Consenting adults: disclosing concerns about student mental health

Nick Hillman of the Higher Education Policy Institute wrote an interesting blog recently prompted by the Universities Minister’s reference to the concept of universities in loco parentis.

http://www.hepi.ac.uk/2018/04/25/universities-loco-parentis-good-old-days-bad-old-days/

Nick concluded his piece by suggesting that a more fruitful line of discussion might be to consider whether the disclosure arrangements relating to concerns regarding students’ mental health were still appropriate, given the burgeoning crisis in mental ill- heath among the student body. His suggestion was to introduce an opt-in or opt-out system on enrolment to permit universities to share concerns with parents and guardians.

There is of course nothing to stop universities seeking consent or students from giving it even under the current HE arrangements. However, as always, there are a number of issues that warrant further consideration.

Firstly, it is not the case that consent to processing of data is a right that accrues only on the attainment of legal majority. Minors as young as 12 have been held capable of deciding whether or not to consent to their data being shared or otherwise protest. Therefore there may not be any justification for only offering the opt-in/opt-out to over-18s. Equally, not all students start university at 18; many institutions have students who are themselves parents and the question therefore arises who, if anyone, they should be asked to nominate for disclosure of relevant information.

Secondly, there may be students who feel pressurised into giving consent to disclose whether or not they really want to. Anyone who has handled complaints brought by strident parents “on behalf of” their adult children will know that the students can be genuinely afraid of telling their parents that they do not want the complaint to be pursued or of sharing the full story with their parents. How would students like this resist pressure to permit the sharing of data their parents might prefer to know?

Thirdly, what would be the trigger event for such disclosure. It is easy to talk about students “in distress” but this can manifest in many ways. Some may drink too much or take drugs, others may become withdrawn and less academically engaged, still others engage in wider risk-taking behaviours. But some students just do these things anyway. If we limit it to students at risk of harming themselves, how would institutions know? Are universities only obliged to disclose cases which are drawn to their attention, or should they be taking proactive steps to monitor their students’ mental health to seek out those where disclosure would assist.

The expected timing of disclosures matter too. We have advised institutions where, tragically, students have killed themselves within days of starting at university. No-one could reasonably expect a system to require notification at that early stage. How long must a student be known to a university and/or exhibit signs of distress before a university is expected to disclose information to students? How quickly are universities expected to draw together information from across different sources within the institution to decide that disclosure is the right thing to do?

Lastly, the thorny question of liability for delay or failure to disclose will inevitably raise its head. Once it is established that universities can and should share data where students agree, it will not be long before universities are being held liable for loss caused because, it is alleged, they failed or delayed in doing so.

It is often said that we should beware of simple solutions to complex problems and this is very true in the case of student mental health. That is not at all to say that there should not be further discussion about this idea but the difficulties identified above should not be overlooked. Imposing further duties in this area could result in entirely undesired if not unforeseen changes to the relationship between students and their universities.

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