EOL 469
Legal Basis of Educational
Administration
Paper One
Suicide and District
Liability
Leonard H. Fretzin
Dear Superintendent
I feel privileged but somewhat
hesitant to respond to your request for my opinion concerning our potential
liability risk visa-vies our exposure in student suicides. Although you expressed in your communication
that you felt I was an education law expert, I must humbly abjure to the label
of being an expert. I hope to convince
you that the potential for a tort initiated by the tragedy of a student suicide
is significant enough to warrant our preparation of an adequate defensive
posture.
As you mentioned, there is an
increasing rate of adolescent and even pre-adolescent suicide being reported
around the country. This has already
resulted in a number of legal actions, two of which deserve special mention
here.
The two recent cases that are
particularly relevant are Grant v. Board of Trustees of Valley View School
District and Eisel v. Board of Education.
Grant v. Board of Trustees of Valley
View School District involved the failure of a school district to adopt a
suicide prevention program and, specifically, the failure of a guidance
counselor to act upon a student's threats of suicide overheard and reported to
the counselor by other students. The
school counselor, Jean Owen took no action on these reports other than calling
the student's mother and advising her that her son should be hospitalized. On the way to the hospital, Jason jumped from
the car, and a day later jumped off a highway overpass, killing him.
In this case, both the district and appellate
courts ruled that Illinois School Code did not require school districts to
establish suicide prevention programs, and that the failure to develop programs
of this type did not give rise to a cause of action against the district.
The justices cited the Tort Immunity
Act (745 ILCS 10/6, section 6-105 and 106) which clearly states that a local
public entity or public employee acting within the scope of his employment is
not liable for injury caused by the failure to diagnose a mental
condition. This immunity is extended to
school districts and school employees.
In addition both courts affirmed
that the school district and the counselor were entitled to immunity under the
principle of in loco parentis,
extended by the Illinois School Code (105 ILCS 5/24). This status confers immunity from liability
for negligence unless willful and wanton misconduct is involved in a breach of
duty to teachers and other certified school personnel. Willful and wanton conduct is conduct which
is either "intentional or done with a conscious disregard or indifference
for the consequences when the known safety of other persons is involved" (cf.
Stehl v. Brown's Sporting Goods, 236
In the case of Eisel
v. Board of Education the plaintiff argued that a 13 year old's
suicide constituted a wrongful death, and that school counselors had a duty to
intervene to attempt to prevent a student's threatened suicide. The plaintiff
argued that this duty was breached by junior high school counselors who failed
to inform the parents of suicidal statements which were reported by fellow
students, even though the child denied ever making the statements. This is an
important difference to note in comparing this case with the case of Grant v.
Board of Trustees of Valley View School District.
The circuit court granted summary
judgment for the defendants, premised on the absence of any duty. The court
ruled that allegations of negligence against the superintendent and school
principal were insufficient.
Eisel appealed
the decision to the Court of Special Appeals.
The appellate court stated that there are two broad categories of cases
in which a person may be held liable for the suicide of another. The first type
occurs when the defendant's conduct actually causes the suicide. It is not contended here that Nicole's
suicide was caused, in that sense, by the defendants' conduct.
The second
type of case holds that a special relationship between a defendant and the
suicidal person exists in instances where there is a custodial or
therapist-patient relationship, and this relationship creates a duty to prevent
a foreseeable suicide. (11 A.L.R.2d 751, §§ 13.5-14 (1950
& Supp.1985). However, legal attempts to extend this duty beyond the
particular situation of custodial or therapist to patient relationships have
failed.
The court
indicated that State law never intended to create a statutorily based cause of
action against school counselors who negligently fail to intervene in a
potential suicide. However, they further indicated that holding counselors
to a common law duty of reasonable care to prevent suicides when they have
evidence of a suicidal intent was consistent with the intent of the
legislation.
The
justices of the appellate court held that school counselors have a duty to use
reasonable means to attempt to prevent a suicide when they are on notice of a
child or adolescent student's suicidal intent. "The facts of this case as
developed to date……conclude that that their duty included warning Eisel of the danger".
The judgment of the circuit court for was reversed and the case was remanded to
that court for further proceedings.
Costs were ordered to be paid by the appellee,
the Board of Education of Montgomery County, Maryland. This case is instructive
in that it speaks to all school districts warning of their potential for liability
in cases of student suicide.
Our policy in dealing
with students who are potentially suicidal must focus on the concept of
"due care". Our duty of due
care is specified in state statutes, which shape the way in which our public
schools are organized and structured internally. We are expected to act as
reasonable people who use reasonable care to avoid injuring others.
