agreed that there is a balance between what the university should do as a legal minimum and what they could do based on a university’s perceived moral obligation to look after and support its students. These days reputation more often plays a part in university decisions regarding recruitment and retention of students, and the potential negative publicity associated with high profile student incidents - where it could be alleged that a university should have provided greater support - may influence the services a university chooses to provide. As student retention is an important target for most universities, there may be an expectation that directors of Student Services ensure students continue on their course until all avenues of support are exhausted.
Personal information about students’ physical and mental health or disability is sensitive in nature and needs to be processed by universities fairly and lawfully under the Data Protection Act 1998 (DPA). It is important that staff fully understand the implications of the obligations under the DPA, including the circumstances in which personal information (including sensitive personal data) may be lawfully disclosed by the university in the absence of a student’s consent to disclosure. Students are expected to provide emergency contact details to their university, and the university needs to ensure that its use of those details is appropriate not in breach of the DPA. Some students may not wish next of kin to be involved in welfare issues, and indeed disclosure to unauthorised third parties may occasionally place students in personal danger. Robust systems, a good clear audit trail and consistent staff training is essential to help the university comply with its legal obligations and to assist it to demonstrate compliance if a case was brought against them by a student and/or their trusted contact.
The DPA does not make a distinction between individuals who are over or under the age of 18. Rights under the DPA are broadly based upon an individual’s capacity to understand his or her rights. As a general rule, this will be from around the age of 12/13. Only where a student is not reasonably believed to have capacity will third parties such as parents be able to enforce those rights on behalf of the student. This is a determination that must be made on a case by case basis.
Where do we draw the line when a student is not engaging with the university?
Not all students have personal support outside the university, and this may apply particularly to groups such as care leavers or students who are estranged from their families. In this case, where does the university draw the line? The student might feel that the university is really their home, but they have been deemed unfit to study and asked to take a leave of absence from their course. Would the institution be making them homeless or more vulnerable as a result of their decision? What reputational effect may this have on the university? Does this extend to international students?
The moral argument on action and support differed from large and small universities represented, but there was an agreement that a situation could be exacerbated (and a university’s reputation potentially damaged) if a decision is made on moral grounds or too much support is offered, therefore complicating the issue and removing consistency of approach. This could lead to inconsistencies in dealing with similar situations, increase in student complaints and a focus from the media, especially in circumstances of student death.
What are the differences of support for staff and students based on the student’s age (under or over 18)?
Further education colleges have a specific statutory safeguarding duty for students under 18 years of age, but this specific statutory duty does not apply to higher education institutions. With more further education colleges and universities running more higher and further education courses respectively, the issue of tailored support is becoming a larger issue. Universities are geared up to support over 18s and therefore support and understanding of the differences in support for under 18s is an issue. This may be the same in reverse for further education colleges. The nature of the duty of care may be enhanced for institutions where a student is under the age of 18.
Student Services may face a challenge in providing all services for both over and under 18s over and above legal compliance (trying to do as much for the student as possible from a moral position), so there should be a focus on providing services based on legal compliance to ensure a good base on which to build processes and procedures, and then build in additional support around this where resources allow.
Smaller institutions may have more of a focus on individual student welfare due to their closer relationship with the students and the scale of the support required for their students, which may not be realistic for larger institutions. Is this a potential advantage of attending a smaller institution, or does this cause an inconsistent approach to student welfare across the sector? Larger institutions may have more bureaucracy in place with regards to process and procedure, which may make some cases more complex to manage than they might otherwise be.
It was agreed that no matter what the size of university or level of study, staff training, consistency of delivery and outcomes based on good audit trails and support are essential to protect students’ mental health and protect the university against reputational damage. It was noted that there seem to be some similarities across training needs to both students and staff, and this could be a potential avenue for further exploration to help universities keep costs as low as possible.
Institutions are education providers not health providers, what does this mean in practice?
In a number of locations across the country there is a tension between university counselling services and local NHS services about who should be providing the support. Considering that students are local residents, should universities be providing counselling services at all? Instead, in order to assist institutions to discharge their legal obligations, universities could signpost students to local services. This could bring up a number of challenges and opportunities:
A university would need to give very careful consideration to any proposal to cut their counselling services completely, including from a reputational and moral perspective.
If you have these services there almost seems to be an obligation to grow them in line with student need, especially if there are demonstrable and clearly evidenced benefits to students, retention levels and study outcomes.
Dependent on the effectiveness of local services, issues with student safety (themselves and others), student retention and staff safety would need to be addressed. Local services may also take longer to access than internal services.
Where provision is delivered externally, staff training (for academics especially) needs to focus on signposting to local services, and staff need to have an understanding of when this is appropriate and how students can access these services.
Universities would still have legal obligations to discharge, including in respect of emergency situations.
Universities that consider that they should have counselling services should be very clear about the boundaries of what should be supplied within that service.
Many round the table agreed that expectations of support offered by an institution, and the extent of the support offered by an institution, should be made very clear before the student contract is made.
The phrase ‘complex cases’ is being used more often within Student Services, so what exactly do we mean?
Students who access a variety of support from a range of services across the university.
Students who involve a number of staff / services to try and get their desired result, causing it to become more complex due to the people involved.
Universities themselves making simple issues into ‘complex’ ones by virtue of how they are dealt with internally.
The focus of the issue changing during the process of dealing with it as more details emerge.
The case is hard to resolve to the satisfaction of the student and university.
The group agreed that on a number of occasions decisions may often need to be made sooner to prevent this escalation and to prevent hitting difficult moral decisions.
Whilst issues may change and student law develop, there are a number of key legal principles to be kept in mind. Universities need to be consistent in dealing with situations based on the law. Staff training is extremely important to ensure consistency of approach. Sometimes it is beneficial to get other services involved. For example, dependant on the situation, getting university health and safety professionals involved in the formulation and implementation of support arrangements. In such a case, this may be very helpful because these professionals can look at the legal implications of a situation and identify the level at which an institution should operate, and offer advice on this basis.
This conversation shows the complexity of duty of care obligations on universities, whether these are legal or self-imposed. The consensus around the table was that AMOSSHE could work with relevant organisations in the sector to produce a framework on duty of care, based on the legal obligations of an institution and some well thought-through guidance and good practice on the moral obligations of universities. This would help create a feeling of consistency across the sector and some practical guidance on where to draw the line whilst giving freedom within the framework for universities to stamp their own mark on the support they provide.
Other requests from the group included advice and guidance on staff training, managing the expectations of students and staff, guidance on data protection (also included in the framework) and sharing good practice across the further / higher education boundary.
AMOSSHE will seek to develop further work on duty of care for the benefit of the sector during the coming year.
