In the Nally v. Grace Community Church (Cal. 1986 or
so, the Court of Appeals held a pastoral counselor liable for "clergy
malpractice" because he did not "effectively" refer the
counselee to a secular psychologist. That seems to be the opposite of
the regulatory theory of rule 2 below. In fact the pastor had sent the kid to secular counselors; he had been hospitalized on the psychiatric ward and then released, and then refused to return. The California Supreme Court reversed and, my recollection is, said there was no such tort as clergy malpractice. Mark Tushnet wrote: Passing the question of constitutionality, guideline #2 seems quite lunatic unless it's interpreted to mean that one of these counselors can say, "Speaking not as a counselor but as a lay person, I think you sound depressed and I think it might be helpful if you saw a doctor." (And, speaking again not as a specialist, I would think that some such formulation would be important in setting up defenses to possible actions for breach of fiduciary duty.) |
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