Permitted Suicide: Model Rules for Mental Health Counseling. (Practice)

Beginning of article

In mental health practice, no explicit provisions have been made for existing law and codes of ethics to protect freedom and confidences of clients who, due to serious, irremediable, physical illness, rationally desire to end their lives. This paper makes a case for permitting suicide in these special circumstances. Starting with an analysis of permitted suicide, the legal background for applying this concept is provided, and ten model rules for permitting suicide in mental health practice are developed.

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Physician assisted suicide has recently gained some legitimacy within the medical and mental health communities as a possible option for persons suffering from diseases such as Lou Gerhigs, multiple sclerosis, cancer, and HIV (American Counseling Association [ACA], Association for Gay, Lesbian and Bisexual Issues in Counseling, Coalition of Mental Health Professionals, Washington State Psychological Association, 1996; National Association of Social Workers [NASW], 1994; Oregon Death with Dignity Act, 1999; Slome, Mitchell, Charlebois, Benevedes, & Abrams, 1997; Werth, 1996). Nevertheless, contrary to recent correlation studies (ACA et al., 1996), standards of mental health practice invariably treat all suicides as products of mental illness, requiring paternalistic interventions such as incarceration or detention.

The counseling environment is presumed to offer prospective clients who have a need to work through problems of living, and of dying, a safe haven in which to do so. Unfortunately, for clients who suffer from severe irremediable medical conditions, which lead them to contemplate suicide, counseling portends risks of personal freedom and dignity. Counselors should be free to provide a conciliatory atmosphere in which to carefully work through end-of-life decisions, and clients should not be dissuaded from enlisting their services (ACA et al., 1996; NASW, 1994; Battin, 1991).

The idea of counselors permitting suicide of a client rather than intervening to prevent it may seem to fly in the face of conventional mental health wisdom. Nevertheless, an unqualified standard of intervention fails to accommodate the special circumstances of some clients whose contemplation of suicide is rational and is, therefore, not the result of cognitive dysfunction or mental defect.

This article introduces and defines the concept of permitted suicide. Second, it discusses the legal context for applying this concept to cases of rational clients who seek suicide as relief from the suffering and indignity of serious, irremediable physical conditions. Third, it considers the concept of rational suicide and applies it toward construction of standards for permitting suicide. Last, ten model rules for permitting suicide in mental health practice are proposed in light of the emerging analysis.

THE CONCEPT OF PERMITTED SUICIDE

Following is articulation of the (necessary and sufficient) conditions under which a mental health provider can be said to have permitted the suicide of a client:

A mental health provider (P) permitted a client (C) to commit suicide when (1) C successfully attempted suicide; (2) P reasonably anticipated that C would attempt suicide; (3) P was aware of at least one accessible intervention that could have thwarted C's anticipated suicide attempt; (4) P intentionally elected not to employ any such intervention; and (5) the proximate cause of C's death was C's lethal act.

The above conditions define permitted suicide in terms of the intentional omission of a preemptive suicide intervention. For purposes of these conditions, the variable P refers to any individual or institutional mental health provider having a legal duty of due care to its clients. This includes counselors as well as other mental health professionals such as social workers, psychologists, psychiatrists, and psychiatric nurses. P also includes any mental health facility such as a mental health agency or a psychiatric hospital.

C can be any suicidal client or patient of any such individual or institutional mental health provider. As will be shown, potential candidates for defensible cases of permitted suicide include clients suffering from irreversible physical maladies or diseases causing unmitigated (mental or physical) pain and suffering.

Suicide interventions include but are not limited to such specific acts as involuntary hospitalization, detaining an individual for observation or evaluation, facilitating or setting up vigils to protect clients from self-destructive acts, contacting the suicidal client's family or contacting authorities such as the police, and referral to another mental health professional or physician (Cohen & Cohen, 1999). The accessibility of interventions includes interventions that can be performed with reasonable effort, without unduly jeopardizing the welfare and safety of affected third parties or of the professional health care provider, and which can be performed within time constraints dictated by the individual situation.

The intentional nature of failure to execute interventions makes clear that permitted suicide, as a legal category, is not a result of negligence but is rather a deliberate action, backed by considered judgment, and founded upon pertinent criteria. It should also make clear, that a counselor does not permit suicide, as defined, if a present or former client happens to commit suicide without the counselor's knowledge.

The requirement that the counselor reasonably anticipate a client's suicide attempt makes clear that permitted suicide arises in cases in which the harm is foreseeable. There is typically no liability in cases where the harm is not foreseeable. (Winger v. Franciscan Medical Center, 1998). The question of liability arises in cases where the death of the client can be anticipated with a reasonable degree of skill, knowledge, and care ordinarily expected within a given profession (Tarasoff v Regents of the University of California, 1976).

The requirement that the proximate cause of client death be the client's lethal act (condition 5) cannot be derived simply from the fact that the client successfully attempted suicide (condition 1) since the (legal) cause of the client's death may still be the defendant's action. Liability for malpractice and tortious conduct depends, in part, upon the establishment of a causal connection between client harm and the defendant's action (Van Hoose & Kottler, 1985). Such a judgment of causality cannot be founded merely on the discernment that the suicidal act was foreseeable (Nally v. Grace Community Church, 1988; Rowland v. Christian, 1968). Thus a counselor who foresees a client's suicide and does not intervene cannot, by virtue of the foreseeability of harm alone, be held liable for the harm.

The case of permitted suicide as defined is similar to passive …