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Rule506. Physician and Mental Health Therapist-Patient.

 

(a)      Definitions.

(a)(1)   "Patient" means a person whoconsults or is examined or interviewed by a physician or mental healththerapist.

 

(a)(2)   "Physician" means a personlicensed, or reasonably believed by the patient to be licensed, to practicemedicine in any state.

 

(a)(3)   "Mental health therapist" meansa person who

 

(a)(3)(A)   is or is reasonably believed by thepatient to be licensed or certified in any state as a physician, psychologist,clinical or certified social worker, marriage and family therapist, advancedpractice registered nurse designated as a registered psychiatric mental healthnurse specialist, or professional counselor; and

 

(a)(3)(B)   is engaged inthe diagnosis or treatment of a mental or emotional condition, includingalcohol or drug addiction.

 

(b)      Statementof the Privilege. A patient has aprivilege, during the patient's life, to refuse to disclose and to prevent anyother person from disclosing information that is communicated in confidence toa physician or mental health therapist for the purpose of diagnosing ortreating the patient. The privilege applies to: 

(b)(1)   diagnoses made,treatment provided, or advice given by a physician or mental health therapist;

 

(b)(2)   informationobtained by examination of the patient; and

 

(b)(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 theguardian or conservator of the patient. The person who was the physician ormental health therapist at the time of the communication is presumed to haveauthority during the life of the patient to claim the privilege on behalf ofthe patient.

 

(d)       Exceptions. Noprivilege exists under paragraph (b) in the following circumstances:

(d)(1)   Condition as Element of Claim orDefense. For communications relevantto an issue of the physical, mental, or emotional condition of thepatient: 

(d)(1)(A)   in any proceeding inwhich that condition is an element of any claim or defense, or

 

(d)(1)(B)   after thepatient's death, in any proceedings in which any party relies upon thecondition as an element of the claim or defense;

 

(d)(2)   Hospitalizationfor Mental Illness. Forcommunications relevant to an issue in proceedings to hospitalize the patientfor mental illness, if the mental health therapist in the course of diagnosisor treatment has determined that the patient is in need of hospitalization; and

 

(d)(3)   CourtOrdered Examination. 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 theexamination specifies otherwise.

 

 

2011Advisory Committee Note. ?The language of this rule has been amended aspart of the restyling of the Evidence Rules to make them more easily understoodand to make style and terminology consistent throughout the rules. Thesechanges are intended to be stylistic only. There is no intent to change anyresult in any ruling on evidence admissibility.

 

OriginalAdvisory Committee Note.  Rule 506 ismodeled after Rule 503 of the Uniform Rules of Evidence, and is intended tosupersede Utah Code ?? 78-24-8(4) and 58-25a-8. There is no correspondingfederal rule. By virtue of Rule 501, marriage and family therapists are notcovered by this Rule.

 

Thedifferences between existing Utah Code ? 78-24-8 and Rule 506 are as follows:

 

(1) Rule506 specifically applies to psychotherapists and licensed psychologists, itbeing the opinion of the Committee that full disclosure of information by apatient in those settings is as critical as and as much to be encouraged as inthe "physician" patient setting. The Utah Supreme Court requestedthat Rule 506 further apply to licensed clinical social workers. To meet thisrequest, the Committee included such individuals within the definition ofpsychotherapists. Under Utah Code ? 58-35-2(5), the practice of clinical socialwork "means the application of an established body of knowledge andprofessional skills in the practice of psychotherapy. . . ." Section58-35-6 provides that "[n]o person may engage in the practice of clinicalsocial work unless that person: (1) is licensed under this chapter as acertified social worker," has the requisite experience, and has passed anexamination. Section 58-35-8(4) refers to licenses and certificates for"clinical social worker[s]." As a result of including clinical socialworkers, Rule 506 is intended to supplant Utah Code ? 58-35-10 in total for allsocial workers.

 

(2) Rule506 applies to both civil and criminal cases, whereas Utah Code ? 78-24-8applies only to civil cases. The Committee was of the opinion that theconsiderations supporting the privilege apply in both.

 

(3) Inthe Committee's original recommendation to the Utah Supreme Court, the proposedRule 506 granted protection only to confidential communications, but did notextend the privilege 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,the Committee relied in part on language from the California evidentiaryprivileges involving physicians and psychotherapists. See Cal. Evid. Code ?? 992 and 1012. Thesefeatures of the rule appear in subparagraphs (a)(4)and (b). The Committee also relied on language from Uniform Rule of Evidence503.

 

Upon thedeath of the patient, the privilege ceases to exist.

 

Theprivilege extends to communications to the physician or psychotherapist fromother persons who are acting in the interest of the patient, such as familymembers or others who may be consulted for information needed to help thepatient.

 

Theprivilege includes those who are participating in the diagnosis and treatmentunder the direction of the physician or psychotherapist. For example, acertified social worker practicing under the supervision of a clinical socialworker would be included. See Utah Code ? 58-35-6.

 

Thepatient is entitled not only to refuse to disclose the confidential communication,but also to prevent disclosure by the physician or psychotherapist or otherswho were properly involved or others who overheard, without the knowledge ofthe patient, the confidential communication. Problems of waiver are dealt withby Rule 507.

 

TheCommittee felt that exceptions to the privilege should be specificallyenumerated, and further endorsed the concept that in the area of exceptions,the rule should simply state that no privilege existed, rather than expressingthe exception in terms of a "waiver" of the privilege. The Committeewanted to avoid any possible clashes with the common law concepts of"waiver."

 

TheCommittee did not intend this rule to limit or conflict with the health caredata statutes listed in the Committee Note to Rule 501.

 

Rule 506is not intended to override the child abuse reporting requirements contained inUtah Code ? 62A-4-501 et seq.

 

The 1994amendment to Rule 506 was primarily in response to legislation enacted duringthe 1994 Legislative General Session that changed the licensure requirementsfor certain mental health professionals. The rule now covers communicationswith additional licensed professionals who are engaged in treatment anddiagnosis of mental or emotional conditions, specifically certified socialworkers, marriage and family therapists, specially designated advanced practiceregistered nurses and professional counselors.

 

Somemental health therapists use the term "client" rather than"patient," but for simplicity this rule uses only "patient."

 

Thecommittee also combined the definition of confidential communication and thegeneral rule section, but no particular substantive change was intended by thereorganization.