An overview of the current state of mental health in young people, exploring the duty schools have to look after students in their care.

1. Mental health: overview and duty of care
Mental health matters – Exeter, 6 February 2018

2. The here and now
• 1 in 10 young people has some form of diagnosable mental health
condition
• Half of all mental health conditions are established before the age
of 14
• 300,000 people with mental health problems leave their job each
year
• Mental health staff on stress leave up 22% (Dec 2017)

3. The importance of Schools
• Schools are at the centre of the drive for early intervention
• Restorative
• Causative

4. The Select Committee Review 2016
• School staff play an essential role in early identification
particularly for eating disorders, self harm and attention deficit
hyperactivity disorder (ADHD)
• Particularly important for several problems where medication is
involved – communication and co-ordination
• Schools can offer a graduated approach
• Schools offer a non-stigmatising environment

5. What responsibility does a school have?
All schools owe a duty of care of their students and staff
• What does this mean legally?
• What does this mean in relation to mental health?

6. Legislation
S175 Education Act 2002
‘The Governing Body of a maintained school shall make
arrangements for ensuring that their functions relating to
the conduct of the school are exercised with a view to
safeguarding and promoting the welfare of children who are
pupils at the school’
• Applies to LEA and FE sector
• Applies to Academies

7. Teachers’ legal obligations
Children Act 1989 – statutory duty
Section 3(5) defines the duty of care to the effect that a person with
care of a child may do all that is reasonable in the circumstances for
the purpose of safeguarding or promoting the welfare of the child

8. Legal obligations to ‘children in need’
Children Act 1989 S17
‘a child who is unlikely to achieve or maintain a reasonable level of
health or development or whose health and development is likely to
be significantly or further impaired, without the provision of
services; or a child who is disabled’

9. Regulations
• Education (Independent Schools Standards) Regulations 2014
• Non-maintained Special Schools (England) Regulations 2015
Refers to Keeping Children Safe; requirement for Prevent
Strategy; requirement for incident books and records
(electronically not hard copies)

10. Guidelines
• Keeping Children Safe in Education 2016
• Working together to Safeguard Children
‘Statutory Guidance for Schools and Colleges’
Must have regard to it
• SEND Code of Practice 0 – 25
• National minimum standards for residential Special Schools
• Teachers Standards 2017 require that teachers should safeguard
children’s wellbeing in accordance with the statutory provisions

11. General Duty of care – legal definition
• A requirement that a person act towards others and the public
with the watchfulness, attention, caution and prudence that a
reasonable person in the circumstances would use
• If a person’s actions do not meet this standard of care then the
acts are considered negligent and any damages resulting may be
claimed in a legal claim for negligence

12. Mental Health difficulties
Are Mental Health difficulties to be considered a Special
Educational Need?
• A SEN child is one that has ‘learning difficulties or disabilities
that make it harder for them to learn than most other young
children and young people about the same age’
• Includes social, emotional or mental health difficulties such as
establishing/friendships relating to peers or behaving properly

13. Mental Health difficulties
Can mental health difficulties be considered a disability?
Protected Characteristics under Equality Act 2010
Disability, age, gender reassignment, marriage and civil partnership,
pregnancy and maternity, race, religion or belief, sex and sexual
orientation

14. Disability
• All schools are under a duty not to discriminate against pupils on
the grounds of a disability
• All employers are under a duty not to discriminate against any
employee on the grounds of a disability
• Disability includes a mental impairment
• Must have a substantial and long term adverse effect on the
person’s ability to carry out normal day to day activities

15. Disability
• Long term = 12 months but not consecutive – transient does not
count
• Substantial – material, not minor

16. Mental Impairment
Examples of mental health symptoms which can be regarded as Mental
Impairment under the Act:
Anxiety
Bi-polar
affective
disorders
Low mood
Personality
disorders
Panic attacks Depression Phobias
Eating
disorders
Autistic
spectrum
disorders
Learning
disabilities
PTSD
Self harming
behaviour
Obsessive
compulsive
disorder
Schizophrenia Dyslexia Dyspraxia

