Pastoral Counseling: Safeguard Against Potential Liability

Churches are vulnerable to lawsuits in almost all areas of ministry. Pastoral counseling is no exception. Pastors and churches should recognize and guard against the legal risks associated with pastoral counseling so they can be more effective in their counseling ministry.

Take reasonable care when hiring

A church that takes reasonable care when hiring a pastor will drastically reduce the likelihood that it will be found responsible for any harm a pastor might cause individuals he or she counsels. There are two reasons for this reduced liability risk: The church will succeed in weeding out unqualified candidates, and it will have met the legal duty of exercising reasonable care in the hiring process. However, a church that fails to take such care is likely to be found negligent if it hires a pastor knowing the individual is unfit, or fails to use reasonable care to discover his or her unfitness.

A church takes reasonable care in hiring a pastor when it conducts a background check that includes the following steps:

*Contacting churches or other organizations where the candidate has served.

*Contacting employers for whom the candidate worked within the past five years. Failure to take this step caused one church to negligently hire a youth counselor who had been dishonorably discharged from the Navy for sexual molestation.

*Requesting a criminal record check in the state of the candidate's prior employment and, if feasible, in states where the candidate has lived during the past five years. (A pastoral candidate should be asked to sign a form authorizing a criminal record check.)

In addition to a background check, the hiring process should include applications, detailed interviews, reference and education verifications, and follow-up evaluations.

Adopt and follow a written counseling policy

It is critical that churches adopt and follow a written counseling policy. The pastor should be asked to sign an agreement to abide by this policy. This policy is the best defense for the pastor and church members alike: A pastor will be able to answer any false allegations of improper conduct; church members will be protected from counseling abuse; and the church will be free of liability and able to continue its ministry.

A church that pays no attention to how the pastor conducts his counseling ministry could be found negligent for any harm the pastor does to the people he or she counsels. If a church fails to take action after the church has become aware, or should have become aware, of the pastor's unfitness, the church could also be found liable for negligent retention of the pastor.

Key elements in a pastoral counseling policy should require the pastor providing counseling services to do the following:

1. Limit counseling to Biblical and spiritual counseling; refuse to provide medical, mental health or marriage counseling, or family therapy; and reject the label of licensed, clinical or professional counselor unless the pastor has actually received psychological training and licensing from an accredited institution.

2. Emphasize the Biblical counseling by (1) keeping the Bible open and clearly in sight throughout each counseling session; (2) reading from at least one Scripture reference during the counseling session; (3) assigning Scriptural homework to the person being counseled; and (4) beginning and ending each counseling session with prayer.

3. Require each person being counseled to sign a Counseling Agreement in which he: (1) acknowledges the counseling provided is Biblical not professional; (2) acknowledges the counseling pastor is not professional in psychological counseling, psychiatric therapy, or marriage and family counseling or therapy, and is not licensed by the state as a counselor, social worker or therapist; (3) agrees not to sue the church for any expenses or damages that result from any of the pastor's counseling services; (4) agrees that otherwise confidential communications may be disclosed to appropriate state law enforcement authorities where required by law.

4. Refer people with serious problems requiring professional counseling to a professional medical or psychiatric counselor with specialized training.

5. Set a limit on the number of counseling sessions with each individual and include this limitation in the Counseling Agreement signed by the person being counseled. This policy not only ensures that the pastor reserves sufficient time for his or her other pastoral duties, but also lowers the risk of the pastor and counselee relationship becoming either intimate or estranged. Indeed, studies show that many of those counseled for an extended period actually leave the church because they feel exposed or feel like they have become the target of sermon illustrations.

6. Schedule all counseling sessions in writing and at all times keep a secretary informed as to the pastor's whereabouts.

7. Avoid counseling members of the opposite sex out of sight and alone. Instead, make sure the counseling session is clearly visible to others. Conduct the session in a room with a window or on a pew in the front of the church out of the hearing of anyone else, or require the presence of another staff person or trusted church member of the same sex as the person being counseled. Counseling in an open venue will eliminate the opportunity for emotional attachment and protect the pastor against unfounded allegations of misconduct. Removing the temptation for impropriety might save a pastoral counselor from the sin of adultery. One study of pastors involved in affairs found 71 percent of the affairs began through pastoral counseling sessions.

