Etymology, or the study of the origin of words, helps us understand the roots and meaning of words. The word pastor comes from the Latin word pastor, which directly translates to shepherd. Shepherds tend, feed, and guard their flocks of sheep just as pastors tend, feed, and guard their congregations. Individualized spiritual assistance through counseling is one method pastors can use to tend to their congregation. While providing counseling is useful to maintain a healthy and engaged congregation, it does not come without potential legal issues and risks.
As pastors increasingly provide counseling services, lawsuits have escalated, claiming various forms of clergy malpractice. These include negligent pastoral counseling resulting in suicide, sexual misconduct, and breaches of confidentiality through the disclosure of confidential communications. Claims raised against pastors and churches regarding counseling usually fall into four categories: negligent counseling, breaches of confidentiality, child abuse, and sexual misconduct.
Negligent Counseling
The risk of negligent counseling can arise in various situations. Allegations may come from “bad” advice or from counseling the pastor may not be qualified to give. Several years ago, a Seventh-day Adventist conference was sued because a pastor in their employ negligently counseled church members on their interpersonal relationships. The court found that, under the law, the pastor was an unlicensed mental health practitioner, and therefore was allowed to be sued for negligence in his counseling. How can churches protect against this type of negligence?Conferences can require their pastors to be selective in their counseling. It is much harder to terminate a counseling relationship than it is to have never begun one. Counseling subject matter should be selective as well. Pastors should limit their counseling to biblical or spiritual guidance. If pastors, who are not licensed therapists, provide medical, mental health, or family therapy, they may be legally treated as an unlicensed therapist for purposes of liability.
Negligent counseling may also emerge in situations where the pastor has failed to refer the individual in circumstances where a referral is needed. Cases where referrals to a professional should be given include counseling on mental health issues, counseling on substance abuse issues, when the church member requests a referral, when the church member is threatening imminent harm to others, or when the church member is suicidal. However, pastors must be careful to not breach their duty of confidentiality to the church member.
Preserving Confidentiality
The preservation of confidentiality is essential for many reasons. Keeping your members’ confidences helps support a healthy counseling relationship. Church members will be much more likely to ask for spiritual guidance when they feel their concerns and issues will be kept private. Additionally, your local conference may have a confidentiality policy in place. Breaching this policy may subject a pastor to employment discipline.To protect pastors and the church from “he-said-she-said” disputes, keeping careful records is necessary. However, records should be kept in a confidential file that is only accessible by the pastor. These notes should include the date, time, and location of the sessions, names of the persons present in the sessions, the confidential nature of the meetings, and notes of any reasonable suspicion of child abuse or threats made to injure the counselee or third persons.
Child Abuse
While it may seem self-evident, our denomination does not tolerate child abuse. However, the reality is that even allegations of child abuse may irreparably harm a pastor. While a pastor must not only refrain from engaging in sexual activities with counselees, underage or otherwise, he or she must also resolutely guard against any behavior that could lead to an accusation of such conduct.How do you guard against accusations? Pastors should follow the two-adult rule when counseling minors, i.e., have another adult present during the counseling session. In certain situations, following this rule may not be possible, but pastors should never provide counseling to minors behind closed doors, or out of the sight of another church staff member. Further, pastors should never go into a minor’s home while the parents are absent.
When counseling members, you may learn of circumstances that may amount to or cause you to suspect that child abuse is occurring. In over 30 states, including California, Florida, and Maryland, members of the clergy are considered “mandatory reporters.” This status means pastors must report “known or suspected child abuse or neglect” to the proper authorities. Failure to report known or suspected child abuse opens the pastor and the church up to legal consequences, including civil penalties, lawsuits, and in some instances, criminal liability. Know the laws of your state and stay current on legal requirements.
Sexual Misconduct
It is crucial for pastors to recognize that a false accusation of sexual misconduct can be devastating to a pastor’s reputation. Always hold counseling sessions in an open venue, such as a room with windows or among the pews of the church. If confidentiality is so important that the site must be private, pastors should follow the two-adult rule for opposite-sex counseling as well. Remember, no counselee has the right to insist that you place yourself in a position to be accused. Pastors should schedule counseling sessions in writing and keep the church office staff aware of counseling location to avoid the appearance of impropriety or inappropriate secret meetings. Pastors should also set limits on counseling sessions with all counselees. A fixed number of meetings lowers the risk that the pastor-counselee relationship will become inappropriately intimate or that the counselee will become estranged.
It may seem obvious, but pastors should not be romantically or sexually involved with those they counsel. In most states, a counselor has a fiduciary relationship with a counselee. A fiduciary relationship requires that the counselor must put the counselee’s interest above their own. Accordingly, a pastor is ill-advised to counsel anyone with whom they have a close personal relationship. Generally, a spouse, a best friend’s spouse, or a relative should be referred elsewhere.
In spite of the risks involved in counseling, it is still an essential part of ministry. Isaiah 40:1 (NIV) reads, “Comfort, comfort my people, says your God.” By taking steps to provide counseling to your church members safely, you can protect yourself and your church from unwanted legal troubles while still ministering to the congregation.
