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Thanks to Butterworths.co.uk
Liability for students� mental health problems
A recent report highlights growing concerns about the potential liability
faced by educational institutions in respect of students suffering from mental
health problems. Nick Saunders, senior associate at Eversheds, the law firm who
commissioned the report, talks to Sarah Taylor�
Eversheds commissioned the
report by Professor Neville Harris of Manchester University concerning the
potential liability higher educational institutions faced in respect of students
with mental health problems in the light of steadily increasing complaints by
students against their universities. According to Nick Saunders, senior
associate in Eversheds� Education Group: "The Harris Report shows
there�s a very wide range of legal issues which have a bearing on the
operation of colleges and universities, particularly in respect of students�
mental health. These include not just common law duties of care and contractual
obligations, but also the ever-growing amount of statute and regulation.
Students are becoming increasingly aware of what they perceive as their rights
as consumers. Obviously some students are disabled for the purposes of the
Disability Discrimination Act 1995, and there�s a growing appreciation of the
relevance of that legislation on the part of students, and certainly the people
who advise them. There are now proposals for further disability discrimination
legislation, particularly a positive duty to promote equality amongst disabled
people that is likely to be in the Discrimination Bill when it�s presented to
Parliament later in the year. There�s also pressure from the various
organisations operating in this area, including the Disability Rights
Commission, for example."
He continues: "As a result of the Disability Discrimination Act,
institutions have had to think through their admissions policies, their
disciplinary arrangements and their whole approach to teaching and learning to
make sure it wasn�t discriminating against disabled students, and, where it
was likely to have some impact, make sure that they took reasonable steps to
make adjustments to their administration. They should by now have a specific
member of staff tasked with co-ordinating responses to disability issues, and
that person should also have an awareness of specific problems posed by mental
health issues. Procedures should be quite clear as to when to refer problems on
to the appropriate professionals, whether psychiatric services, medical services
or indeed lawyers."
"The European Convention on Human Rights is also going to be an
increasingly important element in the equation, and I think we will see students
and their advisers referring to it in future in disputes with institutions,
perhaps where they�ve been suspended or expelled."
"So there are lots of things going on which should act as reminders to
colleges and universities that they�ve got to take this whole area seriously,
and I think the sector appreciates this. Obviously before our own Report there
was a Universities UK report on student suicide, and a project funded by the
Higher Education Funding Council on student mental health, setting out practical
steps which can be taken to address some of the issues. But I don�t think the
legal aspects had been fully taken on board until our Report."
What should universities be doing to protect themselves, and help their
students? "Our response is twofold", says Saunders. "Firstly,
they should make quite sure that they are setting out clearly and realistically
what they can and what they cannot offer students. Secondly, they should find
out as much as possible about a student�s particular needs at the application
stage in order to identify any additional help that might be needed. They should
make sure they have the resources to offer this help and incorporate this in the
agreement with the student right from day one. It�s really about managing
expectations and providing all the support you reasonably can, whilst making it
clear to prospective students that institutions are not in the business of
providing a complete psychiatric support service, and that there are limitations
on resources, particularly for the smaller institution."
So what is the potential liability facing educational institutions? "The
vast majority of cases", says Saunders, "never reach the courts.
Normally some sort of settlement is reached, so it�s difficult to say what
sort of damages might be payable. More seriously though, if any of these cases
do see the light of day they could cause the institution a great deal of damage
to their reputation, not to mention the amount of management time
involved."
(17/02/04)
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