Lee v. Corregedore

925 P.2d 324, 83 Haw. 154, 1996 Haw. LEXIS 140

• Court: Hawaii Supreme Court
• Decided: October 3, 1996
• Docket: 17017
• Status: Published

Opinions

NAKAYAMA, Justice.

In this proceeding arising from Anthony Wayne Perreira’s (Perreira) suicide, plaintiffs-appellants Marilyn Lee, as special administratrix of the decedent’s estate, Felicidad Perreira, and Antone Per-reira (collectively, Appellants) appeal from a summary judgment granted in favor of defendants-appellees Manuel Corregedore and the State of Hawaii (collectively, Ap-pellees), in a wrongful death action. On appeal, Appellants contend that the circuit court erred in concluding that Appellees did not have a duty to prevent Perreira’s suicide. For the following reasons, we reject Appellants’ contention and affirm the summary judgment.

I. BACKGROUND

Perreira was a disabled Vietnam veteran who suffered from neurological and psychiatric problems. He was under the care of a psychiatrist and social worker at the Veterans Administration Clinic on Kauai. Additionally, Perreira regularly received help from Manuel Corregedore (Corregedore), a Veterans’ Services Counselor IV, at the State of Hawaii’s Office of Veterans’ Services.

Prior to working for the Office of Veterans’ Services, Corregedore had spent twenty-two years in the army. He had received an Associate of Arts degree in Liberal Arts from the University of Hawaii. Corregedore had no training or license in psychiatry or psychology; however, he did receive some training in mental health and suicide prevention while in the military.

According to its official job description, the duties of a Veterans’ Services Counselor IV included: identifying clients’ needs and problems; referring them for services related to their needs and problems; and helping clients obtain education, employment and benefits for which they are eligible.¹ In an affidavit, Corregedore described his job duties as

making sure veterans receive all the benefits they are entitled to, coordinating with various agencies to procure the appropriate services, such as job training and educational programs and mental health services and counseling them regarding then-day-to-day problems.... The counseling which I provide to veterans consists of identifying their concerns or problems, and explaining the options available to them to deal with the problem. The problems generally consist of housing, employment, financial, education or benefits matters.... I do not provide psychiatric or psychological services to the veterans I counsel. My counseling mainly consists of listening and empathizing with the veterans.... When confronted with a client with emotional or mental problems I always make arrangements for them to be seen by a mental health professional at the U.S. Veterans Center for evaluation and/or treatment.

Prior to their professional relationship, Perreira and Corregedore had known each other in a personal capacity since the 1960s. They had met each other through family connections and had accompanied each other to veterans’ meetings and family gatherings. They had even taken a ten-day trip to Disneyland together. Perreira had also lived at Corregedore’s home for a month.

Their professional relationship began when Perreira’s mother approached Corregedore at the Office of Veterans’ Services, seeking additional help for her son. Corregedore then initiated contact with Perreira by visiting Perreira at his house to assess which services he needed. The services that Cor-regedore ultimately provided included bill payments, a referral to a speech therapist, and informal visits where they would “talk story” and where Perreira would “let off steam.” Corregedore also participated in discussions about establishing a guardianship for Perreira; however, the guardianship never came to fruition.

Perreira had threatened to commit suicide at least two times prior to his death. In 1990, Perreira threatened to commit suicide during a conference between Corregedore, Perreira, Perreira’s father, Perreira’s psychiatrist and Perreira’s social worker. In March 1991, Perreira threatened to kill himself while he was at the police station being photographed and fingerprinted in connection with unspecified legal difficulties.

On the morning of July 19, 1991, Perreira called Corregedore at home to see if Cor-regedore would be at the Office of Veterans’ Services that morning. Thereafter, Perreira and his father arrived at Corregedore’s office at approximately 9:30 a.m. While waiting for Corregedore to finish with another client, Perreira told Corregedore’s secretary, Jocelyn Miyake, that he was going to “jump Hanapepe Bay Valley, if not I’m going to Kokee.” Perreira then asked Miyake to “write down what he wanted after he died.” The document that Perreira dictated to Mi-yake stated:

7-19-91

Anthony Perreira’s Request

All of his clothes to be given to the Salvation Army

Jewelry, Army Coat, and Camouflage Baseball Cap to be buried with him also Virgin Mary Statue.

All his money to be given to Parents.

TV. Bed to be left in his room.

[Signed]

Anthony W. Perreira

When Perreira saw Corregedore, he told Corregedore that he was going to kill himself at Hanapepe Bay Lookout. Corregedore told Perreira that he was going to call Per-reira’s social worker at the clinic and that they would all talk, but Perreira refused to listen and walked out of the office. As Per-reira was leaving the office, Miyake showed Corregedore the document that Perreira had dictated to her. According to Corregedore, he showed the document to Perreira’s father, told him about the suicide threat, and urged him “to keep an eye on [Perreira].” Conversely, Perreira’s father later claimed that this brief conversation did not take place. After Perreira and his father left, Correge-dore called Perreira’s social worker, Gary Malinoski, and told him of Perreira’s suicide threat; Malinoski said that he would follow up immediately, and did so, but it was too late to save Perreira. On his way home, Perreira asked his father to drive to Hana-pepe Bay Lookout. When the pair arrived at the lookout, Perreira got out of the car and jumped to his death.

On February 10, 1992, Appellants filed a complaint for damages against Corregedore and the State. The complaint alleged that Corregedore had a duty arising from his professional relationship with Perreira to prevent Perreira from “causing and/or exposing himself to any serious injury and/or harm which was reasonably foreseeable,” and that he breached this duty by failing to warn the father that Perreira was suicidal. A second allegation was that Corregedore had a “duty arising from [his] specific knowledge and information that ... Perreira stated he was going to kill himself to inform and/or warn his parents and/or other responsible persons or authorities of ... Perreira’s statements and thereby prevent [the suicide].” Correge-dore and the State answered the complaint on March 13, 1992, and filed a motion for summary judgment on September 10, 1992, alleging that Corregedore had no duty to prevent Perreira’s suicide. The circuit court granted Corregedore and the State’s motion for summary judgment on March 31, 1993, from which Appellants filed this appeal.

II. STANDARD OF REVIEW

The issue in this case is whether the circuit court erred when it granted summary judgment in favor of Appellees on the basis that Corregedore owed no duty to prevent Perreira’s suicide. We. review the circuit court’s award of summary judgment de novo under the same standard applied by the circuit court. Maguire v. Hilton Hotels Corp., 79 Hawai'i 110, 112, 899 P.2d 393, 395 (1995).

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,' if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.

Id. (citations, emphasis, and brackets omitted).

“The existence of duty ... is entirely a question of law.” Birmingham v. Fodor’s Travel Publications, 73 Haw. 359, 366, 833 P.2d 70, 74 (1992). This court reviews questions of law under the right/wrong standard. “Under the right/wrong standard, we examine the facts and answer the question without being required to give any weight to the trial court’s answer to it.” State v. Meyer, 78 Hawai'i 308, 311, 893 P.2d 159, 162 (1995) (citations omitted).

III. DISCUSSION

Appellants maintain that Appellees had a duty to prevent Perreira’s suicide, and, although the analysis is sometimes unclear, Appellants appear to posit three theories. First, Appellants contend that the duty arises from a “special relationship” between Veterans’ Services Counselors and their clients. Appellants argue that, “Correge-doré’s duty was the same as any mental health professional to his client,” when a suicide was foreseeable. Appellants express their second theory by asserting that “Per-reira’s suicide was entirely foreseeable giving rise to a duty on the part of Appellee Cor-regedore,” and thus, Appellants seem to assert that foreseeability alone is sufficient to create a duty on the part of counselors to prevent the suicides of their noncustodial clients. Third, Appellants “seek a ruling from the Court that recognizes the protected status of veterans, as a class, and determines that the lower court erred in finding that Mr. Corregedore had no duty in the instant ease.” Apparently, this is a claim that Cor-regedore had a statutory duty to prevent the suicide pursuant to Hawaii Revised Statutes (HRS) Chapter 363 (1993), Veterans Rights and Benefits.