8. Never counsel a minor out of the presence of another adult.

9. Never touch anyone in an inappropriate manner.

10. Take steps to insure the confidentiality of counseling sessions.

11. Keep detailed records of counseling sessions, including notes of the following:

*The date, time and location.

*The names of those present and the reason for their presence.

*The confidential nature of the session.

*The problem for which counseling was sought.

*Any unusual incidents or statements occurring during the session -- for example, threats of harm to self or others, allegations of child abuse, or evidence that the counselee is under the influence of alcohol or a controlled substance.

*The spiritual advice given, including specific Scripture references shared.

*The specific actions recommended and any actions the counselee was discouraged from taking.

*A reasonable suspicion of child abuse.

Keeping careful records is necessary to protect pastors from a "he said, she said" dispute in a legal claim against the pastor or church. The notes should be retained in a confidential file to which no one but the counselor has access.

State licensing laws

Generally, pastoral counselors do not need state licenses to provide Biblical counseling services as part of their ministry. Most states specify that state licensing laws do not apply to religious counselors as long as they do not misrepresent their counseling credentials or improperly use professional titles. However, criminal sanctions might be imposed on pastors who represent themselves as being licensed by the state or as being professional marriage, family or mental health professionals.

Because licensing laws vary in each state, it is critical that a pastor knows the law of the state in which he or she ministers. In North Carolina, for example, the licensing exemption only applies to an ordained minister or other member of the clergy while acting in a ministerial capacity if the service is free. In other states, the exemption might not apply if the person being counseled is not a church member and the counseling is not a requirement of the pastor's position. In these states, many pastors choose not to counsel non-church members rather than lose exemption from the state licensing requirement.

Thus, in many states, a written policy limiting pastoral counseling to Biblical and spiritual counseling is the only way to preclude state oversight of the counseling ministry.

Clergy malpractice or neglect counseling

It is not unusual for a person dissatisfied with his counseling experience to sue the counselor for negligence. However, courts have uniformly rejected claims of clergy malpractice brought against pastors. In these cases, courts have found that in order to assess whether a pastor has breached his duty of care to the person being counseled, the court must evaluate the church's religious beliefs and how well the pastor carried out his pastoral responsibilities. Courts rightfully view this analysis as excessive entanglement of government with religion and a violation of the Establishment Clause in the First Amendment to the United States Constitution.

Pastors should know, however, that a negligent counseling suit could succeed against a pastor who provides professional rather than Biblical counseling. Professional counseling is not protected by the First Amendment and would be subject to judicial scrutiny.

Confidentiality

A pastor has a duty to hold in confidence any information obtained during a counseling session. A pastor who violates this trust might be on the losing end of a suit for invasion of privacy or defamation.

Most pastors take the duty of confidentiality very seriously and would never intentionally break a confidence. However, pastors often are conflicted when faced with the duty to keep the confidence of the person being counseled and their desire to protect children from abuse or others from danger. These pastors want to know whether or not they might breach a confidence to report child abuse or save a person from harm. In many states, the answer is yes, but because the law varies from state to state, the answer depends on the law in the pastor's state of residence. Thus, it is critical that pastors find out if their state recognizes any confidentiality exceptions. Pastors must not make blanket promises to never disclose anything communicated in a counseling session. The law might require them to disclose a confidential communication.

Stay on guard

The Christian Law Association exhorts pastors and churches to equip themselves with effective hiring and pastoral counseling policies to guard against the legal risks associated with pastoral counseling. Such policies are critical to avoiding the legal pitfalls found in state licensing laws, clergy malpractice claims and state confidentiality requirements.

For more information on the Counseling Agreement referred to throughout this article, call the Christian Law Association to learn how to obtain a copy of the publication, Religious Counseling: Safeguarding Against Potential Liability. To contact the legal missionary ministry of the Christian Law Association, call 727.399.8300 or visit www.ChristianLaw.org.