PASTORAL COUNSELING. Attorney David Gibbs III. Safeguarding against potential liability. National Center for Life and Liberty

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2 National Center for Life and Liberty PASTORAL COUNSELING Safeguarding against potential liability Attorney David Gibbs III COPYRIGHT NOTICE: These materials are protected by copyright. These materials, and the various sample provisions and policies, may be used, adopted and copied by your ministry for use in its official documents and policies only if you obtained this resource directly from the National Center for Life and Liberty. This information may not be transferred, sold, republished or disseminated in any other manner without the express written permission of the National Center for Life and Liberty. If you would like to use this material in a manner other than one for which it was originally intended, please contact our ministry directly for assistance in making appropriate modifications. Because the law changes constantly, if you know of another ministry which would benefit from this information, please urge them to contact the National Center for Life and Liberty directly. LEGAL NOTICE: This resource is designed to provide accurate and authoritative information concerning the subject matter covered. It is provided with the understanding that the publisher is not through this publication engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the first-hand services of a professional should be sought. From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations. Published by the National Center for Life and Liberty 2

3 INTRODUCTION In recent years, pastors who engage in counseling to any degree have been particularly vulnerable to lawsuits by the very individuals they try to help. Pastors and churches should recognize the legal risks associated with pastoral counseling so they can be more effective in their counseling ministry while protecting themselves from people dissatisfied with their advice. CLAIMS BEING RAISED AGAINST PASTORS Many different claims can be and have been asserted against pastors in their counseling roles. The most frequent claims in recent lawsuits are claims of: Clergy malpractice Intentional or negligent infliction of emotional distress Breach of fiduciary duty or confidential relationship Negligence Defamation, libel, or slander Invasion of privacy Counselor/Therapist malpractice Failure to refer a member in counseling to a health care professional when necessary Exerting undue influence over the person being counseled Violation of clergy privilege. Churches may also be sued for: Vicarious liability Negligent hiring Negligent training and supervision Negligent retention. The claims raised against pastors and churches in regard to their counseling programs usually result from one of the following alleged instances: (1) the pastor gave bad advice (clergy malpractice or negligent counseling), (2) breach of confidentiality (3) sexual misconduct, or (4) child abuse. MINIMIZING LIABILITY RISK FOR COUNSELING SERVICES A. Take reasonable care when hiring. A church that takes reasonable care in hiring a pastor will drastically reduce the likelihood that it will be found responsible for any harm he might cause individuals whom he 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 3

4 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 counselor knowing he is unfit, or fails to use reasonable care to discover his unfitness. A church takes reasonable care in hiring a counselor when it conducts a background check that includes the following steps: 1. Inquiring about the candidate s previous ministry service history from his previous ministry leaders. 2. Asking employers for whom the candidate worked within the past five years about his work history. Example: Failure to take this step caused one church to negligently hire a youth counselor who had been dishonorably discharged from the U.S. Navy for sexual molestation. 3. Requesting a criminal and civil records check in the state of the candidate s prior employment and in states where the candidate has lived during at least the past five years. A pastoral counselor candidate should be asked to sign a form authorizing the background check. 4. The hiring process should also include applications, detailed interviews, reference and education verifications, and follow-up evaluations. B. Adopt and follow a written policy. It is critical that churches adopt and follow a written counseling policy. The pastoral counselor should be asked to sign an agreement to abide by this policy. This policy is the best defense for the counselor and counselees alike: a counselor will be able to answer any false allegations of improper conduct; counselees will be protected from counseling abuse; and the church will drastically reduce its risk of liability. A church that pays no attention to how the counselor conducts his counseling ministry could be found negligent for any harm the counselor does to those he counsels. If a church fails to take action after the church has become aware, or should have become aware, of the counselor s unfitness, the church could also be found liable for negligent retention of the counselor. Key elements in a pastoral counseling policy should require the counselor providing counseling services to do the following: 1. Require the counselor to be selective as to whom he will counsel. It is much easier to never begin a counseling relationship than it is to terminate one after counseling has begun. 4

