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Religious Counseling: Duties of Disclosure

I.   Confidentiality Requirements

    A.   Generally.

      1.   A counselor is generally obligated to keep secret the personal information disclosed by a client.

      2.   The question of disclosure arises in two contexts:

        a.   when the counselor can voluntarily disclose the client's secrets; and
        b.   when the counselor can be legally compelled to disclose the client's secrets.

      3.   The unauthorized disclosure of information may be actionable in some cases.   Liability will tend to run both to the counselor and the employer/ministry.

    B.   Social Workers

      1.   A social worker shall not disclose either:

        a.   any portion of a communication made by the client to the social worker; or
        b.   advice given by the social worker in the course of professional employment.

      2.   This privilege is not subject to waiver except when:

        a.   the disclosure is part of the required supervisory process within the counseling agency; or
        b.   except where waived by the client or a person authorized to act in the client's behalf.

      3.   This duty also applies to any employee or officer of an agency for whom the social worker is employed.

      4.   Certain nonspecific disclosures (for statistical purposes or to report the prospect or prognosis of a particular case without divulging a fact or revealing a confidential disclosure) may be made in connection with judicial or legislative requests.

      5.   The privilege must be claimed on behalf of a client unless the client authorizes disclosure or the privilege does not apply as provided by law.

      6.   Substantially similar disclosure duties apply to licensed professional counselors, psychologists, and marriage and family therapists.

    C.   Clergy

      1.   The clergy-penitent' privilege under Michigan law provides as follows:

      No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.

      2.   The case for confidentiality is clearest in a confessional setting.

        a.   Counseling sessions involving standard clinical counseling methods, standard clinically recognized mental conditions, or non-clergy are not covered by the privilege.

        b.   When the privilege does not apply, the counselor may be compelled to disclose the personal secrets of the client.

      Comment: It is not clear what is meant by counseling which is "in the course of discipline" of a cleric.   Most likely, this is not a reference to the narrow circumstance of when a person (the client) may be subject to formal church 'discipline,' but rather refers to any communications in the course of religious practice according to the rules and discipline of the church which the cleric is bound to observe.   However, there is no case law interpreting this language.

      3.   For counseling activities performed by non-licensed and non-ordained counselors, or spiritual counseling performed by clerics which is non-confessional in nature, the issue of confidentiality will largely depend on the existence of an implied or express contract requiring confidentiality which is established at the commencement of the counseling relationship.

    D.   Domestic Violence Counselors

      1.   Michigan law also imposes a confidentiality requirement with respect to communications between a victim and anyone deemed to be a 'sexual assault or domestic violence counselor' in connection with the rendering of advice, counseling or other assistance to the victim.

      Comment: Confidential communications and reports or working papers prepared in connection with a consultation are not admissible as evidence in any civil or criminal proceeding without the prior written consent of the victim (except is cases where a reporting of suspected child abuse or neglect is required).

        a.   A 'sexual assault or domestic violence counselor' is anyone who "is employed at or who volunteers service at a sexual assault or domestic violence crisis center, and who in that capacity provides advice, counseling, or other assistance to victims of sexual assault or domestic violence and their families."

        b.   A 'sexual assault or domestic violence crisis center' means "an office, institution, agency, or center which offers assistance to victims of sexual assault or domestic violence and their families through crisis intervention and counseling."

      Comment: What is unique about this legal requirement, compared to other confidentiality requirements, is that it does not require the counselor to be licensed or a professional, for the duty to apply.   Nor does it require the agency or ministry to hold itself out as a 'sexual assault or domestic violence crisis center.' All that is required for the duty to attach is that a counseling ministry include the counseling of victims or their families with respect to matters of sexual assault or domestic violence.   The likelihood of any counseling ministry completely avoiding clients of this description is extremely remote.

      2.   Almost every counseling ministry conducted by a church is likely to qualify as a 'sexual assault or domestic violence crisis center' for purposes of this law.

II.   Duties to Third Parties (Duty to Warn)

    A.   Common Law Doctrine.

      1.   Mental health professionals, because of their 'special relationship' with clients, have a duty to protect an intended victim of the client (including the client) from harm planned by the client if:

        a.   the client has communicated a serious threat of physical violence; and
        b.   there is a reasonably identifiable victim or victims.

      2.   In such an event, the counselor must use reasonable care to warn and protect the victim(s) by communicating the threat to:

        a.   the victim(s); and
        b.   a law enforcement agency.

    B.   Statutory Duty.

      1.   If a patient communicates to a mental health practitioner who is treating the patient a threat of physical violence against a reasonably identifiable third person and the patient has the apparent intent and ability to carry out that threat in the foreseeable future, the mental health practitioner has a duty to:

        a.   initiate proceedings to hospitalize the patient; or

        b.   reasonably attempt to communicate the threat to the third person and the police; and

        c.   if the third person is a minor or incompetent, to also reasonably attempt to notify Dept. of Social Services and the third person's parent or guardian.

