Duty of Care — Built by Grief — Not by Government
While ministers dither and deflect — failing to grasp what campaigners are truly saying — the law moves forward. Slowly. Painfully. Case by case. At great human cost.
Bereaved families, harmed students, and their dedicated, principled legal teams — professionals who believe deeply in the justice of these cases — are doing what the government refuses to: codifying and clarifying what universities owe their students when it comes to safety, support, and fairness. These duties aren’t shaped in Westminster but forged in courtrooms — not through clear, consistent legal rules set out in advance, but through fragments of common law: small pieces of a jigsaw fitted together by tragedy.
Currently, there are no clear or comprehensive legal standards establishing how universities must protect their students; no laws that dictate when and how they must take appropriate steps or what happens if they don’t. Instead, judges are forced to decide retrospectively, case by case, based on individual harm and suffering.
In a recent letter, Skills Minister Jacqui Smith wrote:
"I recognise that you believe legislating on duty of care is the key way to address unsafe processes and practices in HE. However, I firmly believe that imposing a statutory duty of care on HE providers would not be an effective way of addressing the crucial issues raised by bereaved families, such as information sharing and insensitive communications to students regarding academic issues."
But this completely misunderstands what is being asked — and what is truly at stake. A legal duty of care is not about universities sending friendlier emails or contacting a student’s family during a crisis. These may be symptoms of institutional failure — but not its root cause.
The real issue is what happens when serious risks are ignored. When professional recommendations are brushed aside. When safeguarding policies are breached. When academic processes are applied so arbitrarily — or so indifferently — that they push vulnerable students into crisis. These are not failures in communication. They are failures of responsibility.
Reducing this to “information sharing” is like saying fire safety laws exist merely so building managers know who to call in an emergency — when in fact, they exist to prevent fires from starting. Or like suggesting seatbelt laws are about helping emergency services notify families after a crash, rather than preventing serious injury or death. The point is prevention, not damage control.
Reducing this to “insensitive communications” — whether blunt or harsh messages about bad grades, unhelpful emails that amplify distress and confusion, or automated, uncaring notifications about exam failure and dismissal — is like doctors focusing on improving their “bedside manner.” How bad news is delivered matters, but true responsibility means identifying and addressing the underlying issues — far more than just how the message is conveyed.
A duty of care is about prevention, not merely response — about stopping harm before it happens, not simply managing the aftermath. It sets clear legal expectations and establishes consequences when institutions fall short. And while ministers continue to insist that no legislation is needed, the courts are quietly — and painfully — doing the job for them.
Statutory law is crafted deliberately by Parliament — written rules designed to apply broadly and predictably. Common law, by contrast, develops case by case, as judges respond to individual circumstances and set precedents. And while ministers remain silent, the courts are speaking. A legal duty of care is taking shape — not through proactive government leadership, but through reactive judicial rulings. Each judgment lays another brick in a fragile but growing structure of accountability — one the government still claims is unnecessary.
This painful evolution of law is nowhere more evident than in the courtroom, where the human cost of inaction becomes undeniable. Behind every case is a life altered — or lost. A grieving family. A student whose education became a source of harm. A young person who reached out for help, only to be ignored, sidelined, or punished for struggling. This should not be how the law evolves — dragged forward by suffering. It should not fall to the harmed and the bereaved to build, alone, the safety net that failed them. Until Parliament acts, however, this burden rests with them and the courts. This is not how a rights-respecting system should operate. Legal protection should come before harm — not as a postscript to tragedy.
First the Grief, Then the Law
The common law duty of care in higher education is not being shaped by policy, vision, or ministerial will — the kind of clear legislation that gets it right from the start, and that everyone knows and understands. Instead, it is carved from grief. Forced into being by tragedy. Built case by case from suffering that could — and should — have been prevented.
Each legal challenge, brought by bereaved families or harmed students, pushes the courts to acknowledge responsibilities the government refuses to define. What should have been shaped by Parliament is instead emerging through litigation — not through consultation or foresight, but from courtroom efforts to address individual harm after it has occurred. In other words, closing the door after the horse has bolted.
The result is a fragile and reactive form of progress. But progress nonetheless. And it is beginning to answer the crucial question the government has so far neglected: what protection do universities legally owe their students?
