Key point. Ministers who disclose confidential information obtained during counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of a number of grounds, including malpractice, invasion of privacy, defamation, and infliction of emotional distress.
An Arizona court ruled that a pastor and his church could be sued on the basis of malpractice and other grounds as a result of the pastor's disclosure of confidential information shared with him by a church member. A woman (the "victim") was referred to a pastor for counseling because of his many years of counseling experience. The victim met with the pastor for help with emotional problems following the breakup of an affair with another pastor with whom she had lived for nine months.
The victim later joined the counseling pastor's church, and continued to meet with him for counseling, relating to him highly personal and private matters including her feelings of guilt about having had an inappropriate relationship with the other pastor, and the fact that her father had a sexual relationship with her brother's wife. The victim's sister attended the same church, and married the pastor's son.
During premarital counseling the sister informed the pastor that her father had once embraced her in an "uncomfortable way." The marriage between the sister and the pastor's son deteriorated after the sister learned that her husband was having an affair with another woman. When the pastor's son publicly blamed his wife for the breakup of their marriage, the victim met with the pastor to defend her sister and to present evidence showing that the husband (the pastor's son) was the one who had been unfaithful.
With his wife present, the pastor told the victim that her sister was "screwed up" because she had been molested by their father, and suggested that he would reveal his knowledge of the affair between the victim and her former pastor if she and her sister did not drop their accusations against his son.
The pastor's wife told the victim to "stop lying" about her son because "we know things about your family." The next day the pastor and a church administrator had a conversation in which the pastor described the discord between the victim (and her sister) and his family. He also told the administrator that there were "incest problems" between the victim's father and his children, and that he had learned this information during his counseling sessions with the victim and her sister.
During a Wednesday evening church service, the pastor "marked" the victim and her sister as causing division in the church, and stated that their family was "incestuous" and "dysfunctional." The victim and her sister sued the pastor and the church on a number of grounds, including invasion of privacy, defamation, malpractice, and breach of fiduciary duty. The court's ruling is summarized below.
Civil court intervention in internal church disputes
The pastor and church defended themselves by insisting that the dispute was an internal church matter over which the civil courts have no jurisdiction. They noted that the pastor was motivated by a "biblical admonition" when he brought the victim and her sister's conduct to the attention of the congregation, and that their only real harm was the termination of their relationship with the church and its members. The court rejected these defenses, concluding that the general rule of judicial non—intervention in internal church disputes did not apply in this case "because this dispute can be resolved without inquiry into religious law and polity." The court continued:
We need not consider the "marking" ritual nor its origins in resolving these issues. [The pastor] revealed confidences from his counseling sessions with [the victim and her sister] and threatened to publicize [the victim's] involvement with [her former pastor]. He divulged confidences of [the victim and her sister] to his wife, mother, sister, and the church administrator and also relayed false information to them. There was no evidence that this conduct was part of the observance of the church's religious practices or beliefs; thus, the doctrine of ecclesiastical abstention has no bearing here …. That the injuries occurred in a religious setting does not render them noncompensable, nor does it deprive the court of jurisdiction.
Malpractice for disclosing confidential information
The pastor relied on several cases rejecting clergy malpractice claims because of first amendment concerns about determining a standard of care for pastors. The court concluded that:
Those cases are not applicable here because the claim submitted to the jury was for therapist malpractice, not clergy malpractice, and was based on a psychological therapist's duty not to disclose confidential information revealed in counseling sessions. [The victim's] claim arose, not out of any duty [the pastor] owed them in his capacity as their pastor, but rather out of his duty as a therapist or counselor to refrain from acting in a manner that carried a foreseeable and unreasonable risk of harm to the person being counseled.
Although we have found no Arizona cases in which the disclosure of confidential information by a counselor served as the basis of a malpractice claim, other jurisdictions have recognized causes of action arising from disclosures of confidences by providers of counseling services …. Arizona has long acknowledged and protected the confidential nature of relationships between physicians and their patients, and more recently between psychologists and other behavioral health providers and their clients, including counselors and "marriage therapists." The purpose behind these privileges is "to enhance the effective diagnoses and treatment of illness by insuring that a person requiring professional attention will not be deterred by fear that his physical or mental condition may become public, thereby subjecting him to embarrassment or humiliation."
The pastor insisted that the therapist—patient privilege only applies to licensed counselors and therapists, and that pastors should not be held to the same standards. Once again, the court disagreed:
One who holds himself out and undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. At trial [the victim] presented expert testimony that mental health therapists and counselors have a duty not to disclose confidential information, with certain limited exceptions, and that this duty applies to both pastoral and professional counselors, whether licensed or not. In Arizona, mental health counselors are not required to be licensed …. In sum [the pastor and church] offer no good reason for insulating a counselor from liability for betraying clients' confidences to their detriment merely because the counselor is a clergy member and unlicensed, and the counseling as well as wrongful disclosure takes place in a religious setting.
Here [the victim] testified that she was referred to [the pastor] for counseling to help her through emotional difficulties and depression "because of his 40 years' counseling experience," that she made an appointment with him for that purpose, and that she met with him in his office at the church.
During [her] first counseling session [the pastor] used a chart to determine her level of self—esteem and concluded it was very low and she needed to raise it. [He] also discussed ways for [her] to deal with her feelings of guilt about her relationship with [her former pastor]. The inclusion of biblical passages on the chart did not convert the session into religious counseling, especially when the purpose of the meeting was not to provide her with religious or spiritual guidance, the church's precepts and practices were not part of the counseling, and [the victim] was not a church member when she sought help from [the pastor].
What this means for churches
The importance of this case cannot be overstated. It demonstrates that pastors who disclose confidential information shared with them in counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of malpractice, invasion of privacy, breach of fiduciary duty, and infliction of emotional distress.
As this case illustrates, this conclusion may apply even when pastors share confidential information in order to discipline a member for violating church standards. The point is this-would members disclose confidential information if they suspected that their pastor would report it to the church board or congregation in order to discipline them? Clearly, the answer is "no."
Therefore, it is essential for pastors to refrain from disclosing information obtained during confidential counseling sessions-even if it relates to a person's qualifications or eligibility for membership. Of course, the church board can still discipline the individual, but not on the basis of any information shared with the pastor in the course of a confidential counseling session. Another alternative is for a pastor to obtain the permission of the counselee to share confidential information with the board or with some other person. If this permission is obtained (in writing), this will serve as a defense in the event that the pastor is later sued for disclosing the information.
Finally, note that the court suggested that in limited contexts pastors may not be subject to legal liability for disclosing confidential information obtained during a counseling session-because they are serving as pastoral counselors rather than as secular counselors or therapists. Facts supporting this limited exception, according to this court, include the following:
- the counselee did not seek out the pastor as a counselor for relief of emotional difficulties;
- the pastor did not engage in psychotherapeutic techniques, testing, or diagnoses;
- the purpose of the counseling was to provide religious or spiritual guidance;
- the church's precepts and practices were part of the counseling; and
- the counselee was a church member.
Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).
