The Supreme Judicial Court Steps into the Complicated World of Student Mental Health

fraywitzerby Phil Catanzano

Legal Analysis

For several years, higher education institutions, both in Massachusetts and nationally, have faced student populations with increased mental and emotional health needs.[1]  In response, many of these institutions have provided additional resources to their clinical and counseling services centers and encouraged novel approaches to assist students who may be in crisis, such as threat assessment teams and coordinated care across different health care providers on and off campus.  While clinical and legal approaches to these issues vary between institutions, the worst imaginable scenario for a campus community arises when these mental and emotional health issues result in suicide.

Until recently, Massachusetts post-secondary institutions had relied primarily upon the legal principles set forth in Mullins v. Pine Manor College, a seminal legal opinion from the Massachusetts Supreme Judicial Court (“SJC”) that laid the groundwork for the duties institutions owe their students given the unique aspects of an often all-encompassing campus life.[2]  While Mullins arose in a context other than student suicide, lower courts frequently applied it in a range of cases focused on liability and institutional responsibility in other contexts.  In May, the SJC placed itself squarely back in the discussion with its decision in Nguyen v. MIT, 479 Mass. 436, 96 N.E.3d 128 (2018), holding that a university may be liable in certain circumstances when a student commits suicide.  The Nguyen case also spoke directly to the duty of non-clinicians, who often play critical roles in helping at-risk students navigate the higher education environment.

I. The University-Student Relationship

Absent a clear duty of care, the general rule is that there is no duty upon individuals to take affirmative steps to protect others.  When colleges and universities are involved, however, there are certain circumstances where a “special relationship” has evolved with students that requires institutions to exercise reasonable care to keep students safe from foreseeable conduct that occurs while they are engaged in activities that are part of the institution’s curriculum or related to its delivery of educational services or benefits.[3]

Massachusetts was critical in this jurisprudential evolution to a special relationship for higher education institutions, primarily through the SJC’s holding in Mullins v. Pine Manor College.  In Mullins, a student was abducted from her dorm in the middle of the night by an individual trespassing on the campus.  She was then sexually assaulted on another part of campus over an extended period of time.[4]  Following a review of the then-current state of the law, the SJC held that there existed a duty upon the institution to ensure student safety to a reasonable degree and that the institution had not satisfied that duty.  The court reasoned that “[t]he threat of criminal acts of third parties to resident students is self-evident, and the college is the party which is in the position to take those steps which are necessary to ensure the safety of its students.”[5]  The SJC concluded that “[c]olleges must…act to use reasonable care to prevent injury to their students by third persons whether their acts were accidental, negligent, or intentional.”[6]  Importantly, Mullins only addressed harm by others and physical security measures.

While the doctrinal impact of Mullins was seismic on campus, it remained unclear how far the duty extended when institutions are confronted with different forms of dangerous behavior.  Massachusetts courts subsequently struggled to define the extent to which colleges and universities were obligated to protect students from harm.[7]  Given the individualized contexts in which these questions commonly arise – e.g., violence on campus, student mental health issues, drug overdoses, or suicide – it has been difficult for courts to apply a consistent analytical framework to assess liability.  Against this backdrop, the SJC granted review in Nguyen and considered the question of whether, and under what circumstances, a university could be liable when a student commits suicide.

II. Nguyen v. Massachusetts Institute of Technology

Han Duy Nguyen (“Nguyen”) was a twenty-five year old graduate student at MIT when he committed suicide on June 2, 2009.  Nguyen, 96 N.E.3d at 131-32.  Nguyen had a history of mental health problems and two prior suicide attempts (in 2002 and 2005) when he was an undergraduate student at a different university.  Id. at 146.  He consulted with at least nine private mental health professionals, totaling more than ninety in-person visits from July 2006 through May 2009.  Id. at 134.  None of these professionals, including one who saw Nguyen forty-three times between 2006 and 2008, believed that he was at imminent risk of committing suicide.  Id.  Nguyen’s last appointment with a professional care giver was just five days before he would tragically take his own life.[8]  Id. at 135.

Nguyen’s father sued MIT in 2011, alleging that MIT’s negligence caused Nguyen’s death.  After reviewing cross-motions for summary judgment, the Superior Court held that MIT was not liable for Nguyen’s negligence claim.  Nguyen appealed, and the SJC heard the case on direct appellate review in 2017.

In its closely watched opinion, the SJC concluded that there are circumstances where a university has a duty of care to take reasonable measures to prevent a student’s suicide.  Id. at 142-143.  The court first recognized that there is no general duty of care to prevent another from committing suicide.  Id. at 139, 144.  The court then examined whether the special relationship between a university and its students imposes additional duties regarding suicide prevention.  In particular, the SJC discussed several factors that have traditionally been used to “delineate duties in tort law” to determine “whether a duty to prevent suicide falls within the scope of the complex relationship that universities have with their students[.]”  Id. at 142.  These factors include:

  • Whether the institution could reasonably foresee being expected to take affirmative action to protect the student;
  • Whether there was “reasonable reliance by the [student on the institution], impeding other persons who might seek to render aid;”
  • The “degree of certainty of harm” to the student;
  • The “burden upon the [institution] to take reasonable steps to prevent the injury;”
  • Whether there is mutual dependence between the student and the institution “involving financial benefit to the [institution] arising from the relationship;”
  • Whether there would be “moral blameworthiness” for the institution’s failure to act; and
  • The “social policy considerations involved in placing the economic burden of the loss on the [institution].”

