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As a future school guidance counselor, I chose to create this legal resource guide to be used as a tool when working with students exhibiting suicidal tendencies.  I chose this topic because as a current high school teacher, and a future secondary counselor, I know that this is an issue I will unfortunately encounter when working with students.  I also chose to research this topic because this is the part of becoming a counselor that intimidates me the most.  It's obviously incredibly important to be able to intervene early and correctly in order to help these students.  I hope that by learning as much as I can and by creating this resource bundle I will help ease my fears as I move into this career and be confident in my ability to best serve my students.  The audience for this legal guide is guidance counselors.  This list of legal resources will be very useful for myself and other counselors as they navigate this serious topic with students.

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Slide 2:  Interview with a school counselor

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Slide 2:  Interview with a school counselor

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For this interview I interviewed Patty Reich, a school counselor at Vista Ridge High School.  Ms. Reich (personal communication, November 14, 2021), walked me through the step by step process that she enacts every time she gets any information indicating that one of her students has suicidal tendencies.  She explained to me that dealing with suicidal students was the most intimidating part of the job for her at the beginning as well (P. Reich, personal communication, November 14, 2021).  However, having a structure, a script, and very specific protocol has helped to ease that fear and help her ensure that she is providing all services possible to her students.

Ms. Reich shared with me the three best practices she follows for dealing with suicidal students. (P. Reich, personal communication, November 14, 2021).
1.  Follow the protocol from start to finish.
*Call them in immediately
*Explain the confidentiality agreement and limitations
*Complete the Suicide Risk Assessment (SRA)
*Inform the parents
*Alert the mobile outreach system
2.  Complete an SRA every single time there is any information involving a student's suicidal tendencies.
3.  Have an open and frank conversation.  Ask them straight forwardly if they are suicidal.  Do not tip-toe around the question.

During the interview Ms. Reich indicated that there is an emerging issue causing an increase in suicidal outcries among students.  She said they have seen a doubling of the students they counsel related to Covid-19 and the return to in person learning.  Students are experiencing increased anxiety and depression returning from their virtual learning last year.  She said many students have developed social anxiety as well as health related anxiety as a result of the pandemic (P. Reich, personal communication, November 14, 2021).

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VRHS COUNSELORS PLEASE SUBMIT THIS FORM* TO REQUEST ASSISTANCE FROM YOUR COUNSELOR.

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The American School Counselor Association (ASCA), is a great resource for counselors who are working with suicidal students.  The ASCA lays out very clear roles that the counselor must perform as they encounter suicidal students (ASCA, 2016).  Along with maintaining their own education in best practices, the counselor is also responsible for training staff on how to recognize the signs and how to report (ASCA, 2016).   The ASCA (2016) states that a counselor's duty is to identify the signs of suicide risk among students and ensure that proper preventative protocol is followed.  The counselor also has an ethical responsibility to inform parents if their child has been identified as at risk.

Reference:
American School Counselor Association.  (2016).  The school counselor and suicide prevention/awareness.  Retrieved from https://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards

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The School Counselor and Suicide Prevention/Awareness

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School counselors work to identify behavioral and social/emotional signs of suicide risk among their students and ensure prevention methods are in place. It is the school counselor's ethical and moral responsibility to report suspected suicide risk to legal guardians and the appropriate authorities.

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According to Mcintosh et al. (2020), the Covid-19 pandemic was not only devastating physically but has also escalated the already growing mental health crisis in the United States.  The factors that are largely contributing to this uptick in mental health issues are as follows:
-the impact social distancing had on depression and anxiety
-students' lack of access to school counselors or other mental health resources due to virtual schooling
-due to the newness of the pandemic, counselors and mental health workers are having to recreate protocols and resource guides to assist students and families.

Reference:
Pruitt, L. D., Mcintosh, L. S., & Reger, G. (2020).  Suicide Safety Planning During a Pandemic:  The Implications of Covid-19 on Coping with a Crisis.  Suicide & Life-Threatening Behavior, 50(3), 741-749.  https://onlinelibrary.wiley.com/doi/full/10.1111/sltb.12641

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Suicide Safety Planning During a Pandemic: The Implications of COVID‐19 on Coping with a Crisis

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Click on the article title to read more.

