Educational Institutions – Understanding your legal duties
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Educational Institutions – Understanding your legal dutiesEnquire Now Home Our Thoughts Thoughts & Insights Educational Institutions – Understanding your legal duties Published: Area: Education
In December 2020 the House of Commons published a briefing paper entitled “Support for students with mental health issues in higher education in England”. It documents the challenges posed to students by the COVID-19 pandemic, the pressure to achieve academic excellence and the vicissitudes of living away from home for the first time. It makes for sobering reading.
There is a section in the paper on legal requirements which mistakenly identifies the duty of care that Higher Education Institutions (HEIs) owe to students as including a duty to ensure their health and welfare. It is not clear how this distorted understanding of the duty of care has arisen; we can only assume that it a conflation of pastoral and moral sensibilities and the law. However, knowing what the law in fact does require will enable institutions to make properly informed decisions about the resources they allocate to achieving such ends.
What is a duty of care?
An institution’s duty of care, put simply, is not to injure those (e.g. students) it might reasonably be foreseen will be harmed by its careless acts and omissions in circumstances where the courts regard it as just, fair and reasonable for there to be a duty.
Is there a safeguarding duty?
Schools and further education colleges have a statutory duty to promote and safeguard the welfare of children to whom they provide education and training. No comparable statutory duty exists for HEIs in respect of children or adults.
What are health and safety duties?
Under the Health & Safety at Work Act 1974 (s2), HEIs as employers have a duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees.
The duty with regard to non-employees, including students, is very different. Institutions have a duty to conduct their undertaking (i.e. the business of an education institution) in such a way as to ensure, so far as is reasonably practicable, that non-employees who may be affected by it are not thereby exposed to risks to their health or safety (Health & Safety at Work Act 1974 s3).
Duty to make reasonable adjustments
The duty to make reasonable adjustments under the Equality Act 2010 does not entail ensuring health or welfare. It is about modifying institutions’ policies, procedures and practices so that disabled students are not put at a substantial disadvantage when compared with students who do not have the particular disability.
Duty under ECHR Article 2 – the right to life
Human rights case law has concluded that Article 2 may imply in certain well-defined circumstances a positive obligation on the part of the state to take preventive operational measures in particular circumstances to protect an individual from themselves (e.g. from self-harm). These cases primarily relate to persons in the custody of the police or prison services and medical treatment-based claims for failure to protect those individuals whom they knew were at risk from violent individuals or from themselves by means of suicide.
Ultimately, for a positive obligation to arise where the risk to a person derives from self-harm, such as a suicide in custody or in a psychiatric hospital, it must be established that the authority:
- knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual; and, if so,
- failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
Institutions’ relationships with their students are clearly not analogous to prisons or psychiatric hospitals which have custody, and therefore almost complete control, of their inmates and patients respectively. And as far as Article 2 being applied to HEIs, it would require action to be taken within the scope of their powers as educational institutions, which is very limited.
It goes without saying that HEIs should support their students to succeed in and benefit from higher education. To do that, HEIs will need to take into account the particular characteristics of their students, including their vulnerability to mental ill-health, and will have to consider providing a range of services within their powers and expertise to address those support needs.
Knowing what law does and doesn’t apply and what the law in fact requires will enable institutions to make properly informed decisions about the resources they allocate to achieving such ends.
Geraldine SwantonLegal Director View full profile
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