Counseling Ministries: A Legal Checkup
A growing number of churches are offering counseling services. Some limit these services to members of the congregation. Others target the general public and promote their counseling ministry in the local media and telephone directory. Some churches use counselors or psychologists who are licensed by the state, while others use unlicensed laypersons with little if any professional training.
Counseling ministries can provide an excellent and needed service and represent a point of contact with the community. However, there are a number of important legal concerns that should be considered by any church that offers such services, or that is considering doing so in the future. The more important concerns are summarized in this article.
Negligent counseling is a legal risk associated with lay counseling programs. It can arise in a number of ways. Some persons may claim that their emotional problems were aggravated rather than helped by lay counseling. Others may claim that lay counselors have a legal duty to refer suicidal persons to medical professionals having the authority to involuntarily commit such persons, and that they are responsible for the suicide of a counselee who is not referred.
In 1988, the California Supreme Court ruled that nontherapist clergy do not have a duty to refer suicidal persons to medical professionals. Nally v. Grace Community Church, 253 Cal. Rptr. 97 (1988). However, the court emphasized that its ruling applied only to clergy who are not therapists.
The Nally ruling has been followed by courts in many other states. The key point is this: There is no assurance that lay counselors working on behalf of a church share the virtual immunity from liability enjoyed by nontherapist clergy counselors. This is so whether or not the lay counselors are licensed counselors or psychologists under state law.
CHILD ABUSE REPORTING
Counselors will occasionally receive confessions of child abuse or information giving them a reasonable suspicion that abuse has occurred. It is imperative for church leaders to obtain a copy of their state child abuse reporting statute and ensure that all counselors are aware of their reporting obligations, if any, under state law. Keep in mind that these statutes are amended frequently, so updated copies should be obtained at least annually.
Whether or not the child abuse reporting statute requires a church counselor to report known or reasonably suspected instances of abuse, the counselor (and perhaps the church) would risk potential civil liability for failing to report abuse.
For example, a minor who is being abused by a stepparent learns that a church counselor was aware of the abuse but did not report it. The minor may sue the counselor (and the church) arguing that the failure to report the abuse aggravated the injury. The statute of limitations on such claims does not even begin to run until the minor reaches the age of majority, meaning that contingent liability for such claims can persist for many years. Further, many states have enacted laws suspending the statute of limitations until an adult survivor of child abuse discovers that he or she was injured by the abuse. This can extend the statute of limitations for a significant amount of time.
At least nine states have permitted adults who were abused as children to sue clergy or other adults who were aware of the abuse but chose not to report it. This number will likely grow in the years ahead.
It is essential that church counselors be apprised of their legal obligations under state law with respect to this important issue.
SEDUCTION OF COUNSELEES
There have been a number of lawsuits over the past few years brought by women who were seduced or sexually assaulted by male clergy or by mental health professionals. Often the misconduct occurred or started in the course of counseling sessions. As much as we would like to deny it, private counseling sessions involving dependent or emotionally vulnerable persons can present unique and sometimes formidable temptations. If inappropriate sexual contacts are initiated, there can be substantial damage to the victim and her family.
But this is not all. The costs of such behavior often devastate the counselor as well and lead to criminal charges, loss of professional credentials, future unemployability, and unavailability of any insurance coverage for either a legal defense or payment of damages. Clearly, steps must be taken to reduce or eliminate this risk.
There is another risk associated with counselingthe risk of false accusations of inappropriate behavior. Unfortunately, in some cases false accusations are brought against counselors by persons seeking a legal settlement or pursuing some other ulterior motive. It is imperative for counselors to recognize that a false accusation can be as devastating as a true one.
Because of the unique temptations that counseling can present and the possibility of false accusations, defensive measures should be taken by pastors and others who engage in counseling. There are two highly effective ways to deal with these risks.
Method #1: The Third Person Rule
One effective way to deal with these risks is to adopt a policy prohibiting any male minister or counselor on staff from counseling privately with an unaccompanied female (i.e., opposite sex counseling) unless a third person is present. The third person should be the minister's or counselor's spouse, another minister on staff, or a mature and trusted church employee (preferably female). The presence of a third person may negate the clergy-penitent privilege for clergy counselors, meaning that either the pastor or counselee can be compelled to answer questions in a court of law regarding the communications that occurred. In many cases the loss of the clergy-penitent privilege is a small price to pay for the reduced risk that will occur.
There have been no reported cases involving a claim of sexual seduction of a male counselee by a female counselor. As a result, churches using female counselors are reducing their risks significantly. Of course, there remains the possibility of an unstable male counselee making unfounded accusations against a female counselor, and as a result churches using female counselees may want to consider adopting the same precautions that apply to male counselors.
Method #2: Women Counsel Women
Since the vast majority of cases of inappropriate sexual behavior involve male counselors and female counselees, churches can significantly reduce their risk by using women to counsel women. Some have pointed to Titus 2:3-5 as biblical support for this view.
There are other defensive measures that some churches have tried, such as use of a window in the pastor's office making all counseling sessions clearly visible to office staff, or leaving the door to the counseling room open. Such practices can be effective in reducing risk, so long as there are other persons visible in the church office during all counseling sessions. Obviously, this may not be possible in all situations. For example, many smaller churches have no other office workers who can observe counseling sessions.
