Student Wellbeing and the Prevention of Harm
The need to address student vulnerability and suicide has been acknowledged before but this is the first time that consistent sector-wide guidance has been proposed.
On 6 October 2022, UUK published recommendations for universities to encourage a more proactive approach when there are serious concerns about a student's safety or mental health.
Whilst undoubtedly welcome and needed, the recommendations reveal the ongoing tension between the desire to keep students safe and not unduly encroaching on their independence as adult learners who have elected to embark on an experience that should help prepare them for life challenges ahead. From a legal perspective it also draws attention to several important and related issues and raises questions about the complex relationship between HEIs and students.
Duty of Care for Students
The County Court judgment in the recent Abrahart case confirmed the fact that universities do not have a legal duty of care to their students.
When declining to take the novel step of finding such a duty in that case, the judge distinguished students at university from children in school or prisoners in the care of the state. Where the latter two examples are subject to a high degree of control, students are only subject to a university's rules and regulations and retain autonomy as adult learners enrolled by choice. As a result, it was not accepted that the university had a duty to protect a student from themselves.
In Loco Parentis
Perhaps much of the established thinking in this area stems from the concept of acting 'in loco parentis' - in place of a parent. Schools have long been recognised as acting in this way when pupils are in their care and it creates both authority over and responsibility for children which is delegated on a temporary basis by their parents. Usually, when a pupil completes their schooling and progresses to higher education they do so having recently turned 18 and becoming an adult. At that point, they engage in education not as a minor covered by the cloak of parental responsibility but as an independent participant with their own legal rights, responsibilities and choices.
Of course, such mechanical legal analysis places too much weight on turning 18. In practice, young people do not become instantly more capable, or resilient or self-aware when they become old enough to vote. They do not enter higher education as a fundamentally different person to the one who has just left school. It is therefore surely misguided to assume that university students do not need help or support unless they ask for it expressly or to use data protection as a justification for withholding grounds for concern from third parties who may be best placed to help.
Data Protection
Historically, the main obstacle to sharing sensitive information about students with third parties, including their own family, has been concern about data protection and breaching the right to confidentiality. Again, this is linked to the notion that students at university are autonomous adults with their own rights and capable of making important decisions for themselves free from interference by others. In truth, the law has never prevented the disclosure of personal information when done for the purpose of protecting an individual's wellbeing. Even sensitive special category data may be shared without consent where there is a lawful basis on which do so and this can include protecting the vital interests of the subject.
Opt-in Systems
The view that student welfare should be prioritised over concerns about data protection is far from new and as the new UUK guidance notes, several institutions introduced policies designed to facilitate information sharing without consent several years ago.
At the University of Bristol, a policy requiring students to provide a designated contact who can be contacted without consent if the university believes doing so would be in their vital interests has been in place since 2017 and maintains an opt-in rate of 90%. A similar system is in place at the University of Manchester and the University of the West of England, which sets out for students the circumstances in which the university may share information about them with an emergency contact without their consent.
What Next?
For many, the continuing lack of clarity around where the limits of institutional legal responsibilities for students lie remains a significant obstacle to ensuring that higher education institutions are safe environments for students.
On 19 September 2022, a petition was launched calling for the creation of a statutory legal duty of care for students in HE. The logic for this is said to be clear - HEIs should know what their duty is and students (and their parents) must know what they can expect. At the time of writing, it has been signed just over 6,500 times suggesting there is a good chance it will meet the 10,000 signature threshold required to trigger a government response before its closure date in March 2023.
It is also noteworthy that an application to the High Court for permission to appeal the Abrahart decision has been made. The hope is that, if granted, this will lead to greater clarity within the HE sector around the application of Equality Act duties and help providers to be more transparent to students and their families about the way in which support is provided.