A. Counselors Do Not Have a Duty to Prevent the Suicides of Noncustodial Clients, Regardless of Whether the Suicides Are Foreseeable

“A prerequisite to any negligence action is the existence of a duty owed by the defendant to the plaintiff[,]” Maguire, 79 Hawai'i at 112, 899 P.2d at 395 (citations omitted), “requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks.” Birmingham, 73. Haw. at 366, 833 P.2d at 74 (citations omitted). The general rule is that a person does not have a duty to act affirmatively to protect another person from harm. “The fact that the actor realizes or should realize that action on his [or her] part is necessary for another’s aid or protection does not of itself impose upon him [or her] a duty to take such action.” Restatement (Second) of Torts § 314 (1965).

The exceptions to this general rule arise when a “special relationship” exists between ' the actor and the individual facing harm. In determining whether such a relationship exists, section 314A(4) of the Restatement (Second) of Torts (1965)² provides that, “one who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a ... duty [to take reasonable action to protect the other person from unreasonable risk of physical harm].” (Emphasis added).

Thus, in the absence of custody, we have held that a prosecuting attorney and a mentally ill criminal defendant did not have a special relationship sufficient to impose a duty on the prosecuting attorney to prevent the mentally ill criminal defendant from murdering a fifteen year old girl, despite that a court had acquitted and released the mentally ill criminal defendant only under the condition that he continue to receive psychiatric treatment from a court-appointed psychiatrist, who, in turn, was required to send monthly progress reports to the prosecuting attorney and the court. Seibel v. City and County of Honolulu, 61 Haw. 253, 258-61, 602 P.2d 532, 537-38 (1979). The pivotal issue was whether the prosecuting attorney had “custody or control” over the mentally ill criminal defendant:

To begin with, we find it useful to examine the reasons for a similar duty which can be imposed in other relationships, such as that of a parent to control his child, a master to control his servant, and an institutional custodian to control its wards. The basis for imposing a duty on the parent, master or institutional custodian to control the conduct of a child, servant or ward is that, because of the relationship between the parties, the parent, master or institutional custodian is able or should be able to foresee the risk created by the other and can or should be able to take precautions against that risk. However, unlike the parent, master or institutional custodian who has De facto or De jure custody or control over the child, servant • or ward, the [prosecuting attorney] did not have custody or control over [the mentally ill criminal defendant]. In the absence of control over [the mentally ill criminal defendant], we find no special relationship between the [prosecuting attorney] and [the mentally ill criminal defendant]....

... The prosecuting attorney did not, and ordinarily does not, exercise a degree of supervision over a conditionally released defendant which could compel a conclusion that the professional relationship between the parties was a form of custody.

Id. at 260, 602 P.2d at 537-38 (emphases added and footnotes omitted).

On the other hand, when the State has actually had custody of a person, such as a prisoner, we have held that the “[S]tate, by reason of the special relationship created by its custody of [the] prisoner, is under a duty to the prisoner to take reasonable action to protect the prisoner against unreasonable risk of physical harm.” Haworth v. State, 60 Haw. 557, 563, 592 P.2d 820, 824 (1979) (citing in footnote 4, inter alia, Restatement (Second) of Torts § 314) (holding that the State’s duty to exercise reasonable care for the safety of a prisoner continued during the prisoner’s work assignment).

The duty arises out of the deprivation by the state of the prisoner’s normal opportunities to protect himself, particularly through places or situations which involve risk. When the custodial authorities are charged with knowledge that the prisoner may incur harm unless preclusive measures are taken, reasonable care must be exercised to prevent such harm.

... Since the danger arose from the exercise of the State’s authority over appellant as a prisoner, a duty to exercise reasonable care to avoid the danger arose on familiar tort principles.

Id. at 563-65 592 P.2d at 824-25 (emphases added).

The general rule regarding the protection of others also applies to suicide prevention. Generally, an actor will not be held liable for the suicide of another “because suicide constitutes an independent intervening act so extraordinary as not to have been reasonably foreseeable by the original tortfeasor.” McPeake v. William T. Cannon, Esquire, P.C., 381 Pa.Super. 227, 553 A.2d 439, 441 (1989) (citations omitted). But, if a special relationship exists and the suicide is reasonably foreseeable, only then would the actor be required to take action that was reasonable under the circumstances. Therefore, without a special relationship and foreseeability, an actor would not be legally required to affirmatively act to prevent a suicide.

Although duty is comprised of two mutually dependent elements, Appellants’ arguments focus on the need for a special relationship, which is, in essence, a threshold determination. Accordingly, if there is no special relationship, then there is no duty. Due to the absence of Hawaii ease law focusing on the type of special relationship required to impose a duty on an actor to prevent the suicide of another person, we turn to other jurisdictions for guidance.

“To reach the conclusion that a special relationship exists, it must be assumed that the harm to be prevented by the defendant is one that the defendant is in a position to protect against and should be expected to protect against.” Donaldson v. YWCA, 539 N.W.2d 789, 792 (Minn.1995) (citation omitted) (holding that a lodging house serving low-income individuals, including many with mental health problems, had no duty to prevent residents from committing suicide). “Courts have traditionally shown reluctance to impose liability on others for self-inflicted harm.” Id. (citation omitted). Thus, it is no surprise that a review of cases in other jurisdictions advances only one type of special relationship that consistently imposes a duty on an actor to prevent another’s suicide, namely a relationship predicated on a custodial relationship. Negligence actions for the suicide of another will generally not lie since the act of suicide is considered a deliberate intervening act exonerating the defendant from legal responsibility. Krieg v. Massey, 239 Mont. 469, 781 P.2d 277, 279 (1989) (citation omitted) (holding that a landlord-tenant relationship was not a custodial relationship imposing a duty on the landlord to prevent a tenant’s suicide, despite' that an apartment manager had taken a pistol from the disturbed tenant’s hands and put it on the top of the tenant’s closet prior to his suicide). An exception to this rule “allows the imposition of a duty to prevent suicide but only in a custodial situation where suicide is foreseeable.” Id.; accord, Donaldson, 539 N.W.2d at 792-93; Cygan v. City of New York, 165 A.D.2d 58, 566 N.Y.S.2d 232, 238 (1991) (holding that a city was not liable for negligence by having failed to prevent a city police officer from committing suicide with his service revolver, because “the [c]ity had neither custody nor control over [the police officer]”), appeal denied, 78 N.Y.2d 855, 573 N.Y.S.2d 645, 578 N.E.2d 443 (1991); McPeake, 553 A.2d at 443 (“[W]e hold that an attorney’s duty to provide adequate representation does not encompass the duty to foresee and protect a client from his own possible suicidal tendencies.”); Nally v. Grace Community Church, 47 Cal.3d 278, 253 Cal.Rptr. 97, 105-06, 763 P.2d 948, 956 (1988) (holding that nontherapist counselors did not have a duty to prevent the suicide of a person who was not in their custody), cert. denied, 490 U.S. 1007, 109 S.Ct. 1644, 104 L.Ed.2d 159 (1989); DeMontiney v. Desert Manor Convalescent Center Inc., 144 Ariz. 6, 695 P.2d 255, 259-60 (1985) (when a private health care facility is charged with the care and custody of suicidal persons, the private health care facility has a duty to take reasonable steps to prevent suicide); Katona v. County of Los Angeles, 172 Cal.App.3d 53, 218 Cal.Rptr. 19, 22 (1985) (holding that county mental health facilities did not have a duty to prevent a suicidal patient from killing herself after the patient’s unconditional release); McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123, 127 (1983) (holding that an attorney did not have a duty to prevent her client’s suicide); City of Belen v. Harrell, 93 N.M. 601, 603 P.2d 711, 713 (1979) (“When one party is in the custodial care of another, as in the case of a jailed prisoner, the custodian has the duty to exercise reasonable and ordinary care for the protection of the life and health of the person in custody.”).

