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Suicide: A Duty Owed
Carolyn Stone, Ed.D.
Saturday March 01, 2003
by: Carolyn Stone, Ed.D.

Section: Inside Insight

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You have been told by a student that her friend Jocelyn, a counselee of yours, is threatening suicide. When you call Jocelyn in, she vehemently denies any consideration of suicide, scoffing at the idea that she would ever harm herself. You are convinced and you drop the issue without discussing it with anyone. She later commits suicide. Do your actions pose an ethical or legal dilemma? What if it turned out that she wasn’t a suicide risk but you informed her parents that she was? Do your actions then pose an ethical or legal dilemma?

School counselors know all too well the damage to their effectiveness if they have a reputation of breaking confidences and calling parents. However, teenage suicide is also an unfortunate reality of a school counselor’s life. The ambiguity of protecting a student’s trust in the school counselor as a confidant and the need to respect parents’ rights to be the guiding voice in their children’s lives is a constant source of tension for school counselors. The hypothetical case of Jocelyn above underscores the conflict counselors face in trying to behave legally and ethically toward students, parents and their school district.

Let’s first look at the legal aspects involved. The law of negligence involves injury or damage to another through a breach of duty owed to that person. Duty owed means a legal responsibility one person has to another, such as a legal responsibility to drive with care so you don’t injure another person. Negligence requires the presence of four elements:

1. A duty is owed.
2. The duty owed was breached.
3. There is a causal connection between breach of duty and injury.
4. An injury has occurred.

Until the Eisel vs. Montgomery County Board of Education court case (1991), courts consistently found that school counselors did not “owe a legal duty” to prevent a student’s suicide. Eisel strengthened counselors’ legal obligation to students by satisfying for the first time the first element of negligence and declaring that school counselors have a special relationship with students and owe a duty to try to prevent a student’s suicide.

The Maryland Court of Appeals in the Eisel case ruled that school counselors had a duty to notify the parents of a 13-year-old student about the suicidal statements she made to fellow students. Nicole Eisel apparently became involved in Satanism and told several friends and fellow students of her intention to kill herself. Some of these friends informed their school counselor of Nicole’s intentions, and this counselor in turn informed Nicole’s counselor. The two counselors questioned Nicole about the statements, and Nicole denied making them. Neither the parents nor the school administrators were notified about these events. Shortly, thereafter, Nicole and a friend killed themselves.

The court in the Eisel case cited as critical the in loco parentis doctrine, which means that educators, including school counselors, are legally standing in for parents and owe a special duty to exercise reasonable care to protect a student from harm. The court concluded school counselors have a duty to use reasonable means to attempt to prevent a suicide when they are placed on notice of a student’s suicidal intent. With the Eisel ruling, the court redefined the school counselor-student relationship and declared that school counselors have a duty of care when placed on notice of a possible suicide. The court recognized the fact that school counselors hear a great deal of suicidal ideation and have the complicated task of trying to determine which threats are real, but the court cited, “the consequence of the risk is so great that even a relatively remote possibility of a suicide may be enough to establish duty.”

In other words, the court stopped just short of declaring that school counselors have an affirmative duty to notify parents in each and every case involving a suicidal threat.

Does the Eisel ruling take away counselors’ ability to exercise judgment with regard to student suicide? No, Eisel did not argue for absolute duty as ii the case of child abuse reporting in which any and all suspected situations are reported. The court stopped just short of declaring an absolute duty. However, the tenets established in Eisel forewarn counselors that there is precedence that counselors owe a duty to try to prevent suicide. Counselors have a legal obligation to prevent suicide. Counselors do not have to be paralyzed by the Eisel ruling; instead, the ruling should serve to help counselors realize the importance of seeking supervision and carefully deliberating decisions about breaching student confidentiality and protecting parental rights. The duty to care is critical, and, likewise, so is the enormity of breaching confidentiality. The weight of the decision to breach should cause the professional school counselor considerable discomfort; if not, examine carefully your level of commitment to confidentiality.

The Final Word?
The Eisel case did not deliver the final word. Following the Eisel case, courts in at least five states have rejected these kinds of cases. For example, in Grant vs. Board of Trustees of Valley View School District (1997), an Illinois appellate court absolved a school counselor of legal liability when the counselor failed to tell the student’s parents about the student’s suicide threats. But courts in three other cases have ruled that, in certain circumstances, school employees’ failure to act can make them or the school legally responsible for a student’s suicide. All of the cases that imposed liability, however, involved employees who failed to notify parents that their children had written or talked to others about killing themselves.

When does a school counselor’s legal liability end? A counselor’s legal liability ends when school authorities or parents have been notified that a student is at risk and appropriate actions have been recommended. School counselors should be sure to document their notification. The courts are not expecting counselors to do the impossible and prevent all adolescent suicides. Rather, the court’s message was that the consequence of the risk of not involving parents is too great and that parents must be allowed to try and intervene. However, a counselor’s ethical obligation to a suicidal student may extend beyond parental notification. If a student isn’t helped after notifying parents or guardians, then the student’s counseling needs haven’t been met. If counseling is not provided when the suicidal student is first identified, the probability of attempts and completion increases. According to Capuzzi in “Legal and Ethical Issues in School Counseling,” school counselors must make every attempt to supply parents or guardians with counseling referrals until placement is secured for that student. Sometimes it is necessary to notify protective services of a possible neglect situation.

Ethical standards provide guidelines regarding protecting students and others from potentially dangerous situations, but it is ultimately the counselor’s responsibility to negotiate the rights and privileges of students and parents with regard to issues of duty to care. As seen in Bellotti vs. Baird (1979) and H. L. etc., Appelant vs. Scott M. Matheson (1982), parents are continually vested by the courts with legal rights to guide their children. The ASCA ethical standards dictate that school counselors have a primary obligation and loyalty to students but that parents need to be involved as appropriate. Community standards, a counselor’s own personal values, school board policy, the school setting, state and federal statutes and school procedures all contribute to the complex nature of working with minors in schools.

Consulting is such a critical part of ethical behavior that it is important to establish a network of professionals with whom you can routinely and confidentially consult when situations arise. School counselors need to be constant consumers of legal and ethical information by seeking counsel of colleagues, administrators, supervisors and school attorneys. The complexity of the legal and ethical world is less daunting and security is enhanced when consultation with fellow professionals is routine. More importantly, consultation can help counselors provide increased safety and security for students.

Carolyn Stone, Ed.D., is associate professor and program leader, school counseling program, University of North Florida in Jacksonville. She is also the ASCA ethics chair and president of the Florida Counseling Association. She can be reached at cstone@unf.edu.

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Grant vs. Board of Trustees of Valley View School District. No 365-U, 676 N.E.2d 705 (Ill. App. Ct. 1997)
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