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Student Suicide: Legal and Ethical Implications
Carolyn Stone and Perry Zirkel
Tuesday May 01, 2012
by: Carolyn Stone and Perry Zirkel

Section: Inside Insight

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A school counselor calls the ASCA office concerned about a colleague who administered a suicide assessment, deemed a child not suicidal and sent him home on the school bus. A mother is distressed when her daughter is named as her friend’s “safe person” in a suicidal contract. An administrator reaches out following the suicide of a student whose disturbing journal entries weren’t recognized as suicidal ideation.

These are just a few examples of questions the ASCA Ethics Committee has received and represent daily occurrences in school counselors’ lives.

Suicide is the third leading cause of death in 15 to 24 year olds. According to a 2010 Centers for Disease Control and Prevention study, 13.8 percent of American high school students had seriously considered suicide in the previous 12 months, and 6.3 percent reported having attempted suicide during that time. School counselors often receive the first outcry; yet, confusion still exists regarding appropriate action. Reviewing the court decisions in the wake of student suicide is useful from the dual and different perspectives of legal requirements and ethical norms.

Eisel vs. Board of Education of Montgomery County
Legal analysis: In Eisel vs. Board of Education of Montgomery County (1991), a 13-year-old female student died in an apparent murder-suicide pact with another student. Her father sued the school district and two of its school counselors, arguing that their special relationship with his daughter imposed a duty on them to report her suicidal ideations to him and his wife. The trial court dismissed the father’s lawsuit. On appeal, however, Maryland’s highest court sent it back to the lower court for a trial. The appellate court listed foreseeability of harm as the leading factor in determining whether school employees had a duty to warn the student’s parents. Ultimately, the jury in the lower court determined that the school counselors were not liable for the student’s death. However, the Eisel case provided some critical principles.

Ethical analysis: In the Eisel case, the court recognized that school counselors hear a great deal of suicidal ideation and that not all threats are substantial; yet, “the consequence of the risk is so great that even a relatively remote possibility of a suicide may be enough to establish duty” (Eisel vs. Board of Education of Montgomery County, 1991). School counselors act in loco parentis, which means their obligation is to protect the students’ safety at school and exercise reasonable care to give parents a chance to protect their children.

The ASCA Ethical Standards for School Counselors dictate that school counselors “recognize that working with minors in a school setting requires school counselors to collaborate with students’ parents/guardians to the extent possible. Students sometimes deceive in order to avoid further scrutiny and/or parental notification” so we err on the side of caution. When school counselors work with a potentially suicidal student, the end result must always be to notify the parent/guardian.

School counselors consult and are constant consumers of legal and ethical information by seeking the help of colleagues, administrators and school attorneys. The complexity of the legal world is less daunting and security is enhanced when consulting with fellow professionals.

Post-Eisel Negligence Case Law with Tort Immunity
Legal analysis: Since the Eisel decision, various negligence cases have arisen in the wake of a student’s suicide, but the rationales and outcomes fit the overall pro-educator pattern. Regardless of the school counselor’s action or omission, governmental immunity serve as effective defenses for the school district and employee in many states. For example, in Killen vs. Independent School District No. 706 (1996), a ninth-grade student killed herself at home with a firearm. Although the school counselor had warned the parents that their daughter had expressed suicidal feelings and recommended counseling, the parents alleged the school counselor didn’t inform them when their daughter subsequently made a more specific statement about committing suicide. The Minnesota appeals court upheld the lower court’s dismissal based on governmental immunity provisions.

Similarly, in Grant vs. Board of Trustees of Valley View School District (1997), a student’s friends reported his suicidal ideations and drug overdose to the school counselor. The school counselor urged the mother to take him to a hospital for drug treatment. Later that day, the student jumped to his death from a highway overpass. His mother alleged the school counselor failed to tell her about his suicidal expressions. An Illinois appellate court upheld the trial court’s dismissal on the grounds that public schools and their employees have immunity unless their misconduct was willful or wanton.

Ethical analysis: School counselors are clear with parents about a child’s expressed or implied suicidal ideation. When a student makes veiled threats of suicide, school counselors avoid skirting the issue; rather, they ask the tough questions. Wanting their suffering, not their lives, to end, many suicidal students answer “no” when asked if they are considering suicide. However, this answer does not negate the risk. Use open-ended questions, such as “What do you think about life and death?” This approach can serve as the first step in getting necessary help for an at-risk student. Parents need to understand that expressions of suicide or other warning signs require vigilance. School counselors should document they contacted the parents and wherever possible have a witness to the conversation. The principal or another administrator can add needed leverage and urgency to the conversation if parents are reluctant to act. School counselors use their best judgment in these emotionally charged situations and avoid putting documentation above the parents’ feelings and well-being. However, seek a signature from parents at the first appropriate opportunity.

Post-Eisel Case Law without Governmental Immunity
Legal analysis: Even when a state doesn’t have applicable governmental immunity, negligence suits have similarly been largely unsuccessful. A federal appellate court upheld the dismissal of a lawsuit brought by the mother of an eighth-grade student who had hanged himself (Scott vs. Montgomery County Board of Education, 1997). The school psychologist met with the student about two months before the student’s death and assessed him as not posing an immediate danger of self-harm and did not notify the student’s parents. The court concluded that the alleged causal linkage to the school psychologist was insufficient, and the mother’s negligence claims could not be categorized as educational malpractice.