Accordingly, we have followed the Restatement (Second) of Torts § 314A(4) and recognized a reasonable duty of care to prevent suicide only on the part of a defendant who had actual custody of a suicidal person. Figueroa v. State, 61 Haw. 369, 376-80, 604 P.2d 1198, 1202-04 (1979). When a juvenile (Michael) attempted suicide while in the custody of the Hawai'i Youth Correctional Facility (Boys’ Home), we held that the State’s duty to exercise reasonable care to prevent the juvenile’s suicide arose from the existence of the custodial relationship between the Boys’ Home and the juvenile:

The State’s duty to Michael to exercise reasonable care arises from the relationship created between the two as a result of Michael’s commitment to the Boys’ Home. Michael was committed to the Boys’ Home by the Family Court and so long as he was in its custody, the law provides that the director of social services “shall be the guardian of the person of every child committed to or received at” H[awai‘i Youth Correctional Facility]. HRS § 352-9 (1976); see Restatement (Second) of Torts § 314A(4).

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In the view we take of this case, ... the State’s negligence, if any, upon which liability for the injuries sustained by Michael may be imposed, can only be predicated on the manner of the observation and supervision of Michael in the isolation cell after he was confined in isolation as a result of his runaway attempt.

Id. at 376-77, 604 P.2d at 1202-03 (emphases added).

Figueroa is distinguishable from the instant case because, unlike the plaintiff in Figueroa, Perreira was not a prisoner of the State, and thus, Corregedore and the State did not have custody, control, guardianship, or authority over Perreira. Additionally, while the incarcerated plaintiff in Figueroa was a mere juvenile, Perreira was a forty-two year old man who, as an independent adult, had the right to enter and leave the Veterans Administration Clinic and the Office of Veterans’ Services as he pleased, as well as the right to make his own decisions regarding his health care. Pursuant to Hawai'i case law and the Restatement (Second) of Torts § 314A(4), because Perreira was not in the custody of Corregedore and the State, a special relationship did not exist to impose a duty on Corregedore and the State to prevent Perreira’s suicide.

The dissent’s gratuitous citation to Touchette v. Ganal, 82 Hawai'i 293, 922 P.2d 347 (1996), Dissent at 179, n. 1, 925 P.2d at 344, n. 1, in “connection” with the proposition that “[t]he law appears ... to be working slowly toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence[,]” Dissent at 179, 925 P.2d at 344 (quoting Restatement (Second) of Torts § 314A comment b (1965)), reflects a fundamental misunderstanding and misinterpretation or our analysis and holdings in that ease. Touchette is clearly inapposite.

Wendy Touchette was severely injured, and her husband and two children killed, in a fire deliberately set by Orlando Ganal. Tou-chette, in her individual capacity and as special administratrix, brought an action against, inter alia, Mabel Ganal (Mabel), Orlando’s wife. The circuit court granted Mabel’s motion to dismiss, stating that, “pursuant to § 315 Restatement of Torts (Second) and Hawaii case law[,] Defendant Mabel Ganal had no duty to control the conduct of Orlando T. Ganal, Sr.[,] as no required ‘special relationship’ was alleged or shown at hearing.” Touchette, at 297, 922 P.2d at 351.

This court agreed. After reviewing sections 314 and 315 of the Restatement, we explained that, “applied to the present ease, Mabel would owe a duty to appellant under sections 315 and 314A only if Mabel bore a ‘special relation’ to either appellant or Ganal[,]” id. at 299, 922 P.2d at 353, and held that “the circuit court’s order grafting Mabel’s motion to dismiss was correct insofar as it held that Mabel did not owe a duty to appellant under sections 315 and 311A because Mabel did not bear a ‘special relation’ to either appellant or Ganal as contemplated by the language of section 315.” Id. at 301, 922 P.2d at 355 (emphasis added).

In Touchette, we further explained, however, that the circuit court erred in dismissing Touchette’s complaint against Mabel solely on the basis that Mabel owed Touchette no duty pursuant to sections 315 and 314A. Because (1) “[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that no relief can be granted under any set of facts that can be proved in support of its allegations[,]” id. at 303, 922 P.2d at 357 (citations omitted), and (2) “the allegations [of affirmative conduct by Mabel] state a claim that potentially could warrant relief under a theory based on the duty stated in sections 302, 302A and/or 302B[,]” this court vacated the circuit court’s order granting Mabel’s motion to dismiss. Id. at 304, 922 P.2d at 358.

Sections 302, 302A, and 302B have no application in this case. As we noted in Tou-chette,

[section 302] is concerned only with the negligent character of the actor’s conduct, and not with his [or her] duty to avoid the unreasonable risk. In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable [person] to protect them against an unreasonable risk of harm to them arising out of the act. The duties of one who merely omits to act are more restricted, and in general are confined to situations where there is a special relation between the actor and the other which gives rise to the duty.

Id. at 301-02, 922 P.2d at 355-56 (quoting Restatement (Second) of Torts, § 302 comment a (1965)) (emphasis added). The distinction between sections 315 and 314A, on the one hand, and sections 302, 302A, and 302B, on the other, is based on the common law distinction between “nonfeasance” and “misfeasance.” Id. Our holding in Tou-chette was premised upon that distinction. Had Touchette’s claim against Mabel alleged only “nonfeasance,” ie., Mabel’s failure to control Ganal’s conduct or to warn Touchette, dismissal would have been appropriate. However, this court determined that “appellant’s complaint against Mabel in the present ease alleges affirmative conduct, or alleged ‘misfeasance’ on the part of Mabel, ... thereby implicating the duty described by sections 302, 302A[,] and 302B.” Id. at 304, 922 P.2d at 358. In contrast, there are no such allegations in the instant case, and, thus, sections 302, 302A, and 302B are not implicated.

Case law from other jurisdictions supports our holding. “Liability against therapists for outpatient suicides is rarely imposed, ... and some commentators have suggested that liability under these circumstances should never be imposed.” Eisel v. Board of Education, 324 Md. 376, 597 A.2d 447, 450 (1991) (citations omitted); see also, Hoeffner v. The Citadel, 311 S.C. 361, 429 S.E.2d 190, 194 (1993) (rejecting the imposition of “a strict duty upon health care professionals to take extreme action whenever a patient expresses signs of depression”); King v. Smith, 539 So.2d 262, 264 (Ala.1989) (holding that, “in view of the outpatient character of their relationship,” a psychiatrist and his patient did not have a “special relationship or circumstance necessary to make [the psychiatrist] liable for [the patient]’s ... subsequent suicide”); Paddock v. Chacko, 522 So.2d 410, 417 (Fla.Dist.Ct.App.1988) (holding that a psychiatrist “had no duty to take [a suicidal outpatient] into his custody to prevent her from inflicting injury upon herself’), review denied, 553 So.2d 168 (Fla.1989); Stepakoff v. Kantar, 393 Mass. 836, 473 N.E.2d 1131, 1135 (1985) (rejecting a plaintiffs argument that, after a psychiatrist diagnoses “a patient as suicidal, the psychiatrist’s duty to take preventative measures becomes one of ‘reasonableness’ ”); Parodies v. Benedictine Hospital, 77 A.D.2d 757, 431 N.Y.S.2d 175, 178 (1980) (affirming summary judgment in favor of a psychiatrist because the law did not impose a continuing duty to exercise a parental role over a discharged patient who subsequently committed suicide), appeal dismissed, 51 N.Y.2d 1006, 435 N.Y.S.2d 982, 417 N.E.2d 94 (1980), appeal dismissed, 51 N.Y.2d 710, 435 N.Y.S.2d 1026, 417 N.E.2d 96 (1980); Bellah v. Greenson, 81 Cal.App.3d 614, 146 Cal.Rptr. 535, 539 (1978) (“The imposition of a duty upon a psychiatrist to disclose to others vague or even specific manifestations of suicidal tendencies on the part of the patient who is being treated in an outpatient setting could well inhibit psychiatric treatment.”); Runyon v. Reid, 510 P.2d 943, 949-51 (Okla.1973) (affirming summary judgment in favor of a psychiatrist where a decedent had committed suicide as an out-patient).

