Eliminating harmful suicide policies in higher education.

• Author: Konopasky, Aaron

INTRODUCTION

Jordan Nott was a freshman at George Washington University (GWU) when one of his good friends jumped from a dormitory window and killed himself, in Nott's presence. (1) When Nott returned to school the next year and another student committed suicide, Nott became severely depressed. (2) He began counseling and psychiatric medication. (3) Finally, he checked into the university hospital because he worried that he might commit suicide himself. (4)

GWU's response came in four stages: (1) the counseling and medical staff notified the university administration, in violation of Nott's confidentiality; (2) the administration notified Nott, in a letter and while still in the hospital, that his behavior was "endangering"; (3) they offered him the choice of withdrawing from classes or being expelled; and (4) they threatened to arrest him if he returned to campus. (5)

Not surprisingly, Nott found this response discouraging. (6) He withdrew from GWU and luckily was able to live with his parents while he recovered. Rather than return to campus after his condition improved, Nott decided to make his withdrawal permanent. (7)

This response by GWU to Nott's seeking help is morally reprehensible. The university responded to the knowledge that Nott was suicidal by punishing him. Instead, it should have taken the opportunity to intervene in a positive way, by helping him obtain counseling or other emergency treatment and navigate through the academic difficulties resulting from his depression.

Unfortunately, this type of response is becoming more common in colleges and universities. (8) Even more unfortunately, it is encouraged by the current legal landscape; colleges and universities risk incurring liability for a student's death if a close relationship exists between the student and the college or university. (9) To guard against a court finding such a close relationship with the student, colleges and universities attempt to cut off contact altogether. The specifics of current law are discussed in Part I.

The current legal landscape must be changed. Common sense and basic morality suggest that we should not respond to suicidal gestures by punishing students academically and banishing them from the community. Ways of accomplishing this goal are explored in Part II. One possibility is to seek a common law solution to the problem, by attempting to extend traditional tort doctrines through litigation. However, as I argue in Subparts I.B.2 and I.C.3, this strategy is not likely to succeed. Traditional tort doctrines incentivize exactly the wrong responses on the part of colleges and universities.

An acceptable solution therefore requires reversing the current legal incentives, rather than strengthening them. I argue in Subpart II.A that the most appropriate tool for effecting this type of change is legislative. In Subparts II.BII.F, I develop a legislative approach that requires educational institutions to take reasonable steps toward securing treatment for students who face a significant risk of committing suicide. This approach requires institutions to encourage treatment of the student population generally, for instance by increasing access to mental health services and by taking measures to reduce the stigma associated with mental disorders. It also requires the direct encouragement of treatment for students in danger of committing suicide. Several possibilities for such encouragement are discussed in Subpart II.D. Finally, the Appendix sets out a model statute that embodies the approach, which I call the "Higher Education Suicide Prevention Act (HESPA)."

1. EXISTING LAW

   1. History

      Traditionally, courts have failed to find any person or institution liable for another's suicide. (10) Suicide was considered a deliberate and wrongful act, which was therefore an intervening cause of the eventual death. (11) More recently, narrow exceptions have been made.(12) The first exception arises when the defendant causes the suicide. (13) This exception is not relevant to the current inquiry and will not be discussed here. The second exception arises when a special relationship is found to exist between the victim and the defendant, strong enough to impose a special duty on the defendant. (14) This duty has come in the form of a duty to prevent the suicide and in the form of a duty to warn parents or guardians of a suicide risk. (15) These duties are addressed in Subparts I.B and I.C.

