Counselors’ Liability – The What-Ifs?

When analyzing your church’s insurance coverage, an important issue to consider is counselor’s liability. In our modern litigious climate, many personal interactions between the clergy and the public can be risky, but pastoral counseling is an integral aspect of church service. Religious communities have traditionally sought to provide spiritually-based solutions for those in trouble. Church leaders have listened intently to parishioner’s problems for centuries, and have provided help to troubled individuals, families and marriages, and special focus support groups.


Liability Coverage

Basic liability coverage should provide protection should a pastoral counseling client claim illness or injury as a result of pastoral counseling. This coverage does not usually apply to ordained clergy working as a professional therapist/counselor. Coverage for bodily injury, emotional injury, or personal injury arising from counseling acts undertaken by your pastoral counselor or trained lay counselor may be provided through optional endorsement coverage. Incidental counseling liability is also available through some church insurance specialists. An umbrella liability policy provides higher limits of insurance for your general, automobile, and counseling liability exposures.


How Your Church Can Minimize Liability

A primary goal of all religious institutions should be to develop strategies of minimizing their liability for church-related counseling services for the protection of the church and the parishioner. Usually a policy statement by the parish or diocese is helpful in establishing and maintaining these boundaries. Some churches have professional counseling services available on the church premises. These counseling centers, whether operating as a tenant or as a church- sponsored activity, require separate professional liability insurance. Liability coverage for professional counseling centers is available through many church insurance providers.


Have a Prevention Plan

Many churches have been sued as a result of the sexual misconduct of ministers during counseling activities. Sadly, many of these allegations are true. However, some are false, but it is very difficult for ministers to “prove their innocence,” since it is “my word against theirs.” A church can significantly reduce its risk of such incidents and of false allegations in a number of ways.


The best way to prevent claims of sexual misconduct being made against your church is to minimize the situations in which they can arise. Certainly there are occasions when someone on your pastoral staff must meet one-on-one and in solitude with a member to provide counseling or a chance for confession or prayer. But routine administrative meetings don’t have to be conducted that way. And if there is a door to the minister’s office, closing it should be the exception and not the rule.


Likewise, staff visits to people’s homes are often necessary. But there are other occasions when meetings can take place at the church or a public place like the local Starbucks. Ministers should be encouraged to meet parishioners away from their homes when appropriate. And if your minister lives alone, it is hard to think of any occasion on which he or she should be hosting a meeting with an individual. Don’t let your minister ignore these concerns, as doing so will expose the entire church to lawsuits and liability.


Adopt a rule forbidding any counseling by male pastors with unaccompanied females without a third person’s being present. The third person can be the pastor’s spouse or another staff member. Require the pastor to engage in opposite-sex counseling only by telephone. A less-effective approach is to prohibit off-premises counseling without a third person present, and to restrict counseling on church premises. Such restrictions could include a requirement that opposite-sex counseling occur only during office hours, be limited to not more than 45 minutes, and a maximum of four sessions with the same person. Of course, some exceptions would be in order for any of these approaches (for example, when the counselee is a relative or above a certain age).


The Nature of Pastoral Counseling

Pastoral counseling associated with ordained ministry is quite different from the therapeutic disciplines. Pastoral counseling usually involves a conversation regarding a spiritual concern, a religious question, a life-changing occurrence such as a death in the family, or an upcoming marriage. It is brief in nature – usually 3 or 4 sessions maximum.


Ordained clergy should refer clients to a professional therapist/counselor when it becomes evident that the presenting concern is beyond the scope of pastoral counseling, or when the maximum number of sessions is reached. Ordained clergy are not psychotherapists, marriage family and child counselors, clinical social workers or licensed counselors. They must establish boundaries to facilitate the appropriate care for those requesting counseling.


Some activities that take place on church premises, church-sponsored activities such as lay spiritual direction and renewal gatherings may be interpreted by participants as counseling activities although they do not fit the definition of either type of counseling. It is recommended that prospective participants in these types of activities should sign a release of liability and hold-harmless agreement stating that they understand the nature of the activity and accept personal responsibility for their participation.


Lawsuits That Have Involved Pastoral Counseling

Lawsuits involving negligent counseling and other significant claims include (University of Akron):

  • Assertions of negligent counseling by a protestant minister resulting in a parishioner’s suicide
  • Negligent marital counseling resulting in a sexual relationship between a Roman Catholic priest and a parishioner
  • Disclosure of confidential communications by an ordained Baptist minister to church officials and parishioners
  • Defamation of a parishioner-counselee by a pastor after the parishioner terminated their marital counseling relationship
  • Invasion of privacy by a pastor who agreed to provide family counseling to a husband and wife and their children


The Best Protection

Minimizing liability for church-related counseling services is imperative in view of the frequency and increased number of lawsuits being brought against churches, pastors, and other church officials in recent years. Various legal practitioners and scholars have recommended that churches and other religious organizations do the following to minimize their liability:

  • Take reasonable care in hiring pastors.
  • Adopt and follow a pastoral counseling policy emphasizing biblical advice as opposed to mental health or family therapy.
  •  Employ counseling agreements.
  • Refer parishioners to psychiatric or other professional counselors if necessary.
  • Avoid counseling persons under particular situations, especially members of the opposite sex.
  • Keep records of the counseling sessions.
  • Comply with state licensing laws applicable to professional counselors.
  • Procure professional liability insurance that covers negligent acts, and other omissions and errors committed by pastors and others with counseling responsibilities.

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