For example, despite that the California Supreme Court had already held that a psychotherapist had a duty to warn others when a patient under the psychotherapist’s care was likely to cause personal injury to a third party, Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976), a California appellate court subsequently limited Tarasoff, holding that courts should not extend Tarasoff to require psychiatrists to disclose the confidences of their patients when the patients are contemplating suicide. Bellah v. Greenson, 146 Cal.Rptr. 535, 539-40. In Bellah, a psychiatrist had not warned his patient’s parents about the patient’s suicidal disposition, and the patient eventually succumbed to a self-inflicted overdose of pills. Despite that the psychiatrist did not have custody of the patient at the time of her suicide, the patient’s parents sued the psychiatrist for wrongful death, alleging, among other things, the psychiatrist’s negligent failure to warn the parents about the patient’s suicidal disposition. Although the Bellah court affirmed the trial court’s order sustaining the psychiatrist’s demurrer pursuant to a statute of limitations, the Bellah court proceeded to explain that, while a cause of action might exist for traditional, professional malpractice when a psychiatrist’s treatment of a suicidal patient falls below the standard of care for the profession, the plaintiffs were wrong in asserting that Tarasoff had created a broad duty on the part of psychiatrists to breach the confidence of their doctor-patient relationships by warning others of the likelihood of a patient’s suicidal disposition:

The imposition of a duty upon a psychiatrist to disclose to others vague or even specific manifestations of suicidal tendencies on the part of the patient who is being treated in an out-patient setting could well inhibit psychiatric treatment. In his ami-cus brief, counsel points out that the dynamics of interaction between the psychotherapist and the patient seen in office visits are highly complex and subtle. Intimate privacy is a virtual necessity for successful treatment. Were it not for the assurance of confidentiality in the psyehó-therapist-patient relationship, many in need of treatment would be reluctant to seek help. Even those who do seek help under such circumstances may be deterred from fully disclosing their problems. An element usually assumed essential is the patient’s trust that matters disclosed in therapy will be held in strict confidence. (See Fleming and Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 63 Cal.L.Rev. 1025, 1041.)

We conclude that Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, requires only that a therapist disclose the contents of a confidential communication where the risk to be prevented thereby is the danger of violent assault, and not where the risk of harm is self-inflicted harm or mere property damage. We decline to further extend the holding of Tarasoff.

Id. 146 Cal.Rptr. at 539-40 (emphases added).

Two years later, the California Supreme Court referred to Bellah as supporting authority when it rejected the assertion “that the duty to prevent suicide ... or the general professional duty of care ... should be extended to a nontherapist counselor who offers counseling to a potentially suicidal person on secular or spiritual matters.” Nally, 253 Cal.Rptr. 97, 110, 763 P.2d 948, 960-61. Nally, a troubled and depressed twenty-four year old college student, had sought counseling from nontherapist counselors (i.e., persons other than licensed psychotherapists, who counsel others concerning their emotional and spiritual problems) at Grace Community Church. Although the counselors at Grace Community Church did not conduct professional or clinical counseling, they conducted “pastoral counseling” through instruction, study, prayer, guidance, and mentoring relationships. During a period of five years Nally took part in various pastoral counseling sessions, and in some sessions he stated that he had contemplated suicide. Nally eventually killed himself, and his parents sued Grace Community Church for, among other things, both “clergyman malpractice” and general negligence with respect to the counselors' failure to prevent Nally's suicide.

In considering whether to recognize a duty of care on the part of counselors, the Nally court stated that it must consider several factors, including the issue of whether a special relationship exists between suicidal individuals and their counselors, the foreseeability of harm to the injured party, the degree of certainty that the injured party suffered injury, the closeness of the connection between the defendants’ conduct and the injury suffered, the moral blame attached to the defendants, the policy of preventing harm, the extent of the burden to the defendants and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. Id. at 105-06, 763 P.2d at 956. Emphasizing the issue of whether a special relationship existed, the Nally court approvingly referred to Bellah as holding “that courts should not extend Tarasoff to require psychiatrists to disclose the confidences of their patients when harm to a third party is not contemplated.” Id. at 107, 763 P.2d at 958 (emphasis added). Although, in Bellah, an intermediate appellate court had also attempted to acknowledge through dictum that a cause of action might exist for professional malpractice when a psychiatrist’s treatment of a noncustodial suicidal patient falls below the standard of care for the profession, Bellah, 146 Cal.Rptr. at 538, the Nally court specifically rejected the notion that Bellah had imposed an affirmative duty on psychiatrists to prevent their noncustodial patients from committing suicide. Nally, 253 Cal.Rptr. at 107-08, 763 P.2d at 958.

Bellah ... never imposed an affirmative duty on a psychiatrist to see that his patient does not ... harm himself. If such were the case, psychiatrists could be held responsible whenever one of their patients made the unfortunate decision to take his own life. We reject such a broad interpretation of the Bellah dictum, and emphasize that ... [the Bellah court] never decided the duty issue.

Id. at 107 n. 6, 763 P.2d at 958 n. 6 (emphases added; citations and quotation marks omitted). Neither Bellah nor any other California cases “support[ed] the finding of a special relationship between Nally and defendants, or the imposition of a duty to refer a suicidal person to a professional therapist[,]” and, in fact, Bellah and the other relevant California cases “weigh[ed] against creating such a duty.” Id. at 108, 763 P.2d at 958.

The Nally court also analyzed “the closeness of the causal connection between defendants’ conduct and the injury suffered, and the foreseeability of the particular harm to the injured party.” Id.

Generally, there is a real question about the closeness of the causal connection between a nontherapist counselor’s failure to refer to professional help and the suicide of a particular suicidal person. By their very definition, nontherapist counselors are not professional medical experts on suicide. Their activities are undertaken pursuant to doctrines explicitly left unregulated by the state.

Id. at 108 n. 7, 763 P.2d at 958-59 n. 7. Thus, the Nally court concluded that “[t]he closeness of connection between defendants [’] conduct and Nally’s suicide was tenuous at best.” Id. at 108, 763 P.2d at 958.

With respect to the foreseeability of the particular harm to the injured party,

[o]ne can argue that it is foreseeable that if a nontherapist counselor fails to refer a potentially suicidal individual to professional, licensed therapeutic care, the individual may commit suicide. While under some circumstances counselors may conclude that referring a client to a psychiatrist is prudent and necessary, our past decisions teach that it is inappropriate to impose a duty to refer — which may stifle all gratuitous or religious counseling — based on foreseeability alone. Mere foreseeability of the harm or knowledge of the danger, is insufficient to create a legally cognizable special relationship giving rise to a legal duty to prevent harm.

