The death of any student is a tragedy, and that tragedy is magnified when the death occurs as a result of suicide. It is right that bereaved parents and loved ones ask why the death happened, whether steps could have been taken to prevent it and whether further deaths can be avoided. It is understandable that parents focus on the student’s higher education institution (HEI) when seeking answers to those crucial questions. The answers, however, in particular to the question of preventing future deaths, are not to be found by imposing further legal duties on higher education because HEIs simply lack the required degree of control over their students’ lives.

Part A of this article explores the law specifically relating to preventing individuals from self-harm and the limits of its application to HEIs. It also seeks to explain some of the many legal duties to which HEIs are already subject and which protect students from harm over which HEIs can reasonably be expected to exert some control.

Part B of this article offers a sector practitioner’s perspective and explores the unintended consequences of the changes to law and policy in respect of suicide that are being sought.

  1. THE LEGAL PERSPECTIVE
  • Duty of care

All HEIs already have a general legal duty of care to persons to whom they are closely connected, including their students. There are three requirements:

  • First, the duty applies to persons who might reasonably foreseeably be harmed by the HEI’s careless acts and omissions;
  • Second, the act or omission must cause or contribute to the harm that ensues;
  • Third, the circumstances must be ones the courts regard it as just, fair and reasonable for there to be a duty.

Accordingly, the duty does not, and could not reasonably, apply to all aspects of HEIs relationships with its students, but only where:

  • HEIs can exercise real control;
  • a failure to exercise that control causes injury; and
  • the courts regard it as reasonable to impose a duty.

An example of a breach of a recognised duty of care would be where a HEI neglected to install proper ventilation systems in a laboratory in which toxic fumes were generated, causing lung damage to students engaged in experiments there.

Persons of sound mind engaging in acts of deliberate self-harm are generally regarded as the legal cause of the injury they inflict on themselves. The courts do not regard it as fair, just or reasonable to impose liability on a third party for the injury suffered, except in certain very rare circumstances. The leading case is Reeves v Commissioner of Police of the Metropolis (House of Lords) July 1999

That case concerned the suicide of L by hanging from the hatch of the cell door while in police custody. L had on two previous occasions attempted suicide while detained by the police and was identified by a doctor as a suicide risk on this third occasion of police detention. The court concluded that although persons of sound mind were generally taken to be responsible for their own actions, in rare situations a duty could be owed to such persons to prevent them from committing self-harm. That duty had arisen in this case, because of the complete control that the police exercised over prisoners in custody, combined with the special danger of people taking their own lives inherent in the custodial situation. Both the police, who had been negligent in leaving the hatch open, and L, who had responsibility for his own life, were the causes of L’s death. L was held contributorily negligent and damages that the lower courts originally required to be paid by the police were reduced by 50% to apportion fault equally.

  • The European Convention on Human Rights (the Convention)

The right to life under Article 2 of the Convention is absolute. The European Court of Human Rights (the ECHR) has concluded that Article 2 may imply in certain well-defined circumstances a positive obligation on the state (which includes public bodies such as HEIs when exercising their higher-education functions) to take preventative operational measures in particular circumstances to protect a person from inflicting self-harm. The ECHR concluded that in those circumstances, there are general measures and precautions available to diminish the opportunities for self-harm, without infringing personal autonomy.

A failure to comply with the positive obligation will occur where it has been established that:

  • the particular public 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 from self-harm; and
  • the public body failed to take measures within the scope of its powers which, judged reasonably, it might have been expected to take to avoid that risk.

The well-defined circumstances identified by the ECHR giving rise to the imposition of a positive duty are:

  • detention in custody or in prison;
  • compulsory or contractual military service (because soldiers’ conditions of life and service are within the exclusive control of the state authorities);
  • voluntary/involuntary psychiatric care.
  • Could HEIs discharge a duty to prevent self-harm?

The ECHR made clear that the positive obligation to prevent self-harm must be interpreted in a way that does not impose an impossible or disproportionate burden on public authorities, taking into account the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made about priorities and resources. The nature of the public authority itself and of its relationship with the individuals to whom a duty would be owed are also relevant considerations. The decisions of the House of Lords in the Reeves case and the ECHR made clear that the necessary pre-condition for the imposition of a duty to prevent self-harm is the ability by the public body in question to exercise custody or almost complete control over the individual. Only in such circumstances can the public authority be expected to foresee the occurrence of deliberate-self harm and to take reasonable steps within that controlled environment to prevent it.

