The Law and Church Counseling: Part Five—Building Safeguards Into Your Ministry
Note: You’re reading Part Five in a blog mini-series on The Law and Church Counseling. Read Part One Caring Carefully, Part Two The Legal History and Climate, Part Three Scope of Care, and Part Four Quality of Care. I’m summarizing these posts from material in chapter twelve of Equipping Counselors for Your Church. To learn more about the book, which is now available for pre-order, visit Equipping Counselors.
Seven pertinent issues summarize the quality of care matters that every biblical counseling ministry should address: propriety, humility, referral, confidentiality, church discipline, documentation, and supervision. In Part Four, we examined the first three issues. Today in Part Five, we explore confidentiality and church discipline. 
Confidentiality in Biblical Counseling Ministry
Like each of the quality of care issues, confidentiality has legal meanings as well as biblical/ethical implications. In the legal realm, most states do not recognize a confidentiality privilege for lay Christian counselors who are not pastors. Privileged communication is codified in the law and means that a minister acting in his professional capacity as a spiritual advisor cannot be forced to reveal the content of confidential communications to any outside party, including a court of law. Confidentiality, on the other hand, is an ethical decision not to reveal what is learned in the context of a professional relationship, and it does not have legal protection.
Our focus is on the ethical and relational nature of confidentiality in biblical counseling and on a counselee’s expectation of confidential communication. Each biblical counseling ministry must develop clear organizational policies. These policies need to be in writing, explained to the counselee at the start of counseling, and signed. Embedded within The LEAD Biblical Counseling Ministry Welcome Form (see Appendix 11.1 of Equipping Counselors for Your Church) is the following statement:
Confidentiality is an important aspect of the spiritual friendship relationship, and we will carefully guard the information you entrust to us. All communications between you and our LEAD Spiritual Friendship offices will be held in strict confidence, unless you (or a parent in the case of a minor) give authorization to release this information. The exceptions to this would be: 1.) if a person expresses intent to harm himself/herself or someone else; 2.) if there is evidence or reasonable suspicion of abuse against a minor child, elder person, or dependent adult; 3.) if a subpoena or other court order is received directing the disclosure of information; 4.) if/when LEAD Spiritual Friends consult with their supervision; or 5.) if a person persistently refuses to renounce a particular sin (habitual unrepentant rebellion against the Word of God) and it becomes necessary to seek the assistance of others in the church to encourage repentance, restoration, and reconciliation (Matthew 18:15-20 and our Church Discipline Policy). Please be assured that our counselors strongly prefer not to disclose personal information to others, and they will make every effort to help you find ways to resolve a problem as privately as possible.
Some people assume that discussing and signing a policy like this would have a chilling effect on a person’s willingness to share personally. However, every legitimate counseling organization and ministry will have such a statement, so counselees will not find this out of the ordinary. By discussing this openly at the outset, you put counselees at ease.
Church Discipline and Biblical Counseling Ministry
As noted in the confidentiality statement, church discipline is one of the exceptions to confidentiality. The potential legal ramifications include invasion of privacy, defamation of character, publication of private facts, and infliction of emotional distress. Biblically, God’s Word contains guidelines designed to restore errant believers by bringing them to repentance and reconciliation with Christ and the Body of Christ (within or outside the context of a formal biblical counseling ministry).
Within the context of biblical counseling, counselees frequently bring to counseling their struggles to overcome besetting sins. Struggling against sin is not a cause for increased levels of church discipline intervention. However, persistent refusal to renounce a particular sin (habitual unrepentant rebellion against the Word of God) can lead to the initiation of a church restoration/discipline process.
Churches should create a written Church Discipline Policy (see Appendix 12.1 of Equipping Counselors for Your Church). It should be discussed with and signed by every new member, and it should be read at least once a year at an official church meeting. The policy should clearly spell out the biblical principles and practices, the spiritual motivations and goals, and the step-by-step process to which every member agrees to adhere.
To date, case law seems to support a church’s right to discipline members who have agreed to such discipline as part of the membership process. However, when members under discipline remove themselves from membership, at least some case law suggests that this withdraws the persons consent to participate in a spiritual relationship. Therefore, disciplinary actions no longer have First Amendment protection. Some would suggest that you only discipline members. Others would suggest that the church discipline policy explain that resignation from membership after the initiation of church discipline does not void the church’s responsibility to carry on the church discipline process.
If a counselee evidences continued unrepentant rebellion, it is essential that the church restoration/discipline policy be followed carefully. Each step of the process should be documented. If the process continues to the step of public discipline, the discipline announcement should be discretely shared at a members-only meeting.
The Rest of the Story
Join us for Part Six Counting the Cost as we learn two additional principles of scope of care in church counseling: documentation and supervision. We will also provide some “final thoughts.”
Join the Conversation
What additional principles would you add related to confidentiality and church discipline in church-based biblical counseling ministries?
With respect to confidentiality, one must also consult their local state laws on the subject of minsterial privilege. In some states, the privilege has been legally held to be a vaild exception to the mandatory reporting laws within the scope of child abuse cases, as the privilege has been once held by the U.S. Supreme Court that the right of ministerial privilege stems from the first-amendment’s free exercise of religion clause, particularly as it relates to catholic doctrine, though this has largely been extended to other religions, due to the operation of the first amendment anti-establishment clause.