Id. at 108, 763 P.2d at 959 (emphasis added and citation omitted).

Additionally, the Nally court focused on public policy considerations:

Imposing a duty on defendants or other nontherapist counselors to ... insure their counselees are also under the care of psychotherapists, psychiatric facilities, or others authorized and equipped to forestall imminent suicide, could have a deleterious effect on counseling in general.... [T]he indeterminate nature of liability ... [of] nontherapist counselors could deter those most in need of help from seeking treatment out of fear that their private disclosures could subject them to involuntary commitment to psychiatric facilities.

... [N]either the Legislature nor the courts have ever imposed a legal obligation on persons to take affirmative steps to prevent the suicide of one who is not under the care of a physician in a hospital. Indeed, for all practical purposes, a doctor to whom a nontherapist counselor refers a suicidal person may refuse to take the patient.

We also note that the Legislature has exempted the clergy from the licensing requirements applicable to marriage, family, child and domestic counselors and from the operation of statutes regulating psychologists. In doing so, the Legislature has recognized that access to the clergy for counseling should be free from state imposed counseling standards, and that the secular state is not equipped to ascertain the competence of counseling when performed by those affiliated with religious organizations.

Furthermore, extending liability to voluntary, noncommercial and noncustodial relationships is contrary to the trend in the Legislature to encourage private assistance efforts. This public policy goal is expressed in the acts of the Legislature abrogating the Good Samaritan rule. Statutes barring the imposition of ordinary negligence liability on one who aids another now embrace numerous scenarios.

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Even assuming that workable standards of care [for nontherapist counselors] could be established in the present case, an additional difficulty arises in attempting to identify with precision those to whom the duty should apply. Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would 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. We have previously refused to impose a duty when to do so would involve complex policy decisions, and we are unpersuaded by plaintiffs that we should depart from this policy in the present case.

Id. at 108-10, 763 P.2d at 959-60 (citations, brackets and quotation marks omitted).

Finally, the Nally court addressed the availability, cost, and prevalence of insurance for nontherapist counselors and “lawsuits stemming from spiritual counseling[.]” Id. at 110, 763 P.2d at 960. Although “a new type of clergyman malpractice insurance ha[d] been offered to religious organizations to protect against potential liability for spiritual counseling that causes injury[,]” the Nally court concluded that the “value of such insurance, however, is unknown and difficult to determine because few cases have been filed against the clergy.” Id. (citation and quotation marks omitted).

Thus, the Natty court rejected the argument that the duty to prevent suicide or the general professional duty of care should be extended to a “nontherapist counselor who offers counseling to a potentially suicidal person on secular or spiritual matters.” Id. at 110, 763 P.2d at 960-61. To impose a “broad duty to refer ... would place blame unreasonably and contravene public policy.” Id. at 110, 763 P.2d at 961 (footnote omitted). Accordingly, the Natty court “conclude[d] the trial court [had] correctly granted defendants’ nonsuit motion as to the clergyman malpractice or negligence causes of action.” Id. (quotation marks omitted).

In contrast with the California Supreme Court, we have not had the opportunity to address whether counselors have such a duty until now. However, similar to the Natty court, we find no eases in our jurisdiction supporting the finding of a special relationship between counselors and their noncustodial clients sufficient to impose a duty upon counselors to prevent their clients’ suicides. Our holding in Figueroa, the Restatement (Second) of Torts § 314A(4), and relevant California cases weigh against creating such a duty. See Figueroa, 61 Haw. 369, 376-80, 604 P.2d 1198, 1202-04 (citing the Restatement (Second) of Torts § 314A(4)); Nally, 253 Cal.Rptr. 97, 107-08, 763 P.2d 948, 958; Bellah, 146 Cal.Rptr. 535, 539-40. Because Perreira was not in the custody of Correge-dore and the State, a special relationship did not exist to impose a duty on Corregedore and the State to prevent Perreira’s suicide.

In considering whether to impose a duty of reasonable care on a defendant, we recognize that duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. Waugh v. University of Hawaii, 63 Haw. 117, 135, 621 P.2d 957, 970 (1980); Kelley v. Kokua Sales & Supply, Ltd., 56 Haw. 204, 207, 532 P.2d 673, 675 (1975). Legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done. Id. (quoting Tarasoff, 131 Cal.Rptr. 14, 551 P.2d at 342). In determining whether or not a duty is owed, we must weigh the considerations of policy which favor the appellants’ recovery against those which favor limiting the appellees’ liability. Waugh, 63 Haw. at 135, 621 P.2d at 970; Kelley, 56 Haw. at 207, 532 P.2d at 675. The question of whether one owes a duty to another must be decided on a case-by-case basis. Waugh, 63 Haw. at 135, 621 P.2d at 970. However, we are reluctant to impose a new duty upon members of our society without any logical, sound, and compelling reasons taking into consideration the social and human relationships of our society. Birmingham v. Fodor’s Travel Publications, Inc., 73 Haw. 359, 370-71, 833 P.2d 70, 76 (1992) (“hold[ing] that a publisher of a work of general circulation, that neither authors nor expressly guarantees the contents of its publication, has no duty to warn the reading public of the accuracy of the contents of its publication”); Johnston v. KFC Nat’l Management Co., 71 Haw. 229, 232-33, 788 P.2d 159, 161 (1990) (declining to impose a duty upon non-commercial suppliers of alcohol, i.e., social hosts, to protect third parties from risk of injuries that might be caused by adults who consume the social hosts’ alcohol). Under the circumstances of this ease, there are no logical, sound, and compelling reasons for imposing a duty on counselors to prevent the suicides of noncustodial clients.

In addition to the lack of a special relationship between counselors and their noncustodial clients, we also regard other factors as relevant that the Natty court emphasized in refusing to impose a duty upon counselors. Similar to the Natty court, we deem the causal connection between Corregedore’s conduct and Perreira’s suicide as tenuous, because counselors such as Corregedore are not professional medical experts on suicide. Moreover, without custody and control over an independent adult client, a counselor has little, if any, control over the client’s decision-making when the client is beyond the confines of the counselor’s office.

We disagree with the Appellants’ assertion that foreseeability alone is sufficient to create a duty on the part of counselors to prevent the suicides of their noncustodial clients. Regardless of whether Perreira’s suicide was foreseeable, it would be inappropriate to impose a duty on counselors to prevent suicides — which might stifle all such counseling — based on foreseeability alone. Especially in light of our holding in Figueroa, 61 Haw. 369, 604 P.2d 1198, and our adoption of the Restatement (Second) of Torts § 314A(4), “[m]ere foreseeability of the harm or knowledge of the danger, is insufficient to create a legally cognizable special relationship giving rise to a legal duty to prevent harm.” Nally, 253 Cal.Rptr. at 108, 763 P.2d at 959. Foresee-ability is endless because it, like light, travels indefinitely in a vacuum. Bily v. Arthur Young and Co., 3 Cal.4th 370, 11 Cal.Rptr.2d 51, 68, 834 P.2d 745, 762 (1992); Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 874-75, 771 P.2d 814, 823 (1989). Foreseeability alone proves too much. Bily, 11 Cal.Rptr.2d at 68, 834 P.2d at 762; Thing, 257 Cal.Rptr. at 877-78, 771 P.2d at 826. “[TJhere are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for that injury.” Thing, 257 Cal.Rptr. at 881, 771 P.2d at 830. Policy considerations may dictate that we should not sanction a cause of action, no matter how foreseeable the risk, for the sound reason that the consequences of a negligent act must be limited in order to avoid an intolerable burden on society. Elden v. Sheldon, 46 Cal.3d 267, 250 Cal.Rptr. 254, 258-59, 758 P.2d 582, 586 (1988); Bily, 11 Cal.Rptr.2d at 68, 834 P.2d at 762.