      2.   To Whom Applicable.

        a.   This duty applies to any mental health professional, that is, psychiatrists, psychologists, social workers, professional counselors, and marriage and family therapists.

        b.   The statute expressly states that this duty of disclosure does not violate any mental health professional's duty to keep client communications confidential.

        c.   Clergy and lay people who are not professionally licensed are not subject to the duty imposed by this statute.

III. Child Abuse Reporting

    A.   General Rule.

      1.   All mental health professionals (psychologists, licensed counselors, social workers, marriage and family therapists, etc.) who have 'reasonable cause to suspect child abuse or neglect' have a duty to:

        a.   "make immediately, by telephone or otherwise, an oral report, or cause an oral report to be made, of the suspected child abuse or neglect" to the Dept. of Social Services; and

        b.   "within 72 hours after making the oral report, the reporting person shall file a written report" as required in the statute.

      2.   'Child abuse' means harm or threatened harm to a child's health or welfare by any person responsible for the child's health or welfare, or by a teacher or teacher's aide, "that occurs through nonaccidental physical or mental injury; sexual abuse; sexual exploitation; or maltreatment."

      3.   'Child neglect' means harm or threatened harm to a child's health or welfare by any person responsible for the child's health or welfare that occurs through:

        a.   negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care; or

        b.   placing a child at an unreasonable risk to the child's health or welfare by failure to intervene to eliminate that risk when that person is able to do so and has, or should have, knowledge of the risk.

      4.   The duty to report suspected child abuse or neglect supersedes all privileges of confidentiality except for the attorney-client privilege.

        a.   A person who fails to make a required report may be found guilty of a misdemeanor and may also be civilly liable for any damages caused.

    B.   The identity of a reporting person is confidential subject to disclosure only with the consent of that person or by judicial process.

      1.   A person acting in good faith who makes a report or cooperates in an investigation is immune from civil or criminal liability incurred by that action.

      2.   This immunity extends only to acts done pursuant to law and does not extend to a negligent act that causes personal injury or death.

    C.   Spiritual or religious counseling by itself will not make anyone subject to the duty to report child abuse.

      1.   However, a member of the clergy who is a mental health professional will not avoid the duty on religious freedom grounds.

      2.   The duty also extends, in addition to mental health professionals, to any school administrator, school counselor or teacher, or regulated child care provider, including schools and child care centers maintained by churches.

IV.   Recommended Protective Measures

    A.   Proper forms should include, at a minimum:

      1.   A client intake form should include:
        a)   whether the counseling is intended to be spiritual or professional;
        b)   whether the counselor is a licensed mental health professional, a member of the ordained clergy, both or neither;
        c)   the identity of the counselor's supervisor and the nature of the supervision;
        d)   brief summary of policies pertaining to information disclosure;
        e)   an arbitration clause providing for problem resolution; and
        f)   the signature of the client.

      2.   Authorization to Release Information Form.   Such a form should be separate from any other form and include:

        a)   the uses and limitations of the information to be disclosed;
        b)   the name and address of the church;
        c)   the names or functions of the persons entitled to receive the information;
        d)   the date after which disclosure is no longer authorized;
        e)   a statement advising the client that they have a right to receive a copy of the authorization; and
        f)   the signature of the client.

      3.   Child Abuse Reporting Form.

    B.   Proper procedures should include, at a minimum:

      1.   All church personnel, especially counselors, and most especially those who counsel children, must be very carefully screened.

        a.   Careful screening applies not only to employees, but also to volunteers, whose actions can result in liability to the church.

        b.   References should be requested for all personnel, and verified (not merely filed).

        c.   Perform a personal interview and background check of every applicant for a position as a church staff member or volunteer.

        d.   Also, administer psychological testing to those staff and volunteers who will function as counselors.

      2.   All personnel, particularly all counselors, should be supervised and held accountable.

        a.   All non-licensed and non-ordained counselors should be supervised by someone who is licensed and/or ordained, depending on the type of counseling each person performs.

        b.   Further, licensed and/or ordained counselors should have a method by which they can keep each other accountable, not necessarily as supervisors, but as peers.

        c.   On-going training of all personnel is highly recommended.

      3.   Because of the potential spiritual, social and economic consequences that reporting may have, policies and procedures for dealing with child abuse reporting laws should be clearly defined, documented, and communicated to all staff.

      4.   Develop a list of licensed, competent mental health professionals who share the church's spiritual values and to whom the church can refer clients for evaluation and therapy.   Offer routine written referrals to licensed mental health professionals to coincide with the purely spiritual counseling the church provides.

      5.   Have someone examine in detail existing office procedures, forms, and personnel policies so as to pinpoint any actual trouble spots peculiar to your ministry.   An investment in some planning now will be worthwhile should a lawsuit come along.
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