TRUSTEES AND

CANON LAW
An Increasingly Lay Leadership in Catholic Health
Care Must Remember Its Responsibilities to the Church

S
ome 17 years ago, shortly after the 1983 comes from years of involvement in Catholic
Code of Canon Law was promulgated, health care. Even those who are familiar with BY FR. FRANCIS G.
CHA asked me to prepare a brief study church teachings need to keep updated. For MORRISEY, OMI, JCD,
of the administration of ecclesiastical instance. Pope John Paul IPs August 29, 2000, PhD
goods; the resulting article, "Canonical address on cloning and t r a n s p l a n t s t o the
Duties, Liabilities of Trustees and Admini- International Congress on Transplants provided
strators," appeared in Health Progress in 1985.' the church's position regarding those issues an
Although many of the points made in that article update that has not yet appeared in textbooks. 2
remain valid today, some do not because, in the The recent announcement of human cloning
intervening years, the canons have been applied raises further questions for which we do not yet
and interpreted so as to adapt the law to new sit- have all—or perhaps any—of the answers.5 Although
uations. 1 would, therefore, like to address a these issues do not relate directly to canon law, they
number of the newer issues, especially those that do have serious implications for the continuing
apply to members of boards of trustees, who Catholic identity of our health care institutions.
must make decisions affecting the future of the Because of the close relationship between
health care apostolatc. In canonical literature, Fr. Morrisey is on
"members" of the corporation and "trustees," I
such persons are usually referred to as "canonical the faculty of canon
will be using the terms interchangeably, although
stewards." In this article, I will limit my remarks law, Saint Paul
I recognize that in many instances a clear distinc-
to the temporal dimension of the trustee's role, University Ottawa,
tion is made between the two levels of involve-
leaving the spiritual dimension, which is equally Ontario. This arti-
ment, particularly concerning canonical sponsors
important, for another occasion. cle is based on a
and civil trustees, but also in the secular sphere,
presentation he
In his first letter to the Corinthians, St. Paul where we have multitiered structures. Different
made to the (.'anon
reminds his listeners that they are to be regarded as systems assign responsibilities to one level or the
Law forum in
Christ's subordinates and as stewards of the secrets other; there is no hard and last rule concerning
Tampa, FL, in
of God. Stewards arc expected to show themselves which responsibility is exercised at a particular
April 2001.
trustworthy, he says (1 Cor 4:2). The call to be level. What counts most is that the duties be
trustworthy is fundamental to any type of steward faithfully carried out, whether by the "members"
ship, spiritual or temporal. We can therefore ask or by the "trustees" who serve on the board.
ourselves, "What is an attitude of 'trustworthy Although we don't find the word "trustee" in the
stewardship' as it affects the administration of tem- Code, we do find a number of other expressions,
poral goods belonging to the church or to one of such as "steward," "administrator," and "council
its juridic persons or recognized entities:" member," which give us sufficient insight into
Many persons are selected for board member- what is expected of a "trustee." Similarly, because
ship or stewardship positions, not because of their we deal more frequently today with health care
know ledge of Catholic teachings .\nd laws, but systems than with single institutions, I will refer
rather because of their esteemed places in the more directly to systems. What applies to the
community and their expressed interest in a par- whole can also be applied to the parts, with the
ticular apostolic undertaking. It would not be fair appropriate adaptations.
to expect such people to have, at the time of their In a recent Health Progress article, I traced the
appointment, the knowledge and experience that development of various structures used in con-

