Rule 503. Health Care Professional, Mental Health Professional, and Licensed Counseling Professional Patient Privilege

(a) Definitions. As used in this rule:

(1) A "patient" is a person who consults, is examined by, or is interviewed by:

(A) A health care professional;

(B) A mental health professional; or

(C) A licensed counseling professional.

(2) A "health care professional" is:

(A) A person authorized to practice as a physician;

(B) A licensed physician's assistant; or

(C) A licensed nurse practitioner; Under Maine law, or under substantially similar law of any other state or nation, while that person is practicing the health care profession for which he or she is licensed.

(3) A "mental health professional" is:

(A) A health care professional engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction;

(B) A person licensed or certified as a psychologist or psychological examiner under Maine state law or under substantially similar law of any state or nation while practicing as such;

(C) A person licensed as a clinical social worker under Maine state law or under substantially similar law of any state or nation while practicing as such.

(4) A "licensed counseling professional" is:

(A) A "licensed professional counselor";

(B) A "licensed clinical professional counselor";

(C) A "licensed marriage and family therapist" or;

(D) A "licensed pastoral counselor"; Who is licensed to diagnose and treat mental health disorders, intraand inter-personal problems, or other dysfunctional behavior of a social and spiritual nature under 32 M.R.S. §13858, or under a substantially similar law of any other state or nation, while that person is practicing the counseling profession for which he or she is licensed.

(5) A communication is "confidential" if it was not intended to be disclosed to any third persons, other than:

(A) Those who were present to further the interests of the patient in the consultation, examination, or interview;

(B) Those who were reasonably necessary to make the communication; or

(C) Those who are participating in the diagnosis and/or treatment under the direction of the health care, mental health, or licensed counseling professional. This includes members of the patient's family.

(b) General rule. A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of diagnosing or treating the patient's physical, mental, or emotional condition, including alcohol or drug addiction, between or among the patient and:

(1) The patient's health care professional, mental health professional, or licensed counseling professional; and

(2) Those who were participating in the diagnosis or treatment at the direction of the health care, mental health, or licensed counseling professional. This includes members of the patient's family.

(c) Criminal defendant's privilege. When the court orders that the defendant's mental condition be examined in order to determine criminal responsibility, the defendant has a privilege to refuse to disclose, and to prevent others from disclosing, any communication made during that examination that concerns the offense charged.

(d) Who may claim the privilege.

(1) The privilege may be claimed by:

(A) The patient;

(B) The patient's guardian or conservator; or

(C) The patient's personal representative, if the client is deceased.

(2) There is a presumption that the person who was the health care, mental health, or licensed counseling professional at the time of the communication in question has authority to claim the privilege on behalf of the patient.

(e) Exceptions. The privilege for communications between a patient and a health care professional, a mental health care professional, or a licensed counseling professional is subject to the following exceptions:

(1) Proceedings for hospitalization. The privilege under this rule does not apply to communications relevant to an issue in proceedings to hospitalize the patient for mental illness if the professional has determined in the course of diagnosis or treatment that the patient needs to be hospitalized.

(2) Examination by order of court. If the court orders an evaluation of a patient's physical, mental, or emotional condition, whether the patient is a party or a witness, the privilege does not apply to communications made during the course of that evaluation, unless the court orders otherwise. However, a criminal defendant's communications during the course of a court-ordered evaluation or examination are still privileged to the extent provided by section (c) of this rule.

(3) Condition an element of claim or defense. The privilege under this rule does not apply to communications relevant to an issue of a physical, mental, or emotional condition of the patient if:

(A) The condition is an element of the patient's claim or defense; or

(B) The condition is an element of the claim or defense of:

(i) Any party claiming through or under the patient;

(ii) Any party claiming because of the patient's condition;

(iii) Any party claiming as a beneficiary of the patient; or

(iv) Any party claiming through a contract to which the patient is or was a party.

(4) After the patient's death. The privilege does not apply after the patient's death in any proceeding in which any party puts the patient's physical, mental, or emotional condition in issue.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 503 has been restyled in accordance with the federal restyling conventions, and, as part of this process, the Committee has proposed some minor, nonsubstantive changes to clarify the Rule.

Advisers' Note to former M.R. Evid. 503 (February 2, 1976) There was no doctor-patient privilege at common law. There is at the present time a statutory privilege. P.L. 1973, c. 625, § 218. It is a dubious protection to the confidentiality of the relationship, since disclosure would be required "when a court in the exercise of sound discretion deems such disclosure necessary to the proper administration of justice." Under this formulation no clear assurance to the patient could be given before the communication was made that it would not be ordered to be disclosed. The rule as promulgated by the Supreme Court did not provide a general doctor-patient privilege, but did define "psychotherapist" so as to include any physician while engaged in the diagnosis or treatment of a mental or emotional condition. The American Medical Association objected to the rejection of the privilege at hearings on the House bill. It did not advocate an unrestricted privilege. It was satisfied that no protection should be given to communications relevant to the patient's condition in an action where the condition was an element of his claim or defense. The Court has adopted a physician-patient privilege in the limited form recommended by the AMA. This is comparable to the exception in the Maine statute of actions "when the physical or mental condition of the patient is at issue." Elimination of the open-ended denial of the privilege at the discretion of the court does not sacrifice any value of importance to the administration of justice, and it relieves the uncertainty in the statute as to the extent of the confidentiality. The rule incorporates the statutory privileges of the psychologist or psychological examiner, 32 M.R.S.A. § 3815, added by P.L. 1968, c. 544, § 82, and the psychiatrist, 16 M.R.S.A. § 60, added by P.L. 1973, c. 481. It has omitted the statutory requirement that a psychiatrist must be "board certified". In fact, board certification is not required as a condition of a psychiatrist's right to practice. The statute on psychologists and psychological examiners has no such requirement. There is no apparent justification for the distinction, nor does it seem right to put upon the patient the burden of discovering whether the psychiatrist is board certified in order to know whether his communications are privileged. Other changes from the statutes in the rule correct statutory deficiencies (1) declaring "communications" privileged without reference to confidentiality, (2) not including communications to a person reasonably believed to be a psychotherapist, (3) not including the right of a guardian, conservator, or personal representative to claim the privilege or in terms giving a psychotherapist authority to claim it on behalf of the patient, and (4) not including the exceptions listed in the rule. These changes flesh out the legislative intent and are consistent with that intent. The definition of confidentiality in subdivision (a)(4) and the statement in subdivision (b) of the general rule of privilege are broad enough to include the increasingly common use of group therapy where other patients are present during the communication. Such persons would be participating in the diagnosis or treatment under the direction of the psychotherapist. Subdivision (c) gives separate treatment to an examination ordered by the court to determine the criminal responsibility of an accused in a criminal proceeding. The purpose is to ensure protection against disclosure of any communication made to the examiner concerning guilt or innocence. It preserves the rule enunciated in State v. Hathaway, 161 Me. 255, 211 A.2d 558 (1965). The exception in subdivision (d)(2) excludes from its operation communications privileged under subdivision (c).

