Lessons to learn

Lessons to learn

Many parents don't grasp the nature of the relationship they have with universities and colleges when their children head off to school. The assumption is that school officials have the authority - and the duty - to stand in the place of parents. In reality, no such legal duty exists.

Pauline Tam, The Ottawa Citizen

Saturday, May 03, 2008

Before she set herself on fire in her dormitory room, Elizabeth Shin had been seeing psychiatrists and counsellors at the Massachusetts Institute of Technology, where she was a high-achieving sophomore.

For more than a year before her suicide, Ms. Shin had been treated for mental-health problems. During her freshman year, she took an overdose of Tylenol and was admitted to an off-campus psychiatric hospital. While there, Ms. Shin confided to doctors that during high school, she had repeatedly cut herself.

Her parents, contacted by school officials, worked with psychiatrists to get Ms. Shin into psychotherapy. Under the supervision of an M.I.T. care team, she was prescribed anti-depressants. A school psychiatrist diagnosed her with borderline personality disorder and depression.

Even so, her parents said they did not know that their daughter had been threatening suicide -- to M.I.T. counsellors, to professors and to other students -- in the months leading up to her death.

Two years after Ms. Shin died on April 14, 2000, her parents filed a $27-million wrongful death suit against M.I.T., claiming that the school, overly concerned with protecting Ms. Shin's privacy, failed to fully inform them of their daughter's problems. They accused M.I.T. of not doing enough to act in their place to prevent her suicide. And they claimed the school did not provide adequate, integrated health care for their troubled daughter.

The case bears a striking resemblance to that of 18-year-old Nadia Kajouji, the CarletonUniversity student whose body was recently recovered from the Rideau River and who is suspected of having taken her own life.

Like Ms. Shin, Ms. Kajouji had been suffering from depression leading up to her death. She had been seeing a counsellor and seeking treatment from Carleton's health services. Students who knew Ms. Kajouji reportedly noticed her deteriorating state of mind.

It wasn't until after Ms. Kajouji went missing that her parents discovered their daughter had been struggling with school, taking anti-depressants, undergoing counselling and discussing suicide.

They learned that on the day she disappeared, Ms. Kajouji had written about killing herself in an online exchange with a U.S. woman.

Mohamad Kajouji has accused Carleton officials of not alerting him to his daughter's distress. He has also raised questions about why, despite evidence that some campus officials knew of Ms. Kajouji's deterioration, they failed to act in a way that might have prevented her death.

At issue is a question that was central to the Shin case: What is the duty of universities to care for students with mental-health problems? The Shins' lawsuit against M.I.T. was closely watched by colleges and universities across the U.S. because it had the power, not only to set legal precedent, but also to sharpen an evolving national conversation about how higher education should respond to a more demanding, needy and troubled student body.

When the suit was abruptly settled out of court, it left unresolved a host of questions: To what degree should privacy trump safety when it comes to laws that make much of a student's university life secret to parents? Do universities act as surrogate parents -- with all the legal liability that such a role implies -- when they take in students with mental illness? Should the role of universities and parents be redefined in the non-academic lives of students, who are adults by some measures, but not quite? As in the U.S., Canadian laws are vague on these questions, complicated by the changing relationship among universities, parents and students. The debate has intensified as incidents of campus violence, triggered by students suffering from mental illness, have increased. Last year's massacre at Virginia Tech and the more recent rampage at Northern Illinois University involved gunmen who were students with histories of mental illness.

Such extreme cases have forced school officials to act.

"Every university and college is engaged in actively managing student mental-health issues," says Dan Michaluk, a Toronto-based lawyer who has advised many Ontario schools on how to manage student suicides and the risk of campus violence.

"And they're not doing it because they have a duty to students to care for them. They're not doing it because they stand in the place of parents. They're doing it because they have a duty to provide a safe campus and a duty to provide a safe work environment." The issue has garnered attention as universities across Canada have reported a staggering rise in the number of students showing up at campus health services suffering from depression, anxiety and other mental-health problems.

Meanwhile, the suicide rate among Canadians aged 14 to 21 has tripled over the past five decades, from about six deaths per 100,000 people to 19, says Ron Holder, a psychology professor at Queen's University.

The rate is considerably higher than that of the general population, which stands at 11.3. That makes suicide the second leading killer of young Canadians, behind accidents.

Mr. Holder, who conducts studies about suicide and mental health, has found that up to 10 per cent of first-year Queen's students reported attempting suicide at least once in their lives. "What we found at Queen's is similar to what has been found at other universities and other senior high-school students," says Mr. Holder.

The repercussions have been felt by school officials and mental-health experts, who have come to realize that the most vulnerable students -- those most prone to self-injury and suicide -- rarely go near counselling centres or reveal anything about their experience before university. As a result, colleges are stepping up efforts to find these students and get them into treatment before they pose a threat to themselves or others.

"We're not looking for somebody that's going to shoot. We're in the business of helping students," says Phil Wood, dean of students at McMaster University, which has launched a number of initiatives aimed at reaching out to mentally-ill students.