HEALTH PROGRESS NOVEMBER - DECEMBER 2 0 0 2 • 11

TRUSTEES AND CANON LAW

temporary health care. 4 In the present article, we ence of bishops.*

should, when distinguishing between "members' • Proper law, relating to religious institutes
and "trustees." keep in mind the evolution of and their members; this is usually found in the
works that were once totally controlled by the constitutions and rules of the various institutes.
leaders of religious institutes into works that Because these three types of law often overlap,
today are directed by multitiered boards. In the their interpretation can vary from place to place,
same vein, we should not forget the notion of just as civil law varies from state to state. The law
separate and distinct civil corporations, with the is also interpreted differently over time.* Matters
appropriate reserved powers. Catholic health care considered vital in the early 1980s might now be
is in the midst of a lengthy process of change; and seen as less important than other concerns, such
it is possible that the structures we use today to as protection from terrorism.* The same tendency
respond to needs of the apostolatc might, at can be seen in the ethical world: Questions relat-
some future date, be replaced by other structures, ing t o cloning were not primary in the early
considered to be more appropriate to the world 1980s, for instance, but they certainly are today/
in which we will then be called to exercise our Might the same soon be said about end-of life
mission. (New tax laws and antitrust regulations issues?" New situations call for new approaches.
could, for example, have a significant influence I mention this point so that we will not be sur-
on our structures). If such changes were to occur. prised to find that things are done somewhat differ-
our understanding of the role and mission of ently in different places, depending on the time and
"members" and "trustees" might have to be the circumstances. A medical procedure considered
reconsidered in light of the new circumstances. extraordinary just 20 years ago may well be seen as
routine today* We must keep in mind that, because
CANON LAW AND HEALTH CARE of this and similar changes in the church, not every
For some Unknown reason, there is no reference Catholic health care institution operates in the same
in the Code to health care and its various institu- way. The general principles of the law must be tem-
tions. Likewise, this most important apostolatc pered by concrete policies and practices.
was very rarely mentioned explicitly in Vatican
Council II. Yet the Catholic Church is the largest THE TRUSTEE
provider of health care in the world. In one sense, Because of the emphasis the Code places on tem-
this lack of reference is good because the law does poral goods and their proper administration, a
not accordingly establish a number of restrictions number of the canonical obligations of trustees
on the health ministry, as it does for schools. On that I will mention here are derived from Book V
the other hand, we must recognize that, practi- of the Code (on temporal goods). However, this
cally speaking, Catholic health care institutions does not mean that other duties, arising from
are much more closely governed by the church's
ethical teachings than by its laws. Thus, in one
very restricted sense, trustees d o not hare to * For the United States, sec the National Council
know much about canon law, provided that thev of Catholic Bishops, Implementation of the 1983 Code
are aware of the church's moral teachings. But, if of Canon Law, Washington, DC, 1991. For Canada, see
their mission is to be apostolic, then the provi- the Canadian Conference of Catholic Bishops.
sions of the law do come into play. Complementary Norms to the 1983 (.'.ode of ('anon
Law, Ottawa, 1996.
For this reason, the canons on apostolic activi-
t Following the 1983 promulgation of the Code, for exam-
ties and on the ministry of religious are applicable
ple, church leaders focused on "bricks-and-mortar"
to health care institutions. Also, and perhaps issues concerning church property; today the focus is
more directly, the norms relating to temporal much more on mission than buildings, because buildings,
goods (Book V of the Code) arc those with which unlike mission, eventually become obsolete and must he-
canon law is most identified in our institutions. re placed.
However, as is often the case with the ethical and 1
After the promulgation of Pope Paul IV's apostolic exhor-
religious directives issued by the church in differ-
tation lvamieliea l'estijicatio (June 29, 1971), for exam-
ent countries, people tend to note the things the
ple, church leaders paid much attention to differences
church forbids rather than those it promotes. among religious institutes' charisms. However, the identifi-
The canon law governing health care institu- cation of particular charisms has since become less impor-
tions can be of three types: tant as institutes have begun to work more and more close-
• C o m m o n or universal law, binding on all ly together, pooling their resources and focusing more on
Catholics. This is the law found in the Code and the apostolic work than on their various heritages.
subsequent universal legal text*-. 5 For instance, the progress made in dealing with AIDS
• Particular law, relating to territory, such as and HIV. See John Paul II, "Message to U.N. Session
the diocese or the territory of the nation's confer on HIV/AIDS," Origins, August 2, 2001, pp. 186- 1.X7.

