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Legal
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Privileged Communication
Pastoral Care
Files
When the pastor provides pastoral care to
parishioners, such as marriage counseling or personal spiritual direction,
the pastor may create a file containing:
- Date and time of consultation and persons present
- Observation notes
- Tests, such as personality inventories
- Correspondence
Care
These files must be kept locked and in strictest confidence as they
involve a relationship at the highest level of trust and are usually subject
to the clergy and penitent privilege. The pastor must use good
judgment in establishing the nature of each relationship and in creating
documentation of it. An understanding of the nature of this relationship will
determine the appropriate disposition of the records.
Retention
If the
relationship is said to be that of care of souls, the pastor may decide what
should be retained at his or her own discretion. The principle of confessional
confidences, which applies to all ordained ministers of this church, is
specified by ELCA churchwide constitutional provision (7.45.).
"In keeping with the historic discipline and practice of the Lutheran
Church and to be true to a sacred trust inherent in the nature of the
pastoral office, no ordained minister of this church shall divulge any
confidential disclosure received in the course of the care of souls or
otherwise in a professional capacity, nor testify concerning conduct
observed by the ordained minister while working in a pastoral capacity,
except with the express permission of the person who has given confidential
information to the ordained minister or who was observed by the ordained
minister, or if the person intends great harm to self or others" (churchwide
constitutional provision
(7.45.) in the Constitution, Bylaws,
and Continuing Resolutions of the Evangelical Lutheran Church in America).
In suspected cases of child abuse and elder abuse
state law determines who is required to report to the authorities. Whether
such reporting requirements apply to pastors vary from state to state.
Consult an attorney in your state for guidance on such matters.
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