It is a truth, universally acknowledged, that any social issue with sufficient clout must be in want of a mandatory duty of care. That current issue at the moment is the complex and conflicted debate over whether Higher Education (HE) universities in the UK should be subject to a legal duty of care for the mental health of their students. The debate follows on from the legal case brought by the parents of Natasha Abrahart, a student at Bristol University, who took her own life.
Their case succeeded in establishing that the university had breached the Equality Act 2010 by failing to make sufficient reasonable adjustments, such as offering alternative ways of demonstrating oral presentation skills, given her known depression and social anxiety. However, their case failed to establish that the university owed Natasha a duty to prevent her suicide under a common law duty of care. This potential landmark case is currently under appeal and is likely to be heard soon.1
Any case of suicide is a major life altering event for all those affected, directly or indirectly. Recent media publicity over apparent clusters of student suicides at certain universities has raised concern amongst the public that perhaps more could be done to intervene and prevent such tragedies. There have been calls for universities to be subject to a statutory duty of care for students’ mental health, to share more information about student mental health and to publish information about student suicide rates. This article will consider the arguments for and against the adoption of an extended duty of care by universities, and put this in the context of other legal challenges currently facing Higher Education.
Duty of care and suicide risk
Linking the issue of duty of care to students to suicide inevitably and rightly brings a powerful emotional charge to the discussion. University counselling and mental wellbeing services are constantly facing the huge challenge of accurately assessing risk of major harm to self, and managing this risk effectively, in close liaison with General Practitioners (GPs) and the statutory mental health services. However, the crucial irony remains that universities are not primarily tasked with providing mental health care. They are, self-evidently, educational institutions, which have taken on an increasing role in terms of mental health provision for students, but without any clear legal mandate requiring them to do so. As a consequence, their responsibilities for providing such care, and the limits of such a remit, remain very unclear. This uncertainty can apply in relation to their liability for students at high risk, who may be on a waiting list for counselling for extended periods of time.
Perhaps counterintuitively, in what can be perceived as a high-pressure counselling environment, HE students are actually at significantly reduced risk of suicide, with a declining rate of suicide, although levels of suicidal ideation may remain worryingly high for this group (See Figure 1: Suicide rate among Higher Education students 2000-2020).
In addition to this, ‘higher education students in England and Wales had a significantly lower suicide rate compared with the general population of similar ages’ for the period 2017-2020.3 The suicide rate in the general population is almost three times higher than for students. This might suggest, paradoxically, that attending university, while stressful for many, is actually protective to some extent against the risk of suicide. Whether this reduced risk of suicide is due to the high level of university mental health provision remains unclear. Still, students arguably have more immediate access than their peers outside university, not just to a wide range of tailored support services, but also to the standard support available via their GP, NHS Talking Therapies (previously known as Improving Access to Psychological Therapies) and psychiatric services within the community.
Pressure for increased wellbeing provision
The pressure by parental lobby groups to enforce a specific duty of care on universities towards students is perhaps made more complex by the increasingly vocal demand for greater provision of generic wellbeing services. Managing suicide risk may figure strongly as the persuasive edge of a forceful campaign to widen the university’s duty of care. However, the reality is that services are frequently struggling to meet day-to-day demand for non-critical, if still distressing, conditions which ostensibly require wellbeing support. It is as if university services are currently besieged by the adult offspring of the formerly ‘worried well’, in the now passe term to describe client groups formerly accessing counselling in primary care.
This unrelenting background demand can all too easily obscure the parallel task of identifying and responding to students at high risk of suicide. There can be further complexity here, given the sometimes ambiguous overlap with provision for students with mental health conditions, who are seeking support on the grounds of disability. Accurate prediction of individual suicide risk remains an elusive goal, although recent research offers tentative and potentially rewarding lines of enquiry. For example, it is known that adults with autism are 11 times more likely to end their lives by suicide than the general population.4 Equally, the wider use of safety plans is endorsed by a meta-analysis, indicating that it can reduce suicidal behaviour (though not ideation) by almost half.5 There is also research evidence that brief interventions (up to three contacts) can effectively reduce suicide risk behaviour.6
However, there are definite limits to this skewed way of perceiving counselling services as an imperfect suicide prevention scheme, one now apparently in need of robust legal reinforcement via a new, extended duty of care. Thus, according to research, almost 90% of students who died by suicide were not in contact with student counselling services at the time.7 The problem is replicated in the statutory sector, given that three quarters of those who died by suicide were similarly not in touch with mental health facilities at the time of their death.8 This might well raise the question, How can universities, or their counselling services, be held legally responsible for failing to prevent the suicide of students who are largely unknown to them? The suggested answer is that imposing either a statutory or an extended common law duty of care could force universities to become more vigilant, and hopefully become more effective in preventing or mitigating the risk of student suicide.
