ARE YOU AS SAFE AS YOU THINK?
By: Richard R. Hammar
Clergy malpractice is not a dead issue.
Although no court has found a minister guilty of malpractice for incompetent counseling, some courts have suggested that this is a possibility. And, many courts have found clergy liable for other kinds of ministerial misconduct.
Implication: It is a dangerous oversimplification to conclude that the concept of malpractice has no relevance to churches or clergy.
*THE LEGAL HISTORY
Much of the confusion regarding clergy malpractice stems from a misunderstanding of the California Supreme Court’s 1988 decision in Nally v. Grace Community Church, 253 Cal. Rptr. 97 (1988). In the Nally case, the court ruled that a church and four of its ministers were not legally responsible for the suicidal death of a member who had been counseled by the ministers.
Key elements: The victim’s parents alleged that the pastors were responsible for their son’s death on the basis of “clergyman malpractice.” They contended the pastors were negligent in failing to refer their son to medical professionals who could prescribe medication or have him hospitalized for psychiatric evaluation.
They also alleged that:
*The church was negligent in the training and selection of its spiritual counselors.
*The pastors failed to make themselves available to Nally following his first suicide attempt and “actively and affirmatively dissuaded and discouraged him from seeking further professional psychological or psychiatric care.”
*The pastors were guilty of “outrageous conduct” for teaching “certain Protestant religious doctrines that conflicted with Nally’s Catholic upbringing” and which “exacerbated Nally’s pre-existing feelings of guilt, anxiety, and depression.”
*The “outrageous conduct” also included the fact that the pastors “taught or otherwise imbued Nally, whom they knew to be depressed and having entertained suicidal thoughts, with the notion that if he had accepted Jesus Christ as his personal Savior, he would still be accepted into heaven if he committed suicide.”
The verdict: The court rejected all of the parents’ claims.
*It refused to impose a duty on “nontherapist” counselors, including most pastors, to refer potentially suicidal persons to licensed medical practitioners.
*It observed that “the secular state is not equipped to ascertain the competence of counseling when performed by those affiliated with religious organizations.”
*It stated that “because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.”
Other cases: A few other courts have addressed the issue of clergy malpractice. Most of these cases involve allegations of improper sexual advances initiated by clergy during marital counseling. While some clergy have been successfully sued for such actions, the courts have avoided using the term malpractice.
*THE BROAD IMPLICATIONS
These cases suggest that clergy and church leaders should evaluate the following considerations:
*The state of jurisdiction. The Nally case is binding only in California. Note: Courts in other states are free to disregard it. Decisions of the California Supreme Court, however, generally are treated with great respect by other state courts-and often are followed.
Bottom line: While it is likely the Nally decision will be followed by other state courts, it isn’t certain.
*Your duty to refer. In California, and other states that follow the Nally decision, nontherapist clergy will not have a “duty to refer” suicidal or emotionally disturbed persons to medical professionals.
Important: Clergy in such states may voluntarily choose to recommend medical assistance.
*The responsibility of licensed counselors. Some churches employ pastoral counselors who are licensed counselors or psychologists, and many clergy who are licensed counselors or psychologists have opened private counseling practices. Caution: The Nally court did not address the liability of such counselors. It dealt only with non-therapist pastoral counselors.
Significant: The court did cite with approval an earlier court ruling suggesting that a psychiatrist might be legally responsible for failing to take appropriate measures to prevent the death of a suicidal patient.
Implication: It is possible that this ruling might extend to clergy in California (and elsewhere) who are licensed counselors, psychologists, or psychiatrists.
*Other types of malpractice. Clergy may be liable for “clergy malpractice” on the basis of theories of liability other than failure to refer suicidal persons.
Example: People have sued clergy for sexual molestation of minors, or sexual advances initiated during counseling sessions. While many courts have avoided use of the term malpractice in these contexts, the important point is this: Clergy have been found legally accountable for these kinds of misconduct.
Key: The Nally case does not eliminate lawsuits alleging clergy malpractice, even in the state of California. All that the Nally court said was this: Nontherapist clergy counselors in California cannot be sued for malpractice on the basis of the content of their advice. Note: This is a rather narrow ruling that leaves considerable room for findings of malpractice or related kinds of misconduct.
*HOW TO EASE RISK
Should churches still buy clergy malpractice or counseling-liability insurance for their pastoral staff? The answer is yes, for two reasons:
*This type of insurance is inexpensive, and in light of the Nally decision should actually become even less costly.
*It protects the pastor and congregation. While clergy who are sued for counseling malpractice will almost certainly prevail in court, the cost of a successful legal defense can easily amount to several tens of thousands of dollars. A counseling liability insurance policy ordinarily will pay these costs on your behalf. Also: Counseling-liability insurance pays any settlement or judgment up to the policy limits.
Recommendation: If you don’t presently carry counseling-liability insurance, check with your church liability insurer. Tip: It generally is cheaper to obtain this coverage under your existing policy than to purchase it separately.
The bottom line: The best way-after moral fortitude-to reduce the risk of malpractice is through knowledge of the law, careful hiring practices, and prudent supervision of church workers.
(The above material appeared in a July/August 1991 issue of YOUR CHURCH.)
Christian Information Network