Eleven Ways to Avoid a Lawsuit in Counseling

June 16, 2011

Steve Viars

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Steve Viars

Eleven Ways to Avoid a Lawsuit in Counseling

One of the most frequently expressed concerns on the part of people who are praying about their church starting a biblical counseling center is the fear of being sued. In light of the litigious culture in which we live, this is a very valid concern.

The truth is that anyone can sue you for practically any reason regardless of the steps you take. Ultimately our desire is to minister in a way that is completely legal and above board in every possible way. Scripture teaches us that our governmental authorities are ordained by God (cf. Romans 13:1-7). The goal of this post is not to help us sidestep the reasonable expectations of the government, but to protect us from any actions that might make it easier for someone to seek to harm our ministries by wrongfully suing us.

Here are 11 steps to consider to help you avoid a lawsuit:

1. Practice honesty in advertising.

Be clear in signage, promotional materials, and any other way that you advertise your ministry that your counseling is based on God’s Word. Using phrases like “biblical counseling,” “soul care,” “faith-based counseling,” “spiritual friendship,” and/or “discipleship” will prevent prospective counselees from confusing your ministry with secular forms of counseling.

2. Use full disclosure on your written intake forms.

Explain the educational background and experience of each counselor on staff. Delineate any professional certifications and licensures or lack thereof. Ask your counselee to sign a form before counseling begins that says something like, “I understand that the counsel I am about to receive is based on the counselor’s interpretation of the Bible.”

3. Keep an attorney on retainer and consult him whenever you have any legal question or concern.

Our goal is to please God by functioning in a way that follows the law in every possible way. Often situations arise where the counselor will not be sure about the appropriate steps to take legally. It is always best to withhold counsel until you have consulted with an attorney or another representative of the legal system who can help you understand the legal issues for both your counselee and yourself. It is true that having access to services like this often involves the expenditure of money, but view it as an investment in protecting the integrity of the ministry God has given you.

4. Perform background checks on all paid and volunteer staff.

You should not put a person in a position of authority over another individual from your church without first doing an extensive background check. Any potential counselor who refuses this type of accountability should not be trusted to teach and counsel in your ministry.

5. Provide thorough training for staff members.

James (James 3:1) instructed us that teachers will receive more significant judgment because we are representing God’s Word to the men and women who have been entrusted to our care. We should be sure that we are providing training that is both thorough and ongoing so that each of our counselors will be in the best position to give a good account of their teaching and counseling ministry.

6. Always have a witness present.

Many lawsuits become a matter of one person’s word against another’s. The best way to prevent this scenario is to always have someone with you in the counseling room who is being trained to counsel. That individual can be praying for you while you counsel and listening to things you may have missed. They can also be prepared to honestly report what actually occurred in the counseling room if that need ever arises. Many times that actually puts the counselee at ease because there is no question about your integrity or intentions. This covers another important recommendation: never counsel children or members of the opposite sex alone.

7. Keep careful notes and records.

A lawsuit may be filed months or even years after the fact. Having careful notes will remind you what occurred and help you answer any questions or accusations. You also may want to ask your trainees to also take and then submit careful notes of the session. In some cases, record the session by means of audio or video. Laws vary from state on state on whether you may legally record a session without someone’s knowledge or permission. Our policy at Faith is to never record someone without their knowledge. However, this practice is often valuable because it removes all doubt of what was said in the session.

8. Consider a legal reorganization of your ministry divisions.

At Faith, we have divided our ministries into ten separate legal entities. The goal is to separate our assets from our risks. As mentioned in the introduction, we are not seeking to side-step the law, but to protect what God has entrusted to us from unscrupulous persons who might want to take it from us wrongly.

9. Establish a working relationship with a physician.

Biblical counselors should never delve into medical issues for which we have no training or expertise. This includes making comments about a person’s psychotropic medication. By establishing a working relationship with a physician, you can work hand-in-hand with someone who can address any legitimate physical issues that may be involved in the counseling case. Physicians are often glad to partner with a biblical counselor because many of their patients present themselves in ways that indicate that biblical counseling may be a very helpful part of the overall treatment plan.

10. Seek professional certification.

Organizations like the National Association of Nouthetic Counselors (NANC) offer a robust certification process which will help your staff develop their counseling skills. It also assures anyone from the legal system that someone from outside your ministry has reviewed your counseling process and practice.

11. Purchase clergy malpractice insurance for all counseling center staff.

If someone files a lawsuit against one of your counselors, you will need the legal services and protection that come from a quality insurance policy.

Don’t Let the Concern Become an Excuse

Do not let the fear of a lawsuit stop you from serving God. The fear of man brings a snare (Proverbs 29:25). Truthfully, you could use the possibility of being sued as a reason to delay or ignore practically any ministry endeavor. Be as wise and careful as possible and then trust the Lord as you develop the ministries you believe would be most pleasing to Him.

Join the Conversation

What additional wisdom would you add regarding biblical counseling and legal/ethical safeguards?

Note: This post first appeared at Counseling with Confidence and Compassion.