Counseling—In General §10.12
Key point 10-12. Churches face a number of legal risks when they offer counseling services by ministers or laypersons. These include negligent selection, retention, or supervision of a counselor who engages in sexual misconduct or negligent counseling. A church also may be vicariously liable for a counselor's failure to report child abuse, breach of confidentiality, and breach of a fiduciary relationship.
Most churches offer some form of counseling services. The most common example would be counseling of church members by a minister. Many churches also offer lay counseling services. Some limit these services to members of the congregation, while others target the general public and promote their counseling ministry in the local media and telephone directory. Some churches use counselors or psychologists who are licensed by the state, while others use unlicensed laypersons with little if any professional training. Counseling ministries can provide an excellent and needed service, and represent a "point of contact" with the community. However, there are a number of important legal concerns that should be considered by any church that offers such services, or that is considering doing so in the future. The more important concerns are summarized in this section.
1. Pastoral Counselors
The legal risks associated with pastoral counseling include malpractice and sexual misconduct. Both risks have been addressed in other sections of this text. See §§ 4-05, 4-11, 10-05, and 10-10. Section 10-12.01 reviews several risk management strategies that are designed to reduce the risk of church liability for the acts of pastoral and lay counselors.
2. Lay Counselors
There are several legal concerns for church leaders to consider before offering lay counseling services. The more important concerns are addressed below. Some of these will equally apply to the counseling activities of pastors.
(1) negligent counseling
"Negligent counseling" is a legal risk associated with lay counseling programs. It can arise in a number of ways. Some persons may claim that their emotional problems were aggravated rather than helped by lay counseling. Others may claim that lay counselors have a legal duty to refer suicidal persons to medical professionals having the authority to involuntarily commit such persons, and that they are responsible for the suicide of a counselee who is not referred.
In 1988, the California Supreme Court ruled that "nontherapist clergy" do not have a duty to refer suicidal persons to medical professionals. Nally v. Grace Community Church, 253 Cal. Rptr. 97 (1988). However, the court emphasized that its ruling applied only to clergy who are not therapists. This ruling has been followed by courts in many other states. The key point is this: there is no assurance that lay counselors working on behalf of a church share the virtual immunity from liability enjoyed by nontherapist clergy counselors. This is so whether or not the lay counselors are licensed counselors or psychologists under state law.
(2) child abuse reporting
Counselors often receive allegations of child abuse from counselees. It is imperative for church leaders to be familiar with their state's child abuse reporting statute and ensure that all counselors are aware of their reporting obligations, if any, under state law. Keep in mind that these statutes are amended frequently, so updated copies should be obtained at least annually. Lay counselors are mandatory child abuse reporters in most states.
Several states have enacted laws authorizing victims of child abuse to sue mandatory reporters who were aware of the abuse but who chose not to report it. For example, a minor who is being abused by a step-parent learns that a church counselor was aware of the abuse but did not report it. The minor may sue the counselor (and the church) arguing that the failure to report the abuse aggravated the injury. The statute of limitations on such claims does not even begin to run until the minor reaches the age of majority, meaning that contingent liability for such claims can persist for many years. Further, many states have enacted laws suspending the statute of limitations until an adult survivor of child abuse "discovers" that he or she was injured by the abuse. This can extend the statute of limitations for a significant amount of time.
It is essential that any church counselor be apprised of his or her legal obligations under state law with respect to this important issue. See generally § 4-08, supra.
(3) seduction of counselees
There have been a number of lawsuits over the past few years brought by women who were seduced or sexually assaulted by male clergy and mental health professionals. Often the misconduct occurred or started in the course of counseling sessions. As much as we would like to deny it, private counseling sessions involving dependent or emotionally vulnerable persons can present unique and sometimes formidable temptations. If inappropriate sexual contacts are initiated, there can be substantial damage to the victim and the victim's family. But this is not all. The costs of such behavior often devastate the counselor as well, and lead to criminal charges, loss of professional credentials, future unemployability, and unavailability of any insurance coverage for either a legal defense or payment of damages. Clearly, steps must be taken to reduce or eliminate this risk.
