Confidentiality Misunderstood
Confidentiality is one of the most misunderstood of all boundaries issues. The misunderstanding of its limits can cause an unhealthy ministry relationship to develop in no time. knowing how it can protect you and how it can trip you up is an essential tool you can use to make your ministry stronger, your church healthier, and your system the non-anxious presence you want it to be.
When is a conversation confidential?
Confidentiality exists in a communication between two people. Once a third person is introduced into a conversation—whether live or by electronic means—there is no confidentiality. This is true even if all parties to the communication declare it so.
In ministry, this is especially important, because clergy persons can be subpoenaed to testify to non-confidential, non-confessory disclosures made to them, in their presence, or by electronic means when the clergy person is a party to the conversation.
Are confessions protected confidential statements?
Yes, with some exceptions:
1. The confession has to be one-on-one with a clergy person who is acting at the time in their role as a clergy person and the disclosure is identified as confessor in nature.
Example: A parishioner of a clergy person calls the pastor on the telephone and tells the pastor she feels bad because she has stolen money from her employer. If no one else is on the call, this is a confidential disclosure and the clergy person may not reveal it without the express permission of the declarant. The clergy person may not testify about the disclosure in any legal or ecclesiastical proceeding without the express permission of the declarant.
2. The confession, to be privileged, must not fall within mandatory reporting categories under state law. A confession as to child abuse of a living minor under the age of 18 is not a confidential disclosure and must be reported to either law enforcement or child protection agencies of the state without delay. Every state’s law on mandatory reporting is different, so check the law in your state. Generally, child abuse includes: physical abuse, emotional abuse, neglect, or abandonment. In many states, the presence of a child where controlled substances are being manufactured also constitutes child abuse subject to mandatory reporting. I have available in RESOURCES on this website a class on Mandatory Reporting Requirements that I can teach for you, customized to your state.
Most states now have mandatory reporting laws concerning the abuse of elderly or at-risk adults. Again, check your state’s law as to these issues and requirements. As part of the training I offer on Mandatory Reporting, abuse of these vulnerable population groups is also covered.
Example: A parishioner calls the church President and asks her to arrange with the church pastor an in-person visit to her elderly mother who is living in a senior care facility. This is to be a drop-in visit, as the parishioner has concerns about how her mother is being cared for by the staff. The church President calls the pastor, but instead of relaying the information as she was told it, instead tells the pastor that she, the President, suspects the parishioner is not taking proper care of her mother. The call from the church President to the pastor is confidential. It is one-on-one and the pastor is acting within his role as a clergy person. At this time, there is no mandatory reporting duty on the part of the clergy person. There is a duty to personally follow up on the information received, either through a phone call or calls to relatives of the elderly woman or through a personal visit with the woman. The clergy person may not disclose either to the elderly woman or to her family what the church President said about the situation.
3. A person confessing a desire or a plan to do another person physical harm, to do themselves physical harm, or to do financial harm to a protected person (minor child or at-risk adult), with the present ability to bring about the threatened injury, is not a protected confidential statement. The best practice is to tell a person up front who wants to “confess something” that it can be held private unless there is a duty to report it (and then list those categories: child or at-risk adult abuse, threat to harm someone else, or threat to harm oneself).
Example: In a spiritual counseling session with the pastor, a congregant starts a rant about how “somebody ought to take out” the leader of a foreign country. This is likely a confidential, though alarming, statement, unless the congregant indicates he is traveling soon to where the foreign leader will be. Further inquiry may be helpful to the pastor in determining whether this is a credible threat or a mental health issue for the congregant. Only credible threats are reportable and unprotected language.
Example: A woman tells her pastor that against her better judgment, she is going home for Thanksgiving. Her brother will be present and the two siblings do not agree on politics. In fact, her brother “is always looking for a fight.” The woman tells the pastor that he better not bait her on this trip, because she will “shoot him dead” if he does.
This is a confidential conversation, and not reportable, because there is no present ability to carry out the threat and the threat is conditional on some other action by another person. It is a counseling opportunity, but it is confidential and the pastor cannot warn other family members or law enforcement about what he has heard.
Who can waive confidentiality?
Only the person who possesses the information may waive confidentiality. One exception: if the person to whom the disclosure is made is the one being threatened with harm, there is no confidentiality and the person at risk may report the conversation to anyone who may help keep them safe or who is involved after the fact.
