THE EXERCISE OF ORDAINED MINISTRY

Once Orders have been received validly, there is no specific requirement to monitor or

continue to prove suitability. But, determination of suitability for admission to the episcopate is made by the Holy See; and by analogy with canon 1051 2º, consultation with experts is not excluded.¹⁵⁷ However, a cleric can become irregular for, or be impeded from, the exercise of Orders. The law, like that governing admission to Orders, distinguishes irregularity for, and impediments to, the exercise of Orders already received. However, unlike CIC canon 1041, which considered ‘insanity or other psychological infirmity’ which led to incapacity to fulfil ministry as an irregularity, curiously, canon 1044 considers this same incapacity, not as an irregularity but as an impediment to the exercise of Orders already received. CIC canon 1044 provides:

‘§2: The following are impeded from the exercise of orders; … 2° one who suffers from insanity or from any other psychological infirmity mentioned in Can 1041 n1, until such time as the Ordinary, having consulted an expert, has allowed the exercise of the order in

question’.¹⁵⁸

156 CCEO, c. 769§1, 4º. See Appendix II.

157 CIC, c. 378§1. See Appendix I. Nor does CIC make provision for the initial or ongoing formation of a bishop. However, bishops are priests and therefore the canons on ongoing formation apply. Sacred Congregation for Clergy, Directory for the Ministry and Life of Priests (31 January 1994), clarifies this.

157 CIC, c. 378§2. See Appendix I.

158 CIC, c. 1044§2, 1° lists others who are impeded from the exercise of Orders already received, but there is no provision for the use of experts. See Appendix I.

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This canon confirms that the causes of the impediment of insanity or any other psychological infirmity are identical to those in canon 1041, 1° (which we have discussed in the previous section). In the case of Orders already received, because the condition constitutes an

impediment rather than an irregularity, the condition is not considered permanent. An expert (singular) must be consulted before the Ordinary allows the cleric to resume the exercise of Orders following the establishment of the impediment. But, it is clear from the reference to canon 1041, which requires experts (plural) to be consulted, that here too, experts (plural) must be consulted before the cleric is deemed to have suffered from the impediment.

Moreover, also by reference to canon 1041, the impediment is incapacitating; therefore, the canon must be interpreted strictly.¹⁵⁹ This impediment affects someone who either

contracted the condition after valid ordination or whose condition, existing prior to ordination but not in sufficient severity to constitute irregularity, deteriorated after ordination, causing incapacity to fulfil ministry properly. The canon also clarifies that the Ordinary decides whether or not to allow the cleric to return to the exercise of Orders.

The canon does not, however, clarify: whether or not the cleric has any choice with regard to the expert to be consulted; the professional disciplines or qualifications of the expert to be consulted before the cleric in question is returned by the Ordinary to ministry.

Appointment of the Expert: The law and indeed commentators are silent on who appoints the expert. Presumably the Ordinary appoints, as the canon is clear that it is the Ordinary who must consult the expert prior to returning the cleric to ministry. It would, however, seem reasonable that if the cleric had undergone treatment for the condition which caused the impediment, the professional concerned would be the most informed of his present status.

No provision is made as to whether the cleric may be involved in the choice of the expert.

Given the more recent Vatican guidelines (2008), which give the candidate a choice (albeit one which must be approved), it would seem that the individual has a say in the matter.

Disciplines, Qualifications and Functions of the Expert: Whether a medical expert must be consulted before the cleric is returned to ministry is unclear. Some authors are silent on this issue;¹⁶⁰ one simply refers the reader to canon 1041.¹⁶¹ Kelly speaks of ‘an appropriate’