   2. Duty to Prevent

      1. Case Law

      The few attempts to impose liability on schools for failing to prevent suicide have had mixed results. (16) In Scott v. Montgomery Board of Education, the court refused to find the school board liable for Aaron Scott's suicide, despite the fact that the school was well aware of his serious emotional problems, and nonetheless failed to provide counseling or other assistance. (17) Scott repeatedly caused disturbances in school, by refusing to do his work and then threatening to kill himself. (18) On the day of his suicide, this pattern of behavior repeated itself, culminating this time in his assaulting his teacher. (19) The court concluded that the school's failure to provide counseling or other assistance was not the proximate cause of Scott's suicide, and that the school board was therefore not liable. (20)

      In contrast, some courts have imposed such liability on schools by declaring a duty to prevent suicide where a "special relationship" exists between the student and the school. (21) Special relationships have been found to exist, however, only where school officials have information sufficient to render the suicide foreseeable. (22) This is a high standard to meet. In Schiezler, the decedent (Frentzel) lived in his college dorm, and college officials had been made aware of his severe depression on several occasions. (23) Immediately prior to his suicide, Frentzel revealed to his girlfriend that he intended to kill himself, and she notified the campus police. (24) Next informed was the Dean of Student Affairs, who met with Frentzel and required him to sign a contract stating that he would not hurt himself. (25) If this much contact is required between the student and the administration before a special relationship is found, the requirement will rarely be met. (26)

      2. Problems with a Duty to Prevent

      The duty to prevent suicide is at once too demanding and not demanding enough. On one hand, it is not demanding enough because it is too difficult to trigger. There will often be evidence that a student is in danger of committing suicide without there being enough contact between the student and the administration. Consider a case in which a student reveals to a professor that she has been thinking about suicide, or a case like Jordan Nott's, in which the administration learns of the student's trouble by being informed by the medical staff.

      On the other hand, the duty is too demanding in that it requires a college or university to prevent the suicide once the duty has been triggered. Actually preventing a suicide would often require drastic action, such as keeping constant watch over the student, taking the student into custody or otherwise incapacitating them. Absent a showing that the student is incompetent and qualifies for civil commitment, it is doubtful whether colleges and universities should be entitled to do this, much less required. The onerous nature of a duty to prevent suicide explains why courts are reluctant to adopt it even in unusual circumstances.

   3. Duty to Notify

      A popular alternative to imposing a duty to prevent suicide is to impose a duty to notify parents when such institutions become aware that a student is at risk. (27) This would indeed be considerably less onerous than the duty to prevent suicide, since the duty is not defined in terms of ultimate success: the institution's duty is discharged if the parents are notified, regardless of whether the student ultimately commits suicide.

      1. Case Law

      Plaintiffs seeking to impose a duty to notify parents through the courts do so by attempting to extend Tarasoff v. Regents' of University of California (Tarasoff II). (28) In Tarasoff II, a psychiatric patient revealed to a psychologist at U.C. Berkeley's Crown Memorial Hospital that he intended to murder Tatiana Tarasoff. (29) Nonetheless, the patient was released after he convinced the psychologist that he was rational. (30) The psychologist took no further action, and the patient killed Ms. Tarasoff two months later. (31) The California Supreme Court held that, when a therapist determines that a patient presents a serious threat of violence to another, he has an obligation to use reasonable care to protect the intended victim against such violence. (32) This duty may be discharged in several ways, but because of the court's earlier emphasis on discharging it by warning the intended victim, Tarasoff II has been thought of as imposing a "duty to warn." (33)

      The few attempts to extend the Tarasoff II principle to cases involving suicide have enjoyed mixed success. The California Supreme Court itself refused to so extend the principle. (34) In Nally v. Grace Community Church, a spiritual counselor failed to refer a suicidal client to a professional health care provider, despite being warned about the client's potential for suicide during the course of counseling. (35) The court refused to find a duty on the part of the spiritual counselor to reveal this information to third parties. (36) The court found the Tarasoff II reasoning inapplicable. The Tarasoff II court balanced the patient's interest in confidentiality against the public's interest in being free from physical harm. (37) In Nally, these two interests were both found in the same individual, and so there was no occasion to balance the one against the other. (38) Another difference between Tarasoff II and Nally was in the professional capacity of the defendant. In Tarasoff II, the defendant was a professional therapist, (39) while in...