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According to Vigilar and Trotter (2021), research is beginning to show the negative impact the virtual learning environment had on the mental health of adolescents.  The data was retrieved through a mixed methods approach conducted on military bases and indicated the following:
-an increase in students reporting eating disorders
-an increase in students needing outpatient psychiatric care
-an increase in students being admitted for inpatient psychiatric care

Reference:
Clare Vigilar, M.V., & Trotter, J. (2021).  37.5 The Impact of Covid-19 Virtual Schooling on Child and Adolescent Mental Health:  Considerations for Force Readiness.  Journal of the American Academy of Child & Adolescent Psychiatry, 60(10).  https://doi.org./10.1016/j.jaac.2021.09.293

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The Youth mental Health and Suicide Prevention Act of 2021 (20 U.S.C. 7801) allows for the creation of grants to be awarded to eligible entities in an effort to enhance the mental health services provided to high school students.  Grants awarded under this act may be used in the following ways:
-evaluating the schools' existing programs and prevention strategies
-educational seminars
-campaigns to increase awareness of mental health services
-program support for peer to peer support programs
-social media applications to help with screening
-telehealth services
-training programs for students, families, and staff
-creating a structure to connect schools to resources

Citation:

U.S. Const. H.R. 1803

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According to state statutes, public schools are required to annually update their list of best practices in working with suicidal students  (Tex. Health and Safety Code §161.325).
The list must include the following:
-early mental health intervention
-mental health education and development
-intervention in substance abuse cases
-suicide prevention programs

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Texas Constitution and Statutes - Statutes By Date

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In a recent Massachusetts trial court decision, Tang v. Harvard College et al, 2019, the court attempted to clarify and expand upon the obligations educational entities have in preventing student suicides.  As a result of this decision the state supreme court established a new ''reasonable measures'' standard in which schools have a duty to try to prevent student suicides.

As a result of this clarified standard, the schools in this state have a duty to implement the following steps in each case:
-Review policies
-Implement authorization policies allowing for communication between administrators, parents, and counselors
-Review and update suicide prevention protocols.
-Review health and wellness information and make available to students
-Educate the entire community about signs and best practices

Citation:
Tang v. Harvard College et al.  (2019).

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A recent trial court decision sheds new light on the extent to which educational institutions may have an obligation to prevent student suicides and how related claims will be litigated.

On September 9, 2019, in Tang v. Harvard College et al., a Massachusetts Superior Court judge denied Harvard College's motion to dismiss claims that the University and its employees were negligent in failing to prevent a student suicide. The trial court decision comes on the heels of Nguyen v. MIT, in which the Massachusetts Supreme Judicial Court established a new standard whereby universities must take "reasonable measures" to prevent student suicides in certain circumstances.

Colleges and universities, as well as independent schools and other institutions that may act in loco parentis for students, are advised to take heed of their evolving legal responsibility to protect students with mental health issues as a critical step in risk management.

Background: The Supreme Judicial Court's 2018 Decision In Nguyen v. MIT

In general, one does not have a legal duty to prevent another person from committing suicide. In Nguyen v. MIT, Massachusetts' highest court acknowledged that general rule, but also held that in cases where a "special relationship" exists, there may be an affirmative and limited duty to prevent suicide. Specifically, the court held that universities have a special relationship with their students, and where a university has "actual knowledge" of a suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student's stated plans or intention to commit suicide, the university has a duty to take "reasonable measures to protect the student from self-harm."

The Supreme Judicial Court in Nguyen emphasized that the duty of care owed by a university and non-clinician university employees is "limited," and is "definitely not a generalized duty to prevent suicide." The court further stated that where a university or university employee has the requisite knowledge of a student's suicide attempt or suicidal ideations, the university may satisfy its legal duty of care by (1) initiating the university's suicide prevention protocol, or (2) if the university has no such protocol, arranging for clinical care by trained medical professionals, or (3) if such care is refused, alerting the student's emergency contact.

In the case of Nguyen, following a graduate student's suicide, the student's father brought a wrongful death suit against the university, two professors, and a dean. After discovery, the Superior Court granted summary judgment in favor of the university, and the father filed a direct appeal to the Supreme Judicial Court. The Supreme Judicial Court agreed with the lower court that MIT and the defendant employees did not owe a duty of care to the graduate student at issue because MIT and the defendant employees did not have actual knowledge of a recent suicide attempt or of any stated plans or intention to commit suicide. The Supreme Judicial Court further noted that universities are "not responsible for monitoring and controlling all aspects of students' lives," and the "modern university-student relationship is respectful of student autonomy and privacy." In other words, the relationship between a university and a young adult student is not akin to a loco parentis relationship ( i.e., the relationship between a parent and a child).

Testing Nguyen: September 2019 Ruling In Tang v. Harvard College, et al.

