Authoring articles on Duty of Care for Students in Higher Education

A few weeks ago, two pieces of work were published which I co-authored on the issue of Statutory Duty of Care for Students in Higher Education. Both pieces were researched and written together with Robert Abrahart, Lead Campaigner at ForThe100 and father of Natasha Abrahart. As parents of students who had died by suicide at university, we felt compelled to articulate and speak out about the government’s current proposal for a national review of student suicides in higher education and a recent landmark court judgment about duty of care to students in relation to allegations of sexual misconduct (Feder and McCamish v The Royal Welsh College of Music and Drama).

Both Kuljit (aka. Kooj) and I are members of ForThe100 which is a national group campaigning for higher education students to be owed a minimum standard of legal protection in a Statutory Duty of Care. The group want a clear legal requirement for higher education institutions to act reasonably and responsibly, so that students are not harmed by things institutions do (acts) and/or things institutions fail to do (omissions). Most importantly this would mean such institutions could then be held legally accountable for any negligence that resulted, in reasonably foreseeable injury to a student, through a more structured and legally enforceable route. 

Families and students struggle to hold higher education providers to account for negligence. The ambiguity which surrounds the current legal position means that most lawyers will not take on such cases and even if they do, then the restricted timescales imposed on representations and the legal costs make it very difficult. In the court case against the Royal Welsh College (mentioned above), it is estimated that the legal costs of the claimants were £350,000.

As we documented in ‘Preventing Student Suicide At Universities – Case Report – Naseeb Chuhan’ (2023) there is no independent complaint route for families to hold universities to account when a student dies. Leeds Beckett University refused to investigate a comprehensive complaint we submitted about our concerns relating to academic and pastoral care and also the University Wellbeing Service. Our complaint was based on thorough research, clearly presented and backed by documented evidence. The University did not even conduct a review after Naseeb died to try and learn from any mistakes made.

One of the reasons we produced our Case Report was to clearly document what happened to Naseeb so that organisations could learn from this. Arising from our research we then recommended actionable changes that could be implemented to prevent such suicides.   

Based on the evidence presented at an inquest, coroners can issue a Prevention of Future Death (PFD) report to institutions. However this system has variable efficacy. Coroners are rarely experts in how universities function, so the breadth and depth of evidence gathered may be limited. The scope of an inquest can be arbitrarily restricted by a coroner and the issuing of a PFD is dependent on the Coroner’s discretion. Furthermore, responses by institutions to PFD’s are rarely scrutinised to the level of ascertaining if effective changes have actually taken place.

Currently a Common Law duty of care in relation to higher education students remains elusive. Common Law is the body of law developed by judges through decisions in individual cases, which are then applied as precedents in subsequent cases. This type of law is essentially developed from a judge’s recorded judgments on how, for example, they applied the legal principle of duty of care to a specific case that has a certain set of circumstances. The courts with the ability to bind the courts below are the Supreme Court, the Court of Appeal and High Courts. To get a precedent the case needs to be heard by at least the High Court which is often a complex and costly business.

Statutory Laws are codified (arranged into a system) and come into being via Acts of Parliament. This means they are not reliant on the doctrine of precedent by which novel ideas in law can take decades to be followed as law.

Establishing the higher education sector’s duty of care to students within the current vague and contested arrangement could take a very long time. To date the aforementioned Royal Welsh College case is the first time a judge has ruled that universities owe any duty of care to students, albeit specifically in relation to allegations of sexual misconduct. Overall, the current situation remains that most higher education providers deny they owe a duty of care to students. The government and some higher education representative organisations state that an overall duty of care is owed by universities to students, but they cannot reveal any actual evidence for this belief.

Following a petition for Higher Education Statutory Duty of Care towards students organised by bereaved families, there was a parliamentary debate on this issue in June 2023. The Government rejected requests to introduce legislation and instead set up a Higher Education Mental Health Implementation Taskforce. Institutions are being asked to voluntarily commit to ‘good practice’ by signing up to various charters that lack accountability or the ability to be enforced.

This approach is very similar to the government’s recent rejection of the ‘Hillsborough law’ to prevent future police cover-ups, which the families of the 97 people killed in the 1989 disaster have been campaigning for. Instead, the government has simply signed a ‘Hillsborough charter’, that commits to transparency after a public tragedy.

One of the objectives of the Taskforce is to set up a National Review of Higher Education Student Suicides that has many worrying limitations. This led to me co-authoring a report produced by ForThe100 which is an ‘Evaluation of the September 2023 Proposal by the Government’s Higher Education Mental Health Implementation Task Force for a National Review of Higher Education Student Suicides’. The report was signed by 15 families bereaved by student suicide and shared with the Minister for Higher Education, members of the Taskforce, MP’s and various media outlets.

Recurrent student suicides demonstrate that university lack of care, neglect and in some cases abusive behaviour, can allow student crises to develop. The evaluation details at least nine areas of significant shortcomings in the government’s proposal which, in our view, is based on an unsafe methodology and lacks accountability, transparency, impartiality and independence. Furthermore, the omission of a robust system for retrospective reviews means the higher education sector is not learning from previous failings. This leaves current and future students at serious risk of potential harm. At the very least this means that even the current questionable and elusive form of duty of care to students is not being properly scrutinised.

The Higher Education Policy Institute (HEPI) also recently published a blog article which I co-authored. HEPI is an independent thinktank devoted to shaping higher education policy debate through evidence. The article analyses whether the government has any legal basis for asserting a duty of care to students in higher education under Common Law. This is with reference to the recent court judgment, Feder and McCamish v The Royal Welsh College of Music and Drama, relating to allegations of sexual misconduct made by students and how these were handled by the college.

Thank you to Liz De Oliveira for contributing a clarification of legal systems in the writing of this blog article.