Is there evidence that churches take on liability by offering counseling services to individuals with mental health struggles? Cole says there is. And the aforementioned Nally case proves it.
From that case (and similar ones), “it seems there is potential that a court may hold a pastor or minister who provides counseling for the purpose of addressing mental health concerns to a higher standard of a licensed counselor, even though he or she may not hold himself out as such or be licensed,” says Cole. “That in and of itself creates [a] higher standard, and so that could mean that . . . the ministry would be evaluated by a court in a more stringent way.”
Though Nally is now a well-known case, Cole says it’s not the only one: “there are cases filed on a regular basis claiming that the pastor or church is liable” for the outcomes when individuals with mental illness sought help from those leaders and churches. “I just think we should proceed with an awareness of the potential liability and with a plan of action for how to address those potential pitfalls,” she says.
Cole says there is no one-size-fits-all approach for churches in the realm of mental health and ministry. Instead, “there are options to be considered based upon any particular church’s potential for liability and what risks they are willing to assume.” Some churches decide to still engage intentionally with ministry toward those struggling with mental health issues because they feel strongly that it’s the right thing to do. Though churches can never operate risk-free in this area (or in any other), they can manage and minimize their risk. To that end, Cole says there are a few options churches might choose:
Outsourcing mental health counseling
Outsourcing counseling for individuals with mental health issues, rather than providing it internally, ensures that the church can still make referrals but that the liability for the actual treatment will rest with another organization: hopefully one better equipped to meet the higher standards of a licensed counselor.
Licensing the church’s own counselors
Some churches have decided to make sure their counselors are licensed as mental health care professionals: “[i]n other words,” Cole explains, “if you’re going to be held to a higher standard, make sure you have the training of that higher standard.”
Pastoral counseling despite liability
Other churches take the stand that they have a spiritual and ministerial duty to serve the spiritual needs of those struggling with mental health issues. In Cole’s experience, in order to meet those spiritual needs, these churches essentially “let the chips fall where they may” from a liability standpoint.
Those in support of this stance may receive partial support from the fact that relatively few churches to date have been successfully sued for ministering (or attempting to minister) to those with mental health issues. The Nally case occurred in the 1980s—almost 30 years ago—and it’s likely the most relevant case to date. It’s important to note, however, that even if churches haven’t been sued over such issues often, that could change in the future—and the legal landscape may already be changing.
“It used to be unusual for churches to be brought to court, unusual for a church to be sued or a pastor to be sued. [It was] certainly unusual for a pastor to be sued simply because they’re trying to help,” says Cole. “Unfortunately, our current climate reflects an increase in cases filed against churches and pastors across the board, including litigation in the context of church counseling.”
In fact, warns Cole, some jurisdictions in the country have already taken steps to hold even church counseling to the standard of a licensed counselor. Cole says this higher standard creates the potential for a church to be sued if its counseling ministry to mental health issues proves unhelpful or even harmful.
Crafting a policy for in-house pastoral counseling
That potential for a lawsuit is a large warning flag to leaders charged with the risk management of a church and its ministry. But there are ways to approach and mitigate the legal risks associated with offering pastoral counseling to those with mental health issues. Cole offers three guidelines:
- Churches should have a counseling policy. “That [policy] will address the potential legal pitfalls, and it will outline for both counselor and counselee what that church’s approach is internally.”
- If a church does provide counseling internally, it should be (I) biblical counseling and (II) limited to a specific number of sessions. Failing to have one or both of these components opens up a church to “arenas where, in case law, we’ve seen potential for increased liability over time.”
- Once counseling sessions are complete, a church should provide its counselee with a referral to an individual or organization that can provide licensed counseling for mental health. “It’s important that churches have referrals at the ready to someone who is a licensed professional.”
The pastoral argument for ministering despite risks
Stanford, Hoefs, and others who are on the ministry side of this issue view the legal liability as incredibly small. And from a pastoral standpoint, they argue that with a need so great and a problem so widespread, the greater danger for ministry lies in churches not engaging these issues in practical ways.
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