Legal Liability Issues in Church-Based Mentoring and Counseling
Steps to minimize the risk of charges of negligence and the possibility of lawsuits
Doug Britton, MFT
Potential legal liability issues in mentoring
Marriage mentoring, youth mentoring, parent mentoring, and other types of mentoring provide an invaluable way for people to help each other in all areas of life. Many churches either have mentoring ministries or plan to start them. They sometimes refer to their mentors as biblical counselors or lay counselors.
Unfortunately, mentors can make mistakes that may result in misunderstanding, anger, or lawsuits. And — whether or not mistakes are made — anyone can sue anyone for anything.
However, you can greatly reduce the likelihood of serious problems by demonstrating good faith efforts and by reducing potential issues of negligence. Plus, by being careful, you can be a much more effective mentor.
Disclaimer: I am not an attorney and this should not be construed as legal advice. These suggestions summarize key themes I have learned in my efforts to become better informed about how to minimize charges of negligence. This is not an exhaustive list, nor are all the points thoroughly developed. But these suggestions can help you start to think proactively.
Laws and court decisions vary from locality to locality, and they constantly are changing. Speak with an attorney and/or insurance agent for legal and professional advice.
Take steps to avoid potential claims of negligence
If you are careful when setting up your mentoring ministry, you will:
- Reduce the risk of legal problems.
- Reduce the risk of misunderstandings or awkward situations.
- Improve the quality of your mentoring ministry.
Two key guidelines to reduce the risk of misunderstandings or charges of negligence:
- Be proactive and wise when setting up your ministry.
- Be self-aware when mentoring. Monitor what you say. (Don’t just ramble on!) A good question to ask yourself is, “Would I be comfortable with what I am saying if it were recorded and played in court or on the Internet?”
Take these steps before assigning biblical mentors
Obtain criminal background checks on prospective mentors. Also check the state’s (or province’s) sex offender list.
Work with your insurance company to provide liability insurance.
Write a confidentiality agreement. Be sure that it includes any exceptions such as legally-mandated reports of suspected abuse or neglect.
Provide training classes or seminars for the mentors.
Consider developing a written, board-approved process to license mentors as “lay pastors.” This may give them (and the church) greater legal protection.
Don’t just say that everyone in your congregation is a “lay pastor” (or whatever term you use). Set up a written licensing process. Steps to include in the process could be to say people must (1) receive training in mentoring, (2) be interviewed by the pastor, and (3) be voted on by the church board. If you do this, be sure to work with your denominational authorities (if any) and your attorney or insurance agent.
Decide what to call your mentors. The term “mentors” is safer than “counselors.” However, many people prefer to use the term “counselors.” If you choose to use “counselors,” it is safer to say “biblical counselors” or “spiritual counselors,” not just “counselors.” Do not give the impression that you provide psychological counseling.
Define the role of biblical mentors
Write a description of your church’s mentoring procedures. This will help improve the quality of biblical mentoring (or Bible-based lay counseling), and it will help minimize potential legal liability issues. Do not leave your mentors on their own to figure things out. The following ideas can help you get started. As I mentioned previously, these are general suggestions. Be sure to have your attorney and or insurance agent review them to be sure they are applicable in your locality.
Identify mentors as people who provide practical Bible-based theology and doctrine, not as psychotherapists or counselors who provide psychological counseling.
Do not practice psychological or psychiatric counseling (or “in-depth” counseling).
Do not interpret behavior based on someone’s background.
Do not give a psychiatric diagnosis.
Do not suggest medications or herbal supplements.
Provide practical Bible-based theology and doctrine. In other words, what they say is directly based upon what the Bible says.
Help people identify options, but do not give advice except (1) when necessary to protect someone’s safety or (2) to describe practical Bible-based theology or doctrine.
Monitor what they say. They are sensitive and wise.
Maintain strict confidentiality. They follow their confidentiality policy.
Do not assume that their spouse’s liability insurance covers them if their spouse is licensed as a minister or therapist.
Do not make audio or video recordings of their meetings.
Make legally-mandated reports of suspected abuse or neglect of a child, elder, or dependent adult, or any other legally-mandated reports.
Take necessary steps (including calling 911) if someone threatens serious bodily harm to someone else or serious harm to himself or herself.
Refer people to professionals when over their head. They refer people to pastors, counselors, doctors, or other professionals. (Two examples could be if someone is very depressed or anxious.)
Additional suggested mentoring guidelines to minimize legal liability issues
Meet couple-with-couple in marriage mentoring.
If meeting one-on-one, meet male to male, female to female. Even in these cases, your church may consider using an office with a window in the door or an open door to help protect against false accusations.
Related: Guard your heart when helping others
Keep brief written records of each time they meet, including the date, topic discussed, and biblical homework they suggested (if any). Their written comments are simple, objective, and factual. They are not impressions, opinions, interpretations, or diagnoses, They keep these notes securely locked in a cabinet or other locked contained which is located in a locked room.
Ask people who will be mentored to sign an agreement
Some points to include in your written agreement (you likely will want to add more than these):
Mentors provide practical Bible-based theology and doctrine. In other words, what they say is directly based upon what the Bible says. They do not practice psychological counseling or therapy.
Mentors are volunteers and not licensed clergy or licensed therapists (unless they are member of the clergy or licensed therapists).
Mentors will not offer medical advice. If they suspect someone has medical issues, they will suggest he or she gets a medical checkup. (Medical issues sometimes cause personal and relationship problems.)
Mentors will make legally-mandated reports, including suspected abuse or neglect of a child, elder, or dependent adult.
Mentors will take necessary steps (including calling 911) if someone threatens serious bodily harm to someone else or serious harm to himself or herself.
Conciliation agreement if there is a conflict with a mentor. Include a procedure for resolution of conflicts with mentors through conciliation (as opposed to subpoenas, litigation, and other court proceedings).
Which of the above points will help you in your mentoring ministry?
Which attorney or insurance agent will you meet with to be sure your policy meets all legal and ethical requirements in your area?
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About Doug Britton, MFT
Doug Britton, Bible-based Marriage and Family Therapist, has helped hundreds of thousands of people as a therapist, clinical director of a treatment center, seminar speaker, radio cohost, and author of over twenty books that show how to apply God's truths in your daily life. (Visit www.dougbrittonbooks.com.)
Copyright © 2020 Doug Britton. Permission granted to print for personal use. (Scripture verses are from the New International Version, copyright © 1984.) See reprint policy.