TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 12, 2013
RE: Rule 503, N.D.R.Ev., Physician and Psychotherapist-Patient Privilege
Proposed amendments to Rule 503 based on the 1999 amendments to the Uniform Rules of Evidence are attached.
Rule 503 provides for the physician and psychotherapist privilege from testifying against a patient. The 1999 amendments add a new category, "mental-health provider" as another type of person privileged under Rule 503. The relationships between physician and mental-health provider and patient, privilege the physician or mental-health provider from having to testify in court on anything respecting that relationship. The definition of "mental health provider" seems to include "psychotherapist," which is the term currently used in the rule.
Mental health provider is obviously a broader term than psychotherapist. North Dakota law, however, would seem to support the proposed expansion. In particular, the addiction counselor privilege statutes from N.D.C.C. § 31-01-06.3 through § 31 -01-06.6, attached, seem to support a broader privilege. These were originally adopted in 1981, after the Rules of Evidence were enacted. It is possible that these statutes can be superseded if the expanded definition of "mental health provider" is included in Rule 503.
Five new exceptions to the privilege have been added at the end of the rule. The relate to situations when there is crime of fraud, when the patient has threatened self-hamr or harm to others, when there is a competency proceeding against the health professional, when there is an alleged breach of duty by the health professional, and when a mandatory disclosure statute applies.