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.

Modern suicide intervention skills training echoes Frankl by stipulating exploration of reasons for living. If no reason to live is apparent, then a fall-back option is to stay alive to find a reason to live.

In Stay: A History of Suicide and the Philosophies Against It, J.M. Hecht argues that anti-suicide ideas should be promoted in society, "lest a person be confronted by suicidal thoughts alone and unarmed, when most vulnerable".

Hecht points out that by staying alive a person avoids causing suffering to their family, friends and community, and avoids increasing the risk that others will suicide.

One can also stay alive to do good. Altruism benefits the helper as well as those they help, because it can lead to meaning, social interaction, and a reason to improve their own health, to be able to help others more.

This is the concept of give and you will receive. It applies not only to volunteer work but also to monetary donations, or even if partly done to benefit oneself.

Earning to give could transform mundane paid work into something more meaningful. Kindness can become a way of life. On average, Australians who volunteer donate more to charity than the average person.

It is vital for those in crisis to seek help, but prevention beats cure. People need meaning to help prevent certain emotional problems, maximise quality of life, and reduce the risk of addictions. In his writings on the search for meaning, Frankl quoted studies which suggested that a high proportion of alcoholics, and other drug addicts, suffer from meaninglessness.

People in difficulty also need something meaningful to sustain them outside business hours when medical practices are closed, if they encounter imperfections in the stretched health system, if they face geographical, financial or other barriers to getting professional help, if they have no friends or family they can turn to, or if phone calls are unanswered.

Some seek ultimate religious meaning. Altruism can provide that too.

The 19^th century "deed not creed" movement emphasised the importance of doing good, not beliefs. But deeds can be a creed in themselves. It is not just that faith without works is dead but rather, as Swedenborg said, faith and works are one. To give is to believe.

In 1983, the Australian High Court decided that religion could include belief in a supernatural thing or principle, not just in a guy in the sky. Many have made a religion out of service to others, building their lives on the principle that we should love our neighbours as ourselves, laying down their lives to help others their whole lives through. And some, including C.S. Lewis, have argued that the moral law, summed up by that principle, is supernatural.

For those who want to believe in a god, this principle would make a plausible candidate. A divine person on earth, if any, would simply be the embodiment of it. Prayer would consist of doing good deeds. Curing blindness would be done by kindness, not miracles. The bread of life would consist of fulfillment through helping others, not literal bread. If anything will save us it's loving our neighbours as ourselves.

Helping others is something that religionists, atheists, and agnostics agree is a good thing. This has been common to people in nearly all parts of the world at nearly all times.

The principle is also important in healer-sufferer relationships. In Care of the Psyche: A History of Psychological Healing, S.W. Jackson quotes a physician who wrote "There are two kinds of physician – those who work for love, and those who work for their own profit … The true and just physician is known by his unfailing love for his neighbour".

Jackson notes the importance of showing compassion, unconditional positive regard, and enabling the sufferer "to have their plight empathetically appreciated" through attentive listening. These skills are simply applications of the principle.

Many in wealthier countries live lonely, unfulfilling lives, or are addicted to substances or things they don't need. Lacking a strong underlying meaning or purpose, and unconvinced by conventional religion, they may become suicidal when things go wrong.

Meanwhile, tens of thousands of children under five in poorer countries die, every day, of mostly preventable causes. If more people in wealthier countries turned their minds to this fact more often and did something about it, millions of lives would be saved and greatly improved, in both first and third world countries.

However, the promotion, prescription or preaching of a narrow range of options often gets in the way.

A mental health professional might one day be sued if a patient alleges damage from unnecessarily prolonged depression, or from a suicide attempt, which would have been prevented had they been encouraged to seek meaning through altruism. My thesis analyses how failure to suggest a potentially useful option to a patient or client could be demonstrated to have caused damage.

On the whole, unlike the clergy in the Nally case, Australian clergy do not provide individual counselling for mental health issues, unless they are also mental health professionals.

It would be hard to persuade a court to impose a relevant duty of care on clergy for words uttered during the course of, for example, sermons. On the other hand, depressed people may be suffering meaninglessness and have impaired judgment. By purporting to offer ultimate religious meaning, clergy may induce a depressed person listening to a sermon to focus on religious activities or concepts as a way of solving their depression, or other problems.

As a result, the person may be diverted or delayed from seeking professional help, or exploring other beneficial measures, such as altruism. The person's vulnerability would thereby be increased. Decisions of the High Court suggest that where a plaintiff's vulnerability is increased, due to a defendant's conduct, this can be an important factor in helping to establish a duty of care.

Lawyers interested in expanding their revenue may be tempted to explore this possibility, if consulted by a client alleging they had been diverted from more useful options by clergy, and that they suffered damage as a result.

Unfortunately, many people, including Kenneth Nally, find the well of conventional religion to be dry, and suffer as a result. Seek and you will find? Be kind and you'll find. Or, as Dostoyevsky suggested in The Brothers Karamazov, give and you'll believe.

Altruism is not a panacea and can have side effects such as burn-out or financial cost. Anyone with any sort of problem should consider obtaining competent professional help tailored to their own circumstances. Anyone taking medication should not stop or reduce it without discussion with a doctor.