1 2 • NOVEMBER - DECEMBER 2002 HEALTH PROGRESS

other sources, such as papal allocutions, arc not bequeathed for pious causes (e. 1302). The
as important.' word, however, is also understood, less precisely,
The Basic Principle Canon 1279 sets out the general to refer to those persons who are members of
principle: "The administration of ecclesiastical boards governing juridic persons and o t h e r
goods is the responsibility of the individual who church entities. The term "trustee" will be used
immediately governs the persons to whom the here in this broader canonical sense.
goods belong," unless otherwise provided in law Acting together, trustees represent the interests
or custom. This individual is usually called a of a juridic person or church entity, even though
"canonical steward." When we speak of "ecclesi- the actual board they sit on might not be the
astical goods," we refer to those temporal goods board of a public juridic person itself.* For
that belong either to the church as a whole or to instance, a trustee of a hospital that does not have
one of its public juridic persons. At times, goods distinct canonical recognition might think that
are simply "entrusted" to a juridical person for a his or her trusteeship responsibilities are operative
specific purpose, but are not "owned" by it. In only in the secular sphere and that the facility's
such instances, the goods are not ecclesiastical religious sponsors should look after matters relat-
goods but would be subject to general norms ing to the church. Hut such is not so, especially if,
governing proper administration. as is often the case today, a number of canonical
When we speak of "public juridic persons," we functions have been delegated by the religious
must keep in mind that these are die church's equiv- sponsors to the board of trustees.
alent of corporations or similar entities found in the The person who shares in the superiors office
secular world. A public juridic person is usually also shares in the responsibilities. Treasurers and
established to further a recognized apostolic endeav- trustees must, therefore, act with the diligence of
or. Dioceses, parishes, religious institutes (and many a good householder (see c. 1284, para. 1). Not
of their component parts], and institutions that haw surprisingly, then, they must answer for their
been granted such personality by the canonical legis- actions.
lator—all these are public juridic persons. Although
a public juridic person exists .WK\ has perpetual sue SPECIAL DUTIES OF TRUSTEES RELATING TO
cession, its functions arc earned out by physical per- ADMINISTRATION
sons who have been formally designated to see to its For reasons of convenience, the duties of admin-
interests. These representatives are often referred to istrators or trustees can be considered under a
as "trustees." They are not the juridic person itself number of particular headings. There is no partic-
but its canonical representatives. ular order to these headings.
It is not easy to distinguish between canonical In Relation to the Governing Canonical "Statutes" From a
"stewards" and canonical "administrators." Only canonical perspective, the primary duty of
in canon 1273 is the word "steward" used. trustees is to ensure that the institutions under
Therefore, one must go beyond the letter of the their supervision operate in accordance with the
law to discover its spirit and intent. It seems to teaching, discipline, and laws of the Roman
me that the term "steward" has a more spiritual Catholic Church. This is to be done, however,
side, whereas "administrator" focuses more on taking into account the mission, vision, and val-
the material dimension of the office. ues of the system they represent. 1 These values
However, the administrator does not carry out are usually spelled out in the corporate docu-
the office alone. There are usually others who, to
various degrees, assist in the operations. It is here
that "trustees" often come into play. * In canon law the term "public juridic person" rcters to a
The Term "Trustee" The term "trustee" could have group of persons or things (property) dedicated to help-
many meanings. It could be used, as it is in secular ing the church achieve its mission. In North America it
law, to designate the person appointed or required could, somewhat improperly, he described as an "internal
church corporation." For more on this concept, see J.
by law to execute a trust. Another meaning of the
Hite, A Primer <m Public mid Private juridic Persons.
term would be: "A person who holds title to prop- (latholic Ileakh Association, Si. Louis, 2000, p. vii.
erty and administers it tor the benefit of another." 8
In a strict sense, a trustee is one who holds the t These terms arc used, for example, in Article 2 of the
legal title to property for the benefit of another; in approved (July 7, 2000) canonical statutes ot Hope
Ministries in its relationship to Catholic Health Hast: "As
a broad sense, however, the term sometimes is
such | Hope Ministries! ensures that each institution
applied to one who is the agent or attorney of
sponsored by | it j operates in conformity with the
another. The word is also used to refer to company Mission, Vision ,\nd Values approved by Members of
directors who are "trustees" for the shareholders. Catholic Health East, consistent with the teachings and
In canon law, the term is applied more particu- laws of the Roman Catholic Church appropriate to
larly to those persons who administer goods health care."