But universities have much more at stake. Every student death sparks trauma on campus, prompting a period of self-examination and sometimes, as in M.I.T., provoking lawsuits and damaging reputations.

Yet there is no consensus on the best way to reach students because they don't always welcome intervention. As a result, many campuses, including McMaster and the University of Waterloo, are training and instructing their professors and staff to alert a dean or the counselling office if they see students who show signs of depression or potential suicide.

They are also forming care teams, comprised of campus counsellors, professors and medical professionals, that share information about troubled students and assess the risks they pose -- one of the lessons learned from the Virginia Tech massacre.

Yet despite such efforts, many school officials remain confused about the law and when it allows them to intervene. Without permission from students, Ontario privacy legislation bars universities and colleges from releasing everything from grades to medical records. But some officials have mistakenly interpreted those laws as a blanket policy forbidding them from sharing information under any circumstances.

Mr. Michaluk says the law allows universities to breach a student's right to privacy if there are broader concerns about safety. What's more, non-medical professionals, such as campus counsellors, deans and professors are held to a lower legal standard than physicians or psychiatrists when it comes to upholding student privacy.

"The test is serious or imminent harm," says Mr. Michaluk. "So if a residence don, for example, witnesses some disturbing behaviour in a student that makes him think it could affect the health and safety of that student or the people around him, he can share that information." At Carleton, acting president Samy Mahmoud said this week the university was aware it had some discretion to release personal information, but believes it acted correctly in the Nadia Kajouji case. "We strongly believe that we fulfilled our obligations in full compliance with the letter and spirit of the law," he said in a letter to the Citizen. "More importantly, we always act in the best interests of students." The issue of releasing information was raised in a U.S. government report that was highly critical of Virginia Tech's emergency response. The report noted that despite knowing about the gunman's history of bizarre behaviour, school officials misinterpreted privacy laws as forbidding any exchange of a student's mental-health information. U.S. federal privacy laws would have allowed school officials to share that information with police.

But the misunderstandings go far beyond those held by school officials. Many parents don't grasp the nature of the relationship they have with universities and colleges when their children head off for higher education. The assumption is that school officials have the authority -- and the duty -- to stand in the place of students' parents, effectively acting as the guardians of students.

In reality, no such legal duty exists for universities and colleges in Canada and the U.S. because students are seen, in the eyes of the law, as adults in charge of every aspect of their lives, says Mr. Michaluk.

By contrast, officials of elementary and high schools can legally act in the place of parents because their student bodies are composed of minors.

In practice, however, the university-parent-student relationship has swung from hands-on to hands-off and then back again as society's notions about young adulthood have changed.

According to Peter Lake, the U.S. co-author of The Rights and Responsibilities of the Modern University, colleges and universities began retreating from a paternalistic role during the 1960s, ushering in a revolution in campus life. By the 1970s, when new federal privacy laws made students the guardians of their own academic, health and disciplinary records, curfews and dress codes were already archaic.

With new rights came new responsibilities for students. U.S. courts found that colleges were not obliged to protect students from their own bad judgment. Yet the issue of safety -- and whether universities had a duty to prevent students from harm -- remained a legal grey area.

"When you look back on it, the level of interest in student safety was paltry at best," says Mr. Lake, a law professor at Florida's Stetson University, who has advised a number of U.S. colleges on their legal responsibilities.

That laissez-faire attitude meant that at many universities, campus security forces existed, not to protect students, but to safeguard campus buildings.

"Even today, you still see police departments on campuses reporting to business offices, which is a vestige of the old system, when their primary mission was property management," says Mr. Lake.

The pendulum swung in the 1990s as universities, in an attempt to protect themselves from liability and litigation, began passing new rules that once again made them overseers of their students' non-academic lives. In particular, new policies limiting alcohol on campus were designed to curb binge drinking and risky behaviour.

Some schools started parent orientation programs and began to engage mothers and fathers in a kind of co-parenting alongside the university; others simply started debating what parents should be told when.

But it wasn't until 2002, when the Shins filed their lawsuit against M.I.T., that a serious debate emerged that challenged the presumption that students are completely autonomous from their parents.

"It tested the idea of what level of intervention should an institution provide and whether a university's responsibilities include getting the parents involved," says Mr. Lake.

While those issues were ultimately left unsettled, preliminary rulings from the case suggested that the courts, for the first time, were ready to rethink the duty of universities to their students.

In particular, the state court ruled that school officials, particularly non-medical professionals such as professors, deans and counsellors could be held liable over the question of whether they provided reasonable and care to a student at risk of violence.

"Prior to the Shin case, you would have never seen non-medical types sucked into potential liability," says Mr. Lake. "And this is what really sent shock waves throughout the country." Canadian courts have never seen an equivalent of the Shin case, which means the responsibility of universities to ensure the safety of their students remains murky. Indeed, if, in the eyes of the law, universities don't play the role of a surrogate parent to students, what kind of role do they play? "It's very unclear," says Mr. Michaluk. "It's not an easy relationship to characterize. And as in the United States, that relationship is changing."