Students undertaking programmes of study and HEIs are not analogous to soldiers engaged in military service, prisoners in custody or patients in secure psychiatric hospitals over whom a very high degree of control can be exercised. We are in an era of mass higher education with 170 HEIs providing higher education to approx. two million adult undergraduates. There is therefore insufficient proximity between a HEI and a student such that a HEI would know with any degree of certainty or could reasonably be expected to know that there was a real and immediate risk of suicide.

Even if a HEI could know of a real and immediate risk to life by suicide, the operational measures within the scope of its powers as a provider of higher education that it could reasonably be expected to take to prevent self-harm would be to call the emergency services or non-statutory crises teams.

The call to impose a new duty assumes a degree of foreseeability of harm that HEIs simply cannot acquire. The creation of the duty in the circumstances would prove an impossible burden and would not deliver the outcomes desired by loved ones.

  • Other HEI duties

There are many duties that apply to HEIs that seek to protect students’ interests:

  • Health & safety

Under the Health & Safety at Work Act 1974 organisations have a duty to conduct their undertaking in such a way as to ensure, so far as is reasonably practicable, that individuals who may be affected by it are not thereby exposed to risks to their health or safety (Health & Safety at Work Act 1974 s3). The duty is discharged by conducting assessments to manage and mitigate risks resulting from the way in which HEIs engage in the provision of higher education. Again, the duty relates to matters within the reasonable control of the HEI e.g. the provision of safe premises and equipment, appropriately trained educators and other relevant support staff.

HEIs’ duty to staff includes welfare because of the close relationship of control that exists between employer and employee. Again, the HEI-student relationship is not conducive to the control that is a pre-requisite of the employer-employee relationship.

There is no suggestion that the way in which HEIs conduct their undertakings poses a particular risk of student self-harm. The ONS has reported that:

Between the academic year ending 2017 and the academic year ending 2020, higher education students in England and Wales had a significantly lower suicide rate compared with the general population of similar ages. When compared with the general population, the suicide rate for higher education students among those aged 20 years and under and those aged 21 to 24 years showed the biggest difference, with the rate in the general population being 2.7 times higher than that in students”[1].

Young people are therefore safer in higher education and they have access to support mechanisms which are not available to the general public.

  • Contractual duties

HEIs have an implied contractual duty to provide higher education to a reasonable standard. That duty also applies to any ancillary services made available, such as student support and counselling. Staff delivering educational and related services, such as counsellors, should be appropriately trained to deliver those services to the required standard. Counsellors will also be required to comply with the professional standards of their accrediting bodies, including maintaining confidentiality and putting the individual at the heart of the service they provide.

Students are legally regarded as consumers and are entitled to be given information about the extent of the educational and other services provided by HEIs to enable them to make informed decisions regarding the choice of programme and provider.

Including in the student contract an undertaking to share information with trusted third parties without those students’ consent may be at variance with professional codes of conduct. It may also impose on counsellors in HEIs obligations that far exceed those imposed on their counterparts in the NHS or in private practice, where referral to fellow professionals is the appropriate response in extremis.

  • Equality Act 2010 – disability

HEIs have a duty to adjust their policies, procedures and practices where reasonable to prevent disabled students from suffering substantial disadvantage when compared with students who do not have the particular disability. The purpose of the duty is to enable disabled students to perform on a par with their non-disabled counterparts and to engage in the student experience. Given the complexity of mental health impairments in particular, which are often hidden, discharging that duty can sometimes be challenging for HEIs. Some HEIs get it wrong, but the remedy is not to be found in imposing further duties, but to ensure that HEIs better understand their existing obligations and, if necessary, to enforce them through the Office of the Independent Adjudicator for Higher Education or through the courts.

HEIs also have a duty not to discriminate against disabled students by treating them less favourably or by subjecting them to a detriment. Imposing a duty to prevent self-harm in an environment in which discharging that duty would prove an impossible challenge would, paradoxically, make students more vulnerable to disability discrimination. Faced with the unpredictability of human behaviour and seeking to err on the side of caution, stereotypical assumptions would be made about particular impairments and students with real or perceived mental ill-health would be singled out for particular scrutiny by HEIs. Not only would such conduct be discriminatory, it could have the further unintended consequence of breaching students’ reasonable expectations of privacy and eroding human autonomy.