Three recent, high-profile cases show how this duty is being created— not in statute, but in judgments — a reckoning, not a safeguard. Together, they begin to reveal what accountability looks like when law follows after things have gone seriously wrong.
Abrahart v. University of Bristol (May 2022)
Natasha Abrahart, a student with severe social anxiety, tragically took her own life on the day she was required to complete a mandatory oral assessment. The university was fully aware of her condition, including a prior suicide attempt, yet insisted she attend and participate. Her parents brought claims under the Equality Act 2010 and also argued that the university owed Natasha a common law duty of care for the serious and avoidable distress it had caused.
While the court ultimately upheld the Equality Act claim, it did not dismiss the possibility that a common law duty could exist in such circumstances. In a key remark, Judge Ralton of Bristol County Court stated:
“If I am wrong on the matter of the existence of a relevant duty of care … There can be no doubt that the University would have been in breach [of a duty of care]; the main breach would be continuing to require Natasha to give interviews and attend the conference and marking her down if she did not participate when it knew that Natasha was unable to participate for mental health reasons beyond her control.”
This was not a demand for perfection. It was a legal warning: universities must not ignore serious, known mental health risks. They must not punish students for symptoms of recognised conditions. They must act reasonably, proportionately, and humanely.
The case marked a turning point: for the first time, a UK court opened the door to recognising that universities may owe their students a duty of care in conducting academic processes — especially where mental health is concerned.
But without a statutory framework, that duty remains uncertain. In Abrahart, the judge was reluctant to impose a new, binding precedent across the sector. Responsibility was acknowledged — an affirmation that proper conduct should not be a matter of discretionary goodwill — but without a statutory framework, that duty remained uncertain and unenforced.
[County Court Judgement – Full Text Available]
Feder & McCamish v. Royal Welsh College of Music and Drama (October 2023)
In a landmark ruling, Recorder Halford of Central London County Court found that the Royal Welsh College of Music and Drama had breached its common law duty of care to two students, Sydney Feder and Alyse McCamish, by failing to properly investigate and respond to their reports of serious sexual assault by another student.
The College had safeguarding and disciplinary procedures in place—but failed to follow them. It did not initiate a formal investigation, failed to escalate concerns to its safeguarding officer, and left the students to navigate the aftermath without appropriate support. The court concluded that this inaction exposed both students to avoidable harm.
The ruling was unequivocal: multiple instances showed the College’s actions “fell below the reasonable higher education institution standard.” Importantly, the judgment also recognised the significance of the relationship of trust and reliance when risk is foreseeable and support mechanisms already exist.
Both government and sector place great emphasis on developing national guidance and institutional policies. But this case makes a critical point: the College wasn’t found liable because it lacked policies; it was found liable because it had policies and failed to follow them. The court’s message was clear: safeguarding frameworks are not window dressing. If institutions create systems to protect students, they must implement them properly—or face legal consequences.
This case matters because it didn’t merely gesture at a duty of care—it confirmed it. It brought the concept from theory into practice. Although the duty recognised by the court was narrowly defined — focused on the College’s failure to act on its own safeguarding procedures — it nonetheless marks a legal watershed. Universities’ duties are no longer nebulous or optional. They are defined by what is foreseeable, reasonable, and already within an institution’s power to deliver.
If universities ignore their own policies or dismiss serious allegations, they are not just failing ethically — they may be acting unlawfully.
This is the law catching up with reality. And it underscores a crucial point ministers continue to miss: duty of care is not restricted to mental health or suicide prevention. It speaks to institutional responsibility in every context where students are exposed to risk — whether physical, psychological, sexual, financial, academic or employment related. The harms may differ, but the legal principle is the same: under common law, when universities are aware of serious risks and fail to act, they may be held accountable for breaches of duty.
[County Court Judgement – Full Text Available]
Meagher v. University of Cambridge
A third case, currently before the courts, could prove foundational in further shaping how the law understands a duty of care in higher education — particularly in relation to disability discrimination and foreseeable harm.
