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Suicide: Err on the Side of Caution
Carolyn Stone
Sunday September 01, 2013
by: Carolyn Stone

Section: Inside Insight

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Heather has been referred to you because she was overheard saying she was going to kill herself with her dad’s gun. Heather assures you she did not mean it, that she was just angry and aggravated. You spend some time with Heather, and she convinces you all is well. You send her back to class and go on with the day’s activities. You did not notify her parents or check in with your supervisor. Are there any legal or ethical concerns in this case?

On July 16, 2013, the Delaware Supreme Court reversed a lower court’s decision and ruled that the grandparents of 16-year-old Roger “Mac” Ellerbe Jr. did, in fact, have sufficient grounds to sue Christina School District and their grandson’s school counselor, Margette Finney, for Ellerbe’s suicide. The grandparents, who had raised Ellerbe, said the school should have notified them of his suicidal ideation so they could respond.

Ellerbe took his life at home, hours after speaking with a school counselor at his high school about his suicidal thoughts and other problems. Documents from the Delaware Supreme Court case indicated that Ellerbe wrote to the school counselor that when he was at school the day before, he wanted to hurt himself and others and that he was feeling alone and unloved. Ellerbe admitted to Finney that he had actually attempted suicide two days earlier.

It is important to note that Finney is called a school counselor throughout court documents but the documents also explained she is the sole employee and owner of Holistic Family Services, LLC and was under contract with the district to provide behavior interventions for students. Newspapers and the court called her a school counselor. This happens to the school counseling profession too often when other roles such as interventionist, not as easily identified by the public, are placed for convenience and ease of understanding under the heading “school counselor.”

Finney met with Roger for four hours and decided Roger was no longer suicidal and sent him back to class. Finney explained in an e-mail to Ellerbe’s teachers, the assistant principal and “other” school counselors that she had met with the student and did not believe he was a threat to himself. It is in dispute as to whether Finney tried to call Ellerbe’s grandparents, but no calls were made to his home that day where his grandmother was attending to her in-home day care business. After Ellerbe went home that day, he hanged himself.

Court documents in Rogers v. Christina School District, et. al. show the Christina School District had previously argued that the school had no duty to protect a student after he left school premises. The district had a written protocol mandating parental notification of suicidal statements; however, the district argued that the protocol was not a legal mandate.

The Delaware Supreme Court concurred with the lower court’s decision that the district and school counselor could not be held to the in loco parentis standard as the suicide occurred when Ellerbe was out of their care, meaning the court believed there was no duty to protect the student once in custody of parents and outside the school. Its finding was based on limited exceptions to the Delaware governmental immunity clause, which means you can only sue school officials who over-discipline. However, the Delaware Supreme Court disagreed with the lower court that there were no grounds for a negligence claim. The Delaware Supreme Court justices were unanimous that the Christina School District's written protocol provided sufficient grounds for a negligence claim. The district’s protocol included mandates to stay with a student, assess the situation, contact parents, get help, document, file and follow up.
Unless settled, the case will now be heard by a jury trial, so the courts have not had the final word on this case. But, once again, a high court has given us important principles to inform our practice. Even in a state like Delaware, which allows very narrow exceptions when school officials can be sued, the courts of the state may find reason to proceed with a negligence case.

The law of negligence involves injury or damage to another through a breach of duty owed to that person. Duty owed is a legal responsibility one person has to another, such as a legal responsibility to drive with care so you do not 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 and (4) an injury has occurred.

Decades before Rogers v. Christina School District et.al., the Eisel v. Montgomery County Board of Education court case (1991) led to a duty owed to try and intervene to prevent a student’s suicide. Eisel strengthened school counselors’ legal obligation to students by satisfying for the first time the primary element of negligence, declaring school counselors have a special relationship with students and owe a duty to try to act when placed on notice that a student is possibly suicidal.

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 who made suicidal statements to her classmates. Nicole Eisel allegedly became involved in Satanism and told several friends and fellow students of her intention to kill herself. Some of these friends told their school counselor of Eisel’s intentions, and this school counselor in turn informed Eisel’s school counselor. The two school counselors questioned Eisel about the statements, and she denied making them. The school counselors did not notify either the parents or the school administrators about these events. Shortly thereafter, in a public park, Eisel and a friend tragically consummated their suicide pact. Unlike the Delaware court case, the appeals court in Maryland cited as critical to the Eisel case the in loco parentis doctrine, which states that educators, including school counselors, legally stand in the place of parents. Furthermore, school counselors owe a special duty to exercise reasonable care to protect a student from harm.

When does a school counselor’s legal liability end? It ends when you have notified school authorities and parents that a student is at risk, and you have recommended appropriate actions. The courts do not expect school counselors to do the impossible and prevent all adolescent suicides. Rather, the court’s message is that the consequence of the risk in not involving parents is too great and that parents must be allowed to try to intervene. However, a school counselor’s ethical obligation to a suicidal student may extend beyond parental notification if the parents do not seek help for their child. School counselors must make every attempt to supply parents or guardians with counseling referrals until placement is secured for that student. In most cases, the school counselor will need to notify Child Protective Services of a possible neglect situation if the parents do not pursue counseling.

Does the Eisel ruling take away school counselors’ ability to exercise judgment with regard to student suicide? Eisel did not argue for absolute duty as in the case of child abuse reporting, in which school counselors must report any and all suspected situations. However, the Eisel case did conclude, “The consequence of the risk is so great that even in the face of a relatively remote chance of suicide that could be enough to establish duty.” The protocol in the Delaware case clearly defined Finney’s role, whether employed as an interventionist or a school counselor, as having to call parents – and for good reason. Too many students have fooled school counselors into believing there’s nothing wrong. The opinions of the Maryland Court of Appeals and the Delaware Supreme Court should further help school counselors realize the importance of seeking supervision and protecting parental rights to intervene on behalf of their child. Err on the side of caution. Call parents. A breach of confidentiality is a huge issue for school counselors; however, it pales in comparison to death of a child. The duty to care supersedes the consequences of breaching confidentiality.

Carolyn Stone, Ed.D., is a professor, University of North Florida and ASCA’s ethics chair. She can be reached at cstone@unf.edu. Contact the author for references to this article.