University life: In loco parentis?

Geraldine Swanton, legal director and education sector specialist at law firm Shakespeare Martineau, discusses whether universities have an in loco parentis role

Going to university can be an exciting prospect, but it can also be a departure into the unknown, away from the relative security of school and home life. For those with mental health problems, adapting to that change alongside striving for academic success can present a particular challenge. This year, former Universities Minister Sam Gyimah called for vice-chancellors to each take a personal lead on this issue, alluding, erroneously, to universities’ in loco parentis role.

Many universities have reported an increase in mental health problems among the student population. The very sad reports of student suicides at some universities, though small in number, give cause for concern for a sector that cares deeply about its students.

As public bodies offering both education and accommodation to young individuals, universities have a duty of care to their students. This is, however, an oft-misunderstood duty. It means that universities must take reasonable steps to prevent any harm occurring, where that harm is caused by their own careless actions or omissions. Liability is imposed to the extent that the harm is reasonably foreseeable and within the reasonable control of the university to prevent.

The question of what universities can and should be doing to understand and address the needs of students with mental ill health is not an easy one to answer. What is clear is that describing the relationship between universities and their students in terms of the care that a loving parent would bestow on his/her children in the home is inapt.

Stepping outside the role

Student mental ill-health and related self-harm are not ordinarily matters within a university’s direct control. Universities do not have the proximity to their students that parents have to their children or schools have to their pupils. Staff who do have some proximity to their students, such as personal tutors, are often concerned that they are being required to compensate for resource constraints in the health service. The risk is if those staff do not confine themselves to their own areas of expertise and they assume some responsibility for providing what is, in effect, specialist health care, the university is vulnerable to liability if that care is not provided to specialist healthcare standards.

Recent cases in the education sector have seen a coroner recommend that a particular university make a list of all students at risk to help prevent them from committing serious acts of self-harm. This proposal raises significant legal concerns. How would a university be able to assess who was at risk? Would it require breaches of professional duties of confidentiality owed by counsellors and doctors, possibly undermining the efficacy of such services? Once a list is compiled, what does a university do with it? The options for action in a university environment are extremely limited in individual cases.

Geraldine Swanton

Real and immediate risk

Many of the legal cases concerning failures to prevent self-harm have related to environments which have exerted almost complete control over individuals, such as police holding cells and secure psychiatric hospitals. In those circumstances, where there is a real and immediate risk of significant harm, the police and hospital staff have relevant legal powers such as to detain and keep their charges under surveillance and, therefore, a legal duty to take reasonable steps within their powers to prevent harm occurring. Universities are not analogous organisations and, ultimately, do not have the powers and duties of custody or real control of their students.

That notwithstanding, universities cannot ignore the growing problem of student mental ill-health and suicide. The Office for Students (OfS), the statutory regulator of higher education in the UK, concerned about outcomes for students, recognises mental ill-health as a matter to be addressed and recently announced £6m-worth of funding for innovative approaches to tackling it, as part of a ‘Challenge Competition’.

It is not unreasonable for universities to consider the general needs of its student cohorts when enrolling them on their programmes. Universities are responding by offering a range of services such as improved wellbeing and counselling services, induction programmes, anxiety management and mindfulness classes to equip students better to meet the challenges of young adulthood. Those initiatives are a realistic recognition of the important role universities can play without imposing responsibilities for activities that are more appropriately discharged by the health service and without resorting to outdated legal concepts such as that of in loco parentis.

Geraldine has been advising the sector for over 15 years on a broad range of student-related issues; in particular, equality, discipline, contractual matters and human rights as well as charity and information law. In addition, Geraldine has worked in educational institutions in the UK and overseas and has a keen understanding of the context within which her advice is provided. Please email geraldine.swanton@shma.co.uk, call 0121 214 0455 or visit shma.co.uk