Out-Law Legal Update
Individuals advised to check whether they can still claim entrepreneurs' relief
Out-Law Analysis | 17 Oct 2018 | 11:37 am | 10 min. read
The recent spate of student suicides at Bristol University and open letter from universities minister Sam Gyimah, which advised vice chancellors that the government regards the prioritisation of student wellbeing and mental health as "non-negotiable", underlines how critical supporting students with mental health is for the university sector.
The message that institutions need to do more to support their students and an awareness of the serious consequences for those students and their universities of getting things wrong, has resulted in growing scrutiny from the government and regulator the Office for Students of the way universities support students on mental health. This includes scrutiny of how universities ensure compliance with the legal framework which governs their relationships with their students. This has implications for the strategies which universities have developed for providing support to those students. This framework is complex and includes a mix of common law, contractual and statutory requirements.
Pinsent Masons, the law firm behind Out-Law.com, launched a whitepaper focussing on mental health to mark World Mental Health Day.
In shaping a strategy for supporting student mental health, universities should be mindful of their general, common law, duty of care to students when delivering services. This duty includes the provision of pastoral support and taking steps required to protect the health, safety and well being of students.
The extent of a university's duties in respect of mental health has not been tested in the courts and whether a duty of care arises, or has been breached, will depend on the facts of a particular case. However, there is significant risk that if an institution fails to meet its duty to its students it could lead to claims in negligence as well as internal complaints and referrals to the sector ombudsman, the Office of the Independent Adjudicator for Higher Education (the OIA).
Central to the question of whether it is fair and reasonable to impose a duty will be the proximity of the relationship between the university in question and its affected student or students, and the foreseeability of any injury. A further consideration will then be whether the university discharged its duty to the standard of care expected.
While in the majority of situations the standard of care expected will be that of an ordinary and competent institution, and those working with students with mental health difficulties – such as tutors, student support teams and counsellors – may be judged against the skills of an ordinary skilled individual exercising that skill, the standard may be higher where trained healthcare professionals are employed to support students. The difficulty for a university is that the greater level of basic pastoral support offered the higher the duty owed and the higher the potential risk of negligence if that support is not delivered.
In the case of students with declared or diagnosed mental health issues the duties may be enhanced and therefore a university needs to ensure that all staff, not just those who provide pastoral care, properly understand their roles and their responsibilities towards students with mental health difficulties. This can be achieved by training which enables all staff to have an awareness of when to seek specialist help either within or external to the institution. This may include creating a network across the university, NHS mental health services, social services and the police.
It is also important to ensure that the work of staff is supported by accessible and transparent policies and procedures which deal with the prospect of referrals, particularly where crisis situations arise, such as where a student has attempted self harm, suicide or is judged to pose a risk of harm to themselves or others, as well as situations where there is evidence of a student becoming withdrawn from any engagement with the institution. This is particularly important in situations where a student without diagnosed or disclosed health issues engages in behaviour which may indicate issues affecting their mental well being.
Support staff, including those working in student accommodation, the library and refectory, must also be trained to spot danger signs and ensure students can receive the support they need, as this can often be time critical in the case of potential suicide risk.
The relationship between a university and its students is governed by contract.
The student contract is subject to consumer law and regulated by the Competition and Markets Authority (CMA). The CMA's guidance to universities calls for any terms to be in an accessible form and to be clear and transparent in relation to the parties' respective rights and obligations.
In the event that a university breaches the terms of its student contract, either by non delivery of services or failure to deliver to a satisfactory standard, then it risks a student complaint. If not resolved internally, a complaint could then be referred to the OIA. This is in addition to potential claims through the courts for breach of contract, misrepresentation or for a breach of the Consumer Rights Act 2015.
The contractual position will impact on any consideration of a university's obligations to students who require mental health support as the contract is expected to cover both academic and pastoral services as well as any powers that the university reserves to deal with concerns regarding fitness to study, fitness to practise, academic progress or disciplinary issues. All promotional and other material, such as the university prospectus and course handbooks, may be regarded as forming part of the contract, and therefore they must give an accurate account of the academic and other support offered, and accurately reflect what support is offered by the university in practice.
In taking steps to set out accurately the nature of the support offered in relation to counselling and mental health support, it is crucial that the parameters of any support are set out and circumstances where services may not be available. Institutions should ensure that they comply with their legal obligations, deliver what students have 'signed up for', and manage the expectations of current and prospective students. This step along with the use of appropriate disclaimers and force majeure terms will help to minimise exposure to complaints and claims from students.
In situations where mental health issues arise, universities must also be careful to ensure that policies and procedures are not enforced arbitrarily against affected students. In particular, in cases where disciplinary allegations are made against a student with mental health, it may be that alternative approaches are required to avoid any allegations of discrimination under the Equality Act. In these cases it may be appropriate to have the power to cross refer a student to a 'fitness to study' process, or a procedure by which, in extreme cases, the university has the ability to consider a period of interruption of study rather than termination of registration.
Under the Equality Act 2010, it is unlawful for universities to discriminate, harass or victimise applicants or students on the grounds of a characteristic protected by the Act. Universities are also obliged to anticipate and put in place reasonable adjustments to avoid students with protected characteristics being treated less favourably.
As public bodies universities are also subject to an additional public sector equality duty under the Act which requires an institution to eliminate discrimination and foster equality of treatment when exercising its functions.
Applicants and students with mental health difficulties may be protected by the Act and institutions will need to pay careful attention to the duties owed to these applicants and students when exercising any functions, including making offers, enrolling students and delivering its services including not only academic matters, such as making awards, but also pastoral and accommodation services.
