INTERNATIONAL CONFERENCE OF POLICE

CHAPLAINS

LIABILITY AND CONFIDENTIALITY

By: Thomas N. Davidson, J.D.

LEARNING OBJECTIVES

• 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.

LIABILITY

• 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.

REMEDIES

• Social-Political

• Internal-church/police agency

• State Tort liability lawsuit

• Section 1983 Civil Rights lawsuit

• Criminal prosecution

CONFIDENTIAL COMMUNICATION

• 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.

PRIVILEGED 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 privilege.

• Courts in Western Australia and Canada have ruled that no clergy privilege existed in criminal cases.

• Most European countries do recognize some form of privilege.

• 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 ordained.

• Nuns and Elders have sometimes been included.

• Non-Ordained church counselors have been excluded.

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 ministry.“

• Whether he or she is "accredited by" a church body.

• 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.

ETHICS

• A code of good or expected behavior. A code of ethics governs how various professionals should behave, such as lawyers, doctors, congressmen, clergy, et cetera.

RESPONDEAT SUPERIOR

• 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 agent.

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 communications:

• (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.

U.S. FEDERAL RULE

• 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 investigation:

• (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.

LIABILITY FOR VIOLATING PRIVILEGE

• 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 malpractice.

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 waived.

What communication is privileged?

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 abrogated?

• The communication reveals the contemplation of a specific serious harmful act (not general threats against society at large).

• 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

• Criminal

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 action.

RESPONDEAT SUPERIOR

• 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.

Immunities

• 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

breaches• Arrange beforehand with client what will be confidential.

• Explain the conditions for confidentiality.

• Understand the laws, regulations, canons regarding privilege in your jurisdiction.

• 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.

ESTABLISH A POLICY

• 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.