RULE 503. PHYSICIAN AND
(1) A communication is "confidential" if it is not intended to be disclosed to third persons, except those present to further the interest of the patient in the consultation, examination, or interview, those reasonably necessary for the transmission of the communication, and persons who are participating in the diagnosis and treatment of the patient under the direction of a physician or mental-health provider, including members of the patient's family.
(2) "Mental-health provider" means a person authorized, in any state or country, or reasonably believed by the patient to be authorized, to engage in the diagnosis or treatment of a mental or emotional condition, including addiction to alcohol or drugs.
1 3) A "patient" is a person "Patient"
means an individual who consults or is examined or
interviewed by a physician or psychotherapist mental-health provider.
2 4) A "physician" is "Physician"
means a person authorized to in any state or country, or
reasonably believed by the patient to be authorized to practice medicine in any state
nation, or reasonably believed by the patient so to be.
(3) A "psychotherapist" is (i) a person authorized to practice medicine in any state
nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or
treatment of a mental or emotional condition, including alcohol or drug addiction, or, (ii) a
person licensed or certified as a psychologist under the laws of any state or nation, while
(4) A communication is "confidential" if not intended to be disclosed to third
except persons present to further the interest of the patient in the consultation, examination,
or interview, persons reasonably necessary for the transmission of the communication, or
persons who are participating in the diagnosis and treatment under the direction of the
physician or psychotherapist, including members of the patient's family.
(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent
any other person from disclosing confidential communications made for the purpose of
diagnosis or treatment of
his the patient's physical, mental, or
emotional condition, including
addiction to alcohol or drugs addiction, among
himself, his the patient, the patient's
physician or psychotherapist or mental health provider, and
persons, including members of
the patient's family, who are participating in the diagnosis or treatment under the direction
of the physician or psychotherapist or mental health provider ,
including members of the
(c) Who may claim the privilege. The privilege under this rule may be claimed by
his the patient's guardian or conservator, or the personal
representative of a deceased
patient. The person who was the physician or psychotherapist or mental
health provider at
the time of the communication is presumed to have authority to claim the privilege, but
on behalf of the patient.
(d) Exceptions. There is no privilege under this rule for communication:
Proceedings for hospitalization. There is no privilege under this rule for
communications relevant to an issue in proceedings to hospitalize the patient for mental
illness , including alcohol or drug addiction, if the
psychotherapist or mental health provider
in the course of diagnosis or treatment has determined that the patient is in need of
Examination by order of court. If the court orders an made in the
course of a court-ordered investigation or examination of the physical, mental, or emotional
condition of a
patient, whether a party or a witness, communications made in the course thereof are not
privileged under this rule with respect to the particular purpose for which the
is ordered, unless the court orders otherwise .;
Condition an element of claim or defense. There is no privilege under this rule
as to a
communication relevant to an issue of the physical, mental, or emotional condition of
patient in any proceeding in which he the patient relies upon the
condition as an element of
his the patient's claim or defense or, after the patient's death, in any
proceeding in which any
party relies upon the condition as an element of his the party's claim or
(4) if the services of the physician or mental-health provider were sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew, or reasonably should have known, was a crime or fraud or mental or physical injury to the patient or another individual;
(5) in which the patient has expressed an intent to engage in conduct likely to result in imminent death or serious bodily injury to the patient or another individual;
(6) relevant to an issue in a proceeding challenging the competency of the physician or mental-health provider;
(7) relevant to a breach of duty by the physician or mental-health provider; or
(8) that is subject to a duty to disclose under rule or statute.
Rule 503 was amended, effective___________________.
Rule 503 is modeled after Rule 503 of the Uniform Rules of Evidence
(1974). The rule
retains the physician-patient privilege which has long been provided by statute in North
Dakota. The rule also provides that certain communications made to a psychotherapist
a licensed psychologist mental health provider are privileged.
Subdivision (a) contains the definitions of the parties to the privilege and of the term "confidential." It should be noted that members of a patient's family are expressly included in that group of people to whom communications may be made without a waiver of the privilege, provided, of course, that the communications otherwise meet the requirements of the rule.
Subdivision (a) was amended, effective__________________, to replace the definition of "psychotherapist" with that of "mental health provider," a broader term that includes all professionals authorized by a state or country to provide mental health services. "Mental health provider" replaces "psychotherapist" throughout the rule.
As to the general rule of privilege contained in subdivision (b), note should be made of the fact that only those communications made "for the purpose of diagnosis or treatment" are privileged. This is a narrower privilege than under prior law, N.D.C.C. § 31-01-06, which covered "any communication made by the patient in the course of professional employment."
Subdivision (c) provides that the privilege may be claimed by the personal representative of a deceased patient. In action where all parties are claiming through a deceased patient, the privilege has been held not to apply. Lembke v. Unke, 171 N.W.2d 837 (N.D. 1969).
Subdivision Paragraph (d)(1) provides that there is no privilege
relevant to an issue in hospitalization proceedings. "Such an exception is essential if the
psychiatrist is to perform his role which will, in some instances, require that he use the
material supplied by the patient as a basis for hospitalization." Goldstein and Katz,
Psychiatrist-Patient Privilege: The GAP Proposal and the Connecticut Statute, 36 Conn. Bar
J. 175 at 187 (1962).
The exception applies only to communications
(1) relevant to an issue
(2) in proceedings
to hospitalize the patient for mental illness. As to communications not relevant to the subject
of commitment, and in actions other than commitment proceedings, the privilege applies.
In a court-ordered examination of a party or witness, the purpose usually is not for
treatment or for diagnosis with a view toward treatment. No professional relationship is
created and, thus, under
subdivision paragraph (d)(2), the privilege
does not attach to
communications made in the course of those examinations.
Whenever a patient brings
his physical or mental condition into issue as
an element of a
claim or defense, there is no longer any reason to continue the privilege as the patient has
voluntarily chosen to disclose certain aspects of the privileged communication. Nor is there
justification for allowing the privilege to be used as a "sword," rather than a "shield."
Subdivision Paragraph (d)(3) removes the privilege in these instances.
For a recent case
holding that, under prior law, the privilege is waived by the initiation of a medical
malpractice action, see See Sagmiller v. Carlsen, 219 N.W.2d 885 (N.D. 1974).
Subdivision (d) was amended, effective __________________, to add paragraphs (4)-(8), which provide additional exceptions to the privilege allowed under this rule.
Rule 503 was amended, effective_______________, to follow the 1999 amendments to Rule 503 of the Uniform Rules of Evidence. The rule has been reorganized and gender specific language has been replaced with neutral language.
Sources: Joint Procedure Committee
:of_____________________; January 29,
1976, page 5. Rule 503, Uniform Rules of Evidence (1974).
Superseded: N.D.C.C. § 31-01-06(3).
Considered: N.D.C.C. §§ 14-17-13, 23-07-01.1, 31-01-06.3, 31-01-06.4, 31-01-06.5, 31 -01-06.6, 37-18-11(6)(b), 50-25.1-10.
Considered Cross Reference: N.D.R.Civ.P. Rule
35 (b)(2), NDRCivP (Physical and Mental