  • Safeguarding

Under the Education Act 2002 s175, schools (including academies) and FE colleges have a statutory duty to promote and safeguard the welfare of children to whom they provide education and training. The environment in which schools and colleges teach children is a very closed one in which the school/college can exercise a high degree of control. Classes are small and staff have close relationships with the children they teach throughout the day. Such institutions therefore are in a position to discharge the duty. No such broad duty is imposed on HEIs providing higher education to under 18s.

There is no comparable duty in respect of vulnerable adults. Under the Care Act 2014, local authorities have a broad duty to promote individuals’ well-being, to integrate care and support with health services and to assess adults’ needs for care and support. HEIs, as providers of higher education, are not responsible for the provision of social care.

  • Final thoughts

It is right that HEIs should support their students to succeed in higher education, which should take into account the particular characteristics of their students, including any vulnerability to mental ill-health. Increased counselling and support services are no doubt needed, but decisions about the allocation of diminishing units of resource away from core educational services is always a difficult decision to make. Ultimately, health care is the responsibility of the statutory agencies.

In order properly to address the issue of a new legal duty, a realistic account should be taken of the nature of the HEI-student relationship and what can reasonably be expected in that context. The courts have recognised the inherent difficulty in discharging a duty to prevent self-harm and have sought to impose liability only in the most exceptional circumstances, which do not, and could not reasonably be expected to, apply in higher education.

Geraldine Swanton, Legal Director, Shakespeare Martineau

  1. A Sector Perspective

In any discussion about student suicide, it is vital for the voices and experiences of those who have been bereaved to be heard in any consideration of where improvements could be made to current services and processes. It is also important that such considerations take account of the context within which support is provided, and a recognition of the complexities involved, both in relation to mental health and also in relation to the interventions that may be possible and/or appropriate in any given situation. Without this, there is a danger that the unintended consequences of proposed changes to policies and/or legislation are not fully explored, resulting in the possibility of either not meeting the expectations of those who are calling for the changes or, in some situations, increasing risk as a result of undermining trust in the support services on offer.

A report published by the Office for National Statistics on Suicides in England and Wales : 2021 Registrations, indicates that, between 2016/17 and 2019/20, for those aged 20 years and under and those aged 21-24 years, the rate of suicide was 2.7 times higher in the general population than for university students of the same age groups. However, each suicide is not a statistic but a tragedy that everyone would wish to prevent. Inherently, all who are involved in the discussion, including those who work in the field, have a shared desire to reduce incidence of student suicide and to ensure that, where known risks exist, all appropriate steps are taken to prevent a tragic outcome.

In the last few months, two key publications in relation to student suicide and information sharing have been the UUK/Papyrus publication: Suicide-Safer Universities- Sharing Information with Trusted Contacts, and the BACP/UMHAN publication: Information Sharing and Student Suicide. The BACP publication received less media coverage and was not referred to in the UUK Guidance document, although it was published four months earlier.

Both documents appropriately call for HEIs to develop explicit principles and policies around information-sharing and to be more transparent in relation to these policies. Both also advocate that policies should be student-focussed. The differences relate to which approaches to information sharing are most likely to achieve the common desire to prevent any avoidable deaths – and such differences arise precisely because, sadly, there is no single policy, procedure or piece of legislation that will deliver this desire as a guaranteed outcome in every circumstance. The most significant difference between the two documents is that the BACP/UMHAN document emphasises the need for consent and confidentiality to be part of the core narrative with students who are accessing support and for students to be treated in the same way as any other adult in relation to information-sharing, whereas UUK/Papyrus, sets out that, in some circumstances, information could be shared with a student’s contacts without their consent. More specifically, as covered in the media briefing from UUK, the recommendations include making it mandatory for students to name a trusted contact at registration and that relevant policies should make it clear that HEIs can decide to involve trusted contacts without the student’s agreement.

Across the country, for over a decade, HEIs have seen increasing numbers of students accessing their mental health and/or counselling services. This is likely to be due, in part at least, to the national, local and internal campaigns, encouraging anyone who is struggling with their mental health to seek support. As well as the increase in frequency, HEIs report seeing an increase in the complexity of what individuals who access their services are presenting with. In response, HEIs employ professional and experienced mental health practitioners and counsellors and strive to create an environment in which any student who may be experiencing mental distress or mental ill-health feels able to approach these services, often receiving support more quickly than would be available to the general public accessing NHS services. Consistent with the Mental Capacity Act 2005, students are assumed to have full legal capacity to make their own decisions and the priority of staff employed in universities is to ensure that students are given appropriate help and support to make decisions, even at times of difficulty, or to maximise participation in any decision-making process.

