With a rise in mental ill health among students, we examine the legal obligations on education institutions.
Well-publicised tragedies have raised public awareness of the rise in mental ill health among students. It was reported that in 2017-18, 95 students committed suicide, while the proportion of disabled students with mental health problems is said to have virtually doubled in four years. If a tragedy occurs, an inquest will be held. The knowledge and actions of the institution may be scrutinised in public by the coroner.
Do institutions have to protect students from the consequences of their own mental ill health? Might this trend encourage claims from students who would argue, after the event, that they were entitled to be better protected from themselves? If things go wrong, what are institutions’ legal exposure and how can they defend themselves?
There is no shortage of policy announcements and politicians' exhortations: The Education Secretary in December 2018 called on universities to do more to follow up emergency contacts where a student was at risk of a mental health crisis. Increasingly, it is proposed that universities obtain students’ consent to notify family members where they may become worried about the mental health of someone who appears vulnerable, at risk of self-harming or even of suicide. But an institution which gains this right e.g. by taking consent from a newly registered first-year student, may risk a form of legal double jeopardy: either being held to have assumed a duty to intervene when, after a harmful outcome, intervention appeared with hindsight to have been the right option, or of being accused of breach of confidentiality by a student who had not wanted family members to be told of a personal issue.
There is a statutory duty on institutions to protect others on site from risks to their health and safety, through taking reasonable measures. Recently the Office of the Independent Adjudicator for Higher Education (OIA) dismissed a complaint by a student who had been excluded from campus for disruptive behaviour that was seen to pose a risk to others. Notwithstanding that the institution had no proof at the time that the disruptive behaviour was due to the mental ill health of the student concerned, the OIA held it was justified in protecting others. However, this duty only requires institutions to conduct their own affairs to protect people against such risks. It would not necessarily apply where the risk of illness or self-injury was not directly increased by the institution itself.
Of course, a student with a known disability has rights under the Equality Act 2010, including the duty on institutions to make reasonable adjustments. Questions include at what point low mood, depression or despair amount to a disability and whether institutions are responsible to identify persons experiencing this. When it is made known, those students must be entitled to support. But apart from disability, is there a more general legal duty to identify those at risk of self-harm or suicide, and, where the risk is known about, to intervene?
Much is heard of a (or ‘the’) duty of care owed by institutions to students. This may be simplistic. Often, the real issues in any case are, firstly, from what harm the duty entitles the student to be protected (clear examples being physical injury from defective premises or equipment, and injury to the feelings of a disabled student, if caused by discrimination or harassment). Secondly, what is the scope of the duty, namely, what actions is the institution properly required to take to try to avoid such harm?
As yet, a universal legal duty to protect all students from self-harm or suicide, on or off campus, cannot necessarily be assumed. The moral duty is obvious!