Putting students at the heart of decisions?
The debate has already begun in a sense, with pressures for universities to offer ‘opt in’ provision by naming trusted contacts in the case of a major threat to their health or life. This has been termed the ‘triangle of care’ and is offered as a preventative measure.9 However, while consistent with data protection law, this measure still appears to be deeply flawed. The approach may claim to put ‘students at the centre of decisions about their care’. However, this claim applies only right up to the point where the student is suddenly evicted from the central crux of decision making ie if they withdraw their consent to information-sharing. Clearly, there are well-established defences in law for breaching client confidentiality without consent, either on the basis that a person lacks capacity or in the public interest, namely to prevent harm to self or others. These legal defences obviously apply to all adults and not just to students.
However, the long reach of universities into the terrain of advance student consent carries risks, not least the one of making students a special case, with significantly reduced protection for their confidentiality. It also seems, not so much infantilising, as infantasising, by offering up an image of perfect triangular care, with the student as the baby somehow safely held by this parental arrangement. This approach risks removing all sense of adult choice, agency and responsibility for self-care from adult students, who are, after all, no longer under-age adolescents. We seem to be on the cusp of constructing a new category of ‘vulnerable adults’ here, based solely on the fact of their attendance at university.
Next in this issue
The triangle of care has one further serious flaw. The unasked and hence unanswered questions in so many coroners’ inquests into student suicides include: What awareness, if any, did parents and family have of a student’s suicide risk, and was this knowledge communicated in advance to the university, or to a relevant mental health service? Without such advance knowledge by the university, or demonstrated agency by the student (or their immediate circle of friends) in actively seeking help for suicidal behaviour, counsellors risk being held responsible under law for fatal acts of self-harm which are extremely hard to predict, or to prevent.
Defining a legal duty of care
So, how would imposing a duty of care change this situation? Universities already operate under a complex legal framework, composed of a combination of contract law, education law, equality legislation and health and safety law. Under negligence law, there are three criteria:
• the defendant (eg therapist) owed the plaintiff (eg client) a duty of care
• there was a breach of this duty
• the breach directly caused resultant foreseeable harm to the plaintiff.
Harm can be physical, and/or psychological, in the form of a psychiatric condition such as clinical depression, or post-traumatic stress disorder. Establishing negligence has to meet the civil law test of ‘on the balance of probabilities’, namely that it is more likely than not that the breach of duty of care, such as failure to carry out a suicide risk assessment, directly contributed to a later fatal act of suicide. If the law is changed, then this broad duty could be applied to the university as a body. The university could then be sued by the bereaved family, in the same way that any NHS Trust is open to being sued for medical or psychiatric negligence.
Currently, university counselling services and individual therapists employed by such services can, at least in theory, be sued for professional negligence, although this seems to be rarely used in practice. It needs to be said that, while time consuming, expensive and stressful for all those involved, let alone for the bereaved family, the record suggests that medical negligence cases rarely succeed. Most claims fail or are settled out of court, without an admission of liability by the institution involved. (For a detailed discussion of negligence cases against therapists in the UK and US, see references 10 and 11).10,11
Arguments for a mandatory university duty of care
The key arguments for extending the university’s duty of care to cover student mental health have been advanced by the legal team acting for the Abrahart family.12 Their briefing paper reviews the limitations of existing legal provision for redress against universities for families bereaved by suicide. In particular, they emphasise that a new law is needed to address issues of inconsistency in terms of university provision, and to introduce a greater degree of accountability.
