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1、INTERNATIONAL CONFERENCE OF POLICE CHAPLAINS,LIABILITY AND CONFIDENTIALITY,http:/ OBJECTIVES,Define & explain: liability, confidentiality, ethics & privilege. Chaplains responsibility to maintain confidentiality. Determine when confidentiality ceases. Determine sources of chaplain liability. Describ
2、e 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 Chapl
3、ains Office standard operating procedure.,http:/ 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:/ In
4、ternal-church/police agency State Tort liability lawsuit Section 1983 Civil Rights lawsuit Criminal prosecution,http:/ 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 t
5、hat the receiver will not disclose the communication.,http:/ 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
6、the privilege can waive it.,http:/ 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 clerg
7、y privilege existed in criminal cases. Most European countries do recognize some form of privilege. Does your jurisdiction?,http:/ of Privilege,In 27 jurisdictions the law is not express as to who owns the privilege. In 17 jurisdictions the penitents right to hold the privilege is clearly stated. In
8、 6 jurisdictions the privilege belongs to both the clergyman and the penitent.,http:/ 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 h
9、ave been excluded.,http:/ 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 t
10、he 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:/ code of good or expected behavior. A code of ethics governs how various professionals should behave, such as lawyers, doctors, congressm
11、en, clergy, et cetera.,http:/ 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:/ acts are privileged?,34-46-3-1 Persons not required to testify Sec. 1. Ex
12、cept 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 t
13、o 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
14、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:/ FEDERAL RULE,Federal Rule of Evidence Rul
15、e 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.,http:/ of Justice,35-44-3-4 Obstruction of j
16、ustice; 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, docum
17、ent, 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.,http:/ Sources of Legal Confidentiality Protection,Mediators in administrative proceedings Adult pr
18、otective services Reports of communicable diseases School psychologists & Psychologists Student alcohol and drug violations Social workers or counselors Employee assistance professional Victim and victims counselor Mental health service providers,http:/ Abuse Exception?,31-32-11-1 Admissibility of p
19、rivileged communications Sec. 1. The 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 a
20、ny 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 relati
21、ng 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.,http:/ Abuse Exception Cont,An unpublished Indiana Court Opinion indicates that all persons, including clergy must report suspected child abuse. Accordingly, the same immunity from ci
22、vil action would apply to clergymen.,http:/ 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 prof
23、essional malpractice.,http:/ 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 e
24、lse. A few jurisdictions disqualify the Clergy as a witness in court, so the privilege cannot be waived.,http:/ 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 th
25、e clergymans church; or (B) A confidential communication made to a clergyman in the clergymans professional character as a spiritual adviser or counselor. to be considered privileged communication.,http:/ can/must confidentiality be abrogated?,The communication reveals the contemplation of a specifi
26、c 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.,http:/ v. Southern Hills Counseling Center, Inc.,“We therefore observe the
27、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
28、crime on the part of Rocca.”,http:/ 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 Indian
29、a, the Court will consider the relationship between the parties; the reasonable foreseeability of harm to the person injured: and public policy concerns.,http:/ sources of liability,Defamation: Chaplains could be held liable for spreading rumors about a person that is detrimental to the persons repu
30、tation. 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.,http:/ of liability, Cont,Section 1983 Civil Rights Actions False Imprisonment Impersonating a police officer O
31、ther torts Criminal,http:/ 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.,http:/ SUPERIOR,Even as an
32、 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.,http:/ many jurisdictions, governments and governmental emplo
33、yees 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.,http:/ Practices to reduce liability and re
34、duce 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
35、 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.,http:/ 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:/