159 CIC, c. 18. See Appendix I.

160 González del Valle, Ann, p796.

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expert without further clarification.¹⁶² On the other hand, Woestman implies that an expert qualified in psychic defects is required. He refutes the suggestion that the ‘psychic defect’

which impedes the exercise of Orders could refer to ‘any mental state rendering one unsuitable to function in the ministry’; rather, the irregularity (for reception of Orders) or impediment (for their exercise) renders the person ‘incapable of correctly exercising (rite) ordained ministry’.¹⁶³ He notes that CIC 1917 required a greater defect to impede the exercise of Orders already received than was required to impede the reception of the

sacrament;¹⁶⁴ accordingly ‘the acts which can be correctly (rite) performed are not prohibited because of the defect’.¹⁶⁵ Woestman cites other authors who agree. For Woestman, ‘either one is impeded or is not; there is no middle ground’. For example, one cannot be impeded, because of this infirmity, from celebrating Mass publicly and not be impeded from

celebrating Mass privately.¹⁶⁶

The lack of clarity as to the meaning of the term ‘incapable of properly fulfilling the ministry’

which we met in relation to irregularity with regard to the reception of Orders, continues to be felt in this context. ‘Fulfilling’ might imply carrying out all tasks relevant to the order in question, while ‘exercise of the order’ might imply carrying out limited tasks or even a single task, for which the reception of Orders is required.¹⁶⁷ Establishing the severity of a

161 Gilbert, Text&Comm, p731.

162 Kelly, L&S, p566. See also in relation to c. 689.

163 Woestman, ‘Canons 1041, 1º and 1044 §2,2º’, p315, citing Russell E Smith, ‘Pedophilia and Church Law’, in Ethics and Medics, 15 (December 1990), 3. Emphasis added. Woestman explains that: ‘rite here does not refer to moral behaviour but to ritualità, i.e., the correct fulfilment for a valid celebration of acts placed in virtue of orders’, citing Velasio De Paolis, C.S, ‘Delitti contra il sesto comandamento’, Per, 82 (1993), pp 311-312. In discussing irregularities and impediments to receiving and exercising orders, he points out that for the exercise of the priesthood a person must have absolute mental qualities which ‘are incompatible with a psychological illness vitiating the will’, citing Ado Groin, ‘Ordine sacro e difetti fisici nella nuova legislazione canonica:

prime osservazioni”, Monitor Ecclesiasticus, 119 (1984), p169. See also ft 33 above.

164 Ibid., pp314-315. Woestman explains that CIC 1917 ‘used the word rite in reference to physical defects or disabilities making a person irregular for the reception and the exercise of orders, but did not prohibit the exercise of orders received for those acts which “could be correctly performed” (qui rite poni possunt, c 984 2º)’. CIC 1917, c. 984, 2°. See Appendix III. See also ft 33 above.

165 Woestman, The Sacrament of Orders, p67: ‘Rite means to celebrate according to the sacred rites or the liturgical prescriptions’. Also Woestman, ‘Canons 1041, 1º and 1044 §2,2º’, p314: ‘Rite’ refers to ordained ministry in the strict sense, not to those ministries shared with the non-ordained.

166 Woestman, ‘Canons 1041, 1º and 1044§2,2º’, p315, citing Apostolic Signatura, definitive sentence (9 March 1993), Prot. No. 22571/91 (CA, Pittsburgen).

167 ‘Fulfil’ is defined by The Concise Oxford English Dictionary, Eighth Edition (1990), p475, as: 1: ‘bring to consummation, carry out’; 2: ‘satisfy (a desire or prayer)’; 3: ‘execute, obey (a command or law), perform, carry out (a task)’; 4: ‘comply with (conditions)’; 5: ‘answer (a purpose)’; 6: ‘bring to an end, finish, complete (a period or piece of work)’. Fulfil oneself: ‘develop one’s gifts and character to the full’. ‘To exercise’ is defined by The Concise Oxford English Dictionary, Eighth Edition (1990), p409 as: ‘to use or apply (a faculty, right,

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condition, required to declare irregularity for Orders and impediment to their exercise is an important task for the expert. The expert needs to know what is required of the cleric.