In-house provision should not seek, or be assumed, to replicate and/or to replace services which rightly sit within the NHS. HEIs have, in recent years in particular, been seeking to develop more explicit partnerships and referral pathways with these external statutory services, including referrals in moments of crisis. By having clarity on where separate responsibilities lie and agreement on the sharing of information, even without a student’s consent, from one professional service to another, the circle of confidentiality can effectively be expanded to work as a multi-disciplinary team. Many excellent examples of such partnerships exist, but all are constrained by the well-known and highly publicised diminished resources available within statutory services. Seeking to impose a new law will not in itself change these existing challenges. HEIs will never, for example, have the power to restrict a student’s liberties under the Mental Health Act 1983, where a student lacks the capacity to make their own decisions.

It is important that families, carers and other contacts who are concerned about a student are assured that they will be treated with respect and compassion, and that their concerns will be heard and taken seriously.

As part of the therapeutic relationship, counsellors and mental health advisers encourage students to talk about their mental health with their support network and may offer to include them, or other contacts, in the discussion, but there can be many reasons why a student chooses not to do this. Central to the provision of mental health services is the creation of a relationship of trust with the student. A student who is choosing to discuss their difficulties, possibly for the first time, with a mental health professional should be confident that their autonomy in relation to who that information will be shared with will be respected. A decision to share with a third party should be made only with an informed discussion with the individual, unless their lack of mental capacity has been assessed by an appropriately trained professional. At this point, information would be shared with other professional services who could mitigate that risk.

If an individual student needing support, or the student body as a whole, does not trust that their autonomy would be respected, there is a danger that an unintended consequence is created, namely that a student does not access HEI services during a time of greatest distress or withholds information from their adviser or counsellor. If information were to be shared with a named contact that a student had not wished that individual to know and hadn’t specifically consented to, there is a significant risk that the relationship between the practitioner and the student will be irretrievably damaged, which could be a less safe outcome for the student.

“Any move to undermine or compromise the trust built between student and helper will, without doubt, undermine the very efficacy of those services and skills used to determine risk and inform the most appropriate responses.“ Professor Andrew Reeves, Professor in Counselling Professions and Mental Health, BACP Senior Accredited Counsellor/Psychotherapist and Registered Social Worker.

Further to the publication of both documents referred to above, at the University of Kent it was agreed that a decision about our position should not be made by any individual or group of individuals but at governance level, by the University Senate. A detailed discussion took place, in which colleagues took great care to closely consider the complex issues, recognising the sensitivity of the topic and acknowledging their wider identities e.g. as individuals affected by suicide, as parents and as representatives of the student body. The outcome was an agreement that we should abide by the key principles of other service-providers to those over the age of 18. In a time of crisis, our primary concern is for the wellbeing of the student. If a student, with capacity, does not want their friends, family or other trusted contact to be informed, we will respect that request to ensure the continued trust between the student (and the wider student body) and our support services. In line with existing policy, if a student is considered to be a risk to themselves or others, other statutory services will be informed to enable appropriate intervention and provision of care by professionals with the relevant skills and expertise. This approach was also discussed with our teams of mental health advisers and counsellors and is consistent with the standards of their professional bodies.

While we all wish to do everything we can to avoid causing further distress to bereaved families and friends, we are doing a dis-service to all concerned unless we take the difficult step to properly examine all sides of the debate and listen to all voices, including those with lived experience of suicide, experienced counsellors and mental health practitioners in higher education, and students themselves, particularly those who experience mental health difficulties and/or mental illness and who may be navigating those difficulties independently for the first time. It is, of course, for each HEI to decide on its own position on these topics, but we will improve as a sector if we encourage an open discussion of these difficult and emotive issues and revisit that discussion on an ongoing basis.

Dr Lucy Foley, Director of Student Services, University of Kent.

[1] Estimating suicide among higher education students, England and Wales: Experimental Statistics – Office for National Statistics

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Published: 22nd November 2022
Area: Education

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