B5 - CONFIDENTIALITY & LEGAL LIABILITY

Instructor – Dr. Paul Ellis

© 2007 Charteris Foundation

Disclaimer

The instructor of this course is not an attorney. The information contained herein is meant for

educational purposes only and is not intended to be, nor in lieu of legal advice.

Should the student have specific legal questions— qualified legal counsel should be obtained.

Objectives

– Raise your level of consciousness………..– Give you a template of how confidentiality

works…….– Look at exceptions and/or special

circumstances to the confidentiality rules…..

IMPORTANTIt is incumbent upon the

student to take this information back to his/her church,

denomination or department and find out how it applies to

them!

Black nor White

But many shades of gray……..

How Important Is Confidentiality?

No other subject that we deal with as chaplains will have as much potential to destroy the chaplain or chaplaincy as the misuse or breach of:

Confidentiality!

How Important Is Confidentiality?

Reality Says……

Issues of confidentiality are:

High Liability — Low Probability

Front Loaded

• Just like trying to get the tooth paste back in the tube!!

Darn near impossible!!

Confusion Relative To Confidentiality

• Confidentiality is a umbrella term• Most clergy do not understand it• Differences in application by

denominational/organizational structure

• Confusion with church discipline cases• Laws are ever changing

Where Do We Begin?

Two Types Of Confidentiality

1. Ethical/Moral/Professional

Simply stated, this is what is expected of any member of the clergy when told something in confidence … that whatever is told to them or they hear will remain confidential.

Two Types Of Confidentiality

2. Privileged Communication

“Statutory Protection” that enables a member of the clergy to receive certain communications in the context of his/her pastoral capacity, and being immune from testifying to the same in a court of law.

Privileged Communication

1. Statutory Protection—Where??2. Evidence Code3. “Rules Of Evidence”4. Admissibility In Court

You do not need to memorize these codes, but you absolutely need to know where they are found and how they work.

General Rules

• General Rule Of Privilege:

1. No person has a privilege to refuse to be a witness.

2. No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.

3. No person has a privilege that another shall not be a witness or shall disclose any matter or shall not produce any writing, object, or other thing.

But with most rules there are exceptions......

Penitential Communication

• “Penitential Communication”“A communication made in confidence, in the presence of no third person so far as the Penitent is aware, to a clergyman who, in the discipline or practice of his church, denomination, or organization, is authorized or accustomed to hear such communications and, under the discipline if his church, denomination, or organization, has a duty to keep such Communications secret.”

(California Evidence Code)

This is the outcome of what is called a Priest/Penitent or Clergy Penitent relationship.

Penitential Communication

What laws has your State passed?Are you aware of what laws apply to you and how your State defines the terms within those laws?

Let’s look at those States represented here

Definitions

• “Clergyman”

“A priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization.”

(California Evidence Code)

Definitions

• “Penitent”

“A person who has made a penitentialcommunication to a clergyman”. (California Evidence Code)

Protected Relationships

• Lawyer/client• Physician/patient• Psychotherapist/patient• Clergyman/penitent• Husband/wife

Confidentiality Ends When......

• “Public Peril”Many courts have said that the rights to protect an innocent third party outweigh the right of confidentiality. How do we determine this?

“PAST VS FUTURE”

Confidentiality Ends When......

• “Third Party”

“Not in the presence of a third person”...

There is no confidentiality in group settings!

Confidentiality Ends When.....

• “Professional Capacity”

You must be acting in your professional

capacity...........

When are you not a clergyman?

Confidentiality Ends When.....

• “Child Abuse”

There is no confidentiality if you aremandated to report and.........

Dual Duties?Confidentiality vs.

Mandated Reporting?

Confidentiality Ends When.....

• “Domestic Violence”

When statute or laws say so…

Group Exercise

You and another person are at a homicide scene and are told by a women that she did in fact commit the crime at hand.

You are riding with a officer and he confesses that he killed his wife 3 years prior when it was thought to have been an accident.

You have been counseling an officer for anger and he tells you that he is going over to kill his wife after work. You believe this is a credible threat.

A person tells you while making a penitent confession that he killed his child last year. He then goes on to describe the crime.

A trucker drops off a lady he found on the side of the road who has been raped and badly beaten. She is coughing and spitting up blood. As she is waiting for the officer to take her to the hospital she confides in you that she has AIDS.

American’s with Disability Act (ADA)

• Federal Law• Supersedes state law• Not meant to be a confidentiality statute.• “Discrimination” issue• Violation is a civil rights violation

Q & A

Questions & Answers