HEALTH PROGRESS NOVEMBER - DECEMBER 2 0 0 2 •

TRUSTEES AND CANON LAW

merits or statutes governing the institution >\\u\ san regulations and policies relating to apostolic
its sponsors. activities carried out in the diocese, and the laws
This duty implies six elements, three of which w ill be those promulgated either by the Holy See
are somewhat on a philosophical or spiritual line, or some other competent legislator, such as the
whereas the other three arc on a more practical diocesan bishop.
one: In Relation to Temporal Goods My remarks concerning
• The (1) mission, (2) vision, and (3) values of canonical d o c u m e n t s and a system's mission
the system apply also to matters relating to temporal goods.
• The (4) teaching, (5) discipline, and (6) laws Trustees can either exercise both canonical and
of the Catholic Church civil responsibilities or function exclusively on a
To carry out these duties, the trustees usually single level. I will focus here on the canonical
exercise certain powers that relate directly to the obligations in this area.
philosophy and mission of the system or the insti- The goods owned by a public juridic person
tution. Sometimes these powers are reserved to are ecclesiastical goods. It will thus be important
other persons, depending on the way in which to determine precisely, in each case, whether a
the organization has been set up. For instance, in given system owns its institutions or works abso-
some systems, a sponsor's council assumes direct lutely, on one hand, or has been entrusted with
responsibility for the mission and vision and for them for administrative purposes only, on the
ensuring compliance with the applicable ethical other. Since the presumption of the law would be
and religious directives. that, in the case of public juridic persons, the
In some cases, a system's trustees also exercise goods involved are ecclesiastical goods, a public
a sponsorship role. In such instances, the trustees juridic person should, when accepting a work for
serve as canonical stewards, dealing more with sponsorship, issue a clear statement concerning
ideas than with operations, which are the respon- the canonical "ownership" of those goods. If the
sibility of the system's various officers. Thus, for g o o d s are not ecclesiastical g o o d s , then the
instance, the members of Covenant Health norms governing administration and alienation
Systems, Lexington, MA, are the members of the do not apply in the same way. For this reason, it is
civil board; they wear both the secular hat and the essential that complete and accurate inventories
sponsorship hat and carry out their responsibili- be kept, distinguishing clearly between those
ties accordingly.9 In other instances, and perhaps goods owned by a church juridic person or entity,
even more frequently today than in the past, on one hand, and those entrusted to its care by
there exists a clear distinction between the mem some other person or body, on the other (for
bers of the civil corporation and those of the instance, a municipally owned or public institu-
canonical entity that has been established to tion that the church has been asked to operate).
ensure Catholic identity.* Following this principle becomes even more
important in cases involving a freestanding entity
Of course, if the trustees are also functioning
that has no previous church relationship but now
on the secular level, then they must also observe
wishes to be sponsored or operated by a Catholic
the obligations arising from the corporate docu-
system. The mere fact of operation, or even spon-
ments. Rut, from a canonical perspective, the
sorship, does not entail that the goods by that
trustees, to exercise their responsibilities relating
very fact become ecclesiastical goods, subject to
to mission, vision, and values, must themselves
all canonical regulations governing the same.
keep abreast of the teaching, discipline, and laws
In Relation to the Diocesan Bishop All apostolic works
of the Roman Catholic Church and apply these
are under the direction of the diocesan bishop
to the best of their ability. Trustees can usually
(see c. 394, paragraph I). The way bishops de-
count on the system's mission integration depart-
cide to exercise their responsibilities will vary
ment for assistance with this. Nevertheless, they
from diocese to diocese.
have ultimate responsibility for the decisions they
make and will most likely have to arrange periodi- Whether the establishment of these forms of
cally for some form of ongoing formation in relationship with the diocesan bishop is the pre-
these three areas, possibly using the expertise of rogative of the canonical sponsors or of the
the system's members. For health care institu- trustees will depend on the way the system oper-
tions, the teachings dimension will be expressed ates. We can assume that, in cither case, the
mostly in moral and ethical matters; the disci- trustees would be part of the process. In particu-
plinary aspect can be found in the various dioce- lar, we know that the diocesan bishop should be
involved in matters relating to chaplaincy services
("care of souls" and the "liturgy") and to the
* This is the case with Catholic Health East, Hope apostolic work itself (see c. 394, and, by analog}',
Ministries, and others. C. 6 7 8 ) . Also, it is the diocesan bishop who

