Suicide is still
a leading and growing cause of death in this country.
Typically it evokes extremely troublesome feelings in
the family and friends of the deceased. Their grief
is complicated by anger, guilt and blame. Increasingly,
litigation is pursued against third parties who are
said to be responsible. Although not exclusively so,
these are most commonly psychiatrists, psychologists
and other mental health providers. A clearer understanding
of this trend requires a historical perspective on reactions
to suicide and an analysis of whether suicide is predictable
In English common
law, suicide was considered a crime. The deceased and
the deceased's heirs would both be punished. The body
of the deceased was buried shamefully in the crossroads
of a public highway with a stake through the heat and
a stone on the face. The estate would often be forfeited.
The criminal element was measured, much like in other
types of criminal responsibility, by whether the individual
knew right from wrong. In some jurisdictions in this
country, until very recently, suicide was also considered
a crime. With a greater recognition of mental illness,
emotional disturbance replaced criminal responsibility
in suicide and criminal penalties were abandoned.
In common law, there
was no civil action for suicide because the right of
action died along with the one who committed suicide.
Later wrongful death and survivor statutes allowed families
to bring an action for their loss or on behalf of the
deceased. However, even if liability could be attributed
to a third party, the act of suicide was considered
an independent intervening cause breaking the chain
of causation and, therefore, not foreseeable.
in causation, however, have allowed liability in a number
of instances for suicide. These include failure to prevent
suicide, workers' compensation injuries leading to suicide,
and intentional as well as negligent infliction of bodily
injury or emotional distress resulting in suicide. Earlier
requirements that the individual was psychotic, in a
delirium or frenzy, acting on an uncontrollable impulse,
or without conscious intent, have gradually given way
to a much more liberal analysis where the presence of
any mental disturbance is sufficient to shift the blame
to a potential tortfeasor. In addition, the distinction
between intentional and negligent torts, where the latter
requires foreseeability, has often been blurred and
a "but for" analysis is at times sufficient
for liability. Typically, however, most jurisdictions
still look to foreseeability and control to establish
causation in negligence actions for the suicide of another.
However, both of these elements should be considered
in terms of their corresponding psychiatric concepts
of predictability and preventability. There is reason
to believe that both are more limited than may be assumed.
and predictability are not synonymous, some attention
should bedrawn to statistical probabilities and the
likelihood of particular events occurring, before determining
whether something is, in fact, predictable. When events
are frequent, they are more predictable; their parameters
are more easily identified and variables leading to
them more easily defined. On the other hand, when events
are infrequent, they are difficult to distinguish from
random happenings, and, therefore, the risk of occurrence
may be beyond the scope of prediction.
In this regard, it
is disappointing in the field of mental health, that
in spite of a great deal of demographic data and identified
risk factors, the majority of individuals who commit
suicide have been seen within a short period of time
prior to their act by a professional who did not predict
it. In addition, they have usually told someone about
their suicidal thinking. Large patient studies have
shown that the problem is while suicide is increasing
statistically in the country, it is still relatively
infrequent in the population even among emotionally
disturbed individuals. So, for example, a mental health
provider may see hundreds of patients in a year who
express depressed mood with suicidal thinking, yet few
if any will actually commit suicide. In essence, therefore,
the mental health provider can assume that the treatment
and management of those hundreds of patients was successful,
so the approach can remain the same. It is not difficult
in practice to identify a large pool of patients who
are potentially suicidal and fit all the risk factors,
but to decide which ones among those are actually a
threat may be guesswork. Yet, to confine and protect
all those who are potentially suicidal is impossible,
especially when a fair number are chronically that way.
Control over a suicidal
patient, or preventability, is also assumed by virtue
of a mental health provider's expertise in tile treatment
of disorders leading to suicide. Indeed, most mental
health providers intuitively believe that they do prevent
suicide by helping disturbed patients choose the alternative
of living, or by initiating protective action in a suicidal
crisis. And, modern treatment has certainly been successful
in many difficult, formerly untreatable, mental illnesses.
But, again, the suicide rate is increasing in frequency
in spite of these modern treatment methods. In addition,
numerous studies of suicide prevention centers indicate
that they have been ineffective in preventing suicide.
Routinely, individuals commit suicide on hospital wards
using a variety of inventive means to do it. Contracts
with patients to disclose suicidal intent to the mental
health provider are used regularly, but with little
empirical evidence of effectiveness.
In spite of these
obstacles, mental health providers should not lose faith
in their ability to help patients overcome such disturbing
and hopeless feelings. Good judgment and conscientious
attention to warning signs of suicide are not without
merit. At times, however, even well reasoned judgment
and a caring treatment approach will not prevent a suicide.
Control over a patient's behavior may be difficult if
not impossible to achieve, especially when less restrictive
alternatives in treatment are being demanded. Similarly,
predicting a suicide may be much harder than our science
would like to accept. In the aftermath of suicide, blame-casting
is plentiful. Professionals often blame themselves.
Survivors blame themselves too, as well as others; if
the deceased is not to be blamed, then someone must
It is natural, therefore,
for blame to be transferred to the courtroom. But, before
liability is found, there needs to be a careful analysis
that takes into account the limitations of predictability
and preventability even by well-trained and conscientious
practitioners. Breaches in standards of care should
be clear and not dependent only on the authority of
A.M.: Psychiatric perspectives on civil liability for
suicide. Bull Am Acad Psychiatry Law, 13:1, 1985
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