Rule 506. Physician and Mental HealthTherapist-Patient.
(1) "Patient"means a person who consults or is examined or interviewed by a physician ormental health therapist.
(2) "Physician"means a person licensed, or reasonably believed by the patient to be licensed,to practice medicine in any state.
(3) "Mentalhealth therapist" means a person who
(A) isor is reasonably believed by the patient to be licensed or certified in any stateas a physician, psychologist, clinical or certified social worker, marriage andfamily therapist, advanced practice registered nurse designated as a registeredpsychiatric mental health nurse specialist, or professional counselor; and
(B) isengaged in the diagnosis or treatment of a mental or emotional condition,including alcohol or drug addiction.
(b) Statementof the Privilege. Apatient has a privilege, during the patient's life, to refuse to disclose andto prevent any other person from disclosing information that is communicated inconfidence to a physician or mental health therapist for the purpose ofdiagnosing or treating the patient. The privilege applies to:
(1) diagnosesmade, treatment provided, or advice given by a physician or mental healththerapist;
(2) informationobtained by examination of the patient; and
(3) informationtransmitted among a patient, a physician or mental health therapist, and otherpersons who are participating in the diagnosis or treatment under the directionof the physician or mental health therapist. Such other persons includeguardians or members of the patient's family who are present to further theinterest of the patient because they are reasonably necessary for thetransmission of the communications, or participation in the diagnosis andtreatment under the direction of the physician or mental health therapist.
(c) WhoMay Claim the Privilege.The privilege may be claimed by the patient, or the guardian or conservator ofthe patient. The person who was the physician or mental health therapist at thetime of the communication is presumed to have authority during the life of thepatient to claim the privilege on behalf of the patient.
(d) Exceptions. No privilege exists under paragraph(b) in the following circumstances:
(1) Condition asElement of Claim or Defense.For communications relevant to an issue of the physical, mental, or emotionalcondition of the patient:
(A) inany proceeding in which that condition is an element of any claim or defense,or
(B) afterthe patient's death, in any proceedings in which any party relies upon thecondition as an element of the claim or defense;
(2) Hospitalizationfor Mental Illness.For communications relevant to an issue in proceedings to hospitalize thepatient for mental illness, if the mental health therapist in the course ofdiagnosis or treatment has determined that the patient is in need ofhospitalization; and
(3) Court OrderedExamination. Forcommunications made in the course of, and pertinent to the purpose of, acourt-ordered examination of the physical, mental, or emotional condition of apatient, whether a party or witness, unless the court in ordering the examinationspecifies otherwise.
2011Advisory Committee Note. –The language of this rule has been amended as part of the restyling of theEvidence Rules to make them more easily understood and to make style andterminology consistent throughout the rules. These changes are intended to bestylistic only. There is no intent to change any result in any ruling onevidence admissibility.
ADVISORY COMMITTEE NOTE
Rule 506 is modeled after Rule 503 ofthe Uniform Rules of Evidence, and is intended to supersede Utah Code Ann. §§78-24-8(4) and 58-25a-8. There is no corresponding federal rule. By virtue ofRule 501, marriage and family therapists are not covered by this Rule.
The differences between existing §78-24-8 and Rule 506 are as follows:
(1) Rule 506 specifically applies topsychotherapists and licensed psychologists, it being the opinion of the Committeethat full disclosure of information by a patient in those settings is ascritical as and as much to be encouraged as in the "physician"patient setting. The Utah Supreme Court requested that Rule 506 further applyto licensed clinical social workers. To meet this request, the Committeeincluded such individuals within the definition of psychotherapists. Under UtahCode Ann. § 58-35-2(5), the practice of clinical social work "means theapplication of an established body of knowledge and professional skills in thepractice of psychotherapy. . . ." Section 58-35-6 provides that "[n]operson may engage in the practice of clinical social work unless that person:(1) is licensed under this chapter as a certified social worker," has therequisite experience, and has passed an examination. Section 58-35-8(4) refersto licenses and certificates for "clinical social worker[s]." As aresult of including clinical social workers, Rule 506 is intended to supplantUtah Code Ann. § 58-35-10 in total for all social workers.
(2) Rule 506 applies to both civil andcriminal cases, whereas § 78-24-8 applies only to civil cases. The Committeewas of the opinion that the considerations supporting the privilege apply inboth.
(3) In the Committee's originalrecommendation to the Utah Supreme Court, the proposed Rule 506 grantedprotection only to confidential communications, but did not extend theprivilege to observations made, diagnosis or treatment by thephysician/psychotherapist. The Committee was of the opinion that while thetraditional protection of the privilege should extend to confidentialcommunications, as is the case in other traditional privileges, the interestsof society in discovering the truth during the trial process outweigh anycountervailing interests in extending the protection to observations made,diagnosis or treatment. However, the Supreme Court requested that the scope ofthe privilege be broadened to include information obtained by the physician orpsychotherapist in the course of diagnosis or treatment, whether obtainedverbally from the patient or through the physician's or psychotherapist'sobservation or examination of the patient. The Court further requested that theprivilege extend to diagnosis, treatment, and advice. To meet these requests, theCommittee relied in part on language from the California evidentiary privilegesinvolving physicians and psychotherapists. See Cal. Evid.Code §§ 992 and 1012. These features of the rule appear in subparagraphs (a)(4)and (b). The Committee also relied on language from Uniform Rule of Evidence503.
Upon the death of the patient, theprivilege ceases to exist.
The privilege extends tocommunications to the physician or psychotherapist from other persons who areacting in the interest of the patient, such as family members or others who maybe consulted for information needed to help the patient.
The privilege includes those who areparticipating in the diagnosis and treatment under the direction of thephysician or psychotherapist. For example, a certified social worker practicingunder the supervision of a clinical social worker would be included. See UtahCode Ann. § 58-35-6.
The patient is entitled not only torefuse to disclose the confidential communication, but also to prevent disclosureby the physician or psychotherapist or others who were properly involved orothers who overheard, without the knowledge of the patient, the confidentialcommunication. Problems of waiver are dealt with by Rule 507.
The Committee felt that exceptions tothe privilege should be specifically enumerated, and further endorsed theconcept that in the area of exceptions, the rule should simply state that noprivilege existed, rather than expressing the exception in terms of a"waiver" of the privilege. The Committee wanted to avoid any possibleclashes with the common law concepts of "waiver."
The Committee did not intend this ruleto limit or conflict with the health care data statutes listed in the CommitteeNote to Rule 501.
Rule 506 is not intended to overridethe child abuse reporting requirements contained in Utah Code Ann. § 62A-4-501et seq.
The 1994 amendment to Rule 506 wasprimarily in response to legislation enacted during the 1994 LegislativeGeneral Session that changed the licensure requirements for certain mentalhealth professionals. The rule now covers communications with additionallicensed professionals who are engaged in treatment and diagnosis of mental oremotional conditions, specifically certified social workers, marriage andfamily therapists, specially designated advanced practice registered nurses andprofessional counselors.
Some mental health therapists use theterm "client" rather than "patient," but for simplicitythis rule uses only "patient."
The committee also combined thedefinition of confidential communication and the general rule section, but noparticular substantive change was intended by the reorganization.