RULE 503. PHYSICIAN AND MENTAL HEALTH PROFESSIONAL-PATIENT PRIVILEGE
(a) Definitions. In this rule:
(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 professional, including members of the patient's family.
(2) "Mental health professional" means:(A) a psychologist with at least a master's degree who has been either licensed or approved for exemption by a state board;(B) a registered nurse with a master's degree in psychiatric and mental health nursing from an accredited program;(C) a registered nurse with a minimum of two years of psychiatric clinical experience under the supervision of a psychiatrist, psychologist, or registered nurse as defined by Rule 503(a)(2)(C);(D) a licensed addiction counselor;(E) a licensed professional counselor with a master's degree in counseling from an accredited program who has either successfully completed the advanced training beyond the master's degree as required by the national academy of mental health counselors or a minimum of two years of clinical experience in a mental health agency or setting under the supervision of a psychiatrist or psychologist."Mental health professional" includes a person reasonably believed by the patient to be a mental health professional.(3) "Patient" means an individual who consults or is examined or interviewed by a physician or mental-health professional.
(2) "Physician" means a person authorized in any state or country, or reasonably believed by the patient to be authorized to practice medicine.
(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 the patient's physical, mental, or emotional condition, including chemical dependency, among the patient, the patient's physician or mental health professional, and persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician or mental health professional.
(c) Who May Claim the Privilege. The privilege under this rule may be claimed by the patient, the patient's guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or mental health professional at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.
(d) Exceptions. There is no privilege under this rule for communication:
(1) relevant to an issue in proceedings to hospitalize the patient for mental illness, including or chemical dependency, if the physician or mental health professional in the course of diagnosis or treatment has determined that the patient is in need of hospitalization;
(2) 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, with respect to the particular purpose for which the examination is ordered, unless the court orders otherwise;
(3) relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of 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 the party's claim or defense;
(4) if the services of the physician or mental health professional 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 professional;
(7) relevant to a breach of duty by the physician or mental health professional; or
(8) that is subject to a duty to disclose under rule or statute.
Rule 503 was amended, effective March 1, 2014.
Rule 503 is modeled after Rule 503 of the Uniform Rules of Evidence. 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 mental health professional 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 March 1, 2014, to replace the definition of "psychotherapist" with that of "mental health professional," a broader term that is based on the definition contained in N.D.C.C. § 25-03.1-02 (10). "Mental health professional" 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, 31-01-06, NDCC, 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 actions 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).
Paragraph (d)(1) provides that there is no privilege for communications 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 relevant to an issue 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 paragraph (d)(2), the privilege does not attach to communications made in the course of those examinations.
Whenever a patient brings 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." Paragraph (d)(3) removes the privilege in these instances. See Sagmiller v. Carlson, 219 N.W.2d 885 (N.D. 1974).
Subdivision (d) was amended, effective March 1, 2014, to add paragraphs (4)-(8), which provide additional exceptions to the privilege allowed under this rule.
Rule 503 was amended, effective March 1, 2014, 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 Minutes of April 25-26, 2013, pages 29-32; 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, 25-03.1-02, 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.
Cross Reference: N.D.R.Civ.P. 35 (Physical and Mental Examination).