The French surgeon René Leriche wrote that “every surgeon carries within himself a small cemetery, where from time to time he goes to pray – a place of bitterness and regret, where he must look for an explanation of his failures”.
Lawyers also have these cemeteries, where lie the memories of those clients whose cases were lost in terrible circumstances.
In this lawyer’s cemetery rest the memories of students who suffered from mental health disorders but who, as a result of their symptoms, were unable to disclose their problems to the university authorities. It was only later, usually when forced by a parent, that they visited a clinician.
In each case, the university rejected the student’s appeal against their poor grades on the grounds of mental illness because of the student’s delay in seeking help.
In a recent case, the student saw a clinical psychologist a month after the event and was diagnosed with major depression – of the severe type. The psychologist stated that the depression is likely to have started four months earlier and that the symptoms were severe enough to explain the student’s inability to share his problems with the university. The university rejected the student’s appeal and disregarded the psychologist’s report on the basis that it was retrospective.
The student lodged a complaint with the Office of the Independent Adjudicator who found the complaint justified. The OIA said that the medical evidence was “obtained only a short period of time after the investigation” and that this period was “not sufficient to undermine the persuasiveness of the medical evidence”.
The university protested and the OIA reversed its decision, arguing that the medical evidence was not contemporaneous and that therefore it was “reasonable for the institution to question the persuasiveness of the psychologist’s report given its retrospective nature”.
The OIA’s argument went on to say that: “Many higher education providers do not accept medical evidence for the purposes of late extenuating circumstances claims if the evidence is only obtained retrospectively and based on a student’s retrospective reporting of their symptoms.”
It also said that it considers reasonable universities rejecting medical evidence “if the student only consulted the medical professional after receiving an adverse decision on their case, here the decision to withdraw him from the course”.
With respect, that is nonsense.
If the mental ill health of students prevents them from seeking help at the time of their illness, perhaps because they are so unwell that they isolate themselves from the world, avoid all social interaction and struggle even to get dressed, it is difficult to see how the medical evidence can be anything other than retrospective.
To require such students to seek medical help or alert the university authorities in the throes of their illness is to ask for the impossible and penalises them for suffering from a mental disorder. It displays an ignorance of the debilitating nature of mental illness.
It is plain that retrospective medical evidence should be admissible as evidence in student appeals. The contrary view of the OIA and the universities is misguided and must be changed to avoid further injustice to vulnerable students.
The more difficult question, in each case, is what weight to place on the medical report. This will be based on a number of factors, including the expert’s qualifications and experience, the nature of the student’s condition, the length of time from the index incident to assessment, the cogency of the expert’s reasoning, the reliability of the student as a historian, and so on. A blanket rule to disregard such evidence is unfair and legally dubious.
In legal cases, medical experts regularly give opinions retrospectively. In some cases, the experts do not even examine the client, for example, when a psychiatrist has to comment on whether a person – now deceased – had mental capacity at the time of writing a will.
Without contrary expert medical evidence, or solid grounds for doubting the factual basis of the expert’s report, universities should consider retrospective medical evidence in their deliberations and reject it only with great caution. To do otherwise will continue to harm students and their families.
Daniel Sokol is a barrister, former university lecturer and founder of Alpha Academic Appeals. Julia Heller is a consultant forensic clinical psychologist at Parkside Hospital. She also appears in court as an expert witness.
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