Rule 503. Psychotherapist-patient privilege

Psychotherapist-patient privilege.

(a) Definitions. As used in this rule:

(1) A “patient” is a person who consults or is examined or interviewed by a psychotherapist.

(2) A “psychotherapist” is (A) a person licensed to practice medicine in any state or nation, or reasonably believed by the patient so to be, while regularly engaged in the diagnosis or treatment of mental or emotional conditions, including alcohol or drug addiction or (B) a person licensed as a psychologist under the laws of any state or nation, while similarly engaged.

(3) A communication is “confidential” if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the 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 purposes of diagnosis or treatment of the patient’s mental or emotional condition, including alcohol or drug addiction, among the patient, the patient’s psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.

(c) Who may claim the privilege. The privilege 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 psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.

(d) Exceptions.

(1) 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, if the psychotherapist has determined, in the course of diagnosis or treatment, that the patient is in need of hospitalization.

(2) EXAMINATION BY ORDER OF COURT. If the court orders an examination of the 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 examination is ordered unless the court orders otherwise.

(3) ACCUSED IN CRIMINAL CASE. There is no privilege under this rule as to an accused in a criminal case who raises the defense of insanity.

(4) BREACH OF DUTY ARISING OUT OF PSYCHOTHERAPIST-PATIENT RELATIONSHIP. There is no privilege under this rule as to an issue of breach of duty by the psychotherapist to the patient or by the patient to the psychotherapist.

(5) Child custody cases. There is no privilege under this rule for relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.

Committee Notes

Advisory Committee’s Notes Alabama statutory law has long recognized a psychologist-client privilege. Ala. Code 1975, § 34-26-2. This particular statutory privilege was amended in 1979 to include psychiatrists within its coverage. The legislative act creating the privilege stipulates that it is to be placed upon the same basis as the privilege that arises by law between an attorney and a client; consequently, Rule 503 is modeled after the rule providing for the corresponding attorney-client privilege. See C. Gamble, McElroy’s Alabama Evidence § 414.01 (4th ed. 1991). The language of Rule 503 is taken largely from the Uniform Rules of Evidence. See Unif.R.Evid. 503. It should be noted that the Alabama Rules of Evidence contain no general physician- patient privilege. Such a privilege has never been recognized in Alabama, either by the legislature or by the courts. See Duncan v. State, 473 So.2d 1203 (Ala.Crim.App.1985). See also C. Gamble, McElroy’s Alabama Evidence § 413.01 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 5.10 (1990). Communications with a physician may fall within the Rule 503 psychotherapist privilege if the physician is a licensed psychologist or is a practicing psychiatrist. See Ex parte Rudder, 507 So.2d 411 (Ala.1987). Subsection (a)(1). Definition of “patient.” The preexisting Alabama statutory privilege concerning psychologists used the term “client,” rather than “patient,” to refer to the holder of the privilege. Rule 503 uses the term “patient,” because that word more clearly reflects the fact that the preexisting statute was amended to apply to psychiatrists. Additionally, however, the term “patient” is used in virtually all other state versions of the present privilege. See, e.g., Fla. Stat. Ann. § 90.503; Miss.R.Evid. 503; Wis. Stat. Ann. § 905.04. See also B.W. Best, Annotation, Privilege, in Judicial or Quasi-Judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient, 44 A.L.R.3d 24 (1972).