Woestman holds that this impediment has been too broadly interpreted and consequently incorrectly applied to remove priests from ministry who suffer from psychological infirmity, but who are not incapable of correctly celebrating the sacramental ministry; the Ordinary has other powers to restrict ministry.¹⁶⁸

The foregoing can be compared with provision under CIC 1917 and CCEO. Under CIC 1917, irregularity for exercise of ministry (which needed to be graver than one preventing ordination) or impediment for the same, caused someone to be ‘prohibited’ from exercising Orders already received.¹⁶⁹ Although the use of experts was not mandated, freedom from irregularity due to insanity, epilepsy or possession by the devil, needed to be ‘certainly proved’ before readmission to ministry.¹⁷⁰ While no declaration of irregularity or

impediment appeared necessary, there was no formal procedure for the removal of a pastor prior to 1910, but the practice was frequently employed; a decree in that year set out the process.¹⁷¹ According to Doyle, one of the justifying causes for removal from ministry was insanity, ‘which must be such that according to the declaration of expert doctors they cannot forsee (sic) a perfect cure without danger of relapse’.¹⁷² Doyle held that the experts should be ‘medical doctors, and as far as possible specialists in mental diseases’ and the

responsibility to consult them was that of the bishop concerned, who could remove the pastor if danger of relapse persisted.¹⁷³ Curiously, this provision to consult medical experts did not find its way into CIC 1917, under which the bishop was obliged only to consult ‘two

influence, restraint, etc)’; 2: ‘to perform (a function)’. However, albeit in a theological sense, no separation between the munus docendi, sactificandi et regendi, is possible: See CNOFSMP, 2 in Appendix VI.

168 Woestman, The Sacrament of Orders, p68, ft 22: ‘The Apostolic Signatura has accepted the broad

interpretation of “ministry” to include the functions of teaching and shepherding or governing in CIC, cc. 256§1 and 1008, in extreme cases and with caution for its application’. At p80: ‘A cleric is impeded by a

psychological infirmity only after his ordinary has taken into account the opinion of experts, and then judges that the cleric is incapable of properly fulfilling the ministry’. The ordinary’s competence to restrict ministry is not affected.

169 CIC 1917, c. 968§2. See Appendix III. Impediments to the exercise of Orders were not listed. Presumably, if any of the conditions giving rise to impediment for reception arose after ordination, the cleric would be impeded from the exercise of ministry.

170 See Appendix III: CIC 1917, c. 984, 3°.

171 Doyle, Doctoral Thesis, p223, citing Sacra Congregatio Consistorialis, Decree, Maxima Cura (20 August 1910), Fontes, V§2074.

172 Ibid.

173 Ibid., citing Felix Cappello, De Administrativa Amotione Parochorum (Rome, 1911), p33.

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examiners’; this duty appears to have been met by consulting other priests.¹⁷⁴ Moreover, the bishop was permitted to deny a pastor suffering ‘mental problems’ the opportunity to resign, presumably because he was deemed incapable of placing a juridical act.¹⁷⁵

CCEO makes similar provision to CIC for both impediments to the exercise of Orders¹⁷⁶ and return to ministry in cases of insanity or psychological infirmity.¹⁷⁷ Interestingly,

consultation with experts is still not required by either of the current Codes before removing a parish priest, even on grounds of ‘permanent illness of mind or body’ preventing him from fulfilling his task.¹⁷⁸ Therefore, the bishop may remove a pastor on psychological grounds without consulting experts, but the bishop cannot declare the priest impeded from exercising Orders on the grounds of psychological infirmity without consulting experts, and the bishop must consult an expert (singular) before permitting that (impeded) cleric to return to ministry.

In sum, to forbid the exercise of Orders already received, the competent authority must have moral certainty of the presence of irregularity (which does not require the use of experts) or the presence of impediment (which requires the use of experts if it is due to insanity or other psychological infirmity). To return a cleric who was impeded by virtue of insanity or other psychological infirmity, an expert must be consulted and the competent authority must reach moral certainty of the absence of the impediment. The professional discipline of this expert is unclear, and the commentators do not assist on this issue, but given the nature of the impediment it would seem that a psychiatrist or a psychologist would be appropriate to ensure that the psychological infirmity was no longer sufficiently severe to constitute an impediment.