Legal Issues

Managing legal risk is part of ministry today. Taking a proactive approach to managing legal risks helps church leaders to be good stewards of the resources entrusted to them. It makes good sense to develop a lay counseling policy in accordance with well-established risk management principles.

As you prepare a lay counseling policy and associated forms, a local attorney should give you a legal evaluation of the risk management issues of any spiritual care ministry program that your church develops. With the help of legal counsel, church leaders can consider how lay counseling policy elements discussed on this site may apply to other spiritual care ministries that the church sponsors.

The attorney your church selects should be familiar with various federal and state laws that have an impact on churches with spiritual care ministries. Very few attorneys concentrate in “church law,” so you may want to seek attorney recommendations from other churches or trusted sources. The Brotherhood Mutual Legal Assist team offers a free attorney referral service which can be a helpful place to start.

State Laws

Knowing your state law is critical in organizing a lay counseling ministry in your church. With the help of your church’s attorney, church leaders should consider the following legal issues as they develop a lay counseling policy and related forms:

State Mental Health Licensing Laws. State mental health licensing laws vary from state to state. Generally, pastors employed in a church are free to provide pastoral counseling to church members and are exempt from state licensing. However, states differ in their exemption from licensing for lay persons who will provide lay counseling on behalf of a church. Some state mental health licensing laws set restrictions relating to:

• Licensing exemptions if you charge a fee for counseling.
• Providing or advertising pastoral and lay counseling services to the general public.
• Using certain titles or descriptions of service.

Record Keeping. Counseling files should be confidentially maintained in a safe place and secure from unauthorized access. Counselee files or other private information contained in any electronic device should be encrypted and considered the property of the church, not any individual pastor or lay counselor. Records should remain private and only released when the counselee has granted permission or when disclosure is legally required. Procedures for retaining and releasing these records should be created with the aid of a local attorney.

Confidentiality. Generally, if a counselee discloses private, confidential information to a pastor or lay counselor in a non-public setting, the counselor must not divulge the information. There are some specific exceptions: it’s legally required; it can be legally justified; or it is specifically authorized by the counselee or the counselee’s parent or guardian, if the counselee is a minor.

Ethical Guidelines. Lay counselors should understand and follow the church’s guidelines for referral of counselees to physicians, mental health practitioners, or other professional caregivers.

• Lay counselors should not interfere with a counselee’s medically prescribed drug regimen.
   
• Lay counselors should be instructed to immediately report to their supervisor any state-mandated abuse reporting issues, a counselee’s suicidal threats, or a counselee’s threat to harm another person. Enlist your church’s attorney for help developing a Lay Counseling Agreement/Informed Consent Form. It is critical that the form/agreement lists such reporting as exceptions to confidentiality.

State-Mandated Child Abuse and Elder Abuse Reporting Laws. It is absolutely critical that your church’s leaders, staff, and lay counselors understand the legal requirements for abuse reporting in your state and immediately comply with the law whenever they identify such situations. Lay counselors themselves may be mandatory reporters. All counselors—pastoral and lay alike—should know how to make a report to avoid violating state law. The church should have an internal reporting process in place for when accusations or suspected cases are brought forward.

Learn more: Child Abuse Mandatory Reporting—State Specific Links and Information

Guarding Against Sexual Misconduct. A church must take steps to deter sexual misconduct and false allegations of sexual misconduct in lay counseling settings.

Sexual misconduct can occur within adult to adult, adult to youth/vulnerable adults, and youth to youth relationships. Actions that fall under this term can range from unwelcomed, offensive remarks to assault, and includes intimidation and harassment. While an action may not meet the legal definition of sexual misconduct, it may violate your ministry’s morality clause or code of conduct rules.

Consider establishing the following guidelines:

1. Prohibit any minister or lay counselor from providing counseling privately with a counselee of the opposite gender.
    
2. Have a parent or second adult to be present when counseling a minor.
    
3. Limit the hours when counseling will be available at the church and publicly post the schedule.
    
4. Set a time limit for each counseling session and establish a set number of sessions that any one counselor can provide to an individual.
    
5. Counsel only in a room that has a window and is within view of another adult. Prohibit non-public, after-hours, or unscheduled meetings.
    
6. Caution counselors about physical touching that might be misinterpreted.