Some churches seek to reduce risk by imposing boundaries on the counseling ministry. For example, some churches: (1) require a third person to be present for any counseling occurring off of church premises; (2) allow one-on-one counseling on church premises only during office hours if other staff members are present and visible; (3) limit counseling sessions to 45 minutes; and (4) permit no more than five counseling sessions with the same person during a calendar year.
Churches that adopt these lesser measures must recognize that they are not reducing risk as much as if they applied the third person rule or required women to counsel women. It is absolutely imperative that churches adopting these lesser measures incorporate them into official church policy and strictly monitor them to prevent any deviations. Remember, windows or open doors are of no value if a counseling session extends beyond normal office hours and the church staff leaves.
Another very important consideration in church counseling is the concept of confidentiality. Counselors (and the church) can be sued if they intentionally or inadvertently disclose confidential information to third parties. Obviously, this can occur in several ways. For example, the counselor directly communicates the information, or the counselor's counseling notes are accessible to church staff.
Counselors need to be strictly admonished to maintain the confidences shared with them. The one exception relates to child abuse reporting. A legal duty to report known or reasonably suspected cases of child abuse generally overrides the duty to maintain confidences (at least for persons who are required to report under state law).
The church should carefully screen any candidate for a lay counseling position to ensure, as much as possible, the suitability of the person for a counseling ministry. The screening process should include: (1) contacts with former churches with which the member has been affiliated or in which the counselor has worked in a counseling capacity; (2) an appropriate screening form; and (3) communication with a number of references. Of course, all of these contacts must be noted in writing and placed in a confidential file.
Churches that use unlicensed lay counselors should prepare a suitable brochure or statement clearly communicating to each counselee that the church considers counseling to be an essential aspect of its ministry, and that it is important for persons seeking counseling to recognize certain legal considerations that apply in the context of counseling. These may include many considerations, including the fact that the counselee understands and agrees that counseling is provided on the condition that:
1. The counselors are engaged solely in spiritual counseling based on their understanding of the Bible, and they are not engaged in the practice of psychology, professional counseling, or psychotherapy.
2. State law may require a counselor to report allegations of child abuse to civil authorities.
3. Statements made in confidence to a pastor in the course of counseling ordinarily are privileged, meaning that neither the counselee nor the pastor can be compelled to disclose in a court of law any statements made in the course of the counseling. However, the presence of a third party during a counseling session may jeopardize the privilege, since the counseling may no longer be considered confidential. To illustrate, statements made in the course of pastoral counseling may not be privileged if a counselee brings a friend along to the counseling session.
4. Any statements made in confidence in the course of counseling will be kept in strict confidence by the counselor. As noted above, the duty to maintain confidences may not apply in the context of child abuse. Further, the counselor may reserve the right to disclose confidential information in specified situations (such as threats of suicide or an intent to harm another person).
-Richard R. Hammar
In some cases, a criminal records check should be consideredfor example, if an individual being considered for a counseling position has no background or there are unsubstantiated allegations involving prior misconduct. The important consideration is this: The church can be sued for injuries inflicted by a lay counselee if the church either knew or should have known of a dangerous propensity of the counselor.
Churches have been sued by victims of clergy sexual misconduct on the ground that they failed to do an adequate job of screening the minister at the time he or she was hired. Churches wanting to lower this risk will develop screening procedures for clergy applicants.
The church should consider adopting mechanisms to ensure that unlicensed lay counselors are supervised by appropriately trained and licensed mental health professionals.
The church should also develop a counseling policy setting forth standards on dealing with such issues as suicidal counselees, counselees threatening harm to others, counselees who confess to criminal activities, and counselees who are child abusers. (See side article on Counseling Policy.) Unlicensed lay counselors should understand clearly their responsibilities with regard to these kinds of crises. In most cases they should be advised to refer crisis cases immediately to a designated licensed mental health professional.
This does not mean that the church counselor must sever all ties with the individual. Quite to the contrary, the spiritual counseling offered by the church counselor may continue simultaneously with the counseling provided by the licensed professional.
It is also important for the counseling policy to prohibit lay counselors from engaging in controversial therapies such as repressed memories and diagnosis and treatment of multiple personality disorders.
Some churches charge a prescribed fee for counseling services. Are such fees deductible as charitable contributions to the church? The answer is no. The Supreme Court has ruled that prescribed payments for prescribed services are never deductible as charitable contributions. Hernandez v. Commissioner, 109 S. Ct. 2136 (1989). If the counseling is provided free of charge as a ministry of the church, voluntary payments made by counselees to the church probably could be deducted as charitable contributions. However, if the church establishes or even recommends a prescribed fee, I am certain that the IRS would not recognize such payments as tax-deductible. To be deductible, the payments must in fact be voluntary; the counseling services must be available to all without a fixed or suggested charge; and those unable to pay must receive the same consideration as those who are able to pay for the counseling services.
These are some of the legal considerations that should be addressed before any counseling program is initiated. If conducted on a professional basis, with due regard to the legal environment in which we live, counseling ministries can serve a significant nurturing function.