Knowing your limitations – academic staff counselling students with mental ill-health
I recently read with interest the excellent analysis entitled “Student Mental Health: The Role and Experiences of Academics” published by Student Minds earlier this year. It is clear that there is genuine concern and compassion amongst academics for the students they teach.
What is also clear however is that academics, particularly personal tutors, are being relied upon increasingly to compensate for the gaps in the provision of health care by the NHS and other relevant agencies. Any academic would be justified in feeling very intimidated by that prospect, a feeling reinforced by the statement in the publication that:
“if an academic provides ongoing support to a student and this goes wrong, the support they provide will not be judged against the qualities of a well-meaning academic, but against that which would be expected from a trained and experienced counsellor” (executive summary p8).
That quotation relates to two legal principles (1) the assumption of a duty of care and (2) professional standards of care.
1. Assumption of a duty of care
The general principle is that if a person assumes responsibility for carrying out a particular task, this can give rise to liability in negligence if the person omits to carry out the task, or fails to carry it out adequately, and damage results. The person’s subjective intention is irrelevant, and therefore even though the person may not intend to assume responsibility, he/she will be charged with that responsibility if he/she has behaved in a way that is consistent with the assumption of responsibility.
2. Professional standards of care
Where the task for which an individual assumes responsibility requires some special skill or competence, the standard of care is not that of an ordinary person. Rather, it is the standard expected of the skilled person exercising, and professing to have, that skill. It does not have to be the highest expert skill, but it must be the skill of an ordinary competent person exercising that particular profession.
The combined effect of these two principles is that if an academic embarks on a relationship/course of conduct with a mentally ill student in which the academic assumes responsibility for counselling the student, the academic will be judged by the standard of the ordinary competent counsellor and not by the standard, for example, of the competent senior lecturer in art history.
In order to incur liability for damage (e.g. exacerbation of the student’s ill-health), the academic’s conduct would have to be much more than that of a caring and concerned tutor providing a sympathetic ear and avuncular advice. His/her conduct would have to be akin to a professional counsellor, albeit done badly. The student would have to suffer damage as a result of the sub-standard counselling and a court would have to regard it as fair, just and reasonable to impose a duty of care in the circumstances.
The two legal principles underscore the need for staff to confine themselves to areas in which they are professionally competent. Academic staff and personal tutors may therefore need training to understand the limits of the pastoral care they are expected to provide. That will include learning to identify the signs of mental ill-health so that they are not unwittingly drawn by compassion to provide the professional help the student needs but that they are not qualified to provide.