Public policy considerations weigh against imposing a duty on all counselors to prevent the suicides of noncustodial clients, because the imposition of such a broad duty could have a deleterious effect on counseling in general. Cf. Nally, 253 Cal.Rptr. at 108-09, 763 P.2d at 959; Bellah, 146 Cal.Rptr. at 539. For example, a duty to prevent suicides would force a counselor (e.g., a veterans services counselor, a spousal abuse counselor, a chemical dependency counselor, a marriage counselor, a priest, a rabbi, a minister, a native Hawaiian kahuna, or even a telephone hotline counselor) to breach counselor-client confidentiality and disclose a client’s suicidal disposition to all of the client’s immediate relatives, regardless of whether the client would prefer to keep such sensitive and potentially embarrassing information confidential. Furthermore, the counselor would also have to immediately pass on this information to professional therapists, which would cause those people most in need of counseling to fear that their private disclosures could subject them to involuntary commitment in psychiatric facilities. Nally, 253 Cal.Rptr. at 108-09, 763 P.2d at 959.

The Hawaii legislature has indicated that, with respect to government’s involvement in mental health care, victims of emotional disorders should be “treat[ed] and rehabilitate[d] ... in the least restrictive and most therapeutic environment possible.” HRS § 334-2 (1993) (emphases added). Were it not for the assurance of confidentiality in the counselor-client relationship, many in need of counseling would be reluctant to even seek counseling, and those who do seek counseling under such circumstances would probably be deterred from fully disclosing their problems to their counselors. Cf. Bellah, 146 CaLRptr. at 539.

Furthermore, there is authority suggesting that health care workers can be subject to civil liability by disclosing confidential information to third parties. For example, an appellate court in North Carolina acknowledged that a woman could maintain a cause of action against a marital and family counselor for his allegedly unauthorized disclosure of confidential information about her to medical doctors. Watts v. Cumberland County Hospital System, Inc., 75 N.C.App. 1, 330 S.E.2d 242, 248-50 (1985), review denied, 314 N.C. 548, 335 S.E.2d 27 (1985), reversed in part on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986).

Various theories have been suggested as a basis for the cause of action, including invasion of privacy, breach of implied contract, breach of fiduciary duty or duty of confidentiality, and medical malpractice. Courts considering the issue have not agreed upon the proper characterization of the cause of action and, in some cases, have held that liability may be imposed under more than one theory.

Watts, 330 S.E.2d at 248; see also, Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527 (1985) (affirming that a biological mother had “stated a claim for damages in alleging that her former physician revealed her identity to a daughter whom she had given up for adoption”); Alberts v. Devine, 395 Mass. 59, 479 N.E.2d 113, 120 (1985) (holding that a duty of confidentiality arises from the psychiatrist-patient relationship “and that a violation of that duty, resulting in damages, gives rise to a cause of action sounding in tort against the physician”), cert. denied, Carroll v. Alberts, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); Vassiliades v. Garfinckel’s, Brooks Bros., 492 A.2d 580, 592 (D.C.1985) (“We hold that the breach of a physician-patient relationship [by disclosing confidential information] is an actionable tort.”); MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801, 802 (1982) (holding that a psychiatrist’s wrongful disclosure of confidential information to a patient’s wife “[wa]s a breach of the fiduciary duty of confidentiality and g[ave] rise to a cause of action sounding in tort”); Doe v. Roe, 93 Misc.2d 201, 400 N.Y.S.2d 668, 674 (Sup.1977) (“a physician, who enters into an agreement with a patient to provide medical attention, impliedly covenants to keep in confidence all disclosures made by the patient concerning the patient’s physical or mental condition as well as all matters discovered by the physician in the course of examination or treatment”); Horne v. Patton, 291 Ala. 701, 287 So.2d 824, 830 (1973) (“Unauthorized disclosure of intimate details of a patient’s health may amount to unwarranted publicization of one’s private affairs with which the public has no legitimate concern such as to cause outrage, mental suffering, shame or humiliation to a person of ordinary sensibilities.”); Runyon v. Reid, 510 P.2d 943, 950-51 (Okla.1973) (suggesting that a psychiatrist might be liable where the psychiatrist “negligently or intentionally discloses confidential communications made to him by the patient in situations where it is foreseeable that the disclosure might cause the patient to harm himself, and the disclosure is a decisive factor in the decedent’s decision to commit suicide”); Hammonds v. Aetna Casualty & Surety Co., 243 F.Supp. 793, 802 (N.D.Ohio 1965) (“The unauthorized revelation of medical secrets, or any confidential communication given in the course of treatment, is tortious conduct which may be the basis for an action in damages.”). Requiring counselors to breach counselor-client confidentiality would force counselors to incur a greater risk of civil liability, which, in turn, might discourage people from serving as counselors. Moreover, like the Nolly court, we are not familiar with the value and availability of insurance for counselors’ liability arising out of a duty to prevent the suicides of noncustodial clients, because few such eases have been filed against counselors. See Nally, 253 Cal.Rptr. 97, 763 P.2d at 960.

Neither the legislature nor the courts in Hawaii have ever imposed a legal obligation on persons to take affirmative steps to prevent the suicide of someone who was not in their custody. In an analogous situation, while addressing the issue of whether absolute judicial immunity protected a court-appointed psychiatrist from liability, we noted our reluctance to impose a duty upon a psychiatrist to prevent noncustodial patients from causing harm to third-parties:

There is much uncertainty in the diagnosis and treatment of mental illness and in the prediction of future behavior. As the court stated in Hicks v. United States, 511 F.2d 407, 415 (D.C.Cir.1975):

A claim of negligence must be considered in light of the elusive qualities of mental disorders and the difficulty of analyzing and evaluating them. Exactitude is often impossible. The Supreme Court has recently noted “the uncertainty of diagnosis in this field and the tentativeness of professional judgment.” Error and uncertainty considered alone must often be accepted without labeling them negligence. (Citations omitted.)

We must consider appellants’ allegations in light of the elusive qualities of mental health diagnosis and treatment.

We must also evaluate appellants’ allegations in light of the goal of treatment, recovery and rehabilitation of those afflicted with a mental disease, defect or disorder. A consequence of imposing liability on a doctor was recognized by the court in Taig v. State, 19 App.Div.2d 182, 241 N.Y.S.2d 495, 496-97 (1968), which stated: “If a liability were imposed on the physician or the State each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitation of a vast number of patients would be impeded and frustrated.”

Seibel v. Kemble, 63 Haw. 516, 521, 631 P.2d 173, 176-77 (1981) (footnote omitted). Likewise in the instant case, we are reluctant to impose a new duty on counselors when to do so would profoundly affect mental health counseling, which, like psychiatric care, is a professional realm beyond the expertise of the judiciary.

Imposing a duty on counselors to prevent the suicides of noncustodial clients by breaching counselor-client confidentiality would be contrary to the trend in the Hawai'i legislature to allow adult persons greater freedom in making health care decisions that affect only themselves (as opposed to third persons). With respect to mental health care, the Hawaii legislature has specifically declared “that all persons have the fundamental right to control decisions relating to their own medical care, including the decision to accept or refuse medical treatment, including the administration of psychotropic drugs, by a health care provider for a psychotic condition.” HRS § 327F-1 (1993) (emphases added). This fundamental decision-making right with respect to one’s own health care also extends to “the decision to have medical or surgical means or procedures calculated to prolong their lives ... withheld, or withdrawn.” HRS § 327D-1 (1993) (emphases added).

