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Solicitors in Westminster, London

Clergy wellbeing and mental health in the new Clergy Discipline Measure

Ed Henderson's article 'CDM reform must reduce the harm to clergy mental health' was published in the Church Times 4 February 2021

Clergy wellbeing and mental health in the new Clergy Discipline Measure

Ed Henderson

Partner

LBMW solicitors

Yesterday morning, a member of the clergy told me that the CDM complaint they are facing had almost driven them to suicide. This is the second time a CDM respondent has told me this in the last six months. The potential for a CDM process to result in the ultimate tragedy is real and this is the time for it to be addressed.

It is well known that the Clergy Discipline Measure 2003 is under the microscope. IICSA's findings have been published and, as anticipated, the CDM was roundly condemned. The Sheldon Hub continues to be a very powerful voice for clergy whose wellbeing has been harmed by the CDM process. The Archbishop of Canterbury has stated that the CDM is unfit for purpose and various interest groups have labelled it 'cruel', 'toxic' and 'unsafe' (see CT article 18.10.18). The House of Bishops now has it on the agenda. Tearing the CDM up and starting again looks inevitable.

Work on replacing the CDM is well underway. The Bishop at Lambeth and the Ecclesiastical Law Society (ELS) both have working groups at advanced stages of their scrutiny and reform proposals of the CDM. I should declare my interest here as a member of the ELS group and I have also spoken with Lambeth and Sheldon. All three are targeting the full-scale replacement of the CDM with a new and better system – one that provides for grievances to be identified and separated from genuine misconduct at the outset and one that provides for swifter, more consistent and fairer outcomes for complainants, victims and respondents.

These objectives are all worthy and must be absolute minimums in a new system but they won't, on their own, eliminate the risk of harm to respondents. It will be too easy for a new piece of legislation and a fresh code of practice to pay lip service to pastoral care and clergy well-being but for there to be no effective change. The independent review (published September 2020) carried out in the Diocese of Oxford into the handling of a particular CDM complaint shows how this could happen. Of its 7 headline recommendations the sixth was, "Support for clergy wellbeing is required throughout the CDM process" but the full report adds nothing to what that should mean in practice despite this being a case where the respondent had medical evidence that he suffered PTSD.

Whether guilty of misconduct or not, there must not be a system that can be abused or mis-used in the way it occasionally is now and which increases the risk of damage to a respondent's mental health. There must be a system which has the identification and monitoring of clergy wellbeing and risk of harm built in and not as an optional extra.

The provision for pastoral support under the current system is wholly inadequate. It doesn't feature in the Measure or the Clergy Discipline Rules but crops up just once at paragraph 97 of the Code of Practice which says, "The well-being of the whole Church in the diocese is the bishop’s responsibility, and the bishop is the chief pastor of all within that diocese, whether laity or clergy. Consequently, the bishop has the duty of pastoral care for both complainant and respondent, as well as the parish". The very next paragraph makes it clear (in bold text) that the Bishop should not provide the pastoral care himself.

So, over the years the practical implementation of this broad duty of pastoral care has been for the Bishop to provide the name of a retired clergyman in the first letter notifying the respondent that a complaint has been made and that is often the full extent of the care offered. It is tokenism and my guess is that less than 10% of clergy have received helpful support this way. Many never even speak to the named person. On one occasion the named supporter was dealing with his own mental health issues and had to decline any involvement. Instead, clergy have to rely on family and friends but there are some clergy who don't have this support network.

Why did the person I spoke to yesterday consider suicide? Because even though he had known for months that a complaint was brewing as various statutory agencies carried out their investigations, it arrived in the post without any warning, when he was alone at home. Unbeknownst to the Diocese (query why not as most 'employers' should know about ill-health in their long-standing 'employees'), he has been suffering with depression for 5 years. He read thirty pages of complaint, analysis and evidence all painting him as a serious safeguarding risk even though he wasn't the perpetrator of the alleged offences and he realised for the first time that his ministry and livelihood were at risk.

