By Douglas A. Spears
In the early 1990s there was a startling increase in the number and intensity of lawsuits against ministers and churches. Big-city seminars sponsored by the American Bar Association on topics such as “Tort Liability of Charitable, Religious, and Nonprofit Institutions” and “Tort Liability and Religion” helped show lawyers how to successfully sue clergy and churches.
Today we are not surprised when we see the church (or members) in court. In the last 25 years we have seen more court cases involving ministers, church leaders, and churches than ever before. What might be most surprising is that two leading insurance companies report that most cases involving churches and ministers are settled out of court.
There was a time when churches, not to mention Christians themselves, enjoyed the respect of society and practiced a ministry undiluted by concerns other than spreading the gospel, speaking honestly about social and political ills from a scriptural perspective, and helping those who sought counsel with an emphasis on following sound biblical doctrine. But times have changed. When ministers, church leaders, and Christian counselors pursue their ministries today, the nagging question in the back of their mind is, “How will this affect me legally?”
Tim Woodroof and Leland Vickers offer a practical remedy for many churches and ministers concerned with confidentiality issues in the congregation.
I agree with them that a written policy can help church leaders approached by church members experiencing personal stress.
I have a few additional suggestions for churches interested in creating such a policy.
“¢ Consult with an attorney. An attorney will help churches understand the differences between confidentiality and privileged communication. Confidentiality is usually defined as the right to expect that communications will be kept within the bounds of a professional relationship. Privileged communication is a legal concept that protects against forced disclosure in legal proceedings that would break a promise of privacy.
Woodroof and Vickers are right to say your policy should address the limits of confidentiality. Every state has such limits to confidentiality.
Attorneys can talk with you about your state”s statutes that pertain to “clergy,” “religious or spiritual leader,” or “religious worker.” Most state statutes say only ordained ministers can claim clergy privilege. Minister”s duties under law are governed by the state where the minister may be called to testify. Also, it is important to understand how your state statutes define “communication,” “conversation,” and “counseling.”
“¢ Consult with your insurance provider. Many churches are surprised to learn their policy does not include counseling as an area of protection for the ministers and/or elders. Questions to ask your provider may include: “Does our policy include counseling?” “Is it specific to a type of counseling such as pastoral, biblical, religious, or Christian counseling?” “Does it allow for individual, marriage, and crisis counseling?” “Does it include elders, volunteer workers, and lay counselors or is it specific to the ordained staff?” Some policies include a clause that allows an insurance company to settle out of court even if it is against the wishes of the congregation.
“¢ Consult with other churches to see if they have developed policies specific to your needs and concerns. Many churches have already developed policies that you may easily adapt. Policies may pertain to reporting child and elder abuse, how the church will handle abuse if committed by a church worker, domestic violence reporting, mediation, handling church conflicts, handling leadership conflicts, deception, inappropriate computer use, and how to handle the media to name a few. It is better to have a policy in place than to take serious missteps when a critical incident arises.
“¢ Take the time necessary to create a meaningful policy that protects and promotes growth and healing. Discuss the article “Confidentiality: Always Helpful or Not?” Look for other articles in The Lookout and the CHRISTIAN STANDARDÂ that may be helpful to your specific need or situation. Consult with other professionals in the community.
“¢ Inform the congregation and get them involved in the process. Many times letting the congregation be involved in the process and letting them know the rationale for developing policies can prevent misunderstanding and hurt feelings in the future. Many churches find that the congregation welcomes policies that protect the church and promote growth and healing in the church and community.
“¢ Ministers and elders should talk with their spouses and each other about confidentiality. Many ministers and elders do not keep anything from their spouses or other elders because of the important trust given to leadership and between husbands and wives. If this is your leadership practice, include this in your policy so that individuals who want to have confidential conversations can decide whether to talk with a church leader.
“¢ Finally, maintain a referral list of professional counselors in your area. Licensed mental health professionals are bound to a strict code of ethical practice and can be disciplined by a state board and/or punished by law.
Tim Woodroof and Leland Vickers have given church leaders a lot to think about. If your church has not developed a policy on confidentiality, I would encourage the discussion of their article and the development of this type of policy.
Doug Spears is professor of counseling at Cincinnati Bible Seminary, the graduate division of Cincinnati (Ohio) Christian University. He has undergraduate and graduate degrees from Cincinnati Christian University and Louisville Bible College and the PhD from Kent State University.
SEE RELATED ARTICLES:
“Confidentiality: Always Helpful or Not?” by Tim Woodroof and Leland Vickers
“Policy on Confidentiality (a Proposal)”
“Confidentiality in a Counseling Setting,” by Doug McCulley
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