1 4 • NOVEMBER - DECEMBER 2002 HEALTH PROGRESS

applies in his diocese to take the safest posi-
the Ethical and tion in regard to such
Religions Directives. q u e s t i o n s . But if a
We must r e m e m b e r
that just because a poli- ±u\ublic juridic q u e s t i o n has n o t yet
been resolved by a for-
cy exists in one diocese mal church declaration,
where a system exercis- the safest approach to
es s p o n s o r s h i p , this
d o e s n o t necessarily
persons should keep it is not always the one
needed. The moral the-
mean it applies in all ology of St. Alphonsus
dioceses in which the Liguori has provided
system carries out its
mission.
the relevant bishops many valuable insights
for t h o s e e n t r u s t e d
As public juridic per- with resolving disputed
matters. The fact that
sons assume the spon-
sorship of more and informed of progress. t h e r e are still many
more works, they will unanswered questions
have to develop good should not be a source
protocols for relating with the bishops of the dio- of scandal or wonderment, but rather an occasion
ceses where they carry out their missions. In fact, for considering the different facets of a situation
in certain areas, diocesan authorities still do not and for reflecting on personal attitudes. It would
see lay people as "official" representatives of the not be good for the church to pronounce too
church; the health care ministry may therefore soon on new situations; we also have to wait to
need to establish some type of mediation proce- see what the long-term consequences are going
dure between public juridic persons and dioceses. to be. In the meantime, one should avoid taking
This may be necessary in some cases despite the extreme positions in matters that have not yet
fact that a system's designation as a public juridic been officially settled.
person of pontifical right provides for lay involve- • What can board members do to make certain
ment at the membership level. that they are involved in a ministry and not sim-
Public juridic persons should keep the relevant ply in a business in which financial issues prevail?
bishops informed of the progress of the aposto- This should be the object of a periodic, perhaps
late, difficulties encountered, and challenges annual, evaluation.
expected in die future. The ministry finds itself in • To what extent is the system answering a true
a period of revision and restructuring; it should need? Is there a place for charity care in its struc-
therefore take special care to establish strong rela- tures? If so, how can this best be offered, taking
tions with the bishops or their health care dele- into account, as noted above, the fact that spon-
gates. sorship does not necessarily entail operations?
In Relation to Sponsorship Boards that exercise canon-
ical sponsorship roles should keep the following ORDINARY DUTIES OF THE ADMINISTRATOR AND TRUSTEE
points in mind: The Code of Canon Law outlines a number of
• They should consider developing criteria for duties for those who have assumed responsibility
the selection of members or trustees of the sys- for the administration of ecclesiastical temporal
tem. Are success in business and reputation in the goods. Although these duties arc not all equally
community- more or less important than knowl- important, they nevertheless are of particular sig-
edge of Christian moral principles? How can a nificance if the steward's trustworthiness and the
balance be effected in membership composition? church's credibility arc to be maintained.
The board should create AI\ appropriate forma- The Role According to canon 1282, all persons-
tion program for new members and encourage clerics or laity—who, through a legitimate title
them to follow it. take part in the administration of ecclesiastical
• No single "Catholic" approach applies to the goods, are bound to fulfill their duties in the
application of some of the moral teachings of the church's name and in accord with the norm of
church. Many issues are still open for discussion; law. Because such duties are to be carried out in
it is impossible, in those issues, to say which the church's name, they ^-\n be considered a form
opinion will eventually prevail and become the of apostolate (c. 298). As an apostolate, those
accepted one. Providing hydration and nutrition who share in these duties do so by virtue of their
to comatose patients is a question for which we baptism and share in the church's royal mission,
find different approaches; the same can be said the mission of serving (cf c. 204).
tor certain organ transplants. Some people prefer This p r e s u p p o s e s a basic k n o w l e d g e of

