Legal duty
The Equality Act
The Equality Act 2010 serves as a legal provision protecting those with 'protected characteristics' from direct and indirect discrimination. The part particularly relevant to content notes is Section 20: Duty to make adjustments, which sets out that legally there is a requirement
"where a provision, criterion or practice puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."
'Disabled' here refers to any mental or physical condition which substantially impacts day-to-day life, including post-traumatic stress-disorder (PTSD).
(Further guidance on how the Equality Act 2010 applies in a Higher Education context)
Anticipatory duty and reasonable adjustments
The duty to make reasonable adjustments is anticipatory: as the University's Code of Practice states,
"the University should not wait until adjustments are proposed, rather look to ensure, where possible, that alterations to policies, practices and procedures have been made in advance to prevent disabled students suffering substantial disadvantage. The anticipatory duty would extend to a requirement to anticipate specific adjustments which might be required for an individual student, including to examinations, without a specific request from them."
Our position in the case of students with PTSD or other mental health conditions linked to traumatic experiences is that providing content notes constitutes a 'reasonable adjustment' in the terms of the Act. Where content notes are not provided, students with PTSD may indeed face 'substantial disadvantage' in comparison to their non-disabled peers.
This is because they are otherwise forced to face material which is potentially triggering or otherwise psychologically distressing to them without warning or the opportunity to prepare, and the negative impact this may have on wellbeing and academic engagement is significant in comparison to non-disabled students for whom such material may well be challenging, but will not present the same potential for severe psychological distress.
The anticipatory nature of the legal duty means that it is not enough to warn individual students only after they have requested this adjustment; instead, content notes should be proactively provided, taking the onus away from students to repeatedly and unnecessarily disclose their trauma or disability.