A duty of care for students is not the solution to suicide prevention

This month’s parliamentary debate on a statutory duty of care for universities did not reveal a settled view among MPs about whether it is the right mechanism to safeguard student well-being. But it did highlight a shared concern that unclear and inconsistent existing legal and regulatory frameworks are hampering harm prevention.

The debate followed earlier parliamentary consideration in 2023. That was prompted by a large public petition and led to the government’s national review of higher education student suicide deaths, published last May.

The MPs discussed student mental health, suicide prevention and the experiences of families navigating institutional processes following serious incidents. But while the term duty of care dominated, the substance of the discussion focused more on systems, processes and accountability than with tort law.

MPs highlighted cases where harm arose not from institutional indifference and the absence of well-being services but from failures in processes. Examples include errors in academic administration, uncertainty around escalation and restrictive interpretations of consent that limited information-sharing with families at points of acute risk.

The national review findings reinforce this point, showing a duty of care alone will not solve issues that are best seen as regulatory gaps, such as incomplete incident reporting, limited family involvement, unclear ownership of action plans and weak senior oversight.

The appeal of introducing such a duty is understandable. It appears to offer a way of clarifying expectations and reducing inconsistency across institutions. And several MPs were careful to emphasise that this would not create an all-encompassing obligation for universities to act in loco parentis, which the courts have consistently resisted, or assume clinical responsibilities. Rather, it would require them to take reasonable steps where serious harm is foreseeable.

However, concerns were also raised about unintended consequences, such as encouraging defensive practice, increasing proceduralisation and diverting attention from early intervention by relatives. Similar concerns are well documented in healthcare and policing. The minister’s response reflected this caution, emphasising that students are adults and that reforms should not undermine professional judgement or proactive support.

There is a risk of oversimplifying the law in this debate. Universities are often described as operating in the absence of any duty of care, but duties already exist under common law and statute in specific circumstances. The real concern is uncertainty about their scope and application in complex, real-world situations.

The applicability of duties is currently assessed by reference to context, foreseeability and policy considerations. Common law duties evolve flexibly through judicial discretion. A statutory duty would, instead, confer them automatically by virtue of the university’s relationship with the student. But it would not remove the need for interpretation. And what extra certainty it provided would come at the cost of rigidity, potentially limiting important room to evolve practice in a fast-changing sector.

The problem, as the Westminster Hall debate underlined, is that the complex mix of legal obligations and regulatory expectations to which universities are currently subject do not always translate into clear operational standards for safeguarding, information-sharing, escalation and transparency. Where guidance exists, its uptake and implementation vary – giving rise to the “postcode lottery” to which the Plaid Cymru MP Llinos Medi referred.

But regulatory reform can achieve what a general duty of care cannot. That includes:

• Clearer expectations around serious incident reporting and review, including meaningful family involvement
• Enforceable standards and related staff training for information-sharing and consent in welfare contexts, reducing uncertainty at points of crisis
• Stronger requirements for candour and transparency when harm occurs
• Clearer lines of responsibility and assurance
• Mechanisms for the central sharing of learning across the sector, including systematic oversight of prevention of future death reports, with an expectation that all universities engage with and respond to sector-wide lessons learned
• Regulatory oversight that focuses on systems, learning and improvement, rather than post-incident fault-finding.

With this in mind, the next phase of the government’s higher education mental health implementation task force will be important, with its consideration of accountability mechanisms and the role of the regulator. Whether that route delivers meaningful change will depend on how far it moves beyond guidance towards enforceable standards.

As well as the peril of obscuring these regulatory questions, framing reform primarily through the language of duty of care also risks stretching that concept too far, encompassing the wide range of concerns we heard cited in the debate – from suicide prevention to harassment, cost-of-living pressures and campus safety. That breadth would make it harder to define what the duty would actually require.

The central question around harm prevention is this: what statutory and regulatory arrangements would be capable of delivering the consistency, candour and accountability that MPs are clearly demanding – and that students and parents are not unreasonable to expect? But answering that question invites careful design rather than legal symbolism.

Emma Roberts is head of law at the University of Salford.