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NewLife Christian Counseling Ministry |
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There is Hope! |
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Privacy Assurances |
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Religious Counseling: 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 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 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 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. 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. |