HEALTH PROGRESS NOVEMBER - DECEMBER 2002 • 1 5

TRUSTEES AND CANON LAW

Catholic doctrine relating to baptism and its con- section 6); in canon law, an "investment" is a
sequences as well as an understanding of the long-term placement sufficient to make the funds
notion of apostolate and its implications for the part of the stable patrimony; it does not refer to
life of the church. A sense of mission would have ordinary banking practices.
to underlie this knowledge. This is something • To keep books in order (c. 1284, para. 2, sec-
that must be updated regularly because of new tion 7).
understandings and developments. • To prepare annual reports (c. 1284, para. 2,
Administrators of church goods at all levels are section 8); this is an exercise of accountability.
to have an attitude that may differ from that of • To keep documents secure in archives (c.
persons entrusted with the administration of sec- 1284, para. 2, section 9).
ular temporal goods. Their purpose is not pri- • To prepare annual budgets (c. 1284, para. 3).
marily to make a profit but to provide resources • To present to the faithful an account of the
for the pursuit of the church's proper ends, such use made of donations received (c. 1287, para. 2 |.
as the ordering of divine worship, providing • To secure the bishop's permission before ini-
decent support for the clergy and pastoral work- tiating or contesting law suits in secular courts (c.
ers, and performing apostolic and charitable 1288).
works, especially toward the needy (c. 1254). • To observe testamentary clauses when goods
Thus the temptation to evaluate an administra- are left to the church (c. 1300).
tor's performance simply by looking at a balance
sheet should be avoided. PARTICULAR CONCERNS IN TODAY'S WORLD
Specific Duties10 The Code lists a number of duties Several contemporary concerns should be men-
or obligations of administrators of temporal tioned here.
goods. These can be shared with the trustees. Liability Issues It is important to keep in mind
• To take an oath of office to be efficient and issues relating to responsibility. I refer here to
faithful (c. 1283, section 1). canonical liability, but the overlap with civil liabil-
• To prepare a detailed inventory of the juridic ity is evident.
person's goods (c. 1283, section 2); this would Administrators who carry out acts that are
distinguish between those goods that are owned invalid canonically, even though they might be
outright and those entrusted to the administrator valid civilly, are, according to canon 1281, para-
on behalf of another entity." graph 3, liable for such acts. Among such invalid
• To respect the intentions of donors (c. 1267, acts are selling property or contracting major
para. 3); this is a principle of natural law. debts without the proper canonical authoriza-
• To observe civil laws in matters relating to tions; using funds for purposes other than those
the hiring of personnel (and payment of salaries), for which the money was originally donated,
as well as observing the church's social teachings without authorization of the donors; not consult-
(c. 1286); usually the ethical and religious direc- ing appropriately those who have a direct interest
tives applicable in the territory refer explicitly to in the undertaking.
such matters. The juridic person is not liable in such cases
• To ensure that goods are not damaged and unless it derived benefit from the transaction. If
that appropriate insurance coverage is arranged the act is valid but illicit, how ever, the juridic per
(c. 1284, para. 2, section 1); of course, the type son is responsible. Among the latter we could
of insurance will vary according to the type of mention the sale of property or assets w ithout
work undertaken. obtaining the required canonical authorizations
• To use civilly valid methods to protect eccle- and performing acts of extraordinary administra-
siastical ownership (c. 1284, para. 2, section 2); tion without the proper canonical consents.
in North America this generally entails establish- Indeed, of all the responsibilities incumbent
ing separate corporations and carefully maintain- upon administrators, the area in which liability is
ing the distinctions between them. high is that involving the sale of property and
• To observe civil and canon law in all transac- the signing of contracts without observing the
tions (c. 1284, para. 2, section 3). proper canonical formalities (consent, for exam-
• To collect revenues (c. 1284, para. 2, section ple). If an administrator were to sell personal
4). goods (i.e., patrimony), a suit to recover dam-
• To repay debts, both capital and interest, in a ages could be introduced before the church tri-
timely manner (c. 1284, para. 2, section 5); bunals or even before civil tribunals. Such a pro-
sometimes it is preferable to retain some debt, cedure is extremely rare, however.
particularly if it is at a more favorable rate of For religious institutes, canon 639 describes a
interest. number of instances involving liability for actions.
• To invest funds securely (c. 1284, para. 2, For instance, if a juridic person that is part of a

