Rule 503. Mental Health Provider, Physician, and Psychotherapist- Patient Privilege

(a) Definitions. As used in this rule:

(1) A communication is "confidential" if not intended to be disclosed to third persons, 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 mental health provider, physician or psychotherapist, including members of the patient's family.

(2) A "mental health provider" is (A) a licensed professional counselor of mental health or licensed associate counselor as authorized under 24 Del. C. §§ 3001-19, or (B) a licensed clinical social worker as authorized under 24 Del. C. §§ 3901-13.

(3) A "patient" is a person who consults or is examined or interviewed by a physician or psychotherapist for treatment or diagnosis.

(4) A "physician" is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be.

(5) A "psychotherapist" is (A) a person authorized to practice medicine in any state or 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 (B) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.

(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 alcohol or drug addiction, among the patient, the patient's mental health provider, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the mental health provider, physician or 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 mental health provider, physician or 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 a communication relevant to an issue in proceedings to hospitalize the patient for mental illness, if the mental health provider, physician or psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.

(2) Examination by order of court. There is no privilege under this rule for a communication made in the course of a court-ordered investigation or examination of the physical, mental or emotional condition of the 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) Condition an element of claim or defense. There is no privilege under this rule for a communication 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) Commission of crime or fraud. There is no privilege under this rule for a communication if the services of the mental health provider, physician or psychotherapist 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) Danger to self or others. There is no privilege under this rule for a communication in which the patient has expressed an intent to engage in conduct likely to result in imminent death or serious physical injury to the patient or another individual.

(6) Breach of duty. There is no privilege under this rule for a communication relevant to a breach of duty by the mental health provider, physician or psychotherapist.

(7) Appointment of guardian; child abuse cases. There is no privilege under this rule for a communication relevant to a proceeding brought under 12 Del. C. § 3901 or 16 Del. C., Chapter 9. Comment D.R.E. 503 is based on U.R.E. 503, which is based on a draft of F.R.E. 504. See comment to D.R.E. 501. The 2001 amendments to D.R.E. 503 added subsections (a)(2), (d)(4), (d)(5), and (d)(6) and added "mental health provider" throughout the rule where required. Also, the subsections of D.R.E. 503(a) were reordered to track the corresponding provisions of U.R.E. 503(a). D.R.E. 503(a)(3) tracks U.R.E. 503(a)(3) except that the words "for treatment or diagnosis" were added at the end. These words were added to make clear that only communications rendered during treatment or diagnosis are privileged. D.R.E. 503(a)(1), (2), (4) and (5) track U.R.E. 503(a)(1), (2), (4) and (5), except that the definition of "mental health provider" is limited to licensed mental health providers recognized by relevant Delaware statutes already granting a confidential communication privilege. It is intended that D.R.E. 503(a)(1) include assistants who work under the direct supervision of a mental health provider, physician or psychotherapist such as nurses, paramedics, etc. D.R.E. 503(b) and (c) track tracks U.R.E. 503(b) and (c) and use the words "mental health provider, physician, or psychotherapist" as defined in D.R.E. 503(a). D.R.E. 503(d)(1) tracks U.R.E. 503(d)(1) and uses the words "mental health provider, physician, or psychotherapist" as defined in D.R.E. 503(a). D.R.E. 503(d)(2), (3), (4), (5), and (6) track U.R.E. 503(d)(2), (3), (4), (5), and

(7) . The alternative word "physical" was adopted. The purpose of D.R.E. 503(d)(7), which does not appear in the F.R.E. or U.R.E., is to make clear that a person alleged to be in need of a guardian or other representative because of advanced age, mental infirmity or physical incapacity cannot assert the privilege in the proceedings in which the guardian is sought and that the privilege is not generally available in child abuse cases. The Delaware Code contains many statutes that may establish a qualified privilege or call for waiver of a privilege. Consult the index to the Delaware Code for the many statutory provisions that may provide for a qualified confidential communication privilege or waive a privilege already provided for by statute. RULE 504. Spousal Privilege.

(a) Definitions. In this rule:

(1) "Confidential communication" means a communication that an individual made privately to the individual's spouse that was not intended for disclosure to any other person.

(2) "Spouse" means a present or former spouse.

(b) Competence to testify. An individual may testify for or against a spouse in any proceeding.

(c) General rule of privilege. An individual has a privilege to refuse to testify and to prevent the individual's spouse from testifying as to any confidential communication between the individual and the spouse during their marriage.

(d) Who may claim the privilege. An individual may claim the privilege on the individual's own behalf. An individual is presumed to have authority to claim the privilege on the spouse's behalf.

(e) Exceptions. There is no privilege under this rule in the following types of proceedings:

(1) A proceeding that charges one spouse with a wrong against the person or property of the other spouse.

(2) A proceeding that charges one spouse with a wrong against the person or property of a child of either spouse.

(3) A proceeding that charges one spouse with a wrong against the person or property of a person residing in the household of either spouse.

(4) A proceeding that charges one spouse with a wrong against the person or property of a third person committed in the course of committing a crime against the other spouse, a child of the either spouse, a person residing in the household of either spouse, or the third person.

(5) A proceeding brought under Title 13 of the Delaware Code, or Chapter 9 of Title 10 of the Delaware Code.

(6) Any proceeding when the interests of the spouses are adverse. Comment This rule is based on U.R.E. 504 which is based on draft of F.R.E. 505. See comment to Rule 501. Rule 504(a) tracks U.R.E. 504(a), but was amended in 2017 to clarify that "spouse" includes a former spouse. Rule 504(b) provides that an individual may testify for or against a spouse in civil as well as criminal cases. This rule removes the common law disability against 1 spouse testifying against the other. Such testimony is permitted unless the testimony involves a confidential and a privilege is asserted as to it. Rule 504(c) generally tracks U.R.E. 504(b). Rule 504(d) provides that an individual may claim the privilege on their own behalf and is presumed to have authority to claim the privilege on behalf of their spouse. Rule 504(e) generally tracks U.R.E. 504(d) except that "wrong" appears instead of "crime" and Rule 504(d)(5) excludes the privilege in proceedings under Title 9 and Chapter 9 of Title 10 of the Delaware Code. For prior Delaware cases illustrating the law covered by this rule, see Mole v. State, Del. Supr., 396 A.2d 153 (1978); State v. Thompson, Del. Super., 136 A.2d 336 (1957); Duonnolo v. State, Del. Supr., 397 A.2d 126 (1978). D.R.E. 504 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. The pre-2017 "Comment" to D.R.E. 504 was revised only as necessary to reflect the 2017 amendments. There is no intent to change any result in ruling on evidence admissibility.