Churches with large and diverse congregations often have members who are facing difficult personal challenges. Giving counsel and comfort to someone who is suffering can be thought of as a core purpose of many religious communities. Churches should understand how offering counseling services may affect their legal liability so it can be incorporated into their risk management strategies.
Church counseling services can take a number of forms. The simplest is the advice given by a pastor to a member of his or her congregation, informed by the pastor’s theological training. Many churches also offer the services of lay people who have volunteered to act as counselors. Such people may or may not have specific training or professional licenses. For example, a church might establish a crisis hotline that is run by volunteers who are primarily asked to serve as compassionate and caring listeners.
- Negligent counseling. Churches and pastors have been held liable for the negligent provision of counseling services in cases where pastors have provided counseling that goes beyond religious advice into the realm of secular psychotherapy. In such cases the person receiving counseling has gone on to suffer a serious harm that can be traced to the pastor’s advice. In simplified terms, the pastor’s advice has made the individual’s situation worse.
- Sexual abuse. From an organizational standpoint churches must always be mindful of the potential for sexual abuse by their agents, including ministers, employees, and volunteers, against vulnerable people who come to the church for help.
- Breach of confidentiality. In the course of providing advice to individuals who have personal problems, a counselor often hears about highly sensitive details about a person’s health and family life. Churches can breach various privacy laws if they don’t take adequate steps to ensure that such information remains confidential.
- Failure to intervene. The confusing inverse of the duty to keep certain confidences is the potential necessity to report certain things, like child abuse, to authorities. Although a minister may be exempt from some forms of disclosure obligations (for example, due to the sanctity of confession), a lay person acting as a counselor may have different legal obligations. Churches can be sued for failing to comply with legally mandated disclosure requirements, such as an obligation to report child abuse.
The key thing to remember about counseling individuals who have serious personal problems is that a church is not always equipped with the necessary skills to provide comprehensive solutions for things like mental illness, addiction, or abuse. Someone suffering from problems like these may turn to a church because it is a trusted, safe place. But the best course of action may be to refer them to a professional who can provide advice in a licensed setting.
Churches that intend to offer counseling services should adopt policies that address a number of important topics. Crafting such policies allows churches to take full account of their legal obligations and risks. Policies can cover a range of important topics, including these:
- The appropriate scope of advice that can be offered in a counseling session.
- When individuals should be referred to professionals.
- Confidentiality procedures.
- Procedures to prevent sexual abuse (for example, by eliminating the opportunity for abusers to be alone and unobservable with their potential victims).
- A clear statement of what sort of incidents must be reported to law enforcement.
The Church Law Center of California provides legal advice to churches and secular nonprofits. We can help your church examine its counseling practices and explore ways it can continue to provide guidance to its congregation while protecting itself from undue legal risk. Call us today at (949) 892-1221 or reach out to us through our contact page.
