“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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