Rule 503 - Patient's Privilege(a) Definitions. As used in this rule: (1) A "patient" is a person who consults or is examined or interviewed by a physician, dentist, nurse, or mental health professional. (2) A "physician" is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be. (3) A "dentist" is a person authorized to practice dentistry in any state or nation, or reasonably believed by the patient so to be. (4) A "nurse" is a person registered or licensed as a professional or practical nurse in any state or nation, or reasonably believed by the patient so to be. (5) A "mental health professional" is a qualifed person designated by the Commissioner of Mental Health and Mental Retardation or a physician, psychologist, social worker, or nurse with professional training, experience and demonstrated competence in the treatment of mental illness, or a person reasonably believed by the patient to be a mental health professional. (6) 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 diagnosis and treatment under the direction of a physician, dentist, nurse or mental health professional, including members of the patient's family or other participants in joint or group counseling sessions. (b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person, including a person present to further the interest of the patient in the consultation, examination or interview, from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, dental, or emotional condition, including alcohol or drug addiction, among himself, his physician, dentist, nurse, or mental health professional, and persons who are participating in diagnosis or treatment under the direction of a physician, dentist, nurse, or mental health professional, including members of the patient's family. (c) Who may claim the privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician, dentist, nurse, or mental health professional 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)Mental health proceedings. There is no privilege under this rule in proceedings under that part of Title 18 of Vermont Statutes Annotated on mental health for any communications to or from a mental health professional while he is attending the patient. (2)Examination by order of court. If the court orders an examination of the physical, 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 or unless the state seeks to admit communications obtained in an examination of the mental or emotional condition of a patient in a criminal case for the purpose of proving the commission of a criminal offense or for the purpose of impeaching the testimony of the patient. (3)Condition an element of claim or defense. There is no privilege under this rule as to a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense, unless the state seeks to admit information obtained in the examination of the mental or emotional condition of a patient in a criminal case for the purpose of proving the commission of a criminal offense or for the purpose of impeaching the testimony of the patient. (4)Dental identification. There is no privilege under this rule for information acquired by a dentist that is necessary for the identification of a patient. (5)Victims of crime under the age of 16. There is no privilege under this rule for information indicating that a patient who is under the age of sixteen years has been the victim of a crime. (6)Required reports. There is no privilege under this rule for any report of a patient's medical condition required to be made by statute; (7)Risk of harm to a child. In any proceeding under Rules 4.0-4.3 of the Vermont Rules for Family Proceedings to determine parental rights or responsibilities or parent-child contact, and in any proceeding under Chapter 55 of Title 33, Vermont Statutes Annotated, there is no privilege under this rule if the court, after hearing, finds on the basis of evidence other than that sought to be obtained, that: (1) in any such case lack of disclosure of the communication would pose a risk of harm to the child as defined in 33 V.S.A. § 4912, or in a proceeding to terminate parental rights the communication would be relevant under 33 V.S.A. § 5540(3); (2) the probative value of the communication outweighs the potential harm to the patient; and (3) the evidence sought is not reasonably available by any other means. Amended Jan. 8, 1985, eff. 3/7/1985; Aug. 22, 1991, eff. 11/1/1991; 1993, No. 222 (Adj. Sess.), §24.; Aug. 25, 2016, eff. 12/5/2016.Reporter's Notes-2016 Amendment
V.R.E. 503(d)(7) is amended for conformity with the simultaneous abrogation of former V.R.F.P. 4 and promulgation of restyled and reorganized V.R.F.P. 4.0-4.3. See Reporter's Notes to those rules.