16 • NOVEMBER - DECEMBER 2002 HEALTH PROGRESS

religious institute has contracted debts and obli- just in name but in mission and philosophy as
gations, even with the appropriate permissions, it well. We cannot expect the trustees to perform
must answer for them. Thus a province of a reli- tasks for which they are not suitably prepared or
gious institute would be responsible for its debts, for which no on-site formation was made avail-
but the entire institute would not be responsible. able. If people have not been suitably formed to
The institute is not responsible for contracts take church teachings and discipline into consid-
made by a member concerning personal patrimo- eration, it is difficult to blame them for their
nial goods. If, however, a duly authorized reli- actions; nevertheless, an institution can gradual-
gious enters into contracts regarding goods ly, imperceptibly slide away from sound doctri-
belonging to the institute, then the institute nal principles, allowing the pressures ot market-
itself is responsible for the consequences, not the ing to take over. The Holv See has been willing
individual religious. But, if a religious without to grain public juridic status to various health
authorization enters into a contract regarding care undertakings and has accepted the risks
patrimonial goods or goods belonging to the inherent in such a choice. It is up to us to show
institute or one of its parts, then the religious is that the Holy See was right to approve such
liable if he or she has personal patrimony. If the undertakings and that we will live up to legiti-
religious does not have personal goods, little can mate expectations.
be done. If the matter were extremely serious—if, In addition to the general duties mentioned
for example, a religious were to sign labor con- above, a sound application of the church's canon
tracts without authorization or enter into busi- law would call for trustees to:
ness dealings for which permission was not asked • Remain aware of developments in moral and
or was refused—dismissal from the institute ethical teachings
could be considered. Of course, this does not • Exercise responsible stewardship over the
apply in the case of lay persons working for a temporal goods entrusted to their care
religious institute; in those cases, other provi-
• Make certain that we are indeed dealing with
sions would be included in policy manuals or
a recognized apostolate (which calls for commu-
contractual agreements.
nion with the diocesan bishop)
What is of the utmost importance, then, is • Make certain that new members and trustees
determining clearly whether and when the person are suitably informed of situations
involved is the institute's agent. It does not seem • Establish good understanding of their civil
prudent to state that all religious, or trustees, are responsibilities and their canonical duties, panic
at all times agents of the c o m m u n i t y (even ularly when these appear to be in conflict
though this might have advantages for tax pur- • Be particularly careful when considering pro-
poses) because the liability of the sponsoring posed new mergers, amalgamations, joint ven-
institute then would be high. tures, and similar arrangements, making certain
Canon 1289 provides that once an administra- that the philosophies MK\ values are compatible
tor has assumed responsibility for the administra- and that things won't be reduced to their lowest
tion of temporal goods, these duties cannot be common denominator
relinquished as long as the office is held. If they
are relinquished, and the church or one of its ACCOUNTABILITY
entities is subsequently harmed, the administrator Not surprisingly, a number of prescriptions in the
must make restitution. The canon does not spell Code relate to accountability.
out how such restitution would be effected. first, canonical stewards and those who assist
Without recourse to the civil courts, it usually is them are b o u n d t o some form of internal
impossible to enforce such regulations in North accountability (c. 1284, para. 2, section 8; 1287;
America. 636, para. 2; and 637). An institution's or sys-
The Health Care Ministry's Future Viability The church's tem's norms will provide how trustees are to ren-
health care ministry in North America faces main der ,\n account of their activities. Such is usually
challenges, from without and even from within. organized on the civil level. There is nothing
These challenges can arise from financial pres- preventing the canonical administrators from
sures, competition, and ethical positions, among adopting the same procedures to cover canon
others. Trustees and those involved in sponsor- law obligations.
ship must be aware of these pressures and not Second, a form of accountability to the dioce-
simply wake up some morning to find themselves san bishop exists, not so much for the temporal
face to \\\cc with something that could have been goods as for the mission of the institution or s\ s
avoided. tern. The bishop has the right to determine
In particular, I am concerned with maintain- whether a work undertaken in his diocese is,
ing the Catholic identity of our institutions, not indeed, in conformity with church teaching ami

HEALTH PROGRESS NOVEMBER - DECEMBER 2 0 0 2 • 17

TRUSTEES AND CANON LAW

practice. The diocesan bishop would be involved institutions "from within" because we have no
in the alienation of ecclesiastical property because consistent plan of action for the trustees.
he must express his opinion on the matter.
Third, accountability to the Apostolic See A SPECIAL GIFT
yi.m be exercised in certain ways, Tor instance, Rather than taking a somewhat negative approach
in cases of alienation of property, the permis- and considering the duties of trustees from the
sion of the Apostolic See is required if* the perspective of possible dereliction of duty, our
t r a n s a c t i o n exceeds the m a x i m u m a m o u n t ministry should approach the issue positively. As
allowed. If the trustees are also canonical stew- stewards, administrators, and trustees, such per-
ards (as in the case of some of the juridic per- sons have been entrusted with responsibility. As
sons established for health care), then they members of the people of God who are sharing in
must make a regular report to the Apostolic Christ's royal mission, they must do all they can
See, detailing: to be faithful to the trust.
• The mission A good administrator or trustee requires a spe-
• The people invoked cial gift. Those who have received such a gift
• New undertakings from the Lord should use it to build up the body
• Financial situation of Christ and to allow the church to continue its
• Relations with diocesan bishops saving mission in the world. o