In the other instance this year, a CDM respondent wrote a suicide note and was planning to take her life. Thankfully she didn't and is now in the hands of an NHS mental health crisis team. This CDM complaint was brought in February 2020 but, as it related to historic issues, permission was required to bring it out of time. That application was made in March 2019. The case has been referred to Tribunal and, realistically, that won't take place before the end of this year at the earliest. That will be nearly three years from the allegations first being raised to there being any kind of outcome. She has been suspended throughout and her parish has had to rely on cover from retired clergy. She also suffers from depression.

No disciplinary process should last for three years. It is hardly surprising that sitting waiting, unable to work, for your future to be decided will grind a person down. If their resilience is already compromised or they don't have a support network then it is easy to see how there can be mental health implications. A good part of the delays in this case were avoidable and can be attributed to the human hands through which the complaint has passed. Statutory deadlines have been exceeded by months with no explanation given and there have been long periods of silence.

These are two near-misses and there will have been many others - the personal experiences of clergy on the Sheldon Hub make sobering reading. Sadly we know of clergy who have actually committed suicide during or after a CDM process.

The Church as a whole is way behind in its understanding of and ability to deal with 'occupational' stress and mental well-being. Dioceses are not resourced to be proactive so they can only react and that reaction tends to be cumbersome and limited. I know of a CDM respondent with serious depression whose Diocese agreed, after some persuasion, to fund a small number of counselling sessions but when the funding ran out, he was cut adrift mid-treatment and left to make his own arrangements (not easily affordable on a clergy stipend).

I act for three clergy who are currently facing CDM complaints and who are either signed off with stress or who have had a breakdown. In each case the Bishop and the Diocese had been told that the person was not coping yet in each case no action has been taken. It surely won't be long until a member of the clergy suffers serious psychiatric harm and a personal injury claim is brought against a Bishop and/or Diocese for breaching their duty of care having failed to intervene when the risk of harm was clearly foreseeable.

It is very easy to poke holes in the Measure and criticise those who operate it so it is only fair to note that some Bishops and Dioceses handle CDM complaints very well. The Measure, used properly, does allow swift and fair outcomes and for individuals (complainants, victims and respondents) to be treated pastorally and with compassion. The issue is that the current Measure doesn't force the operating officers to act in this way and, more often than not, they don't.

It may be over simplistic, but I believe the risk of harm to clergy CDM respondents could be greatly reduced with three changes.

The first is that the provision of effective pastoral support and a duty to monitor clergy wellbeing is enshrined in the new process. Rather than just offer a name, someone with an understanding of the CDM process should be appointed to initiate face to face contact with the respondent and provide proactive and regular support. That would start with being present when the respondent is given first sight of the complaint.

The second is for Dioceses to be required to have arrangements with occupational health providers who, as part of their role, initiate contact with every clergy respondent on a confidential basis to check how they are coping and be prepared to refer them for medical treatment if necessary with such treatment being funded by the Diocese.

Finally, and hardest of all, is the need for a cultural shift. Respondents in the current system are sometimes treated carelessly and with disdain – the unexplained delays for example. There is a presumption of guilt. Suspensions are imposed even where the 'necessary' test isn't satisfied. The respondent feels like it is 'me versus the Church'. There is no accountability for an Archdeacon who takes 6 months to gather the evidence to formulate a complaint or a Registrar who takes 6 weeks to do the preliminary scrutiny report or for a Bishop who takes 5 weeks to decide to refer a complaint for formal investigation.

Where a matter is referred to Tribunal it is currently taking at least 12-18 months for the Tribunal to be convened. That has to change. There must be no more than six months between a complaint being made and there being a final outcome. Those that don't need to go to Tribunal should be resolved in much shorter time. If these complaints are treated as matters of urgency and put to the top of the pile of Bishops and Registrars, that would up the tempo which is better for all parties – complainant, victim and respondent.

The work going into the reform of the CDM by the various groups is incredibly thorough including widespread consultation from all manner of interested parties – bishops, archdeaons, clergy, judges, lawyers, survivors, friends and psychologists to name just some people who have experienced CDM in some way. No voices are being ignored. I am confident that the replacement system will be a great improvement but, as we approach the end of the analysis stage and move towards crafting a replacement, we mustn't lose sight of what started the CDM conversation in the first place. Checking that every change reduces the chance of clergy harm, and worst of all, suicide must be at the top of the priority list.