Definition of Duty of Care

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:

· 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:

· 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:

· 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:

· 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

· 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:

· 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:

· 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:

· 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.