FUTURE CHALLENGES
There will obviously be tensions for trustees and N O T E S
members in the years ahead. These can occur in a
number of areas. 1. Francis G. Morrisey, "Canonical Duties, Liabilities of
Trustees and Administrators." Health Progress, June
Ethical and Religious Directives One area is implemen-
1985. pp. 47-51. 70.
tation of the Ethical and Religious Directives for 2. John Paul II, "On Organ Transplants and Human
Catholic Health Care Services, in the United Cloning," The Pope Speaks, vol. 46, 2000. pp. 21-24.
States, and similar directives in other countries. See also the pope's message of July 1, 2001, to the
Implementation could be difficult in cases where Pontifical Academy, "Guidelines for Transplants of
Animal Organs to Humans," The Pope Speaks, vol.
the directives become particularly narrow, either
46. 2001. pp. 373-374.
in their wording or in their application. Trustees 3. See, for example, www.globalchange.com/
and administrators should focus strongly on the clonaid.htm, which contains many items related to
directives' positive elements, not their few nega- this relatively recent phenomenon.
tive prescriptions. 4. Francis G. Morrisey. "Toward Juridic Personality."
Health Progress, July-August 2001, pp. 27-31, 51.
Amalgamations We will inevitably see further amal- 5. See. for example. Origins. August 30, 2001. pp. 205.
gamations between Catholic health care providers 207-215, concerning the debate on stem cell
in the years ahead. For this reason, a clear guiding research.
"philosophy" is needed to govern systems and 6. See the letter of the Illinois bishops. "Facing the End
of Life." Origins. June 21. 2001. pp. 105.107-109.
their operations. For instance, questions of jus- 7. See, for example, John Paul II. "Pastoral Care of the
tice—as specified in the Ethical and Religious Sick and Imprisoned." Origins, January 24,1998. pp.
Directives—must be kept foremost in mind, even 560-561. for a number of practical principles to be
in times of serious budget constraints. Recent applied, particularly with regard to suffering as seen
groupings have put less emphasis on the particu- from a Christian perspective.
8. See B. A. Garner, ed.. Black's Law Dictionary, 7th ed.,
lar charism of the original sponsoring religious West Group, St. Paul. MN. 1999. p. 1,519. for various
institute and more emphasis on a general charism definitions.
related to consecrated life .\nd the service of oth- 9. See The Canonical Statutes of Covenant Health
ers in the following of Christ. Systems, approved by the Holy See, July 15, 1995,
Article 5. See also Bob Stephens, "The Public Juridic
Will or Desire Trustees .\nd members must ask Person in Action," Health Progress. May-June 2001,
themselves whether they truly have the will or pp. 21-24, 43.
desire to carry out a mission in harmony with 10. For a practical commentary on this part of the Code,
church teachings. see R. T. Kennedy. "The Temporal Goods of the
Church," in Canon Law Society of America, New
A Possible Threat "from Within" Choosing trustees
Commentary on the Code of Canon Law, Paulist
thoughtfully, seeing to their ongoing formation, Press, New York City, 2000. pp. 1,484-1.492.
and ensuring their involvement with the teach- 11. For an excellent study of the significance of an inven-
ings of the church are essential if our various tory and the distinctions to be found in it. see D. C.
institutions are to carry out their missions. Tack Conlin, Canonical and Civil Legal Issues Surrounding
the Alienation of Catholic Health Care Facilities in
of care in doing so is probably the greatest weak
the United States, Pontifical University of St. Thomas
ness of our present ministry; if appropriate action Aquinas, Rome, 2000. pp. 57-72 ("Stable Patrimony
is not taken, we run the strong risk of losing our and the Need for an Accurate Inventory").

18 • NOVEMBER - DECEMBER 2 0 0 2 HEALTH PROGRESS