Forcing counselors to breach counselor-client confidentiality would also be contrary to the trend in the Hawaii legislature to protect communications from disclosure that are related to mental health counseling. For example, Rule 504.1 of the Hawaii Rules of Evidence (HRE) protects confidential communications between psychologists and their clients when such communications are made for the purpose of counseling:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of counseling or psychotherapy with respect to behavioral problems, including substance addiction or abuse, among oneself, the client’s psychologist, and persons who are participating in the counseling or psychotherapy under the direction of the psychologist, including members of the client’s family.

HRE Rule 504.1(b) (1993) (emphases added).

In addition to holding “that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal. Rules of Evidence” (FRE),³ the United States Supreme Court recently had “no hesitation in concluding ... that the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy.” Jaffee v. Redmond, — U.S. -, -, 116 S.Ct. 1923, 1931, 135 L.Ed.2d 337 (1996) (holding that the conversations between a defendant and her licensed social worker and the notes taken during their counseling sessions were privileged pursuant to FRE Rule 501).

The reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker.... Today, social workers provide a significant amount of mental health treatment. Their clients often include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist, but whose counseling sessions serve the same public goals. Perhaps in recognition of these circumstances, the vast majority of States explicitly extend a testimonial privilege to licensed social workers. We therefore agree with the Court of Appeals that drawing a distinction between the counseling provided by costly psychotherapists and the counseling provided by more readily accessible social workers serves no discernible purpose.

Jaffee, — U.S. at - - -, 116 S.Ct. at 1931-32 (citations, footnotes, brackets and quotation marks omitted).

Indeed, the Hawaii legislature has specifically decided that communications between a counselor and a victim of sexual assault, domestic abuse or child abuse are confidential and “privileged” to the samé degree as psychotherapist-patient communications:

A victim has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to a victim counselor for the purpose of counseling or treatment of the victim for the emotional or psychological effects of sexual assault, domestic violence, or child abuse or neglect, and to refuse to provide evidence that would identify the name, location, or telephone number of a safe house, abuse shelter, or other facility that provided temporary emergency shelter to the victim.

HRE Rule 505.5(b) (1993) (emphases added).

This rule, which resembles victim-counselor privilege provisions now in existence in some twenty states, e.g., Cal. Evid.Code §§ 1035 through 1037.7 (1992), encourages and protects the counseling of emotionally distressed victims of violent crimes by according privilege status to confidential communications made in the course of the counseling process. In adopting a similar law, N.J. Stat. Ann. § 2A:84A-22.13 and 22.15 (1991), the New Jersey Legislature declared that the “counseling of victims is most successful when the victims are assured [that] their thoughts and feelings will remain confidential and will not be disclosed without their permission.” The present provision proceeds upon just such a policy basis.

Commentary to HRE Rule 505.5 (1993).

Furthermore, because many members of the clergy (e.g., priests, ministers, rabbis, and native Hawaiian kahunas) serve as counselors, such as the “pastoral counselors” in Nally, 253 Cal.Rptr. 97, 768 P.2d 948, we note that the Hawaii legislature has indicated that communications with members of the clergy are confidential and “privileged”:

Rule 506 Communications to clergy....

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(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the latter’s professional character as spiritual advisor.

(c) Who may claim the privilege. The privilege may be claimed by the communicant or by the communicant’s guardian, conservator, or personal representative. The member of the clergy may claim the privilege on behalf of the communicant. Authority to do so is presumed in the absence of evidence to the contrary.

Haw. R. Evid. 506 (1993).

The present rule accords generally with the prior statute but broadens the scope of the privilege slightly in two particulars. Under the prior statute the privilege was limited to confidential communications made “according to the uses of the church or religious denomination to which [the. clergyman] belongs.” There seems no good reason to limit the privilege in this way so long as confidentiality was intended by the communicant. The present rule clarifies that uncertain point, granting the privilege to all confidential communications made to the clergyman in his professional capacity as a spiritual advisor. In addition, the privilege is extended to cover confidential communications to one who is not a clergyman if the person making the communication reasonably believes that he is.

Commentary to Haw. R. Evid. 506 (1993). Thus, the imposition of a duty on counselors to prevent the suicides of noncustodial clients would constitute a broad public policy decision with respect to mental health care, personal autonomy and confidential communications which, under these circumstances, is best left to the branch of government vested with the authority and fact-finding ability to make such broad public policy decisions, namely the Hawai'i legislature.

We are aware of one instance in which a court held that “school counselors [at a middle school] have a duty to use reasonable means to attempt to prevent a [student’s] suicide when they are on notice of a child or adolescent student’s suicidal intent”. Eisel v. Board of Education, 324 Md. 376, 597 A.2d 447, 456 (1991). In addition, another court held that a high school teacher had a duty to exercise reasonable care in preventing a high school student’s suicide. Brooks v. Logan, 127 Idaho 484, 903 P.2d 73, 79 (1995). However, both Eisel and Brooks are clearly distinguishable from the instant ease. While the suicide victim in the instant ease, Per-reira, was an independent, forty-two year old adult man, “Eisel’s claim involve[d] suicide by an adolescent[,]” Eisel, 597 A.2d at 451, and Brooks involved “the suicide of fourteen-year-old Jeffrey Brooks.” Brooks, 903 P.2d at 75. Thus, while Perreira had the freedom, as an adult, to enter or leave the Veterans Administration Clinic and the Office of Veterans’ Services, accepting or refusing medical treatment as he pleased, the suicide victims in Eisel and Brooks were children under the care, protection, control and supervision of their respective schools, a role which the Brooks court “described as one in loco parentis.” Brooks, 903 P.2d at 79 (emphases in original). Likewise, the Eisel court recognized “the doctrine that the relation of a school vis a vis a pupil is analogous to one who stands in loco parentis, with the result that a school is under a special duty to exercise reasonable care to protect a pupil from harm.” Eisel, 597 A.2d at 451-52 (emphases added; quotation marks and citations omitted).

The Eisel and Brooks courts also based their holdings on statutes that imposed a duty on schools to protect children from suicides. In Eisel, the Maryland “General Assembly ha[d] made it quite clear [through the Youth Suicide Prevention School Programs Act] that prevention of youth suicide is an important public policy, and that local schools should be at the forefront of the prevention effort.” Eisel, 597 A.2d at 453. In a clear reference to the distinction between adults and children, the Eisel court noted that “[t]he Act d[id] not view ... troubled children as standing independently, to live or die on their own.” Id. at 454. Likewise in Brooks, the Idaho “legislature [had] enacted I.C. § 33-512(4),” which “created a statutory duty ... requir[ing] a school district to act reasonably in the face of foreseeable risks of harm” and “to act affirmatively to prevent foreseeable harm to its students.” Brooks, 903 P.2d at 79. In contrast to school children, adults such as Perreira have much greater personal autonomy and decision-making freedom with respect to their own health care. See, e.g., HRS § 327F-1 (1993) (“[A]ll persons have the fundamental right to control decisions relating to their own medical care, including the decision to accept or refuse medical treatment, including the administration of psychotropic drugs, by a health care provider for a psychotic condition.”); HRS § 327D-1 (1993) (The fundamental decision making right with respect to one’s own health care also extends to “the decision to have medical or surgical means or procedures calculated to prolong their lives ... withheld, or withdrawn.”).