Because we are
dealing with serious matters of liability, our duty is to take the greatest
precautions reasonably possible, based on both our professional training and
our professional experiences. These responsibilities fall into the category of
tort law, which addresses non-contractual responsibilities that persons owe to
one another in society. Our special relationship as teachers, counselors and
administrators presupposes a greater deal of responsibility on our part to our
students than would be the case in dealing with other adults.
We can be held liable for breach of
duty, both as individuals and as institutions. Determination of breach of duty
includes analysis and balancing of the
"predictability" of deleterious consequences, the burden to avoid
specific dangers, our actions and policies that are aimed at reducing the danger
of injury, and the degree to which we
have taken into account the mental status of our students.
Currently we have no written suicide
prevention policy. My conclusion from
the brief study of legal liability potential in the area of student suicides
indicates that a policy should be established as soon as possible, explained,
and distributed to our teachers and other certified staff members who may, in
the daily performance of their duties, become involved in issues of student
suicide. A staff development day may
offer a good forum to introduce this program.
I recommend the adaptation in our
District of the following Adolescent Suicide Awareness and Prevention
Program by Teri Frerichs of the
The purposes of developing the
following procedures are to provide established guidelines and assistance to
the staff members, teachers, parents, and others who can come in contact with
students who may be at risk of committing suicide.
PROCEDURES
1.
Any student reporting he or she has
suicidal thoughts should be referred to the Counseling Department or School
Psychologist immediately. The faculty member who has become aware of this
information must assume direct responsibility for reporting the information,
just as in cases of suspected child abuse.
2.
Any District employee having any reason
to believe a student is considering or threatening suicide must report this
information to the Principal, School Psychologist, or Counseling Department
immediately.
3.
Within one school day of receiving a
report of potential suicide, a social worker, school psychologist or counselor
must interview the student to:
a. Assess whether the student is in imminent
danger, at moderate risk; or at low risk;
b. Provide support to
the student; and
c. Inform the student that concern for the
student's safety will be shared with his parents/guardians.
4.
After interviewing the student, the appropriate
staff member will:
a. Report the interview to the Assistant
Principal for Student Services and/or Dean of Students and to the Counseling Department
Chair. The verbal report should be confirmed by a written memorandum.
b. Contact the parents/guardians for an
interview, in person if possible, to:
i) Share
concerns of possible suicide with the parents/guardians
ii) Provide support to the parents/guardians
iii) Arrange for the immediate supervision of the
student, if necessary; (If the student is in immediate danger of hurting him or
herself, the counselor or psychologist will request that the parents/guardians
come to school to pick up their student and take him or her for appropriate help.
If the parents are unable to pick up their student, the counselor or school
psychologist will ask for permission to have the student taken to a hospital
emergency room and have the parents/guardians meet them there. If unable to
reach either parent/ guardian, the social worker will attempt to reach the
additional contact people listed on the student's school emergency card.)
iv) Direct the
parents/guardians of the available options for help: an emergency unit, their
family physician, community mental health clinic or other mental health
professional
v) Explain to the‑parents/guardians that a
letter will be sent confirming their telephone conversation and expressing the
school's concerns and recommendations, when appropriate.
5.
Following the intervention with the
student and his or her family, the counselor or school psychologist will:
a. Contact the principal and assistant principals
and the health services coordinator to share pertinent details of the situation
and determine whether the student's teachers should be informed
b. Initiate follow‑up contact with the
parents/ guardians to determine what actions were taken by the
parents/guardians and obtain signed release of information forms to enable the
social worker to contact the referral resources in order to coordinate
services.
c. Have a follow‑up interview with the
student to assess the student's condition and the parent's/guardian's response.
d. Maintain regular contact with the student
until the student is further evaluated by a mental health professional in the
community and provide further assistance as recommended by the physician,
clinic, or hospital.
e. Apprise the Social Work Department Chair of
the case on a regular/continuing basis.
f. Act as case manager in gathering and sharing
information with members of the support team.
g. Establish contact with the hospital, physician
or clinic providing service to the student.
6.
If the parents/guardians do not follow
up with a referral within 24 hours, they will be informed by the social worker
that the school is required to file a report with the Illinois Department of
Children and Family Services. The report will be filed by the Assistant
Principal for Student Services or the Dean of Students.
Documentation
1.
District employees shall take notes during
any conversation which involve or relate to the at risk student. The notes
shall become a part of a written report to the Principal or his designee.
2.
Conversations which involve or relate to
the at‑risk student shall be confirmed in writing with the other party or
parties.
3.
The social worker shall prepare a report of the situation for the
student's records.