It is not too early to consider what the Massachusetts Supreme Judicial Court’s decision in Nguyen v. Massachusetts Institute of Technology means for institutions of higher education, students and courts. A few initial observations about Nguyen are warranted.
First, the SJC made clear — again — that institutions of higher education, or IHEs, are “clearly not bystanders or strangers in regards to their students.” Nguyen, slip op. at 23 (citing Mullins v. Pine Manor College, 389 Mass. 47, 51-52 (1983)). The era of IHE “bystander” non-liability is over.
Second, breaking new ground, the court held that IHEs and their employees have “a special relationship with a student and a corresponding duty to take reasonable measures to prevent [a student’s] suicide” in three circumstances. Nguyen at 29.
They have an affirmative “duty to take reasonable measures under the circumstances to protect the student from self-harm[,]” where they have “actual knowledge” of: (1) a student’s suicide attempt that occurred while enrolled at the [IHE]; (2) a student’s suicide attempt recently before matriculation; or (3) a student’s stated plans or intentions to commit suicide. See id. at 29-30.
In such circumstances, “suicide is sufficiently foreseeable as the law has defined the term, even for [IHE] nonclinicians without medical training” to owe a duty. See id. at 32.
The duty, at least for non-clinicians, is “limited to initiating the [IHE’s] suicide prevention protocol, and if the school has no such protocol, arranging for clinical care by trained medical professionals or, if such care is refused, alerting the student’s emergency contact” — often a parent. Id. at 35-36.
Third, while asserting that the victim’s risk of suicide was not known to be imminent, the SJC did not impose an “imminence” requirement. Though the decision makes clear that a known “imminent” risk will trigger the duty of care, the court’s refusal to require “imminence” evidences a proper recognition of the inadequacy of vague labels (e.g., low, moderate, high, imminent) that lawyers like to assign to suicide risk while drawing lines that favor their clients’ interests. See id. at 40, n. 21.
When dealing with suicide risk, such labels are recognized by many mental health professionals — and apparently the SJC — as having limited utility. Having any increased risk of suicide is a dangerous thing. Suicide risk is a spectrum that can rapidly escalate to a suicidal crisis. It is for this reason that well-designed suicide prevention programs, such as the one at the University of Illinois, while of course addressing imminent and other risk, focus on “proximal risk”: the increased risk that follows unsuccessful attempts and vocalizations of intent.
The broader duty imposed by the SJC explicitly incorporates these two most significant (of many) risk factors and predictors of future attempts: (1) a prior attempt, and (2) articulating suicidal plans or intentions. Neither turns on “imminent” risk.
Fourth, the SJC struggled with the tension between student autonomy and student safety. Future development of the law in this area should be informed by modern neuro-science that has proven that brain development continues well into the mid-20s. Similarly, it is well-established that many serious mental health issues first manifest in the late teens and early 20s, at the age of the typical IHE student. Students at this stage of development, who are at risk of suicide, need prompt professional support.
Unfortunately, the very conditions, circumstances and emotional difficulties that frequently lead to suicide risk often impair a student’s personal insight and capacity to make good decisions for him or herself. Any weighing of personal autonomy versus student safety analysis must consider these issues within this context.
In this regard, the Legislature has given analogous and clear direction that preventing suicide is in the public interest. G.L.c. 71, §95, requires suicide awareness and prevention training in public schools. G.L.c. 40, §36C, requires police to receive training in suicide detection and prevention. G.L.c. 112, §5N, requires the Board of Registration in Medicine to make suicide prevention training modules available to physicians.
Those enactments evidence the Legislature’s recognition of suicide as a public health crisis. It has acted to prevent suicide in all arenas, and regardless of the age of the victim.
Implicit in those laws is the recognition of facts well-known to those in the mental health field. Effective, coordinated intervention — even by those not medically trained — can and does save lives, and usually involves bringing trained mental health professionals to bear.
The public policy in favor of preventing suicide is no doubt informed by the seriousness of the hazard, which the SJC certainly recognized in the IHE context. See Nguyen at 31, n. 17. For the population generally, a Department of Public Health report in January noted that, in the decade since 2004, the rate of suicides in Massachusetts almost doubled, and that in 2014 there were more deaths in Massachusetts from suicide (608), than from motor-vehicle-related deaths (328) and homicides (147) combined.
Given the relative resources directed at preventing deaths from the latter two causes, and the larger number of deaths from the first, state and federal efforts to prevent suicides are not surprising. E.g.: U.S. Department of Health and Human Services, Office of the Surgeon General, and National Action Alliance for Suicide Prevention, 2012 National Strategy for Suicide Prevention: Goals and Objectives for Action (Washington DC: HHS, September 2012) at 11 (suicide prevention is a health issue that must be addressed at many levels by different groups, including educational institutions); Madison Holleran Suicide Prevention Act, 18A:3B-72, 73 (New Jersey, 2016) (IHEs must have trained mental health specialists available 24/7 and faculty/staff must be trained to recognize warning signs and risk factors associated with student suicide). Public policy indisputably supports the court’s imposition of a duty of reasonable care.
Fifth, the SJC cut through the pseudo-intellectual thicket that had surrounded the issue of parental notification. If an at-risk student refuses to work within the IHE’s protective protocols, it is an emergency and it is time to get the emergency contacts, frequently parents, involved.
That common practice at many IHEs is permitted by applicable law. For IHEs that had elevated student privacy over saving student lives, the SJC has done the proper calculus for you. Ignore this directive at your peril.
Going forward, the minimal standard imposed by the SJC requires two essential things.
First, develop, actually implement, and follow suicide prevention protocols that ensure at-risk students are addressed by trained mental health professionals. Serious consideration should be given to requiring services to be provided on campus, which allows better communication and coordination.
Too often, lack of communication and coordination are where students are lost. If off-campus services are used, mandate that students must permit off-campus providers to coordinate with on-campus supports to ensure that students actually follow through with obtaining the help they need. Such a practice also guards against the well-known situations in which an at-risk student minimizes his or her risk factors that prompted intervention.
With ultimate authority to force a medical leave in the hands of the IHE, there is little doubt, and empirical evidence from the University of Illinois’ program that supports the conclusion, that even resistant students will usually fall into line and accept the coordinated supports they need.
Second, IHEs must: (a) train all their employees to recognize risk factors for student suicide; (b) inform employees of the resources available on campus to address such issues; and (c) ensure employees know that it is their job, when they have cause to believe a student is at risk of suicide, to proceed as the court directs.
As the late, great Thomas F. Lambert Jr. said: “[T]he law is not settled, until it’s settled right.” Future cases will further define the duties of IHEs and their employees in relation to the tragedy of foreseeable student suicide.
Particularly concerning are students who do not vocalize an intent or plan to commit suicide, but nonetheless display well-known risk factors easily observable to any minimally-trained “resident assistant” or IHE employee.
Future cases should also allow juries to make determinations about disputed facts and what constitutes reasonable care under the unique circumstances of each case.
Lastly, for IHE mental health professionals who have fought to save students without adequate authority and resources, Nguyen means that hollow institutional lip service is not enough. Your efforts are no longer subject to dismissal as tangential to the IHE’s core educational mission. Indeed, proper support for your efforts is the only way IHEs can save student lives and avoid future liability.
Jeffrey S. Beeler practices at Heinlein, Beeler, Mingace & Heineman in Framingham, Massachusetts. He was counsel for the estate of Han Nguyen in Nguyen v. Massachusetts Institute of Technology.