27 April 2012
Careless talk costs lives
How the laws of confidentiality affect church leader...
Church leaders operate in a complex environment when it comes to sensitive information and ‘careless’ talk can have legal and pastoral implications that are difficult to work through.
This applies to information shared with a church leader and information held by the church. What if an individual, a church member or someone else, tells you their secret in a pastoral conversation – and it involves breaking the law or other serious implications? Who else can you tell, if anyone? And how do you record not just the information, but its sensitive nature, and how it can be used?
It’s affected by whether your church is subject to Canon (Ecclesiastical) Law. There is a clear distinction between information received through formal confession or gleaned during confidential conversations. Canon Law expressly states that there can be no disclosure of what is confessed to a priest. Where the person’s ‘secret’ is about child abuse or domestic abuse in a home with children although respecting their wish for confidentiality if there’s concern that the child is at risk or suffering significant harm their welfare must be the overriding consideration. Also, if abuse of children or vulnerable adults is admitted in the context of a confession the clergy member should urge the person to report their behaviour to the police or social services with this being a condition of the person’s absolution.
A “confidential conversation” is not the same as sacramental confession in churches regulated by Canon Law. Whether or not your church is in this category it is wise for church leaders to try to avoid promising total confidentiality. The boundaries of confidentiality need to be made clear to all concerned because information about matters of a very serious nature (e.g. terrorism or a threat to harm others) may require disclosure to a third party.
When it comes to paper and computer files held by the church the Data Protection Act 1998 (DPA) applies to everyone who holds personal information. Special rules apply to what the Act calls ‘sensitive personal data’ – this can include that person’s beliefs and matters concerning the subject’s personal life. Before keeping sensitive information relating to non-church members, you must obtain their ‘explicit consent’. Sensitive material needs to be locked in filing cabinets, computer files need to be password protected and there should be suitable measures to recover data in the case of loss.
There is an exemption under s29 of the DPA that can be applied if the police (or other similar organisations) need some information to prevent or detect crime or catch or prosecute a suspect. If the church is satisfied that the information is going to be used for this purpose and that failure to release it would be likely to prejudice any attempt by the police to prevent a crime or catch a suspect then they can disclose this information.
If you receive a request from the police ask yourself:
- Am I sure the person is who they say they are?
(especially if the request is made over the telephone)
- Is the person asking for this information doing so to prevent or detect a crime or catch or prosecute an offender?
- If I do not release the personal information, will this significantly harm any attempt by the police to prevent crime or catch a suspect?
- If I do decide to release personal information to the police, what is the minimum I should release for them to be able to do their job?
- What else (if anything) do I need to know to be sure that the DPA exemption applies?
However, even if the above exemption applies you do not necessarily have to release the personal information. For example, if you think the information is confidential and comes within your other legal obligations you can ask the police to come back with a court order requiring the release of the personal information.
This a fragmented, tricky area of law so get prepared now. Go through the process of identifying the different scenarios where you might use sensitive information, decide in advance what status the information should have in those scenarios, and write down the decisions. And when in doubt get legal advice...
Fran Beckett: Consultant, Anthony Collins Solicitors
David Hall: Associate, Anthony Collins Solicitors
Emilie Pownall: Trainee, Anthony Collins Solicitors