A Wisconsin appellate court concluded that a parents’ suit failed for lack of an essential element of a negligence claim – causation (McMahon vs. St. Croix Falls School District, 1999). In this case, a student skipped school and died from self-immolation. One of his classmates alleged that she told a school counselor that he planned to cut school and that he had said something about being “sick and tired of life.” The Wisconsin appeals court ruled in favor of the school defendants, because under Wisconsin law suicide is an intervening variable that “breaks the line of causation.”

In Mikell vs. School Administrative Unit # 33 (2009), a student allegedly told a teacher’s aide that he “wanted to blow his brains out.” The school counselor met with the student, informed the parents that he was fine to remain at school and had the student sign a “contract for safety.” The school counselor took no further action, and two months later the student hanged himself. The New Hampshire Supreme Court ruled that school authorities were not liable for the student’s death as they did not have custodial care of the student, such as what applies in a hospital setting, nor had they engaged in “extreme and outrageous” conduct that “resulted in an uncontrollable impulse to commit suicide or prevented the decedent from realizing the nature of his act.”

Armijo vs. Wagon Mound Public Schools (1998) is the only published decision to recognize a Section 1983 cause of action against school authorities based on a student’s suicide. A New Mexico school principal suspended a student and directed a school counselor to drive him home. His parents returned home later in the day and found him dead from a self-inflicted gunshot. Earlier in the day he had reportedly told a school aide that he might be “better off dead.” The Tenth Circuit Court of Appeals allowed the case to proceed because a jury could find that the principal and school counselor left him at home alone, with access to a firearm, when they knew he was suicidal. The ultimate outcome of this case was not published, and the school district (the deeper pocket) was the defendant not the school counselor.

Ethical analysis: School counselors find little comfort in the courts’ reluctance to find against school counselors and their districts regarding student suicide. School counselors want to avoid defending their actions in court, but more importantly, they want to prevent a student’s death. Attending to all matters that arise in a school counselor’s day is daunting, but suicide is one of those obligations that must be prioritized for immediate attention. A student’s expression of being “sick and tired of life” is reason enough to trigger immediate action. “In adolescence, indirect clues could be offered through joking or through references in school assignments, particularly creative writing or art pieces.” Children who view the world in concrete terms may not know how to express these feelings verbally or in writing.

If a school counselor informally or formally conducts a suicide assessment and considers the student to be at low risk for suicide, the school counselor still needs to contact the student’s parents. The ASCA Ethical Standards call for school counselors to “report risk assessments to parents when they underscore the need to act on behalf of a child at risk.” If you tell parents you have spoken with their child and that you believe the child is fine to remain at school, the parents will likely have the impression that their child is at a low risk for suicide.

Another controversial practice is school counselors’ development of suicide contracts with students, as in the Mikell case. Little empirical evidence supports contracts as an effective tool to prevent suicide. Additionally, the use of a suicide contract implies that the school counselor will ensure the student’s safety. The word “contract” can give the impression of a binding agreement. However, a suicidal person is often not competent to agree to sign a contract. Use of suicide contracts may have the opposite effect and open one up to a lawsuit. If a school counselor believes it is in a student’s best interest to put something on paper, then have the student identify goals, hopeful comments, what is currently going right or what adult to turn to for help.

Well-intentioned school counselors may recruit a close friend of the student’s as a helper and note that person as such on a no-harm contract; however, doing so could burden a peer with feelings of responsibility for another student’s life or death. Making students aware of what to do when a friend shares this information is a more effective part of suicide prevention plans in schools. The Armijo decision merits special attention. The school counselor needed to convince the principal that the best course of action, given the child’s emotional state, would have been to wait until the student could be placed in the protective custody of his parents, far more important than immediate punitive action. Taking or sending a highly agitated or emotional child home without parental supervision is a dangerous practice.

It’s important for school counselors to have a supportive consultation network in place well before they actually need it. When working with suicidal students, school counselors should make every attempt to supply parents/guardians with counseling referrals until placement is secured for that student. School counselors need to be culturally sensitive when working with families to secure additional help. When school counselors and crisis team members meet with unresponsive parents, they may need to turn control over to other authorities such as protective services for possible neglect or, if the student is at immediate risk, police or emergency services.

Schools are acting responsibly when they have suicide prevention and intervention plans in place with regular in-services to prepare all educators – teachers, administrators, security guards, cafeteria employees, custodians, bus drivers, secretaries, paraprofessionals and student services staff – of the appropriate procedures for referring suicidal students for help.

Parents have rarely succeeded in establishing liability for student suicide, and none of the known decisions have resulted in an educator being responsible. Certainly, there may be unpublished cases or settlements to the contrary, and the case law is subject to change in the future. Although the precedents to date strongly undercut any undue fear of school counselor liability, awareness of the legal reasoning behind the court decisions serves as guiding principles for school counselors as they make decisions that could prove life-saving for students in the future. Framing the discussion of best practice around the court’s arguments gives school counselors the opportunity to apply the courts deliberations to their practice.

Eisel and the court cases that followed provided powerful and prophylactic lessons to school counselors with regard to suicidal students. School counselors, with their specialized training and in loco parentis status, have a high standard of care when a student’s suicide is even a remote possibility. School counselors must always contact parents and refer them to appropriate resources that will allow them to seek help for their child. Confidentiality is trumped when weighed against the death of a child. Calling parents upholds school counselors’ most significant obligation to students: above all do no harm.

Carolyn Stone, Ed.D., is an associate professor at the University of North Florida and the chair of ASCA’s Ethics Committee. She can be reached at cstone@unf.edu. Perry A. Zirkel, J.D., Ph.D., is university professor of education and law at Lehigh University and can be reached at zirkel@lehigh.edu. For references, contact the authors.