Id. (internal citations omitted).

The SJC then applied these factors to the university-student relationship in the context of student suicide.  The court reasoned that, in cases where the university has actual knowledge of prior suicide attempts or present suicidal ideations, many of these factors weigh in favor of creating a duty of care between the university and the student.  In such cases, the student’s suicide “is sufficiently foreseeable as the law has defined the term, even for university non-clinicians without medical training.”  Id. at 144.  Moreover, students, particularly those living in dormitories, rely on universities for assistance and protection, and universities are “in the best, if not the only, position to assist.”  Id.  The gravity of the resulting harm – the death of a student – must also be considered along with the probability of the harm.  Id.  And while the burden that such a duty would impose on universities may be substantial, “so is the financial benefit received from student tuition.” Id.  Finally, the SJC indicated that a university would be morally blameworthy for “failing to act to intervene to save a young person’s life[] when it was within the university’s knowledge and power to do so.”  Id.  For these reasons, the SJC concluded, universities have a legal duty to take reasonable measures to prevent student suicide in certain circumstances.

The SJC next attempted to define the scope of that duty.  According to the SJC, a university “has a duty to take reasonable measures under the circumstances to protect the student from self-harm.”  Id. at 143.    “Reasonable measures” the court explained, “will include initiating its suicide prevention protocol.”  Id. at 145.   Alternatively, if no such protocol exists, reasonable measures include “arranging for clinical care by trained medical professionals or, if such care is refused, alerting the student’s emergency contact.”  Id.  In emergency situations, reasonable measures may also include contacting police, fire, or emergency medical personnel.  Importantly, and as discussed below, the SJC extended this duty to non-clinicians, but then limited that duty.    

In sum, the standard that the SJC created in Nguyen involves two distinct inquiries: (1) whether the duty of care is triggered by actual knowledge of prior attempts or present suicidal ideation; and (2) where a duty is triggered, whether the university satisfied its duty by taking reasonable measures to prevent the student’s suicide.  The SJC concluded that MIT owed no such duty in the case at hand because “Nguyen never communicated by words or actions to any MIT employee that he had stated plans or intentions to commit suicide, and any prior suicide attempts occurred well over a year before matriculation.”  Id. at 146.  Moreover, Nguyen was “a twenty-five year old adult graduate student living off campus, not a young student living in a campus dormitory under daily observation.”  Id.  Even if the duty was triggered, the SJC added, MIT and the individual defendants did not breach this duty because Nguyen repeatedly rejected the services offered by the institution.[9]  See id. at 146-47.

III. Implications of Nguyen v. MIT

Above all, the holding in Nguyen generally incentivizes proactive suicide prevention and intervention measures by increasing the risk of liability for institutions that fail to react appropriately to clear warning signs.[10]  To minimize liability and protect students, institutions are well advised to develop robust suicide protocols in conjunction with health care professionals and legal counsel.[11]  In fact, the Nguyen decision suggests that one factor the courts will look to in assessing whether a duty of care was satisfied is whether the institution has a behavioral response protocol, e.g., threat assessment teams or similar, and whether it was triggered by the underlying facts.  The SJC also seemed to indicate that courts will defer to reasonable suicide prevention protocols adopted and implemented by institutions.

Another important implication of Nguyen is the SJC’s expansion to non-clinicians of the duty to prevent suicide, but also the SJC’s corresponding limitation on the reasonable expectations for such non-clinicians in these difficult scenarios.[12]  As the SJC made clear, suicide is often unforeseeable and unpredictable.[13]  Nguyen’s history itself demonstrates this point:  even with numerous visits right up until a week before his death, none of the medical professionals who treated Nguyen could foresee his suicide.  While most institutions have some groups of trained clinicians on campus to assist with student suicide, the majority of individuals on campus who develop close relationships with students and may learn of troubling information are not clinicians, e.g., faculty, administrators, graduate and undergraduate student-employees.  The Nguyen decision is a clear reminder that all individuals who work with students should be trained to some extent regarding risk factors and appropriate responses to indications of serious mental health concerns that may lead to suicide, but it also indicated that such non-clinicians could often satisfy this duty by referring  the concern to a trained clinician who could work with the student as part of a protocol or a unified care team.  Again, colleges and universities will be best served to develop clear policies and roles, keeping in mind the different ways that people on campus interact with students and the different resources available in difficult situations.  Institutions should assess their current staffing and ensure that their clinical resources are appropriate for their population, while also ensuring that their non-clinical staff are trained as well as possible with regard to potential indicators of challenging behaviors, when to report concerns, and to whom such concerns should be reported.

