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1、INTERNATIONAL CONFERENCE OF POLICE CHAPLAINS,LIABILITY AND CONFIDENTIALITY,http:/,LEARNING OBJECTIVES,Define&explain:liability,confidentiality,ethics&privilege.Chaplains responsibility to maintain confidentiality.Determine when confidentiality ceases.Determine sources of chaplain liability.Describe
2、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 Chaplains Off
3、ice standard operating procedure.,http:/,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 anothers injuries or damages.It can be negligent or intentional.,http:/,R
4、EMEDIES,Social-PoliticalInternal-church/police agencyState Tort liability lawsuitSection 1983 Civil Rights lawsuitCriminal prosecution,http:/,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 c
5、ommunication has an expectation that the receiver will not disclose the communication.,http:/,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
6、clergyman and only the person who owns the privilege can waive it.,http:/,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 Austr
7、alia and Canada have ruled that no clergy privilege existed in criminal cases.Most European countries do recognize some form of privilege.Does your jurisdiction?,http:/,Ownership of Privilege,In 27 jurisdictions the law is not express as to who owns the privilege.In 17 jurisdictions the penitents ri
8、ght to hold the privilege is clearly stated.In 6 jurisdictions the privilege belongs to both the clergyman and the penitent.,http:/,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 b
9、een included.Non-Ordained church counselors have been excluded.,http:/,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 s
10、he 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.,http:/,ETHICS,A code of good or expected behavior.A code of ethics governs how various professionals should
11、behave,such as lawyers,doctors,congressmen,clergy,et cetera.,http:/,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.,http:/,What acts are privileged?,34-
12、46-3-1 Persons not required to testifySec.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
13、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 c
14、ourse of discipline enjoined by the clergymans church.(B)A confidential communication made to a clergyman in the clergymans 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.,http:/,U.S.FEDERAL RULE,Fe
15、deral Rule of Evidence Rule 501Except 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.,http:/,Obstruction of Justice,35-44-3-4 Obstr
16、uction of justice;exceptionSec.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 t
17、hing;.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.,http:/,Other Sources of Legal Confidentiality Protection,Mediators in administrative proceedingsAdult protective servicesReports of
18、communicable diseasesSchool psychologists&PsychologistsStudent alcohol and drug violationsSocial workers or counselorsEmployee assistance professionalVictim and victims counselorMental health service providers,http:/,Child Abuse Exception?,31-32-11-1 Admissibility of privileged communicationsSec.1.T
19、he privileged communication between:(1)a husband and wife;(2)a health care provider and the health care providers 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)t
20、hrough(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 repo
21、rt as required by IC 31-33.As added by P.L.1-1997,SEC.15.,http:/,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.,http:/,LIABILITY F
22、OR 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.,http:/,Waiver of Privilege,Th
23、e 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
24、 a witness in court,so the privilege cannot be waived.,http:/,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 clergymans church;or(B)A confidential communic
25、ation made to a clergyman in the clergymans professional character as a spiritual adviser or counselor.to be considered privileged communication.,http:/,When can/must confidentiality be abrogated?,The communication reveals the contemplation of a specific serious harmful act(not general threats again
26、st 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.,http:/,Rocca v.Southern Hills Counseling Center,Inc.,“We therefore observe the following.Southern Hills had a statutory duty to
27、 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.”,http:/,What if threat
28、ening 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 th
29、e parties;the reasonable foreseeability of harm to the person injured:and public policy concerns.,http:/,Other sources of liability,Defamation:Chaplains could be held liable for spreading rumors about a person that is detrimental to the persons reputation.Employers are generally afforded limited imm
30、unity from defamation liability for legitimate,critical performance remarks as part of an evaluation made on a need to know basis only.,http:/,Sources of liability,Cont.,Section 1983 Civil Rights ActionsFalse ImprisonmentImpersonating a police officerOther tortsCriminal,http:/,42 USC Section 1983,Pe
31、rsonUnder color of lawDeprives another person of a protected rightIs liableFor 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.,http:/,RESPONDEAT SUPERIOR,Even as an unpaid volunteer,you owe the same publi
32、c 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.,http:/,Immunities,In many jurisdictions,governments and governmental employees are given immunity from c
33、ivil 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.,http:/,Best Practices to reduce liability and reduce the risk of confidentia
34、lity 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 d
35、iscoverable.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.,http:/,ESTABLISH A POLICY,Define the purpose of the chaplains office.Define the employment status of the chaplain(s).Define the duties and responsibilities of the chaplains office.Define procedures for utilization of the chaplain.Define Confidential Communications.,http:/,
