Suing clergy, and others, for negligent advice

In 1979, Kenneth Nally was a 23-year-old Californian student about to start a law degree, when he took his own life after receiving counselling for depression from clergy for several years.

Nally's parents sued the clergy and their church. They alleged that telling their son to focus on reading the bible and praying as a way of recovering did not constitute reasonable care and that any referrals to mental health professionals were too little, too late.

After a decade of litigation, a majority of the Californian Supreme Court decided the clergy owed no duty of care to Nally; the minority wrote a scathing dissent.

This landmark case was Nally v Grace Community Church of the Valley. I wrote a master of laws thesis about the issues it raises. Liability in Negligence of Clergy and Churches for Pastoral Counselling for Depression in New South Wales is available online.

Neither clergy, nor anyone else, should try to deal with depression, or any problem for that matter, by reference to just one option if other options might help.

Surgeons who operate without informing patients of potentially useful alternative treatments are negligent. So are lawyers who litigate without telling clients about alternative dispute resolution.

Similarly, doctors who prescribe medication for depression, but don't tell patients about other options, might be found negligent if sued.

Other beneficial measures include solving problems contributing to the depression; better diet, sleep and exercise; enjoyable activities; and connecting with other people.

It may be hard to prove that failure to canvass potential options caused harm, but not always impossible.

Some mental health professionals, such as Seligman and Maslow, have said that engaging in altruism can prevent or reduce depression.

Altruism provides meaning. Many have viewed meaning as important. For example, as a psychiatrist, Viktor Frankl encountered thousands of depressed or suicidal people. He then survived four concentration camps in world war two, providing words of support to depressed or suicidal fellow prisoners while doing so.

Based on his empirical observations, Frankl concluded that depression or suicide are often due to meaninglessness and that even where this was not the cause, meaning and purpose worth living for could have prevented suicide.