Jacob Meagher, a qualified barrister and PhD student, failed his viva (oral examination) after the University of Cambridge allegedly disregarded a series of specific adjustments recommended by its own Accessibility and Disability Resource Centre. These included rest breaks, a modified questioning style, and a supportive assessment environment tailored to Jacob’s diagnosed disability. The university was formally notified of these requirements, yet the viva proceeded without any of the agreed accommodations in place. Meagher later described the experience as distressing and harmful. When he challenged the process internally, the university dismissed his complaints.
Now, Meagher is suing — not just under the Equality Act, but also in negligence. To be clear: in law, negligence cannot exist without a duty of care, because negligence is defined as a breach of that duty. This is a critical development. His legal team argues that the university knew of both his disability and the associated risk of harm, yet failed to act reasonably to mitigate it. If the court accepts this argument, it could help further establish a common law duty of care rooted in foreseeable harm and institutional responsibility — especially when an institution's own systems identify a risk, then ignore it.
This case is not about lowering academic standards or excusing poor performance under exam conditions. It is about expecting institutions to honour basic legal and ethical obligations they have already accepted. A university cannot claim to support disabled students while systematically failing to implement the very adjustments recommended by its own experts. Should Meagher’s claim succeed, it will reinforce the message that such failure is not simply unfair or bureaucratic — it may be unlawful.
And yet, this is what it takes: a student must suffer harm, fight for redress, and endure years in costly, emotionally draining litigation just to assert a principle that should be self-evident — that institutions must act when harm is foreseeable and preventable. An obligation that the government refuses to properly codify in statute.
This is the long road of common law reform: no legislation, no ministerial intervention — just students and families pushing the boundaries of the law one painful case at a time.
First Signs of Legal Clarity
Taken together, these judgments form an early blueprint of the general duty that is so desperately needed. What’s emerging from these cases is not some abstract or theoretical notion of duty, but a clear, practical set of expectations. The courts are beginning to define — sometimes explicitly, sometimes by strong implication — what higher education institutions must and must not do. These aren’t policy preferences or vague aspirations; they are judicial findings grounded in real harm and lived experience.
Hence, without waiting for legislation or ministerial direction, the outlines of a duty of care are becoming visible through court rulings and emerging case law. Universities must:
Implement reasonable adjustments when recommended by disability services or expert bodies. Access needs are not optional.
Follow their own procedures consistently, especially around assessments, complaints, and student support. This means no more selective compliance or opaque decision-making.
Act on known risks, including mental health issues, safeguarding concerns, or patterns of harm. Institutions can no longer claim ignorance when warning signs were clear.
Investigate complaints in good faith, with transparent, fair, and timely processes. Internal reviews must protect students, not shield the institution.
This is not an unreasonable or radical list. It is simply an enforceable version of what universities already claim to uphold. And yet, in the absence of clear statutory codification, these duties are still being defined only after harm has occurred, only after families have grieved, and only after individuals have sought justice through the courts.
How Many More Must Suffer?
The government’s refusal to legislate is not neutral or passive. It is not simply “waiting for more evidence” or “avoiding unintended consequences.” It’s an active policy of deliberate non-intervention. And this inaction carries a human cost: repeated, predictable harm to students whose rights and safety remain uncertain.
How many more students must suffer? How many more tragedies must occur before ministers take responsibility? How many lives must be derailed — or lost — before Parliament sets out clear legal standards? This is the real cost of waiting on ministers who refuse to act.
Right now, it is bereaved families — not lawmakers — who are clarifying the boundaries of university responsibility. It is harmed students — not regulators — who are fighting for justice and accountability. And it is the courts — not government — that are doing the slow, hard, work of defining what a duty of care in higher education looks like. But it should not be their burden to bear. Legal responsibility must come before loss and suffering, not after.
It didn’t have to be this way. But it is. And until the government acts, the only available route to accountability remains the long, costly, exhausting path of litigation.
For families and students, that means enduring harm that should have been prevented — and carrying a burden they should never have had to bear. Harm that could be avoided now, if ministers chose to legislate.
Until then, the only protection students have is a patchwork duty of care — born of grief, courage, and legal struggle — and a stark indictment of government failure. We don’t use real people to crash-test cars before safety standards are set. So why should students be the ones paying the price for institutional failures?
The time for denial is over.
The time for legal reform is now.