Advisory Committee Note (July 2008) This amendment would expand the coverage of the physicianpsychotherapist privilege in Rule 503 to include communications between certain described mental health professionals and their patients or clients. When various pre-existing, common-law, and statutory privileges were codified in the Rules of Evidence in 1975, the Advisory Committee and the Maine Supreme Judicial Court followed the lead of the original United States Supreme Court version of the Federal Rules of Evidence and took a relatively conservative view of the scope of the physician-psychotherapist privilege. Maine Evidence Rule 503 as originally adopted limited the evidentiary privilege to communications to or from licensed physicians (or persons reasonably believed to be such) and licensed psychologists and psychological examiners. Although then, as now, a wide variety of counseling and mental health professionals treated and consulted with clients and patients on a confidential basis, coverage of the privilege was deliberately kept relatively narrow, largely out of a concern that a broader definition might lead to evidentiary unavailability of statements rendered in a variety of situations that could be characterized as counseling or therapeutic in one way or another. This does not mean that there has been no protection of confidentiality for patients and mental health professionals. In many cases the statutes under which different groups of mental health professionals or counselors are licensed have imposed duties of confidentiality and have established statutory privileges for members of the licensed groups. In many cases these statutory privileges authorize disclosure by court order when necessary for the sound administration of justice. Over the three decades since original promulgation of the Rules of Evidence the number and scope of activity of many different kinds of mental health professionals and counselors have greatly increased. There has been a frequent and often insistent call for stronger protection of the relationships of these therapists and counselors to their patients in the form of extension of the statutory privilege. The impetus toward extension of the psychotherapist privilege beyond the traditional holders was increased by the Supreme Court decision in Jaffee v. Redmond , 518 U.S. 1 (1996). There the Supreme Court ruled as a matter of federal common law of evidence that communications between a clinical social worker and her patient were absolutely privileged from disclosure despite their likely relevance to the issues in a civil action. The Supreme Court applied the absolute privilege despite the existence of conditional protection under the laws of the state under which the social worker was licensed. Today evidence rules, statutes, and common law among the American jurisdictions vary widely in the scope of the psychotherapist privilege, although it appears that the trend is toward a more expansive privilege in terms of mental health and counseling professionals covered. The Uniform Rules of Evidence have been recently amended in 1999 to include an alternative proposal extending the psychotherapist privilege to a "mental health provider," namely "a person licensed 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." The pressure for increased coverage appears to be coming mainly from two groups: (1) various clinical social workers and licensed mental health professionals who provide therapy for mental or emotional disease including drug and alcohol addiction; (2) a broader group of professional counselors who provide various kinds of counseling services, but who do not necessarily treat mental or emotional diseases or addictions. The proposed amendment would extend the absolute evidentiary privilege to licensed nurse practitioners and licensed physician's assistants when treating patients. The privilege would also encompass licensed clinical social workers when treating emotional and mental conditions and four defined classes of licensed counseling professionals, "licensed professional counselors," "licensed clinical professional counselors," "licensed marriage and family therapists," and "licensed pastoral counselors," when performing their counseling functions. Valid and complete licensure would be a prerequisite for the privilege. Clinical social workers are licensed under 32 M.R.S. §§ 7051 et seq. Of the various kinds of social workers covered by state licensing requirements, those designated and licensed as "clinical social workers" seem best to fit the traditional role of psychotherapist as contemplated by the privilege. See Jaffee v. Redmond, supra . The licensed counseling professionals proposed to be covered by the privilege are now licensed under 32 M.R.S. §§ 13851 et seq. These licensed counselors provide different forms of psychotherapy in at least some circumstances. Such professionals are currently covered by a conditional privilege which permits disclosure of client communications "when a court in the exercise of sound discretion determines the disclosure necessary to the proper administration of justice." 32 M.R.S. § 13862. The rule does not cover professionals not licensed but referred to in 32 M.R.S. § 13856. This proposal does not cover communications to and by unlicensed mental health professionals and counselors or by persons licensed to provide specialized counseling, such as guidance counseling. The Committee is of the view that a generic definition that is not tied to some kind of clear requirement of state licensure would make the privilege administratively unworkable. For the same reason the Committee has not recommended that the privilege attach to persons "reasonably believed to be" licensed clinical social workers or licensed counselors. The privilege would extend to persons not licensed in Maine, but licensed in analogous categories with substantially similar legal requirements by other states or nations.