Universities are expected to show forward planning as the requirement under the Act is to anticipate the needs of disabled applicants and students and make positive steps to make reasonable adjustments to policies, procedures and criterion unless there is justification for not taking such a step. The justifications are extremely limited but may include impact on the financial resources available to the university, the need to maintain competence standards, health and safety, the interests of other students and practicability.
The problem for universities, however, is that what constitutes a 'reasonable' adjustment is not defined in law and is left to be determined by the courts in the context of the individual circumstances of a case. Therefore, while there may be justification for offering lesser or no adjustments where appropriate any certainty, in the event of a dispute, can only be achieved through litigation.
In the case of student mental health an adjustment could include developing study plans for students which factor in mental health needs. Better use of fitness to study processes, including providing for flexibility and time out periods should be considered. Universities should also make provision for rehabilitating students where they have been absent due to mental illness.
Universities also have obligations under the Health and Safety at Work Act. Under the legislation the university has a duty to take all steps which are reasonably practicable to ensure the health and safety of its staff and students, including their mental health and well being. A breach of the legislation may result in civil or criminal liability.
In the context of student mental health, institutions need to be able to show they have sufficient systems in place to manage and support students with mental health through student focused policies and procedures and access to related services, such as counselling.
While the HSE does not generally regard mental health issues in institutions as a priority it may investigate cases following unexplained student deaths or suicides on campus to identify whether appropriate arrangements were made to avoid foreseeable risks to students. Following the government's focus on prevention of student suicide risk there may be greater emphasis placed on criminal or civil prosecution in event of student death on campus in the future.
Universities face obligations to protect student confidentiality and privacy, with specific rules governing the use and disclosure of personal data, including sensitive information about students' mental health, governed by data protection law.
It is important that institutions manage expectations over what data they can disclose and when.
Institutions have faced calls to disclose mental health data of their students to parents or other trusted persons. Disclosure of that data may be lawful without students' consent where high risk circumstances arise, such as where students are at risk of self-harm or suicide, where it is deemed necessary to prevent those outcomes materialising. However, this is very much a fact sensitive question in each case.
Universities should closely watch how plans outlined by Sam Gyimah, the universities minister in England, develop. He said he would explore a new mechanism where students could opt in to permit data concerning their mental health to be shared with those individuals.
In the event that a suicide or unexplained student death occurs on campus it is likely that the local coroner will be called to investigate. In the event of an investigation, the police are likely to act as officers for the coroner and collect evidence to support the enquiry, and any subsequent inquest.
In these cases a university may have to provide evidence and personnel may be called as witnesses. The inquest will be in a public forum and witnesses can be questioned. The coroner may make formal recommendations to prevent future deaths which may have implications for the institution.
The Human Rights Act enshrines freedoms guaranteed under the European Convention on Human Rights in UK law. It includes the Article 2 right to life, Article 8 right to respect for privacy and family life and the Article 14 prohibition of discrimination. These provisions can often be used by individuals challenging mental health related decisions. We have also seen more use of Article 2 in framing claims against public authorities in cases of unexplained deaths or suicides of persons within their care or control.
The universities minister has advised all UK university vice-chancellors that tackling student mental health issues must be a top priority and that this is "non-negotiable".
Therefore, institutions not only need to ensure compliance with their legal responsibilities, but also that students thrive and are well-equipped and supported to realise their potential both academically and personally.
This will not only involve universities investing more in their support and counselling networks, but require a more joined up approach to the issue of student mental health which is reflected within the character of a university itself. Supporting student mental health must become a strategic aim of an institution and be reflected in the design of policies, procedures and training as well as the integration of consistent good practice across the institution.
Part of that work will involve universities positively engaging with potential students who flag mental health issues at the pre-admission and admission stages to better plan support for needs. Another aspect will be making sure that universities have student contracts which provide clarity around support available and that implementation meets the standards required by law.
University policies and procedures must also be sufficiently robust to deal with the impacts of mental health on a student's fitness to study and avoid discrimination. Study plans for students should factor in mental health needs. Better use of fitness to study processes, including providing for flexibility and time out periods, should be considered. Universities should also make provision for rehabilitating students where they have been absent due to mental illness.
Adequate resourcing of mental health services, and ensuring staff are sufficiently trained, is also important. Institutions could use regular review and feedback mechanisms to check the demand on and effectiveness of their services.
Staff training and development should include mental health awareness training and also stress management. This is supported by recent guidance published by Universities UK and the charity Papyrus on how universities can develop suicide safety strategies, including training staff on interventions.
All levels of staff should be considered, in particular front-line staff working in student accommodation, cafeterias and library services, for example. This training should be reviewed regularly to maintain effectiveness and be underpinned by appropriate policies and procedures which ensure that students are supported and referred to specialist services.
In urgent or high risk cases, it is also important that trained 'case conference' teams can be quickly mobilised comprising a range of multi-disciplinary stakeholders, but this clearly requires further investment in advance training and strategic planning for those individuals.
The forthcoming development of the new University Mental Health Charter, backed by universities minister Sam Gyimah, is also a project that institutions should engage with. The charter promises to set standards for institutions to meet on the level of support they provide students and staff on issues of mental wellbeing.
Julian Sladdin is a university dispute resolution expert at Pinsent Masons, the law firm behind Out-Law.com. Pinsent Masons launched a whitepaper focussing on mental health to mark World Mental Health Day. To read more and download our paper please visit our website here.
Out-Law Legal Update
Individuals advised to check whether they can still claim entrepreneurs' relief