Alaska Comm. R. Evid. 504

As amended through December 18, 2024

Rule 504 - Physician and Psychotherapist- Patient Privilege

(a)Definitions.

(1) "Patient" means a person who consults a physician for the purpose of diagnosis or treatment. There seems to be little reason to perpetuate the distinction made between consultations for the purpose of diagnosis and consultations for the purpose of treatment. Persons do not ordinarily consult physicians from idle curiosity. They may be sent by their attorney to obtain a diagnosis in contemplation of some legal proceeding--in which case the attorney-client privilege will afford protection. They may submit to an examination for insurance purposes--in which case the insurance contract will contain appropriate waiver provisions. They may seek diagnosis from one physician to check the diagnosis made by another. They may seek diagnosis from one physician in contemplation of seeking treatment from another. Communications made under such circumstances are as deserving of protection as are communications made to a treating physician. See Cal. Evid. Code § 991 (West 1966).

The definition of "patient" does not include a person submitting to examination for scientific purposes.

(2) The definition of "physician" is extended to include not only a licensed physician, but a person who the patient has reasonable grounds to believe is a physician, a psychotherapist or psychologist. The patient should be protected from reasonable mistakes as to unlicensed practitioners. The burden is placed on the patient to satisfy the court that he in fact had reasonable grounds to believe that the person he made the communication to or disclosed information to was a physician before the patient can invoke the privilege.

The privilege also should be applicable to communications made to a physician authorized to practice in any state or nation. When an Alaska resident travels outside the state and has occasion to visit a physician during such travel, or when a physician from another state or nation participates in the treatment of a person in Alaska, the patient should be entitled to assume that his communications will be given as much protection as they would be if he consulted an Alaska physician in Alaska. A patient should not be forced to inquire about the jurisdictions where the physician is authorized to practice medicine and whether such jurisdictions recognize the physician-patient privilege before he may safely communicate with the physician.

(3) The definition of psychotherapist embraces a medical doctor while engaged in the diagnosis or treatment of mental or emotional conditions, including alcohol and drug addiction, in order not to exclude the general practitioner and to avoid the making of needless refined distinctions concerning what is and what is not the practice of psychiatry.

Medical doctors are generally covered under the definition in (2) above. When treating mental or emotional conditions, medical doctors are included under the definition of "psychotherapist" for purposes of the criminal proceeding exception. See subdivision (d) (7) infra.

A psychotherapist-patient privilege was recognized in Allred v. State, 554 P.2d 411 (Alaska 1976), although the supreme court divided on the source of the privilege and its scope. Since the court has power under the Alaska Constitution to create testimonial privileges, the source of power to create Rule 504 is beyond question. Defining the proper scope presents greater difficulty, however. While it is impossible to fashion a perfect rule because we will never know exactly how much of a return we get from a privilege--e.g., how much better is psychiatric care because of the privilege--and because we cannot be certain of either the optimal return or the marginal return for any expansion of a privilege, it is both necessary and practicable to establish a scope that appears to be as consistent as possible with the aims of the privilege.

Because the psychotherapist-patient privilege is designed to encourage those with mental or emotional problems to seek help, Rule 504(a) (3) provides that the privilege will attach if a patient sees someone reasonably believed by the patient to be licensed to practice medicine. Given the facts that Allred asked to see either one of two persons and that he apparently knew that one of them was a psychiatrist, it is probable that he believed that the person with whom he spoke was also licensed to practice medicine. If Allred was asking for psychiatric help, his communications would have been protected under the views of all members of the court. In fact Rule 504(a) (3) satisfies both the concerns of the two members of the court who wished to prevent the privilege from attaching to all counseling and the two members of the court who wished to ensure that the patient who relies upon an apparent confidential relationship is not disappointed. Moreover, the social worker might have qualified under Rule 504(a) (4) as a person reasonably necessary for the transmission of information, depending on the precise facts, without threatening the competing interest identified in the various opinions in Allred.

Because this rule focuses on the reasonable belief of the patient, it assumes throughout that the patient is capable of making the necessary choices to create and destroy the privilege. The question whether there are instances in which fairness requires a recognition of a right in the psychotherapist to claim the privilege for a patient who is not inclined to seek the benefits of non-disclosure is left for adjudication. See Allred v. State, 554 P.2d 411, 428 (Alaska 1976) (Dimond, J., concurring).

