• Key point: In some cases, statements made to a minister will be protected by the “clergy-penitent privilege” despite the presence of third parties.
• A Texas appeals court ruled that statements made to a hospital chaplain by the spouse of a patient were privileged despite the presence of a doctor and nurse. While a patient was undergoing emergency surgery for an aneurysm, the hospital’s director of nursing summoned the hospital chaplain to provide comfort and spiritual counsel to the patient’s wife. When the chaplain arrived, he introduced himself to the wife as the hospital chaplain, and the two spoke for several minutes. For most of their conversation, either the nursing supervisor or a physician was present. Later that day, the patient died, and the wife later filed a medical malpractice lawsuit against the surgeon and the hospital, claiming that the hospital’s delay in treating her husband was the cause of his death. The hospital’s primary defense was based on a statement made by the wife to the chaplain during the surgery. The wife informed the chaplain that she wanted her husband transferred to another hospital for surgery. The hospital claimed that this statement demonstrated that the husband’s death was not based on its delay in performing surgery. The wife’s attorney, aware of this inconsistency, insisted that the wife’s statements to the chaplain were privileged and accordingly could not be introduced in court. When it became clear that the chaplain did not believe the statements to be privileged, the wife’s attorney threatened him by stating “you wouldn’t want the public to know that the chaplain from Memorial Hospital revealed confidential information, would you?” The attorney went even further and warned the chaplain that “if this confidentiality privilege is breached any further the [family] intends to file a [lawsuit] against you, Memorial Hospital, and the chaplaincy program.” Despite this shameful conduct, the chaplain still insisted that the wife’s statements to him were not privileged, and that he fully intended to testify in court regarding them. A trial court judge ruled that the conversation between the chaplain and the wife was protected by the clergy-penitent privilege and accordingly was not admissible in court. This decision was appealed to a state appeals court.
The appeals court agreed that the conversation was privileged. It began its opinion by noting that Texas law provides that “a person has a privilege to refuse to disclose and to prevent another from disclosing [in court] the confidential communication by the person to a clergyman in his professional character as a spiritual adviser.” The law clarifies that “a communication is confidential if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” The court rejected the chaplain’s claim that the clergy-penitent privilege was waived because of the presence of other persons (the nursing supervisor and a physician) during the conversation. It noted that the clergy-penitent privilege does not require the absence of any persons other than the minister and the counselee. Rather, it defines a privileged communication as one that is “not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” The court observed:
[The privilege] contemplates that individuals other than a chaplain may be present at the time of the confidential communications are made. In the present case, both a surgeon . . . and the director of nurses were present while [the wife] was communicating with the chaplain. . . . It is difficult to conceptualize a hospital setting that affords complete privacy to a chaplain and a communicant in circumstances where a family member is undergoing surgery. Common experience tells us that, more often than not, the chaplain will be assisting the family by affording company and comfort in the waiting room of a surgical suite, recovery room, or intensive care unit. Various hospital personnel and physicians are periodically bringing news of what is transpiring. Often, these personnel are also explaining, encouraging, or comforting the family. Family members of other patients are present. If this court were to decide that the presence of a surgeon and of the director of nurses waived the privilege, hospitals would need to furnish clergy-communicant conference facilities outside every waiting room. Such a narrow interpretation of [the privilege] was not intended, especially where the rule expressly acknowledges that others may be present while the communications are made.
The court also rejected the chaplain’s claim that he should be allowed to determine which statements were privileged and which were not. The chaplain argued that some of the wife’s statements were made to him as a spiritual adviser, but others (such as her statements concerning her husband’s treatment and her desire that he be transferred for surgery to another hospital) were not. The court observed:
We hold this position to be unacceptable. First, we note that only the trial court is empowered to make this distinction, if any should be made. Second, such a conclusion would be tantamount to allowing all conversations that individuals have on clergy-communicant counseling occasions to be dissected and partitioned into categories. [The privilege] would be eviscerated by such a result. Picture the following scene: the chaplain is called by the director of nurses to counsel a family that faces the imminent loss of a loved one. In the course of his duties, the chaplain hears comments by the spouse of the patient, who is dying on the operating table, about a range of emotions, thoughts, and reflections. If this court were to hold that the privilege does not apply, to the extent that anything is divulged to the chaplain about the care and treatment of the patient, the reason for the chaplain’s presence would be a nullity. Realities of such a situation do not allow such a result. Persons facing crisis decisions regarding a loved one should not be required to be guarded in their disclosures to a spiritual adviser. Regardless of the nature of the communication, the clergyman is “acting in his professional character as a spiritual adviser” . . . . [The wife] was entitled to expect that her communications to [the chaplain] would be confidential, based on his representations about his status as a chaplain and his availability to serve her in this capacity.
There are some important lessons to learn from this decision. First, the court concluded that if a person is speaking to a minister as a spiritual adviser, then all aspects of the conversation are privileged and not just the “spiritual” aspects. Obviously, most counseling sessions contain some general conversation about non-spiritual matters. This court determined that such statements are privileged, so long as they are made in the course of a spiritual counseling session. The court refused to “dissect” or partition the conversation into its spiritual and non-spiritual components. Second, the court recognized that the privilege “does not require the communicant to be the individual who seeks, summons, or solicits the presence of the clergy.” In this case, the fact that the director of nurses summoned the chaplain did not prevent the conversation between the chaplain and the patient’s wife from being privileged. Third, and perhaps most importantly, the court concluded that the privileged nature of the conversation was not affected by the presence of the surgeon and director of nurses, since they were “present in furtherance of the purpose of the communication.” Many states have enacted clergy privilege statutes or rules similar to that of Texas, which is based directly on Rule 505 of the Uniform Rules of Evidence (see appendix 2 of the second edition of Richard Hammar’s Pastor, Church & Law for a complete listing). In such states, it is more likely that the presence of other persons will not affect the privileged status of a conversation between a minister and counselee so long as the presence of the other persons is somehow “in furtherance of the purpose of the communication.” To illustrate, we are recommending that clergy not engage in opposite sex counseling without a third person being present. Will the presence of such a third person mean that statements made to the minister are not privileged (because they are no longer confidential)? Possibly so. But in states with a clergy-penitent privilege like that of Texas, the argument could be made that the presence of the third person in such a situation is “in furtherance of the purpose of the communication,” particularly if the church board adopts a resolution prohibiting opposite sex counseling by clergy without a third person being present. Also, note that clergy who are not chaplains often visit persons in local hospitals, and that such conversations often are made in the presence of other persons (other patients, family, physicians, nurses). This case supports the privileged status of such a conversation so long as the purpose of the conversation is to obtain spiritual comfort and guidance. Nicholson v. Wittig, 832 S.W.2d 681 (Tex. App.—Houston 1992).
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