The authors use several technical arguments about improving legal entitlement. Not all affected students may be defined as having a disability under the Equality Act 2010, so some lack eligibility to bring certain types of legal claim against their university. The time frame for bringing such legal action against universities would be more generous under negligence law. The current risk of liability for the defendant’s costs under discrimination law would not apply in the case of negligence actions. The potential benefits would include allowing all interested parties and stakeholders to contribute to the creation of a new set of legal norms regarding university policy and provision for mental health, and bring the law into line with the position in other common law countries, such as the USA and Australia. However, outside of the legal profession, these potential benefits might seem to be a rather mixed blessing. Opening up university mental health provision to extensive US-style negligence litigation may well come at a profound social cost.
The case against reforming the university’s duty of care
Of course, for every legal opinion in favour of change, there is an equal and opposite legal opinion, arguing against such a change. The case against extending the existing rather generic duty of care held by universities to cover negligence for students’ mental health is succinctly put by Geraldine Swanton, of Shakespeare Martineau.13 She points out that, according to previous case law, universities do not have the requisite degree of control over students for the courts to realistically expect that suicide can usually be prevented. The existing case law refers to three exceptional situations where liability for suicide might apply, namely for adults in police custody, persons undergoing military service, or those in psychiatric care. Of course, even in the latter situation, claims for negligence against psychiatrists for patient suicide have rarely succeeded in the past. This is quite distinct from more recent successful actions brought under the separate heading of human rights law. Ultimately, universities, as providers of higher education, should not be made legally responsible for the provision of social care. This is clearly the statutory responsibility of community health and psychiatric services.
Testing the limits of the ‘nanny state’?
As for the accountability argument, it could be argued that universities and their counselling services are, in fact, already accountable via the system of Coroners’ Courts, which affords a voice to bereaved families. Crucially, statutory mental health services are currently accountable via negligence action for patient suicide, but this is rarely tested in the courts and even more rarely succeeds in practice. Extending liability for student suicide to universities, which have a much lower suicide rate than for the general population, would presumably end up going down the same circuitous legal route. This might produce little benefit to universities, students at risk of suicide, or bereaved families. If universities were subjected to an extended duty of care for suicide, colleges and schools might presumably also be forced in the near future into the same legal position, testing the foundations of the much-maligned ‘nanny state’ to their absolute limits.
The other key argument presented by supporters of the change in the law is that universities already have a duty of care for the mental and physical health of their staff. Thus, extending this to students is simply resolving an anomaly, just ironing out a slight wrinkle in the case law. However, universities are rarely sued for incidents of staff suicide, even those occurring within a student counselling service, as has unfortunately happened in my own experience as a counsellor in HE. Universities, and most employers, are actually shielded from most negligence action brought by members of staff for psychiatric damage or suicide, simply by virtue of providing publicised access to a confidential staff counselling service.14 Thus, to bring the argument full circle, current extensive university provision for student mental health might conceivably indemnify HE institutions against future negligence actions, depending upon a favourable court of appeal judgment at some later stage in the proceedings.
And future legal challenges?
The Government seems unlikely to legislate for a new statutory duty of care applying to universities for student mental health. This leaves the door open to the courts to decide on this issue. Universities seem to be entering into a new period of radical uncertainty about how the law applies more widely on a range of issues of growing importance. The virtual decriminalisation of rape and sexual assault within the criminal justice system is having serious secondary effects on universities, as students opt to use in-house complaint systems, but without the legal safeguards of the court system.15 Partisan interpretation of the Equality Act 2010 was noted in the Reindorf Report on Essex University, and may be widely embedded within many universities’ policies and practice.16 The Equality and Human Rights Commission is now exploring the issue of reasserting sex-based rights, potentially signalling a much more extensive review of the provisions of the Equality Act 2010. In addition, there has been concern about the growth of a culture of intolerance and no-platforming within universities, leading to academics and students losing their positions. This has resulted in the Government strengthening the university’s duty to promote free speech and academic freedom, via the Higher Education (Freedom of Speech) Act 2023. So, in terms of the law, it seems that universities face an increasingly turbulent future, whether or not they are subject to a new duty of care for mental health.
1. Abrahart v. University of Bristol. Bristol County Court, Ref. G10YX983 2022. [Online.] www.judiciary.uk/wp-content/ uploads/2022/05/Abrahart-v-Uni-Bristol-judgment-200522.pdf (accessed 28 September 2023). 2. Lewis J, Bolton P. Student mental health in England: Statistics, policy and guidance. House of Commons Library: Research Briefing 8593. 2023. [Online.] https://commonslibrary. parliament.uk/research-briefings/cbp-8593 (accessed 28 September 2023).