Example: A parishioner emails his pastor following Sunday worship and, upset about the sermon the pastor preached, threatens her in the email that he is going to “burn your house down so that you will leave this town.” This is not a confidential communication and should be immediately reported to law enforcement.
What is “stale” confidentiality?
Stale confidentiality is when there is a slip up well after the time of a confidential disclosure and the protected information is referenced to the declarant or to others. This typically happens in anger or as a manipulation, as in lording sensitive information over someone or using it to one’s own advantage.
Example: In a church worship team meeting, a disagreement becomes heated over music to be performed during Advent. The music director blurts out in the direction of the pastor, “You know I am right about this! You have told me more than once that our soloist has been in rehab lately and can’t be trusted to show up sober for rehearsal!”
Other ways to limit exposure:
Limit the Access. When more than two people are in a conversation, there is often an agreement between them to “keep this confidential.” That is confidentiality misunderstood, because once a third person is introduced into a communication, it is no longer confidential, even by agreement. The parties can agree to limit the access to the information, but this is an informal agreement and is not binding on anyone. For a limited access agreement to work, all parties must act in good faith to protect the communication.
Information, especially juicy information, tends to leak out, despite the best planning and swearing to keep the information secret or protected. When sensitive information is leaked, damage control takes the form of explanatory statements, denials and accusatory blaming behavior, outright lying for gain, and runaway rumors and gossip. The lesson is to be very circumspect in what you disclose and in who you disclose it to.
Covenantal Privacy. This is a term I came up with to be used in situations where confidentiality is not possible due to the number of communicants or the subject matter of the disclosure, but there is a need and mutual desire to protect the communication from leakage, rumor, and gossip. This is a sacred promise between persons to be in covenant with one another in protecting the privacy of the subject matter and disclosure. It raises the level of the protection to a spiritual one in the hopes that information will be held in sacred, prayerful space until and unless all parties agree that it can be shared and how it will be shared.
Example: The pastor shares with the Pastoral Relations Committee that he and his husband will be divorced. They have three small children and have agreed to share custody and parenting time, divide assets and debts fairly, and keep the situation from ruining either the pastor’s ability to help financially support the family or the family’s social reputation and contacts in the community. Knowing this is not a confidential disclosure because it is made to a number of people in the room, the pastor asks that they hold him, his husband, and the children in prayer and that this disclosure be held by them in covenantal privacy until he and the committee can jointly draft and disseminate a public statement to the congregation about the divorce. All parties see the need to protect the information and they covenant to hold it private until the pastor deems the time is right to make the disclosure. They further agree that what has been said in the meeting will be held in covenantal privacy and they will not disclose the details of the conversation to anyone outside the room. This allows the church system to avoid as much anxiety, rumor and gossip as possible given the circumstances, and demonstrates both non-anxious presence and healthy ministry relationships within the church.
Can social media closed groups ever be “confidential” sites?
No, no, and in case you did not understand what I just wrote, NO. Social media sites are NOT confidential, no matter who says it, no matter what your expectation may be. Social media postings and conversations are open and public information and may be used by any person with direct or secondary access (through exposure and leakage) for any purpose. There is NO recourse should your posting be leaked outside the group.
Example: On a closed group social media site for clergy who like to hike in the mountains, you complain that your senior pastor—your supervisor—assigned you, the associate pastor, to the youth ministry program. Your posting has f-bombs in it and makes personal allegations about the “autocratic bulls---t that always goes on at the church.” You say you are likely to resign your post over the insult to your skills and call. The senior pastor is not a participant on this group site. You think because it is a closed site that the information you disclosed is confidential, to be seen and shared only as between clergy who are on the closed group. The next week, the senior pastor calls you in and fires you for your post, because it has put him and the church in a bad light. “How did you get the information about the post?” you demand. “That was a confidential post on a closed site!” The pastor tells you another clergy friend told him about it and shared it with him.
Available Resources:
I teach a workshop on Healthy Ministry Relationships and Healthy Communication. The topic of Confidentiality as well as other communication issues are discussed and explored with workshop participants. See my RESOURCES page for more information.
I am also available for hourly consultation with pastors, lay leaders, and churches on this and other HMR (healthy ministry relationships) issues.
(c) Tracey Dawson, 2020