(4) Confidential communication is defined in terms conformable with those of the lawyer-client privilege, Rule 503(a) (5), with changes appropriate to the difference in circumstance. See Reporter's Comment to Rule 503(a) (5). In addition, Rule 504(a) (4) treats as confidential communications made to the physician or psychotherapist in the presence of those "who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family." "Communications from members of the family . . . should be given broad protection . . . . because effective treatment presupposes family participation." 2 Weinstein's Evidence § 504 [05]. See Falcon v. Alaska Public Offices Commission, 570 P.2d 469 (Alaska 1977).

Participants in group therapy programs in the presence of a psychotherapist may be covered under the definition of "confidential communication." See Cross, Privileged Communications Between Participants in Group Psychotherapy, 1970 L. & Soc. Order 191. (b) and (c) General Rule of Privilege--Who May Claim the Privilege. The phrasing of the general rule of privilege and the determination of those who may claim it draws heavily upon the attorney-client privilege rule. See Rule 503(b) & (c). Rule 504 supersedes the physician-patient privilege of Rule 43(h) (4), Alaska Rules of Civil Procedure. For a related provision, see AS 08.86.200 (confidential communications to psychologists).

(d) Exceptions.

(1) Condition or Element of Claim or Defense. The patient-litigant exception provides that the physician-patient privilege does not exist in any proceeding in which an issue concerning the condition of the patient has been tendered by the patient. If the patient himself tenders the issue of his condition, he should not be able to withhold relevant evidence from the opposing party by the exercise of the physician-patient privilege. By injecting his condition into litigation, the patient must be said to waive the privilege, in fairness and to avoid abuses. See Mathis v. Kilderbrand, 416 P.2d 8 (Alaska 1966); Trans-World Investments v. Drobny, 554 P.2d 1148 (Alaska 1976). Those who claim through the patient stand in the patient's shoes for purposes of this Rule. After the patient's death, the policies of confidentiality give way to a party's need for information and any party may place the condition of a deceased patient in issue and obtain the benefits of the exception. Only information relevant to the patient's condition should be disclosed under this exception. See Arctic Motor Freight Inc. v. Stover, 571 P.2d 1006 (Alaska 1977).

(2)Crime or Fraud. The crime or fraud exception corresponds to, but is broader than, the similar provision under attorney-client privilege. See Rule 503(d) (1) and Reporter's Comment.

(3) Breach of Duty Arising Out of Physician-Patient Relationship. The breach of duty exception also corresponds to a similar attorney- client privilege provision. See Rule 503(d) (3) and Reporter's Comment.

(4) Proceedings for Hospitalization. The interests of both patient and public call for a departure from confidentiality in commitment proceedings. Since disclosure is authorized only when the physician or psychotherapist determines that hospitalization is needed, control over disclosure is placed largely in the hands of a person in whom the patient has already manifested confidence. Hence damage to the relationship is unlikely. Usually, this exception will rise in psychotherapist-patient situations. Court- ordered appointments are treated in subdivision (d) (6) infra.

(5) Required Report. The required report exception enables a physician or psychotherapist to testify as to the contents of reports required by statute or administrative rule to be made to public officials. No valid purpose is served by preventing the use of relevant information when the law or rule requiring the information to be reported to a public office does not restrict disclosure.

(6) Examination by Order of Judge. In a court ordered examination, the relationship is likely to be an arm's length one, though not necessarily so. In any event, an exception is necessary for the effective utilization of this important and growing procedure. When the psychotherapist is appointed by the court, it is most often for the purpose of having the psychotherapist testify concerning his conclusions as to the patient's condition. It would be inappropriate to have the privilege apply in this situation. The exception, it will be observed, deals with a court ordered examination rather than with a court appointed physician or psychotherapist. Also, the exception is effective only with respect to the particular purpose for which the examination is ordered. The final sentence of the exception provides that an accused in a criminal case may have the benefits of private counseling with a psychotherapist. Of course, if the accused does place mental condition in issue, exception (1) will govern.

(7) Criminal Proceeding. Under the superseded Alaska Rules of Court concerning privileges (Rule 43(h), Alaska R. Civ. P., and Rule 26(b), Alaska R. Crim. P.), a physician-patient privilege was recognized in civil cases (Civil Rule 43(h) (4) ), but not in criminal cases. This distinction is followed here. However, the psychotherapist-patient relationship, with its more compelling need for confidential communication, demands that the privilege apply to criminal proceedings as well as civil cases, see Schade v. State, 512 P.2d 907, (Alaska 1973), although exception (6) will govern some aspects of the use of psychotherapists in criminal cases. Rule 13, Alaska R. Children's P., governs juvenile proceedings.

Alaska Comm. R. Evid. 504