Schools, colleges and universities who are excluding students for being mentally ill or conveying suicidal ideation are plainly discriminating. Students with mental infirmities or illnesses are seen by schools as an undesirable source of liability, should the student’s mental infirmity culminate in suicide or otherwise harmful behaviour.
This article will explain why schools and colleges should definitely not be taking this approach with students who have mental illnesses or convey suicidal ideations.
One of the major legal reasons expelling / excluding students for a mental infirmity is not a viable way to approach the issue is because doing so constitutes discrimination.
Not only does this approach risk stigmatising, labelling and being potentially very unhelpful to the student, it breaches their legal right not to be discriminated against on the basis of their mental illness.
Section 7(h) of the Anti-discrimination Act 1991 (Qld) prevents discrimination on the basis of “impairment”, which includes a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. This is regardless of whether the impairment presently exists, or previously existed but no longer exists.
Furthermore, section 39 of the Anti-Discrimination Act 1991 (Qld) prevents discrimination by an educational authority in a student area:
- in any variation of the terms of a student’s enrolment; or
- by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority; or
- by excluding a student; or
- by treating a student unfavourably in any way in connection with the student’s training or instruction.
Duty of Care
Schools owe an overriding duty of care to prevent harm to students, staff and third parties. This duty extends to ensure and protect the health and safety of all students. This duty would also include a duty to secure whatever medical attention would be required to ensure the immediate health and safety of the students. This primary duty generally supersedes any other legal or legislative obligation that may be imposed on schools. Balancing a response to the potential harm to a mentally ill individual with the potential harm to the school and wider school community may be difficult, but is certainly possible if reasonable steps are taken.
Colleges and universities in America have had to deal with this as a growing problem. The case of Elizabeth Shin, who committed suicide in her dorm room, was settled out of court in April 2006 after her parents filed a $27 million wrongful death claim against her university. The parents argued that because the university was aware of Elizabeth’s problems, this gave rise to a “special relationship”, which would involve a higher duty of care; this would also require the university to inform Elizabeth’s parents. It was argued that the Dean of the university was not bound by the same confidentiality requirements as Elizabeth’s psychiatrist, and therefore could have talked to the parents about Elizabeth’s issues.
“Special relationship”, in this American context, enables parents to sue universities for failing to prevent against harm and suicides of their children; this can be contrasted with the Australian duty of care.
In Australia, as soon as a school has knowledge of a student’s increased risk of harm, the standard of care the school owes to that student would be heightened, and the school would be obligated to take extra, reasonable precautions against that harm.
This means that a school must take all precautions and steps that a reasonable school would take to prevent foreseeable harm to the affected student, all other students, staff members and third parties.
If the school notices or becomes aware of a student with pressing mental issues, without acting on this knowledge, the school may be in breach of their duty of care obligations.
If the affected student is displaying concerning behaviour, for example if they talk about self-harming or suicide, it may be appropriate to send the student home until a medical practitioner can confirm that their mental vulnerability has been addressed to the extent that it is safe for them to return to school. This is not formally expelling / excluding the student. Approaches such as this have sometimes been criticised for stigmatising or labelling affected students, however it is a practical approach that if used in the right circumstances, not only enacts the school’s duty of care, but may also provide immeasurable help to the student.
It is important to ensure that using such a strategy does not punish the student. That is, the school must provide special consideration that allows the student extra time to complete work, provide extra tutoring, lessen the student’s workload or provide adequate makeup assessment to the student to accommodate for the time spent obtaining treatment.
Practical steps that a school could take in response to knowledge of a student’s mental illness, condition or out of character behaviour may be as follows:
- Arrange for the student to visit the school nurse and obtain the nurse’s opinions on the student’s health;
- Discuss this matter with the teacher directly responsible for the student (class teacher, home room teacher) and obtain the teacher’s thoughts on the student’s health, behaviours and activities in recent times;
- Review the student’s recent school reports for changes or patterns in the student’s results, participation and involvement in school activities;
- Based on evidence from the nurse, teacher and reports come to a conclusion on the student’s health;
Advise the student’s parents, in writing, of your concerns, enquiries and conclusions and outline the school’s response which, if appropriate following discussion with the parents, may be that:
- the student is to be removed from school until the student has obtained a medical certificate from a certified medical practitioner confirming the student is well enough to attend school; and
- on the student’s return to school, the school reserves its right to have the student independently assessed as to their physical and psychological wellbeing.
In implementing the above:
- ensure proper access to counselling is provided and appropriately encouraged;
- offer to work with parents and facilitate an appropriate medical assessment;
- provide training for staff members to recognize the warning signs of depression, suicide ideation and other psychological conditions and illnesses;
- update school policies to reflect a balanced and compassionate approach to dealing with students with mental illnesses, which requires action on the part of the school;
- ensure relevant policies are properly implemented and enforced; and
- obtain formal legal advice where appropriate.
Dealing with students with mental illnesses, infirmities and vulnerabilities may be difficult at times, but it is an area where schools must strive to fulfil their obligations professionally and compassionately.
If a school provides an approach to mental illness among students that is comprehensive, applies common sense, is legally sound and communicative, not only will the individual student benefit, but also the wider school community.