Mental health services in Higher Education: voluntary or legally binding?

The level of mental health service that a university provides is very much dependent on budget and other resources available. However, if a university attracts students by promoting certain services, the delivery of those services can be part of the university’s contract with its student. This could give students a legal, enforceable right to challenge the lack of provision, by way of breach of contract.

Alternatively, if a student’s mental health difficulties amount to a disability – a physical or mental impairment which has a substantial and long lasting impact on their ability to undertake day to day tasks – then the university is under an obligation to put in place reasonable adjustments to meet a student’s health needs. The point to note here is that only reasonable adjustments are required, not every adjustment.

So, one of the main challenges is managing expectations. If a student’s mental health symptoms arose whilst at school or in college, then the student may be used to a higher level of service. Indeed, schools and colleges are often required to put in all the support needed to cater for mental health needs if they amount to a special educational need. In contrast, the “reasonable support” universities are legally obliged to provide rarely meet students’ expectations – especially considering the high tuition fees they pay.

The duty of care owed by universities to their students implies that all universities should take steps to prevent any student suffering reasonably foreseeable harm. If a student has a mental health issue, it is fair to assume that if they don’t receive some support, they may suffer reasonably foreseeable harm and therefore the university must take appropriate action to prevent this. Depending on the student, this might involve GP services, counselling, support from the Well-being team, assistance with obtaining benefits such as Disabled Students’ Allowance, or providing one to one sessions. But often, that’s not enough.

Sir Norman Lambs is calling for a legally binding charter, with minimum standards that universities are required to meet. There has been mention of a voluntary charter as an example of best practice. It would be up to a university to decide if it wishes to accept it and follow it. However, if the voluntary charter is adopted and incorporated into the student’s contract, then the student would be able to take legal action against the university for breaching the contract by failing to follow the voluntary charter.

One thing is sure – it would be good practice for universities to monitor their mental health statistics, so that they can better understand where demand lies and if there are any impediments or delay to services being provided. Many institutions have a set annual budget, but as demand is going up, it risks reducing year on year. A new approach is needed.

This summer, the University of Derby, in collaboration with Aston University and King’s College London, Advance HE and Student Minds, launched a national project to help university teaching staff support the mental well-being of their students. The £2m research project, entitled Education for Mental Health: Enhancing Student Mental Health through Curriculum and Pedagogy, will focus on the curriculum – the only point of guaranteed contact between a university and its students – and on non-typical learning spaces – like field trips and work placements.

Such collaborative research is likely to develop new tools, that will help all academics across the UK to create and provide curriculum, pedagogy and assessments that facilitate better student mental health and educational outcomes.

How can we help?

Capital Law regularly provides advice to education providers on a range of student issues including Mental health, Disabilities or Additional Learning Needs. If you’d like to find out more, please contact Trish D’Souza at t.dsouza@capitallaw.co.uk.