17. Mental Impairment
Examples of what does not count as Mental Impairment :
• Some shyness and timidity
• Inability to speak in front of the class as a result of nervousness
• Inability to concentrate on a task requiring application over several
hours

18. Expectations
What is expected of teachers under the duty of care?
Reasonable person in the circumstances
Teacher compared to teacher
Teacher compared to expert child psychiatrist

19. Expectations
• Monitor (data re: attendance, behaviour, performance, concerns)
• Identification (knowing your students), what’s normal/what changes
• Refer to Manager/external resources
• Involve students/parents
• Have an effective and relevant behaviour policy
• Designated mental health lead
• Training for relevant staff
• Education for students

20. Duty of care – implications for Mental Health
Foreseeability – reasonable foresight of harm
Mental
Health
Pastoral /H&S
issues
Achievement/
performance
Bullying
Exclusions
Behaviour
issues
Attendance

21. Factors to consider
Age 8% of 5 – 10 year olds diagnosable mental health disorder
12% of 11-15 year olds
Sex 11% - boys
8% - girls
Ethnicity 1 in 10 white children
1 in 10 black children
3 in 100 Indian children
Adverse Childhood Experiences 45% of LAC
(similar adopted children
52% witness of domestic abuse
Sexual orientation LGBT – all ages
Gang membership 40% gang members

22. Behaviour
Behaviour choice or inability to change?
Understand the difference
• Identify susceptibilities/key factors
• Know your students, their background and lifestyles
• Profiling tool/RAG rating
• Look at relationships/staff issues

23. Behaviour Emotional Social Difficulties
P v Governing Body of a Primary School [2013]
• Child attended BESD School
• Child diagnosed as having Aspergers Syndrome and likely that had
ADHD. He was prone to aggressive and unpredictable behaviour
• Support had been put in place
• Permanently excluded for kicking a TA
• Parents complained to FTT on grounds of disability discrimination

24. Behaviour Emotional Social Difficulties
• FTT found that child was not disabled in respect of the reasons he was excluded
because he had a tendency to violence
• Parents appealed to upper Tribunal on basis that consideration not given to
whether had made reasonable adjustments
• UT found that child had a diagnosis of Pathological Demand Avoidance (PDA) and
this plus ADHD meant he was disabled
• UT believed that action of the teacher had caused the violent reaction and
therefore was a direct result of his disability
• Therefore, failure to reasonably adjust meant parents successful

25. Behaviour
Implications of not getting it right
• Increase in number of challenges to permanent exclusions on
grounds of mental health disability
• Increase in failure to educate claims – needs not met
• Increase in staff disengagement
• Increase in stress claims
• Rise in complaints from parents
• Performance affected

26. Green Paper
Transforming Children and Young People’s Mental Health Provision
• December 2017
• 3 key provisions

27. Green Paper
• Incentivise every school and college to identify a Designated
Senior Lead to oversee the approach to mental health and
wellbeing

28. Green Paper
• Funding for new mental health support teams, supervised by NHS
Children and Young People’s Mental Health staff
• Managed jointly NHS and schools/colleges
• Linked to groups of primary/secondary schools and colleges
• Mild to moderate needs

29. Green Paper
• 4 week waiting time for access to specialist NHS Children and
Young People’s Mental Health services

30. Conclusion
• Growing awareness
• Use resources that are available to help
• Understand your duties
• Understand behavioural needs and consider reasonable
adjustments
• Positive mental health has benefits

31. Find out more
www.brownejacobson.com

32. Talk to us
Julia Green | 01392 458727 | julia.green@brownejacobson.com
Please note
The information contained in these notes is based on the position at
February 2018. It does, of course, only represent a summary of the
subject matter covered and is not intended to be a substitute for
detailed advice. If you would like to discuss any of the matters covered in
further detail, our team would be happy to do so.
© Browne Jacobson LLP 2018. Browne Jacobson LLP is a limited liability
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