5 2. Limit counseling to Biblical counseling. Refuse to provide medical, mental health, and 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. 3. Emphasize the Biblical counseling by: Keep the Bible open and clearly in sight throughout each counseling session. Read from at least one Scripture reference during the counseling session. Assign Scriptural homework to the person being counseled. Begin and end each counseling session with prayer. 4. Use a counseling agreement. Require each person being counseled to sign, on behalf of himself or his child, a counseling agreement in which he: Acknowledges the counseling provided is Biblical and not professional; Acknowledges the counseling pastor is not a 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; Agrees not to sue the church for any expenses or damages that result from any of the pastor s counseling services; and Agrees that otherwise confidential communications may be disclosed to appropriate state law enforcement authorities where required by law. 5. Refer people with serious problems requiring professional counseling to a professional medical or psychiatric counselor with specialized training. 6. Set a limit on the number of counseling sessions. This policy not only ensures that the pastor reserves sufficient time for 5

6 his other pastoral duties, but it also lowers the risk of the pastor and counselee relationship becoming either intimate or estranged. 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. Include this limitation in the counseling agreement signed by the person being counseled or by the parent of a minor. 7. Schedule all counseling sessions in writing. Keeping the office staff informed of the counselor s whereabouts will avoid the appearance of inappropriate secret meetings. A master office calendar can serve as both a reminder of upcoming events and a historical business record of past meetings. 8. Do not counsel members of the opposite sex out of sight and alone. Instead, make sure the counseling session is clearly visible to others. If counseling members of the opposite sex, a staff member of the opposite sex should remain within easy line-of-sight with the counselor. (An interior office window or open door can provide line-of-sight protection without destroying the clergy privilege with the presence of a third person in the room as outlined below.) Conduct the counseling 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 may save a pastoral counselor from the sin of adultery. 9. Never counsel a minor outside the easy line-of-sight of another staff member (see above). 10. Never go into a child s home while the parents are absent. 11. Never touch anyone in an inappropriate manner. 6

7 12. Clearly state the church s position that romantic or sexual relations with counseled persons are absolutely prohibited. 13. Keep detailed records of counseling sessions, including notes of the following: The date, time, and location of the session and how many sessions there have been with this person and this counselor. 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: 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. C. Be aware of state licensing laws. 1. 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. Criminal sanctions may be imposed on pastors who do the following: 1) Represent themselves as being licensed by the state; 2) Represent themselves as being professional marriage, family, or mental health professionals; 7

8 3) Charge fees for their counseling services. 2. Licensing laws differ from state to state. Because licensing laws vary in each state, it is critical that a pastor knows the law of the state in which he ministers. In some states, 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 may 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. 3. Written church counseling policies Churches should promulgate a written policy limiting pastoral counseling to Biblical and spiritual counseling to protect against state oversight of the counseling ministry. D. Obtain professional liability insurance. Professional Liability Insurance, also known as Errors and Omissions Insurance protects against negligent acts performed by those in counseling roles. Check with the church s insurance agent to make sure the church s liability insurance policy covers pastoral counseling. In reviewing your church s professional liability insurance policy, please keep in mind the following points: What does the policy protect? 1) This insurance should protect against negligent acts and errors and omissions performed by those providing professional services at your church. 2) The coverage should also protect your church from the cost of legal defense, personal injury, and actions performed on your behalf by subcontractors. How much professional liability insurance should the ministry 8

9 purchase? STAYING ON GUARD 1) Coverage for professional liability can range anywhere from $300,000 each claim and $600,000 aggregate to $1,000,000 each claim and $2,000,000 aggregate. This means, for example, that the maximum payable for any one claim is $300,000, while $600,000 is the maximum payable for all claims reported during the policy year. 2) How much professional liability insurance your ministry should purchase will depend upon how often and at what level your church provides professional services. 3) If your church provides specialized counseling, long-term counseling, or counseling to nonmembers, your church may be required to purchase more liability insurance. The National Center for Life and Liberty 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, sexual abuse claims, and state confidentiality requirements. Thank you for downloading the Free Resource of the Month from the NCLL website. We trust you will find it useful for your ministry. For those ministries that are supporting the NCLL at the Premier Partner level, we have the following sample documents that go along with this resource, including: A Ministry-Counselor Agreement A Biblical Counseling Policy and Liability Release and Indemnification Agreement for Adult Counselees A Biblical Counseling Policy and Liability Release and Indemnification Agreement for Minor Counselees If you are interested in learning how to become a Premier Partner of the NCLL, please visit our website at and click on Partner With Us. You can also call our offices at NCLL (6255) or contact us via at info@ncll. org. Thank you again for visiting our website! 9