Clergy Malpractice Case Rejected: Church Has No Duty to Prevent Suicide

Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

“Plaintiffs have failed to persuade us that the duty to prevent suicide (heretofore imposed only on psychiatrists and hospitals). . . should be extended to a nontherapist counselor who offers counseling to a potentially suicidal person on secular or spiritual matters. “ 

California Supreme Court, 

Nally v. Grace Community Church, (Nov. 23, 1988).

On April 1, 1979, Kenneth Nally, a 24-year-old seminary student suffering from chronic depression, committed suicide by shooting himself in the head with a shotgun. Soon thereafter his parents filed a “clergy malpractice” suit against Grace Community Church of the Valley, a 10,000 member fundamentalist church near Los Angeles. The suit charged four pastors of the church (including the popular preacher Rev. John Mac Arthur) with negligence and “outrageous conduct” in failing to prevent the suicide. Nally, a converted Catholic and a member of the church for about five years, had been counseled for some time by Mac Arthur and several of the church’s pastors who engaged in spiritual “discipling” of troubled persons by fostering “mentoring” relationships. Church publications advertised that (absent physiological disorders) all emotional problems were caused by sin and were thus spiritual matters within the competence of the church’s staff of 30 pastors/counselors. Among the disorders treated were “drug abuse, alcoholism, phobias, deep depression, suicide, nervous breakdowns and schizophrenia.”

Lower Court Imposes Duty to Refer

The Nally case caused widespread alarm among churches last year when a California appellate court ruled for the Nallys and imposed a new duty upon pastors (and other “nontherapist counselors”) to refer potentially suicidal counselees to certified mental health professionals. The lower court also ruled that there was evidence that the church and her pastors may have engaged in “outrageous conduct” by teaching Nally and others that “suicide was an acceptable and even desirable alternative to living.” This ruling shocked and angered the evangelical church world; Grace Church and John Mac Arthur immediately appealed to the California Supreme Court.

California Supreme Court Rejects Duty to Refer

The Supreme Court, in a recent ruling hailed by church leaders nationwide, overruled the lower court and refused to impose upon pastor/counselors such a duty to refer potentially suicidal persons to licensed professionals. The Court reasoned that because foreseeability of suicide is often tenuous, a workable standard of care would be almost impossible. Secondly, “public policy considerations” dictated that such a duty not be imposed. Finally, in a very brief reference to the church’s many religious freedom defenses, the Court somewhat casually opined:

“Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it could certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity. “

Outrageous Conduct

But in addition to the breach of the alleged duty to refer, the parents had also contended (and the lower court had agreed) that Grace Church’s pastors were possibly guilty of “outrageous conduct”—teaching young Nally that suicide was an “acceptable or even desirable alternative to living.”

To prove this unusual (and very serious) charge that the church actually encouraged Nally to commit suicide, the parents at trial produced an audio tape recording of a speech given by Pastor Richard Thomson on the “Theology of Suicide.” Pastor Thomson, who had counseled Nally prior to his death, apparently stated the following regarding the church’s teaching on suicide:

“So it is very characteristic of the suicidal that it is fear of judgment that drives him into the death after which he will face that judgment, if he’s an unbeliever. And after which if he is a believer, he’ll go to be with the Lord. Yes, there’ll be a loss of reward, but because of the Lord and his grace he’ll go to be with the Lord. In fact, suicide is one of the ways that the Lord takes home a disobedient believer. * * * And suicide for a believer is the Lord saying, ‘Okay, come on home. Can’t use you anymore on earth. If you’re not going to deal with those things in your life, come on home’.” [Emphasis added]

The church argued vigorously that this tape excerpt was taken out of context and that the taped statements were irrelevant since they were uttered at a seminar eighteen months after Nally’s death. Again overruling the lower court, the California Supreme Court agreed with the church and held that the taped statements did not establish that the church had engaged in the “outrageous conduct” of encouraging Nally’s suicide. This court was also dismissed and the church was accordingly exonerated of the charge of contributing to Nally’s mental distress and eventual suicide.

The Future of Clergy Malpractice Cases

In a telephone interview a few days after the Nallyopinion was released, the church’s attorney, Sam Ericsson, announced to this writer that the “chilling effect on church counseling has now been lifted.” In the future, claimed the effusive Ericsson, litigious persons will now be “less inclined” to initiate suits against churches and pastors for failure to prevent suicide. Although the California decision is not binding on other states, many believe the Nally decision sounds the death knell for suicide prevention cases against pastors who engage in spiritual counseling.

Less definitive, however, was the Court’s ruling on the “outrageous conduct” cause of action. This is because the Court largely ignored the church’s religious freedom argument that even “outrageous” beliefs are Constitutionally protected, choosing instead to base its decision solely upon the irrelevancy of the Thomson tape recording and the lack of other evidence.

A few “outrageous conduct” suits are still pending in other states for sexual seduction of counselees by pastors or for “invasion of privacy” and “infliction of mental distress” allegedly caused by harsh church discipline procedures. Unfortunately, it may be some time before the church/state and religious freedom issues are comprehensively addressed by the courts or legislatures in this new and alarming area of civil liability of churches and pastors.