3. Office for National Statistics (ONS). Estimating suicide among higher education students, England and Wales: Experimental Statistics: 2017 to 2020. ONS 2022. [Online.] www.ons.gov.uk/ peoplepopulationandcommunity/birthsdeathsandmarriages/ deaths/articles/estimatingsuicideamonghighereducation studentsenglandandwalesexperimentalstatistics/2017to2020/pdf (accessed 28 September 2023).
4. Cassidy S, Au-Yeung S, Robertson A, Cogger-Ward H, Richards G, Allison C, Bradley L, Kenny R, O’Connor R, Mosse D, Rodgers J, Baron-Cohen S. Autism and autistic traits in those who died by suicide in England. The British Journal of Psychiatry 2022; 221(5): 683–691. doi:10.1192/bjp.2022.21.
5. Nuij C, Van Ballegooijen W, De Beurs D, Juniar D, Erlangsen A, Portzky G, O’Connor R, Smit J, Kerkhof A, Riper H. Safety planning-type interventions for suicide prevention: meta-analysis. The British Journal of Psychiatry 2021; 219(2): 419–426. doi:10.1192/bjp.2021.50.
6. McCabe R, Garside R, Backhouse A, Xanthopoulou P. Effectiveness of brief psychological interventions for suicidal presentations: a systematic review. BMC Psychiatry 2018; 18: 120. doi.org/10.1186/s12888-018-1663-5.
7. National Confidential Inquiry into Suicide and Homicide by People with Mental Illness (NCISH). Suicide by children and young people. Manchester: University of Manchester. 2017. [Online.] https://documents.manchester.ac.uk/display. aspx?DocID=37580 (accessed 28 September 2023).
8. Education Policy Institute (EPI). Prevalence of mental health issues within the student-aged population. 2018. [Online.] https://epi.org.uk/publications-and-research/prevalence-of-mental-health-issues-within-the-student-aged-population (accessed 28 September 2023).
9. Universities UK (UUK). Suicide-safer universities: Sharing information with trusted contacts: A guide for universities on when and how to involve families, carers or trusted contacts when there are serious concerns about a student’s safety or mental health. UUK: 2022. [Online.] www.universitiesuk.ac.uk/what-we-do/ policy-and-research/publications/features/suicide-safer universities/sharing-information (accessed 28 September 2023).
10. Jenkins P. Counselling, psychotherapy and the law. Second edition. London: Sage; 2007.
11. Jenkins P. Counselling in higher education settings: Working with risk, confidentiality and duty of care issues. In Mair D (Ed). Short-term counselling in higher education: context, theory and practice. London: Routledge; 2016 (pp45–66).
12. Burton KC, Steinhardt S. (Doughty Street Chambers) and Silverman S. (Irwin Mitchell LLP). A note regarding a potential duty of care owed by universities to students. [Online.] https://wonkhe. com/wp-content/wonkhe-uploads/2023/05/Note-regarding-duty-of-care-Doughty-Street-Chambers-and-Irwin-Mitchell-15- May-2023.pdf (accessed 28 September 2023).
13. Swanton G. Student suicide: why new laws are not the answer. [Blog]. Shakespeare Martineau 2022; 22 November. www.shma. co.uk/our-thoughts/student-suicide-why-new-laws-are-not-the-answer (accessed 28 September 2023).
14. Hatton v. Sutherland  2 All ER 1 [Online.] www.bailii.org/ew/cases/EWCA/Civ/2002/76.html (accessed 28 September 2023).
15. Reindorf A. University of Essex report. Review of the circumstances resulting in and arising from the cancellation of the Centre for Criminology seminar on Trans Rights, Imprisonment and the Criminal Justice System, scheduled to take place on 5 December 2019, and the arrangements for speaker invitations to the Holocaust Memorial Week event on the State of Antisemitism Today, scheduled for 30 January 2020. [Online.] www.essex.ac.uk/-/ media/documents/review/events-review-report-university-of-essex-september-2021.pdf (accessed 28 September 2023).
16. Fazackerley A. From choking to rape: epidemic of sex cases stalking campuses. The Observer 2023; 17 September. www. theguardian.com/society/2023/sep/17/hardcore-porn-choking-and-universities-left-to-tackle-rising-tide-of-sexual-assaults (accessed 28 September 2023).