In Tang, the estate of a deceased student brought suit against Harvard, two of its employees, and one former employee, alleging, among other claims, that the defendants were negligent in failing to prevent the student's suicide. Defendants immediately moved to dismiss the claims, before engaging in any discovery, on the basis that the facts as stated in the complaint failed to state a claim under the standard set forth in Nguyen.

a. Factual Background: A Tragic Suicide

According to the allegations in the complaint, the student attempted suicide in a Harvard dorm in April 2014 of his freshman year. Harvard transferred the student to a hospital for in-patient care, where he remained for seven days. Following his release, the student informed Harvard that he intended to return to China for the summer. Prior to his departure for China, the student entered into a contract with Harvard, which was a condition for his continued enrollment, wherein the student acknowledged that he was expected to seek treatment and follow the recommendations of his treatment team. In September of his sophomore year, shortly after returning from China, the student died by suicide in his dorm room.

b. Harvard's Argument: The Duty Was Satisfied

Harvard and the defendant individuals argued that the student's family was unable to establish a claim, even if all allegations were accepted as true, because of the Supreme Judicial Court's decision in Nguyen. Under the Nguyen framework, defendants conceded that the complaint adequately alleged that the Harvard defendants had knowledge of the student's suicide attempt in his freshman year, and therefore they owed a duty to the student, but the defendants argued that the plaintiff did not adequately allege that they actually breached that duty. In other words, the Harvard defendants argued that they took "reasonable measures to protect the student from self-harm" by putting the student in in-patient hospital care following his suicide attempt and by requiring the student to sign the contract as a condition of continued enrollment. Therefore, Harvard argued that plaintiffs had not satisfactorily alleged a cause of action in their complaint.

c. Judge's Ruling: More Information Is Needed

In rejecting Harvard's motion to dismiss, the Superior Court held open the possibility that, even if a university superficially follows the steps required in Nguyen to satisfy the duty of care ( i.e., the university initiates a suicide prevention protocol, or, in the absence of a protocol, it arranges for clinical care by trained medical professionals, or, if such care is rejected, it alerts the student's emergency contact), it is still possible that the university did not "properly discharge the limited duties [ Nguyen] imposes." As an example, the court noted, merely initiating a process labeled "suicide prevention protocol" cannot satisfy the University's duty of care if the protocol is wholly inappropriate or insufficient. As a result, the plaintiff in Tang was entitled to discovery to develop the factual record about whether the defendants in fact satisfied their limited duty of care to the student.

In addition, the Tang court noted that the complaint alleged a theory of liability not addressed by Nguyen, specifically that Harvard voluntarily assumed a certain duty of care for the student by entering into the contract with the student. Because the Supreme Judicial Court in Nguyen did not foreclose the possibility of liability due to a voluntary assumption of care, this theory was allowed to proceed to discovery.

It is important to note that the Superior Court's decision in Tang did not make any finding about whether or not Harvard, or any individual defendant, was liable for the student's suicide. It simply held that, at the initial stages of the case, the plaintiff had stated plausible claims and was entitled to discovery, such as requests for documents, information, and depositions.

Implications For Schools

Nguyen is a fairly recent decision, and it has not yet been applied in many other cases. The recent Tang decision suggests that a court's assessment of whether a school satisfied the duty described in Nguyen may require factual analysis. Tang suggests that, even where a plaintiff admits in a complaint that the steps required in Nguyen were followed to some extent, a case is unlikely to be dismissed before the parties engage in discovery to further develop the factual record.

Although Tang and Nguyen both involved universities, these decisions are highly relevant to all educational institutions, since schools owe a duty of care to their students, and the extent of that duty will depend on the facts of each case. For instance, to what extent does a school act in loco parentis for students? The duty of care may be greater for a boarding school than a day school, or for a school that offers comprehensive health care services than for a school that has a part-time school nurse.

Given this evolving definition of legal responsibility and the primary goal of protecting students, we recommend that colleges, universities, independent schools, and other educational institutions consider implementing the following steps:

Review applicable policies, such as those governing medical leaves, counseling services, and privacy issues.

Update health forms to include appropriately tailored questions about suicide risk.

Implement an authorization form that provides school counselors with flexibility to share information with other school administrators and the student's parents on a need-to-know basis.

Ensure that enrollment contracts include provisions that put the responsibility on families to share information that may impact their children's educational experience, including information about medical conditions and behavioral issues.

Review and update suicide prevention and response protocols consistent with medical recommendations and best practices.

Identify mental health resources available on and off campus and advise students and their families of these resources.

Review health and wellness curricula for students.

Provide professional development programming for school employees on how to talk about mental health issues, including suicide.

Educate the entire community about best practices with respect to suicide prevention and response, relevant resources, policies, practices, and other relevant information.

Please contact a member of the Firm's education practice group if you have any questions about any of these issues or if we can be of assistance.

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Court Addresses Scope Of Schools' Duty To Prevent Student Suicide

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A recent trial court decision sheds new light on the extent to which educational institutions may have an obligation to prevent student suicides and how related claims will be litigated. On September 9, 2019, in Tang v.

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The ASCA (2020) outlines the counselor's ethical obligations in analyzing the suicide risk of their students.  Counselors have an ethical obligation to respond to any information suggesting that a student may be at risk for attempting suicide.  Once becoming aware, counselors are ethically and legally required to report the suspected risk to the students' parents and the local authorities.

