Del. R. Evid. 503

As amended through December 15, 2023

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 pursuant to 12 Del. C. §3901 or 16 Del. C., Chapter 9.

Del. R. Evid. 503

Amended November 28, 2017, effective 1/1/2018.

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.RE. 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.