Holding Church Counselors Liable Violates Religious Liberty, Court Told

The state Supreme Court, hearing a landmark clergy malpractice case, was told Wednesday that holding church pastors liable for the suicide of a youth they counseled will infringe on religious liberty and force churches to stop providing spiritual advice to the distraught.

“Religious counseling lies right at the core of what religion itself is all about,” said Rex E. Lee, an attorney for Grace Community Church of Sun Valley. “(Allowing such suits) will lead all but the most courageous or foolhardy to take the safest course and avoid counseling altogether.”

A lawyer for the parents of Kenneth Nally, a former honor student who took his own life in 1979, said such suits should be permitted when counselors negligently fail to send suicidal people to licensed psychotherapists.

“Whether you call it malpractice or negligence, (church counselors) have a duty to act responsibly,” said Edward Barker, representing Walter and Maria Nally of Tujunga in a suit against the church and four of its minister-counselors.

Court of Appeal Ruling

At issue is a ruling by the state Court of Appeal extending unprecedented liability to clergy and other unlicensed counselors for improperly failing to refer suicidal people to professionals who can administer medicine or initiate involuntary hospitalization.

The decision was widely assailed by church groups as a violation of the free exercise of religion and a serious impediment to pastoral counseling. And the far-reaching implications of the high court’s eventual ruling in the case were evident Wednesday in the one-hour hearing in an overflowing Los Angeles courtroom.

In questioning attorneys, the justices expressed concern that allowing the church’s counselors to be held liable could force priests to reveal the confidences they receive in confessions or open the way for suits against counselors who dispense advice on the radio.

But there also appeared to be reluctance by some court members to provide broad immunity to unlicensed secular counselors who improperly represent themselves as competent to deal with suicidal people.

The case involves a longstanding effort by the Nallys to collect damages from the 10,000-member fundamentalist church for the self-inflicted shotgun death of their son at age 24. The family contended that church counselors attributed his troubled mental state to sin and failed to assure that he received professional attention after realizing he was suicidal.

The Nallys’ $1-million suit was dismissed twice in Los Angeles Superior Court--but both times was reinstated by the state Court of Appeal in Los Angeles.

The appeal panel held last September that the religious counselors and other unlicensed counselors owed a legal duty of care to people they advise and could be held responsible for negligence for failing to take “appropriate measures” to prevent a suicide.

The panel held also that the Nallys could use as evidence of “outrageous conduct” by the church an instructional tape recording made by a pastor for prospective church counselors saying that “suicide is one of the ways that the Lord takes home a disobedient believer.”

In Wednesday’s hearing, Lee, a Washington lawyer who previously served as U.S. solicitor general in the Reagan Administration, said the appeal court had improperly extended civil liability “beyond the outer limits” of state law and had violated the church’s constitutional protections by making counselors liable for espousing church doctrine.

Lee said that, in fact, church counselors had urged Kenneth Nally to seek professional help and that his parents had refused to seek his commitment to a mental hospital despite the vigorous recommendation of a psychiatrist.

Barker acknowledged that the parents had declined to hospitalize their son but said the youth had assured them he would not kill himself. Church counselors failed to tell the parents their son had expressed regret he had not been successful in a previous suicide attempt, the lawyer said.

Barker said that extending liability to the church would not violate the Constitution and that it was valid in this case, where counselors, “under the roof of the church,” improperly presented themselves as competent to deal with serious mental illness.

Chief Justice Malcolm M. Lucas and other court members questioned just how far the church was obligated to go in assuring professional help for Nally. And Justice Edward A. Panelli told Barker that other counselors who maintain “crisis hot lines” may “stop answering the phones” if they have to risk liability when providing advice.