Reference:

American School Counselor Association.  (2020).  The school counselor and suicide risk assessment.  Retrieved from https://schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Suicide-Risk-Assessment

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The School Counselor and Suicide Risk Assessment

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School counselors support best practice in suicide prevention to reduce suicide risk in children and adolescents and are part of a collaborative team who respond when students are identified as at-risk for suicide. When students are identified or are in crisis, school counselors support them by providing parents/guardians with appropriate information and referrals.

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As a future school counselor I know that I will be working with students at risk for suicide.
Compiling this list of legal and ethical resources has been very beneficial in the following ways:
-Understanding the legal obligations for school counselors dealing with suicidal students helps to clarify exactly what steps one must complete for each reported student
-Understanding the ethical obligations for school counselors dealing with suicidal students helps to clarify the counselors' role in informing families and working with the appropriate authorities
-In reviewing the local standards for my own school district, it is very reassuring to see that we have a very structured and specific protocol to follow once students have been identified.

In reviewing the laws in place at various levels I learned the following about my legal obligations as a future counselor:
-Schools are required to continuously review and update suicide prevention resources and protocol.
-Schools are required to continuously provide training for staff about the newest information, resources, and protocol.
-Schools are required to run a suicide risk assessment on all students who have been identified as having suicidal tendencies.

Reference:

American School Counselor Association.  (2020).  The school counselor and suicide risk assessment.  Retrieved from https://schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Suicide-Risk-Assessment

Leander Independent School District.  (2021).  Employee Handbook.  Leanderisd.org.  https://handbook.leanderisd.org

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Leander Independent School District takes a multi-pronged approach to preventing suicide among students.  One such policy is the anonymous alerts system.  All staff, students, parents, and community members receive information and training on how to utilize the system.  The system is there for anyone who wants to report concern of potential suicide risk within the student population.  Counselors then use this information to begin the comprehensive suicide risk analysis process and work through the district protocol with the student and their family.

Reference:
Leander Independent School District. (2021).  Anonymous Alerts. Leanderisd.org.  https://anonymousalerts.com/leanderisd/

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Students or parents in the school community can anonymously submit any suspicious activity, bullying or other student-related issues to a school administrator(s). We encourage you to report important issues. Once you complete the contact form below, you will receive a confirmation that your informat…

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The Texas Administrative Code (19 TAC §153.1013) discusses a school's obligation in providing suicide prevention training.  The regulation mandates that all districts must provide regular suicide prevention training to all district employees.  The school district is also required to maintain records about the employees who have or have not completed trainings.

Citation
Suicide Prevention Training, 19.  Tex. Admin. Code §153.1013

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(a) All school districts and open-enrollment charter schools shall provide suicide prevention training as required by the Texas Education Code (TEC), §21.451(d), to all new school district and open-enrollment charter school educators as a part of new employee orientation during the 2016-2017 school year.

(b) Each subsequent school year, school districts and open-enrollment charter schools shall provide suicide prevention training as required by the TEC, §21.451(d), to all new school district and open-enrollment charter school educators as a part of new employee orientation.

(c) All school districts and open-enrollment charter schools shall provide suicide prevention training as required by the TEC, §21.451(d), to all currently employed school district and open-enrollment charter school educators on or by September 30, 2016.

(d) Suicide prevention training that is required by the TEC, §21.451(d), and was provided to existing educators by a school district or open-enrollment charter school on or after September 1, 2013, may be used to meet the requirements of this section if the training program is on the recommended best practice-based list maintained by the Department of State Health Services (DSHS), in coordination with the Texas Education Agency (TEA), or is an online program that meets the TEA guidelines for independent review.

(e) In accordance with the Health and Safety Code, §161.325, school districts shall maintain records that include the name of each educator who participated in the suicide prevention training.

(f) Open-enrollment charter schools are encouraged to maintain suicide prevention training records that include the name of each educator who participated in the suicide prevention training.

(The provisions of this §153.1013 adopted to be effective April 17, 2016, 41 TexReg 2748)

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Texas Administrative Code, Subchapter BB, Section 153.1013 - Suicide Prevention Training | Texas Administrative Code | Justia

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(a) All school districts and open-enrollment charter schools shall provide suicide prevention training as required by the Texas Education Code (TEC), §21.451(d), to all new school district and open-enrollment charter school educators as a part of new employee orientation during the 2016-2017 school year.

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-Be aware of suicide prevention policies and protocol within your state, district, school.
-Be aware of a counselor's ethical obligation to report students identified as at risk for suicide.
-Respond immediately to all students identified as at risk.
-Follow the district and school protocols for handling identified students.
-Conduct a SRA (suicide risk assessment) for all students who have been mentioned as possible at risk, regardless of their response to initial meeting.
-Contact the appropriate authorities and parents.
-Offer a resource guide for outside support to student and family.
-Follow up after initial report.