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By: Thomas N. Davidson, J.D.
Define & explain: liability, confidentiality, ethics & privilege.
Chaplain’s responsibility to maintain confidentiality.
Determine when confidentiality ceases.
Determine sources of chaplain liability.
Describe sources of remedies for negligence and misconduct.
Determine sources of legal protections and immunities.
Compare and contrast privileged and non-privileged actions.
Discuss best practices to protect the confidentiality of the client.
Discuss the doctrine of “Respondeat Superior”.
Describe a Chaplain’s Office standard operating procedure.
• In general: The legal responsibility or
obligation to do or not do something or to
behave in a certain manner.
• Tort liability: The breach of a duty that is
the proximate cause of another’s injuries or
damages. It can be negligent or intentional.
Internal-church/police agency
State Tort liability lawsuit
Section 1983 Civil Rights lawsuit
Criminal prosecution
• A communication made in confidence. It
can be written or verbal. It may or may not
be privileged communication. The party
making the communication has an
expectation that the receiver will not
disclose the communication.
• A legal right enjoyed by a person(s) that
creates an exemption or immunity from
disclosing the communication. Generally,
the privilege is “owned” by either the
client/parishioner or the clergyman and only
the person who owns the privilege can
waive it.
Does privilege exist everywhere?
• While there is debate in the U.S. as to whether there exists
a common law clergy privilege, practically every
jurisdiction in the U.S. recognizes some form of the
• Courts in Western Australia and Canada have ruled that no
clergy privilege existed in criminal cases.
• Most European countries do recognize some form of
• Does your jurisdiction?
Ownership of Privilege
• In 27 jurisdictions the law is not express as
to who owns the privilege.
• In 17 jurisdictions the penitent’s right to
hold the privilege is clearly stated.
• In 6 jurisdictions the privilege belongs to
both the clergyman and the penitent.
Who is included in “Clergy?”
• Generally, this question has been left to
courts to decide.
• In some jurisdictions the clergy must be
• Nuns and Elders have sometimes been
• Non-Ordained church counselors have been
When the privilege law does not clearly
define a clergyman, a court may consider:
• Whether the clergy is connected in some way with
a religious organization.
• Whether the clergy is "settled in the work of the
• Whether he or she is "accredited by" a church
• Whether the clergy member is "accountable to the
authority of" a church body,
• Whether the church body is "legally cognizable,"
or is part of an "organized" religion.
• A code of good or expected behavior. A
code of ethics governs how various
professionals should behave, such as
lawyers, doctors, congressmen, clergy, et
• A principle stating that the “master” is
responsible for the wrongful conduct or act
of his “servant.” Also, the doctrine that a
principal is responsible for the acts of his
What acts are privileged?
34-46-3-1 Persons not required to testify
Sec. 1. Except as otherwise provided by statute, the following persons shall not
be required to testify regarding the following communications:
(1) Attorneys, as to confidential communications made to them in the course of their professional business, and as to
advice given in such cases.
(2) Physicians, as to matters communicated to them by patients, in the course of their professional business, or advice
given in such cases.
(3) Clergymen, as to the following confessions, admissions, or confidential
(A) Confessions or admissions made to a clergyman in the course of discipline
enjoined by the clergyman's church.
(B) A confidential communication made to a clergyman in the clergyman's
professional character as a spiritual adviser or counselor.
(4) Husband and wife, as to communications made to each other. As added by P.L.1-1998, SEC.42.
• Federal Rule of Evidence Rule 501
• Except as otherwise required by [law], the
privilege of a witness . . . shall be governed
by the common law . . . In civil
proceedings, . . .the privilege of a witness, .
. . shall be determined by state law.
• Generally, clergy privilege is recognized.
Obstruction of Justice
• 35-44-3-4 Obstruction of justice; exception
• Sec. 4. (a) A person who: . . .
• (2) knowingly or intentionally in an official criminal proceeding or
• (A) withholds or unreasonably delays in producing any testimony,
information, document, or thing after a court orders him to produce the
testimony, information, document, or thing; . . .
• commits obstruction of justice, a Class D felony.
• (b) Subdivision (a)(2)(A) does not apply to: . . .
• (C) member of the clergy; . . .
• is not required to testify under IC 34-46-3-1.
Other Sources of Legal
Confidentiality Protection
Mediators in administrative proceedings
Adult protective services
Reports of communicable diseases
School psychologists & Psychologists
Student alcohol and drug violations
Social workers or counselors
Employee assistance professional
Victim and victim’s counselor
Mental health service providers
Child Abuse Exception?