Indeed, if we were to impose a duty on counselors to prevent the suicides of noncustodial adults such as Perreira, we would have to address whether such government intervention violates the constitutional rights of adult persons who wish to commit suicide. Cf. State v. Cotton, 55 Haw. 138, 139, 516 P.2d 709, 710 (1973) (“We accept ... the fundamental tenet that the relationship between the individual and the state leaves no room for regulations which have as their purpose and effect solely the protection of the individual from his folly.”). However, we need not resolve any such constitutional implications, because we decline to impose such a duty today.

Where a duty assigned to a public employee is ineptly performed, but the risk of harm to individuals in the community is not increased thereby as compared to that which would have existed had no governmental action been attempted, there may be strong policy considerations against recognizing governmental tort liability for the harms which the public employee failed to prevent.

Ajirogi v. State, 59 Haw. 515, 522 n. 3, 583 P.2d 980, 985 n. 3 (1978) (holding that the state did not owe a duty of care to third parties whom a mentally disabled state hospital resident had injured by escaping, stealing a ear, and crashing the car head-on into them, despite the state’s knowledge of the mentally disabled state hospital resident’s past propensity for dangerously operating automobiles). Even assuming, arguendo, that Corregedore failed to perform his duty as a public employee by not informing the proper professional therapists and Perreira’s immediate relatives about Perreira’s suicidal disposition, Corregedore’s failure to do so did not increase the risk that Perreira would commit suicide as compared to the risk which would have existed had no government action on the part of the Office of Veterans’ Services been attempted. As an independent, forty-two year old adult, Perreira had the freedom of choice to seek or avoid counseling. Corregedore and the State did not have custody nor control over Perreira, and thus, they did not share a special relationship sufficient to impose a duty of care on Cor-regedore to prevent Perreira’s suicide. Furthermore, there are strong public policy considerations that weigh against recognizing tort liability for Corregedore’s failure to prevent Perreira’s suicide. We hold that Cor-regedore did not have a duty to prevent Per-reira’s suicide.

B. HRS Chapter 363, Veterans Rights and Benefits, Does Not Create A Statutory Duty Of Care.

Although it is not explicitly stated, Appellants also seem to advance an argument that HRS Chapter 363 creates a statutory duty of care. Duty in a negligence action may be defined by common law or by statute.⁴ “[T]he standard of conduct may be defined and established by a legislative enactment which lays down requirements of conduct, and provides expressly or by implication that a violation shall entail civil liability in tort.” Restatement (Second) of Torts § 285 comment b (1965). Put differently, “[w]hen a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard ... from which it is negligence to deviate.” William L. Prosser, Prosser & Keeton on the Law of Torts § 36 at 220 (5th ed. 1984) (footnote omitted). Thus, the. key words are that the statute must specify or imply standards or “requirements of conduct” that will create civil liability.

This court applied the foregoing principles in Hulsman v. Hemmeter Development Corp., 65 Haw. 58, 647 P.2d 713 (1982), in which we considered the liability of a seller of firearms who had sold a gun to a mentally deranged individual. The plaintiff asserted that the seller was liable because HRS' § 134-9, governing the licensure of gun owners, imposed a duty of care on sellers of firearms. Hulsman, at 65, 647 P.2d at 719. This statute made “it a criminal offense for a person to possess a firearm without a license or permit.” Id. at 66, 647 P.2d at 719 (footnote omitted).

However, by its terms, the statute does not impose a duty on the seller of a firearm in the sale to a mentally deranged person or one who is adjudged insane. The underlying legislative history does not manifest an intent on the part of the legislature to impose a duty of care on the seller of a firearm through the statute. Thus, a violation of this statutes [sic] does not impose a duty ... from which an actionable claim can be maintained.

Id. at 66-67, 647 P.2d at 720 (citations omitted).

If a statute “contains no express provision that its violation shall result in tort liability, and no implication to that effect, the court may, and in certain types of cases customarily will, adopt the requirements of the enactment as the standard of conduct necessary to avoid liability for negligence.” Restatement (Second) of Torts § 285 comment c (1965). Courts may adopt the requirements of a statute as the standard of care when the purpose of the statute is to “protect a class of persons which includes the one whose interest is invaded[.]” Restatement (Second) of Torts § 286(a) (1965).⁵ When there is no provision for civil liability, § 286 applies to statutes which

provide only for criminal liability, and not for civil liability; or in rare instances, it may merely prohibit certain conduct, and contain no provision for any liability at all. In such cases, the initial question is whether the legislation or regulation is to be given any effect in a civil suit. Since the legislation has not so provided, the court is under no compulsion to accept it as defining any standard of conduct for purposes of a tort action.

Restatement (Second) of Torts § 286 comment d (1965). In sum, a statute that is meant to protect a class of persons may be the basis for a standard of care when the statute provides for criminal liability or, less often, when it prohibits or proscribes conduct.

HRS Chapter 363, Veterans Rights and Benefits, has a variety of purposes. For example, HRS § 363-3 (1993) provides that the Office of Veterans’ Services shall: maintain and supervise a center for veterans, their families and dependents providing information and referral for services, assis-tanee, or benefits; cooperate with other agencies in the community to coordinate available services; assemble, analyze, compile, and disseminate factual up-to-date information with respect to available benefits, rights and services, as well as information about the structure, functions, and area of service of any agencies and organizations participating in the veterans’ assistance program; cooperate with federal departments and other agencies that administer veterans’ rights and benefits; and compile and submit a yearly report on the activities, operations, disbursements and expenditures of the Office of Veterans’ Services to the Governor. HRS § 363-3.5 (1993) establishes a policy advisory board for veterans’ services. HRS §§ 363-4 and 363-5 (1993) establish veterans’ cemeteries on all of the islands and set up councils on each island to maintain the cemeteries and provide for the interment of the remains of Hawaii’s veterans.

HRS Chapter 363 does not specify standards of conduct on the part of Veterans’ Services Counselors necessary to avoid liability for negligence, nor can such standards of conduct be inferred from the chapter’s language. Moreover, the legislative history reveals no intent to create a standard of care on the part of Veterans’ Services Counselors. Although HRS Chapter 363 benefits a class of citizens, it is not penal in nature and does not proscribe conduct. Therefore, we hold that HRS Chapter 363 does not create a statutory duty of care on the part of Veterans’ Services Counselors.

IV. CONCLUSION

For the foregoing reasons, we hold that Appellees did not have a duty to prevent Perreira’s suicide, and we affirm the circuit court’s summary judgment in favor of Appel-lees.

1 . The official job description of a Veterans' Services Counselor IV specifies numerous duties including the following which are relevant to the instant appeal:

A. Veteran Services

1. Interview and counsel eligible clients; identify their particular needs or problems; decide the appropriate action to be taken and provide the necessary services; apply various interviewing and counseling techniques in assisting the clients to seek further education, suitable employment, and/or benefits for which they may be eligible.

2 . The Restatement (Second) of Torts § 314A (1965) provides:

§ 314A. Special Relations Giving Rise to Duty to Aid or Protect

(1)A common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm, and

(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

(2) An innkeeper is under a similar duty to his [or her] guests.

(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his [or her] invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his [or her] normal opportunities for protection is under a similar duty to the other.

3 . Rule 501 of the Federal Rules of Evidence states as follows:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

4 . Restatement (Second) of Torts § 285 (1965) provides in relevant part:

§ 285. How Standard of Conduct is Determined.

The standard of conduct of a reasonable man [or woman] may be

(a) established by a legislative enactment or administrative regulation which so provides, or

(b) adopted by the court from a legislative enactment or an administrative regulation which does not so provide,....

5 . Restatement (Second) of Torts § 286(a) (1965) provides in relevant part;

§ 286. When Standard of Conduct Defined by Legislation or Regulation Will Be Adopted The Court may adopt as the standard of conduct of a reasonable man [or woman] the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded,....