States have taken three steps in the area of regulating counseling activities that clergy members must be aware of if their communications with individuals of their congregations reach any depth beyond casual conversation: (1) States have defined by statute what they consider to be the provision of mental health services and, similarly, who is to be considered a mental health service provider; (2) States have implemented strict regulations with respect to the provision of mental health services; and (3) States have recognized and fostered numerous remedies, through statute or common law, addressing malpractice issues arising in the context of counseling services.
It is your obligation to familiarize yourself with the laws governing your jurisdiction, but you will probably find that except for the existence of one narrow statutory exception, the activities you engage in would otherwise necessitate the issuance of a license by your state (after you have met other requirements) and constitute the provision of mental health services by a mental health services provider.
This is because the nature of the matters you are presented with as a member of the clergy are not inherently different from other mental health conditions presented to mental health providers.
If you allow yourself to be held out as a provider of services to people seeking relief from their conditions, then the services you perform will be presumed to be mental health services, and the fact that you are a member of the clergy offers you no insulation in the majority of jurisdictions.
The important exception mentioned above that separates your services from those of a licensed professional counselor is the self-imposed limit you recognize and strictly abide by in responding to each issue the counselee presents. That is, the majority of courts draw a distinction between a clergy member providing religious, moral and biblical counseling, teaching and instruction (spiritual counseling), and one providing assessment, diagnosis, treatment or counseling that amounts to mental health services, as each state defines that term.
Crossing this line can be dangerous. Most states have well-defined training and certification requirements for individuals seeking a license to perform counseling dealing with mental health and emotional well-being. Performing those services without a license violates the state's certification requirements.
As long as you make certain your counseling deals specifically with spiritual issues, taking care not to stray into diagnosing or treating the problems you perceive, you help protect yourself from malpractice-related liability because matters of biblical and spiritual interpretation are traditionally protected from scrutiny by the courts.
Check the laws of your state. The following points are offered as suggestions to help protect you and your church:
1. Release. Secure a written release from each counselee acknowledging that they are seeking, and the church is providing, spiritual counseling only, and disclaiming any form of mental health, nonspiritual counseling.
2. Research. Consult the laws of your state pertaining to background checks or inquiries and make inquiries to all prior employers of counseling pastors.
3. Review. Review the law with your staff as well as their procedures and counseling activities (take reasonable steps to prevent improper conduct).
4. React. React immediately if it comes to your attention that a pastor may be interacting inappropriately with a counselee or a church member in general (take appropriate steps to stop inappropriate conduct and report it to the proper authorities).
5. Retain. Always retain legal counsel upon suspecting misconduct or receiving an allegation.
David Middlebrook is an attorney in Irving, Texas, and author of The Guardian System (published by Strang Communications).