Definition of Duty of Care
Duty of Care
The University owes a duty of care to all of its students, and an enhanced duty of
care to specific groups of students. This document presents an overview of the key
issues for consideration in the development of policies and procedures, which impact
upon duty of care issues. The document also raises awareness of relevant legal
requirements and duty of care issues.
It is not possible to lay down 'golden rules' in relation to duty of care. The purpose of
such procedures and adherence to them is to safeguard and promote students'
welfare and also to protect and support staff at all levels of the organisation from
litigation, even though such an event is likely to be rare.
Rationale for Action
To ensure all staff are aware of and comply with the relevant legal issues in their
provision of duty of care to students. In order to assist with this, this document:
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Defines 'Duty of Care'
Provides other relevant legal definitions
Offers information on the legal implications around duty of care
Through other University policies and statements, offers practical support for staff
dealing with vulnerable students.
Background
For staff working with potentially vulnerable students, it is important to understand
when duty of care applies and what needs to be done to meet duty of care
responsibilities. Issues to be considered when determining whether there has been
a breach of the duty of care owed, include:
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The personal circumstances of the individual student
The magnitude of the risk
The degree of probability of its occurrence
The difficulty and reasonableness/proportionality of taking any alleviating action
Any other conflicting responsibilities which the University might have.
The question of breach of duty of care therefore, involves a balancing act of
competing factors to determine whether the conduct or failure to act on a particular
occasion was reasonable in all other circumstances.
Definitions
Duty of Care
Duty of care exists where one individual's actions or in-actions could reasonably be
expected to affect another person. Therefore, under common law the University
owes to each of its students a duty to take reasonable care for the well-being and
health and safety of those students. The duty owed is not a duty to ensure that no
harm will ever occur, but a duty to take reasonable care to avoid harm being
suffered.
This does not mean that the University has to be perfect, but of a reasonable
standard. A reasonable standard of care is determined by factors such as:
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The practicality of the situation
The need to meet the duty of care of all persons who might be involved, including
those who live, or work, or study alongside students
Legal requirements in service provision.
Negligence
Some injuries/damage are accidental and the circumstances giving rise to them are
wholly unforeseeable. Negligent acts are defined as not being deliberate but where
the injury/damage was foreseeable. Negligence will only result where the person to
whom the duty of care is owed is able to prove the breach resulted in some harm,
injury or damage. This damage or injury can be physical or economic loss or a
reduction in the individual's quality of life. Negligence or legal liability is acting
without proper care. Therefore in order to satisfy or discharge that duty of care the
University must behave as a reasonable person would, while taking into account
specific skills, knowledge and experience. Against this backdrop the University is
vicariously liable for the negligent actions of employees.
Contractual Implications
It is generally considered that there is a contract between each student and
institution. It is implied in all contracts for the provision of services that the supplier
will supply the services with reasonable care and skill. Students may therefore have
potential claims if the institution breaches contractual terms. There may be implied
duties on the University concerning the provision of the academic course and the
provision of educational and social support, to ensure that these operate with
reasonable care and skill (Supply of Goods and Services Act 1982 s: 13). Where it
supplies a service, the University must:
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Ensure that claims in any document are accurate and precise
Ensure appropriate training for support staff
Implement clear support and referral procedures for students
Implement clear confidentiality policies
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Establish clear emergency protocols where students show signs of emerging
crisis
Ensure anti-bullying/harassment, equal opportunity policies are in place
Be aware of/adapt policies in line with changing legislation.
Legal Dimensions
These include:
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Occupiers Liability Act 1957
Health and Safety at Work Act 1974
Health & Safety 0ffences Act 2008
The Sex Discrimination Act 1975
Sex Discrimination Act 1975 (Amendment) Regulations 2008
Supply of Goods and Services Act 1982
Disability Discrimination Act 1995
Human Rights Act 1998
Data Protection Act 1998
Race Relations Act 1976
The Race Relations (Amendment) Act 2000
Special Educational Needs and Disability Act 2001
Race Relations Act 1976 (Amendment) Regulations 2003
The Corporate Manslaughter and Corporate Homicide Act 2007
Safeguarding Vulnerable Groups Act 2006
Employment Equality (Age) Regulations 2006
Disability Discrimination Act 2005
Equality Act 2006
The Equality Act 2010
Breach of Statutory Duty
The University has specific statutory duties within the above Acts. It is the
responsibility of the University to ensure that clear procedures are in place to enable
staff to work within the legal requirements of the above Acts. At the end of this
document, you will find relevant links to online University documents which relate to
the above.
Specific Groups/Categories of Students
It is recognised that the University may owe an enhanced standard of care to
particular groups of potentially vulnerable students, these include:
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Under 18 year olds
International students
Students with mental health issues
Disabled students and those with medical conditions
Minority groups who may be particularly vulnerable to harassment, including
ethnic, racial or religious groups, gay, lesbian or bisexual students, trans-sexual
or transgender students
Students undertaking placement/clinical or teaching practice/study
abroad/attending field trips as part of their course
Students participating in voluntary activity which has been organised by the
University.
Other situations/circumstances which may require an enhanced standard of care:
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Exchange programmes
Writing references for students
Student volunteer activities.
Relevant Policy Documents
Included with this paper are policy documents, information statements and good
practice guidelines. These are provided to assist University staff in the provision of
duty of care to all students, but in particular those which fall into the vulnerable
category.