Is Your Counseling Session Really Confidential?

Orginally published on Tuesday, January 30, 2007 at 7:37 AM
by Todd Rhoades

Before you enter into another “confidential” counseling session, consider this: Are your conversations protected by the clergy communications privilege? Are your “confidential” counseling sessions putting you-and those you counsel-in legal jeopardy? While different states have different laws, the same fundamental legal principles apply. Follow these guidelines to protect your counseling sessions:

1. The counselor must be a clergy member whose role is to provide religious counseling. Such clergy members could be those ordained by the church as pastors, priests or ministers, or non-ordained agents of the clergy. However, non-ordained agents must have been selected by the church to serve as religious leaders to provide such religious counseling. The privilege does not apply to conversations with church staff that have not been charged with such counseling duties and responsibilities.

2. The counseling session must be of a religious nature. Say a member comes to you and asks for your help. In the process, the member discloses a recent crime and asks you to help relay the information to the proper agency. Would your conversations with the member be privileged? No. The priest-penitent privilege only applies to penitent communication-communication where one seeks absolution, penitence or contrition.

While, in reality, the secular and religious counseling are easily blurred, it is important to understand that courts will scrutinize and examine the secular versus religious nature of the communication. As such, it is important for you to be mindful of exactly what type of counseling you are providing.

3. The counselor and counselee maintain a religious relationship. Say an individual enters your church and seeks your help. He is in trouble and is fleeing from the police. This is the first time you have met. You counsel him to seek God for guidance and forgiveness. You also persuade him to call the police. Despite the fact that counsel incorporated religious counseling, your conversations would not be privileged. Despite your role as a pastor who provides such religious counseling, the privilege will still not apply. Courts will scrutinize this ad hoc session as one between a clergy and a stranger, and may decline to apply the priest-penitent privilege.

4. Both parties intend the counseling session to be confidential. All parties-the clergy counselors and the individual counselees-must intend for the counseling session to be confidential. If either one of the parties divulges the information discussed to any members of the public, the privilege is lost. Courts will not apply the privilege if the parties themselves did not respect the private and confidential nature of the session.

5. The counseling sessions must be private. Again, the counseling session must be confidential in nature. Individuals not intended to provide or receive the religious counseling cannot be involved in the counseling session. If the counseling sessions are open to uninvolved individuals, the counseling sessions are no longer private. As such, courts will liberally assume that individuals did not intend for the conversations to be confidential or privileged. Thus, if you intend the conversations to be private and privileged, keep them private and privileged.

Read more of this article at MinistryTodayMag.com...

TAGS:  Pastoral Counseling

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