Finally, despite its careful and thorough approach, the Nguyen decision leaves open several important questions.  For example, Nguyen indicated that the duty of care is triggered “[w]here a university has actual knowledge of a student’s suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student’s stated plans or intentions to commit suicide[.]”  Id. at 142-143 (emphasis added).  Through this lens, what suffices as a suicide attempt?  Is it limited to failed efforts at suicide, or does it encompass past instances of ideation or planning or even behaviors like self-harm that, while serious, may not always evolve to a risk of suicide?  Further, what constitutes “recently before matriculation,” given that the SJC concluded that one year was too long in Nguyen?  Do the plans have to be stated to an institutional official, or must the university act upon hearsay and other third-party reporting?  If the latter, will this create additional reporting responsibilities, similar to what is in place when a report of a sexual assault is received by an institution?  And what obligation do undergraduate or sending schools have when a student presents with concerning behavior on their campus but then matriculates to another school, either as the result of a transfer or a subsequent degree opportunity?

In conclusion, the SJC is again leading a national discussion with regard to the scope of institutional liability for student safety on campus.  Given Massachusetts’s status as a major center of higher education, other jurisdictions will likely be confronted with similar issues in the near future.[14]  While these issues will be debated, the SJC has provided an early salvo by creating a framework in Nguyen.  It will not be the final word regarding institutional liability for suicide in higher education.

[1] See generally, American College Health Assoc., National College Health Assessment II (Spring 2017) (in an extensive assessment surveying over 63,000 college students, it was found that, in the past 12 months, 51% of surveyed students felt that “things were hopeless,” 61% of surveyed students felt “overwhelming anxiety,” and 10% of surveyed students had “seriously considered suicide”).

[2] 389 Mass. 47 (1983).

[3] While the notion of in loco parentis is commonly used in the primary and secondary education systems, that relationship has evolved in the post-secondary system. See generally, Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40(a) (2012) (“Duty Based on a Special Relationship with Another”); Dall, J., “Determining Duty in Collegiate Tort Litigation: Shifting Paradigms of the College-Student Relationship,” 29 Journal of College and University Law 485 (2003)

[4] See Mullins, 389 Mass. at 49-50.

[5] Id. at 51.

[6] Id. at 54 (internal citations omitted).

[7] See, e.g., Bash v. Clark University, No. 06745A, 2006 WL 4114297, 22 Mass. L. Rptr. 84 (Mass. Super. Ct. Nov. 20, 2006) (granting the University summary judgment while concluding that it did not have a duty to prevent a student from overdosing on illicit drugs in a university controlled dorm room); Shin v. MIT, No. 020403, 2005 WL 1869101, 19 Mass. L. Rptr. 570 (Mass. Super. Ct. June 27, 2005) (denying MIT summary judgment on grounds that several MIT officials had sufficient information about a student who committed suicide such that special relationship existed between the university and student).

[8] The doctor who met with Nguyen during his final meeting noted that Nguyen “did not say anything that sounded imminently suicidal or hopeless,” discussing instead career options and a subsequent appointment.  Nguyen, 96 N.E.3d at 135.

[9] The court’s conclusion that there was no breach even if a duty existed appears inconsistent with its earlier holding that if a student refuses care and treatment, reasonable care requires the university to notify the student’s emergency contact.  See id. at 145.

[10] See id. at 143, quoting Pavela, Questions and Answers on College Student Suicide: A Law and Policy Perspective 8–9 (2006) (“The main obstacle to better suicide prevention on campus is underreaction…) (emphasis in original).

[11] See also Lannon et. al., “Students Who Pose a Risk of Self Harm:  Individualized Assessments, Leave, and Conditions for Return,” National Association of College and University Attorneys, Annual Conference materials (June 24-27, 2018) (discussing best practices in the context of recent policy statements and decisions issued by the U.S. Department of Education’s Office for Civil Rights).

[12] Compare Nguyen, 96 N.E.3d at 144 (“[n]onclinicians are also not expected to discern suicidal tendencies where the student has not stated his or her plans or intentions to commit suicide”); id. at 146 (“[the limited duty] recognizes that nonclinicians cannot be expected to probe or discern suicidal intentions that are not expressly evident”), with id. at 145 n. 20 (“[f]or university-employed medical professionals, the duty and standards of care are those established by the profession itself”).

[13] See id. at 147 n. 21 (discussing the difficulty, even among trained professionals, in assessing the imminence of the risk of suicide).

[14] California is already revisiting college and university liability.  In Regents of University of California v. Superior Court, the California Supreme Court concluded that universities have the duty to “take reasonable steps to protect students when it becomes aware of a foreseeable threat to their safety … while they are engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services.”  413 P.3d 656, 673-74 (Cal. 2018).  The plaintiff in Regents was a student that was stabbed several times during class by a student whom the University knew to be potentially dangerous.  Id. at 662.  The court emphasized that the duty is “limited” because “it extends to activities that are tied to the school’s curriculum but not to student behavior over which the university has no significant degree of control.”  Id. at 669 (emphasis added).

Phil Catanzano is Senior Counsel at Holland & Knight, LLP, where he counsels colleges and universities on a range of legal and policy issues.  He would like to thank Paul Lannon for his guidance, expertise, and invaluable feedback in drafting this article.