31-32-11-1 Admissibility of privileged communications
Sec. 1. The privileged communication between:
(1) a husband and wife;
(2) a health care provider and the health care provider's patient;
(3) a:
(A) certified social worker;
(B) certified clinical social worker; or
(C) certified marriage and family therapist;
and a client of any of the professionals described in clauses (A) through (C);
(4) a school counselor and a student; or
(5) a school psychologist and a student;
is not a ground for excluding evidence in any judicial proceeding resulting
from a report of a child who may be a victim of child abuse or neglect or
relating to the subject matter of the report or failing to report as required by IC
31-33. As added by P.L.1-1997, SEC.15.
Child Abuse Exception Cont..
• An unpublished Indiana Court Opinion
indicates that all persons, including clergy
must report suspected child abuse.
Accordingly, the same immunity from civil
action would apply to clergymen.
• Know your canons.
• Know your police agency rules.
• Most jurisdictions do not recognize clergy
malpractice, but might consider a breach of
fiduciary obligation.
• However, if a counseling is involved, a
violation might be considered professional
Waiver of Privilege
• The person who owns the privilege can expressly
waive it.
• Generally, statements made in front of a third
party waives the privilege.
• Generally, the person owning the privilege will
waive it if he reveals the content of the privileged
information to someone else.
• A few jurisdictions disqualify the Clergy as a
witness in court, so the privilege cannot be
What communication is
Generally, there must exist an expectation of
confidentiality and:
• (A) Confessions or admissions made to a
clergyman in the course of discipline
enjoined by the clergyman's church; or
• (B) A confidential communication made to
a clergyman in the clergyman's professional
character as a spiritual adviser or counselor.
to be considered privileged communication.
When can/must confidentiality be
• The communication reveals the
contemplation of a specific serious harmful
act (not general threats against society at
• Whenever state or federal law abrogates the
privilege (i.e., child abuse reporting)
• To defend yourself against allegations made
by the client/parishioner.
Rocca v. Southern Hills
Counseling Center, Inc.
• “We therefore observe the following. Southern
Hills had a statutory duty to keep the information
about the death threats confidential, but long
recognized public policy supports an exception to
the statute and gave Southern Hills the discretion
to disclose the information because such
disclosure promoted the prevention of a crime on
the part of Rocca.”
What if threatening or dangerous
communication goes unreported?
• Child abuse: Possible criminal penalties.
• Specific threat against a person: Civil
liability possible if: 1) person is injured; 2)
it was reasonably foreseeable that harm
would come to the victim.
• In Indiana, the Court will consider the relationship between the parties;
the reasonable foreseeability of harm to the person injured: and public
policy concerns.
Other sources of liability
• Defamation: Chaplains could be held liable
for spreading rumors about a person that is
detrimental to the person’s reputation.
• Employers are generally afforded limited
immunity from defamation liability for
legitimate, critical performance remarks as
part of an evaluation made on a need to
know basis only.
Sources of liability, Cont..
Section 1983 Civil Rights Actions
False Imprisonment
Impersonating a police officer
Other torts
42 USC Section 1983
• Person
• Under color of law
• Deprives another person of a protected right
• Is liable
For example, a Prison or Jail Chaplain that
requires inmates to pray before they are fed or
given liberties would be subject to this type of
• Even as an unpaid volunteer, you owe the
same public and private duties to society
and individuals as the government agency
of which you represent.
• When acting within the scope of your
duties, your agency can be held liable for
your negligent acts.
• In many jurisdictions, governments and
governmental employees are given immunity from
civil tort liability if the employees are acting in
good faith, within the scope of their duties, and
exercising a discretionary function.
• Some jurisdictions extend this immunity to
volunteers working for governmental entities.
Best Practices to reduce liability and
reduce the risk of confidentiality
• Arrange beforehand with client what will be confidential.
• Explain the conditions for confidentiality.
• Understand the laws, regulations, canons regarding privilege in your
• Select a place where confidentiality is preserved.
• Do not make notes when the client believes they may be discoverable.
• Do not speak anywhere or by means where you may be overheard.
• Do not discuss communications with others where confidentiality is
presumed by the client.
• Explain the consequences of revealing directly or indirectly, expressly
or implicitly confidential matters.
• Define the purpose of the chaplain’s office.
• Define the employment status of the chaplain(s).
• Define the duties and responsibilities of the
chaplain’s office.
• Define procedures for utilization of the chaplain.
• Define Confidential Communications.