But there is another risk associated with counseling —the risk of false accusations of inappropriate behavior. Unfortunately, in some cases false accusations are brought against counselors by persons seeking a legal settlement or pursuing some other ulterior motive. It is imperative for counselors to recognize that a false accusation can be as devastating as a true one.
Because of the unique temptations that counseling can present, and the possibility of false accusations, "defensive measures" should be taken by pastors and others who engage in counseling. There are two highly effective ways to deal with these risks. Some of these are addressed in section 10-12.01.
Another very important consideration in church counseling is the concept of confidentiality. Counselors (and the church) can be sued if they intentionally or inadvertently disclose confidential information to third parties. Obviously, this can occur in several ways —for example, the counselor directly communicates the information, or the counselor's counseling notes are accessible to church staff. Counselors need to be strictly admonished to maintain the confidences shared with them. The one exception relates to child abuse reporting. A legal duty to report known or reasonably suspected cases of child abuse generally overrides the duty to maintain confidences (at least for persons who are required to report under state law).
(5) negligent hiring
The church should carefully screen any candidate for a lay counseling position to ensure, as much as possible, the suitability of the person for a counseling ministry. The screening process should include contacts with former churches with which the member has been affiliated or in which the counselor has worked in a counseling capacity, an appropriate screening form, and communication with a number of references. Of course, all of these contacts must be noted in writing and placed in a confidential file. In some cases, a criminal records check should be considered —for example, if an individual being considered for a counseling position has "no background," or there are unsubstantiated allegations involving prior misconduct. The important consideration is this: the church can be sued for injuries inflicted by a lay counselee if the church either knew or should have known of a dangerous propensity of the counselor.
Churches have been sued by victims of clergy sexual misconduct on the ground that they failed to do an adequate job of screening the minister at the time he or she was hired. Churches wanting to lower this risk will develop screening procedures for clergy applicants.
(6) negligent supervision
The church should consider adopting mechanisms to ensure that unlicensed lay counselors are supervised by appropriately trained and licensed mental health professionals.
The church should also develop a counseling policy setting forth standards on such issues as suicidal counselees, counselees threatening harm to others, counselees who confess to criminal activities, and counselees who are child abusers. Unlicensed lay counselors should understand clearly their responsibilities with regard to these kinds of crises. In most cases they should be advised to refer crisis cases immediately to a designated licensed mental health professional. Of course, this does not mean that the church counselor must sever all ties with the individual. Quite to the contrary, the spiritual counseling offered by the church counselor may continue simultaneously with the counseling provided by the licensed professional.
It is also important for the counseling policy to prohibit lay counselors from engaging in controversial therapies such as "repressed memories" and diagnosis and treatment of multiple personality disorders.
Some churches charge a prescribed fee for counseling services. Are such fees deductible as charitable contributions to the church? The answer is no. The Supreme Court has ruled that prescribed payments for prescribed services are never deductible as charitable contributions. Hernandez v. Commissioner, 109 S. Ct. 2136 (1989). If the counseling is provided free of charge as a ministry of the church, voluntary payments made by counselees to the church probably could be deducted as charitable contributions. However, if the church establishes or even "recommends" a prescribed fee, the IRS would not recognize such payments as tax deductible. To be deductible, the payments must in fact be voluntary, the counseling services must be available to all without a fixed or suggested charge, and those unable to pay must receive the same consideration as those who are able to pay for the counseling services.
Does the church insurance policy cover injuries caused by a lay counselor? If so, what exclusions apply? Some policies exclude sexual misconduct perpetrated by a lay counselor. This has the effect of subjecting a church to a gaping hole in insurance coverage. Churches with such an exclusion should check with their insurance agent to see if coverage is available as a rider or special endorsement.