Legal Guidelines for Lay Counselors

Legal Guidelines for Lay Counselors

Risks and risk management for your lay counseling program.

Note: this article has been excerpted from the SmallGroups.com training download Launching a Lay Counseling Ministry.

Counseling ministries can serve a significant nurturing function—both in a church as a whole and a small-group ministry. But they are not immune from legal risk. Church leaders need to know the risks of a lay-counseling program and how to manage them before offering counseling services.

The Risks

Negligent counseling
The risk of negligent counseling can arise in a number of ways: a counselee may claim that his emotional problems were aggravated rather than helped by lay counseling. Or a person may claim that the counselor is responsible for the suicide of a counselee who was not referred. This is in contrast to clergy counselors, who are virtually immune from liability if they fail to report a suicidal person.

Child abuse reporting
Counselors may receive confessions of child abuse or information giving them reasonable suspicion that abuse has occurred. It is imperative for church leaders to obtain a copy of their state child abuse reporting statute and ensure that all counselors are aware of their reporting obligations under state law. Remember: these laws change frequently.

Seduction of counselees
Private counseling sessions involving dependent or emotionally vulnerable persons can present formidable temptations. If inappropriate sexual contacts are initiated, or even falsely accused, there can be substantial damage to the victim and the victim's family.

The costs of such behavior or accusations often devastate the counselor, as well, and can lead to criminal charges, removal from ministry, and unavailability of insurance coverage for either a legal defense or payment of damages.

Confidentiality
Counselors (and the church) can be sued if they intentionally or inadvertently disclose confidential information to third parties. This can occur in several ways—for example, if the counselor directly communicates the information, or if the counselor's counseling notes are accessible to church staff. Counselors need to be strictly admonished to maintain the confidences. The one possible exception is child abuse reporting.

Negligent hiring
The church must screen candidates to ensure the suitability of prospective counselors for a counseling ministry. This should include a screening form, references, background check, and contacts with other churches the counselor has served.

Negligent supervision
Church leaders must ensure that trained and licensed mental health professionals supervise unlicensed lay counselors. Policies should also be developed that set forth standards on issues such as suicidal counselees, counselees threatening to harm others, counselees who confess to criminal activities, and counselees who are child abusers. Lay counselors should not attempt to diagnose multiple personality disorders or engage in controversial therapies. Finally, counselors also need policies for how and when to refer a crisis case to a professional.

Fees
Some churches charge or recommend a fee for counseling services. Leaders need to know that these fees are not tax deductible as charitable contributions. To be deductible, payments must be voluntary, and no preference given to those who can afford to pay.

Risk Management

Here are several strategies for controlling the risks that threaten your counseling program:

  • The "third person" rule. This rule prohibits any male counselor from counseling privately with an unaccompanied female unless a third person is present.
  • Women counsel women. Churches can significantly reduce their risk by using women to counsel women.
  • Windows. Install a window in the counselor's office, making all counseling sessions clearly visible to office staff. Of course, such a precaution is effective only if other staff members are present and visible throughout the counseling session.
  • Open doors. This strategy fulfills the same goal as windows: making counseling sessions clearly visible to office staff.
  • Telephone counseling. Many smaller churches have no "staff" present and visible in the church office during counseling sessions. Some of these churches limit opposite sex counseling sessions to those conducted by telephone.
  • Video cameras. Some churches have installed a video camera (without audio) in the office where counseling occurs. The video can be transmitted to a monitor in another location in the church where it is observed by a church employee or recorded for later review.
  • Boundaries. It is very common for a counselee to develop feelings for his or her counselor. This is known as the principle of "transference." Counselors must be aware of this principle and take precautions to avoid inappropriate behavior.
  • Truth in advertising. Counselees need to know that lay counselors are engaged solely in spiritual counseling based on their understanding of the Bible, and they are not engaged in the practice of psychology, professional counseling, or psychotherapy.
  • Consult with a lawyer. Churches should have their lay counseling ministry and policies reviewed by a competent legal professional.

—Richard Hammar is an attorney, CPA, and author specializing in legal and tax issues for churches and clergy. He serves as Editorial Advisor for www.ChurchLawandTax.com.

Reflect

  1. Why is lay counseling valuable despite these risks?
  2. Which individuals or committees need to be involved as we establish policies and procedures for our lay counseling ministry?
  3. Beyond legal advantages, what are some benefits of these risk management strategies?

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