The Boundaries of Chaplain Confidentiality

“A woman was in a room of her sick child when she was visited by a civilian hospital chaplain. She told the chaplain a number of things about herself and her family, including the fact that she was pregnant. The following day she was taken aback when a nurse approached her and inquired about her pregnancy. It turned out that much of what she had discussed with the chaplain was written down in her child’s medical chart… ” 1

Historically, members of the clergy have had a moral obligation to maintain the confidentiality of their congregants. In recent years, however, people have brought an increased number of lawsuits against pastors for invasion of privacy arising out of the disclosure of confidential information. The result of these suits has brought recognition that the obligation to maintain confidentiality is not only a moral obligation, but also often a legal one.2

If civilians expect their conversations with clergy to be confidential, this presumption is even greater within the military community where practices like mandatory drug testing and gate vehicle searches contribute to a greater sensitivity to privacy issues. While religious denominations have their own regulations that guide their clergy in regard to information shared under various circumstances, various Instructions, Regulations and the Manuel for Courts-Martial (MCM) contain statutes that protect the confidentiality of communications with military chaplains.

Protecting our privileged position

The legal protection offered by civilian legal systems and the military system differs considerably. Although military members as citizens of the United States are both subject to and benefit from federal and state laws, they are also subject to the UCMJ and other specific military regulations. In certain instances involving communications, military laws and regulations take precedence over civilian laws.

According to Military Rules of Evidence MRE 503(b) (2), in order for a communication to be considered privileged, three criteria must be met:

1. It must be made “either as a formal act of religion or a matter of conscience.”

2. The communication must be made to a chaplain in his or her role as chaplain or to his/her assistant in an official capacity.

3. It is the intent of the communicator that the information be confidential.

It is clear that it is the intent of the person making the communication and not that of the chaplain that is important. It is also clear that the applicability of the privilege, that is, whether or not the communication is to be considered confidential, is determined by the intention of the party and not the place where the communication takes place. (e.g. chaplain’s office, hospital room, aboard ship, or in the field.)

Despite clear policies and regulations upholding confidentiality on the part of military chaplains, in a recent 2013 poll of naval personnel, 63 percent of 5.049 respondents did not believe their communications with chaplains were confidential, and 65 percent of 2,895 respondents erroneously believed that Navy chaplains are required to report certain matters to the command.3

Historical perspective

Before looking specifically at the practice of military chaplains making entries into patients’ medical records, it would be helpful to look at how this practice has evolved in recent history.

Hospital chaplaincy as a distinct profession in the United States over the past 20-30 years has assumed a more proactive stance toward patients, healthcare professionals, and healthcare facilities. Unlike in the past where patients generally received pastoral visits from clergy representing specific faith groups, today a professional cadre of certified hospital chaplains has evolved who are members of the healthcare team complete with access to patients’ medical records both to gather information and to make notations of their own.

While worthy strides have been made to integrate chaplains more fully into the healthcare system, some medical ethicists consider charting, i.e. making notations in patients’ medical records accessible to others by this specialized chaplaincy as “disquieting” and suggest there exists a need to reassess professional commitments “to respect and protect the bio-psycho-social integrity of patients.”4 The evolution of hospital chaplaincy as a profession distinct from congregational based ministry has also raised concern among some members of the clergy who view practices like charting as a threat to confidentiality that has been a cornerstone of their ministry.

Chaplains, medical records and confidentiality

Although BUMEDINST 1730.2A attempts to balance the hospital’s need for clinical information and the patient’s need for confidential care, paragraph 12b of the Instruction reads: “Patients should be advised that certain information communicated to the chaplain may be shared with other members of the treatment team or in a clinical supervisory session unless the patient specifically requests that such information remain in confidence with the chaplain.”

If military patients presume that what they discuss with hospital chaplains “may be shared” with others unless they “specifically request that such information remain in confidence,” might these same service members be misled to believe that this also applies to what they share with chaplains outside of medical facilities? Might these same service men and women be led to question that what they discuss with their unit chaplains may be shared with their command unless they “specifically request that such information remain in confidence”?

Rather than telling patients their communications with chaplains may be shared with others unless they “specifically” request that such information remain confidential, I submit it would be more in keeping with SECNAVINST 1730.9 (“Confidential Communications to Chaplains”) to revise BUMED Instruction to read, “Information shared with chaplains is presumed confidential unless the patient specifically requests the chaplain share certain information with other members of the medical team.”

The fact that many patients may be suffering from excessive physical or emotional pain may impact not only their ability to make informed decisions regarding disclosure, but also affect their capacity “to distinguish confidential communications from general pastoral care interventions” as noted in the current BUMED Instruction.

Hospital spiritual assessments

A number of military hospital chaplains today are attempting to make spiritual assessments of a patient’s cultural, religious, spiritual beliefs or practices, the results of which are often recorded in the patient’s medical record. Such a practice can be problematic in the military where the privacy of personnel and their family members are protected as in the case of SECNAVINST 1730.9, paragraph 4 (h):

Records or notes compiled by a chaplain in his/her counseling duties are considered ‘work product’ and confidential. As such, chaplains must safeguard any such records, in whatever medium or format, containing confidential communication. When no longer needed, these work products will be destroyed.

Unlike “notes” a chaplain may take in his/her office that are later destroyed, the “notes” a hospital chaplain may chart in the process of undertaking a spiritual assessment remain a part of the patient’s medical record even after the patient is discharged. Chaplains who are compelled by supervisors or hospital administrators to justify their role or “competency” by charting spiritual assessments may potentially weaken the trust that needs to exist between clergy and the people to whom they minister. Those who also use the system of charting for professional validation, credentialing, or in order to justify employment, potentially redefine the pastoral visit from selfless to self-serving. Furthermore, it has yet to be established if medical healthcare teams significantly benefit from such a highly subjective intake which is primarily helpful to the patient.

One also might note that spiritual care by the chaplain is not so much an “intervention” (as noted in BUMEDINST 1730.2A, paragraph 13a), or something to “fix” but more of a relational mode of being. The spiritual life is a relational life involving how the patient relates to others and how she or he understands their current circumstances in the context of a personal belief system. Because hospital chaplains rarely have long term relationships with patients who either are discharged or die, these assessments and interventions may not prove to be the truest reflection of the individual in question.

The role a chaplain plays in the healthcare community cannot be underestimated. While metrics are increasingly utilized within medical institutions as a method for assessing the value and necessity of professional positions and the number of billets, there are a host of intangible benefits a chaplain brings to patient visitation that can never be measured by practices like charting alone.

Service members and their families deserve the highest assurance that their conversations will be honored and guarded. Military chaplains must vigilantly insure their charting practices do not “cross the line” lest they surrender this sacred role that has been entrusted to them for over two centuries of U.S. naval history.

Lieutenant Commander Gomulka was a staff chaplain at Naval Medical Center San Diego. She retired in August of 2014 after the article appeared in the December 2013 edition of Proceedings published by the Naval Institute Press.

1. Jami Briton, “Hospital Chaplains Not Required to Keep Information Private,” KCRG-TV9 News Report (April 15, 2010).

2. David O. Middlebrook, “Pastoral Confidentiality: An Ethical and Legal Responsibility,” Enrichment Journal (Spring 2010).

3. Lifelink Newsletter, Vol., 2, Issue 6, OPNAV N171, June 2013.

4. Roberta Springer Loewy and Erich H. Loewy, “Healthcare and the Hospital Chaplain,” Medscape General Medicine (March 14, 2007).

Source by Leila Gomulka

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