Thursday, October 30, 2014

A discussion on the mening of confidential privilege, the laws in my state that provide for this priviliege and the extent to which it applies to clergy-lay communications in my community



               “Confidentiality refers to the ethical duty… not to disclose information learned… to any other person or organization without the consent of the (person) or under proper legal compulsion.” (M.D.) Privileged communication is defined as:
 An exchange of information between two individuals in a confidential relationship.
A privileged communication is a private statement that must be kept in confidence by the recipient for the benefit of the communicator. Even if it is relevant to a case, a privileged communication cannot be used as evidence in court. Privileged communications are controversial because they exclude relevant facts from the truth-seeking process.
Privileged communications exist because society values the privacy or purpose of certain relationships. The established privileged communications are those between wife and husband, clergy and communicant, psychotherapist and patient, physician and patient, and attorney and client.
These relationships are protected for various reasons. The wife-husband and clergy-communicant privileges protect the general sanctity of marriage and religion.” (West's Encyclopedia of American Law)

Defining these two concepts is very important from the standpoint of a clergy when information is being disclosed by a lay-person. As a clergy person we need to know what the law allows and what it prohibits so that we can make the proper ethical decisions when faced with a situation where it is in the safety of a lay person to act upon information we are given.

               In Arkansas we have the following laws and regulations when it comes to confidential and privilege information/communications: (Arkansas State Code)

Ark. R. Evid. 505 (2012). Religious Privilege
(a)    Definitions. As used in this rule:
(1)    A “clergyman” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2)    A communication is “confidential” if made privately and not intended for further disclosure except to other person present in furtherance of the purpose of the communication.
(b)    General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.
(c)     Who May Claim the Privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.

Ark. Code Ann. 12-18-402 (2012). Mandated Reporters
(a)    An individual listed as a mandated reporter under subsection (b) of this section shall immediately notify the Child Abuse Hotline if he or she:
(1)    Has reasonable cause to suspect that a child has:
(A)    Been subject of child maltreatment; or
(B)    Died as a result of child maltreatment; or
(2)    Observes a child being subject of conditions or circumstance that would reasonably result in child maltreatment.
(b)    The following individuals are mandated reporters under this chapter:
….
(29) A clergy member, which includes a minister, priest, rabbi, accredited Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting him or her, except to the extent the clergy member
(A) Has acquired knowledge of suspected child maltreatment through communications required to be kept confidential pursuant to the religious discipline of the relevant denomination or faith; or
(B) Received the knowledge of the suspected child maltreatment from the alleged offender in the context of a statement of admission;

Ark. Code Ann. 12-18-803 (2012). Privileged communications as evidence—Exception
(a)    It is the public policy that the State of Arkansas to protect the health, safety, and the welfare of children within the state.
(b)    No privilege, except that between a lawyer and client or between minister, including a Christian Science practitioner, and a person confessing to or being counseled by the minister shall prevent anyone from testifying concerning child maltreatment.
(c)     When a physician, psychologist, psychiatrist, or licensed counselor or therapist conducts interviews with or provides therapy to a subject of a report of suspected child maltreatment for purposes related to child maltreatment, the physician, psychologist, psychiatrist, or licensed counselor or therapist is deemed to be performing services on behalf of the child.
(d)    An adult subject of a report of suspected child maltreatment cannot invoke privilege on the child’s behalf.

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