A. As used in this section: 1. A “patient” is a person who consults or is examined or interviewed by a physician or psychotherapist; 2. A “physician” is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient to be so authorized; 3. A “psychotherapist” is: a. a person authorized to practice medicine in any state or nation, or reasonably believed by the patient to be so authorized, 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, or reasonably believed by the patient to be so licensed or certified, while similarly engaged; and 4. 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 physician or psychotherapist, including members of the patient’s family. B. 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 physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family. C. 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 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. The following shall be exceptions to a claim of privilege: 1. There is no privilege under this section for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization; 2. Communications made in the course of a court-ordered examination of the physical, mental or emotional condition of a patient, whether a party or a witness, are not privileged under this section when they relate to the particular purpose for which the examination is ordered unless the court orders otherwise; 3. The privilege under this Code as to a communication relevant to the physical, mental or emotional condition of the patient in any proceeding in which the patient relies upon that 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 is qualified to the extent that an adverse party in the proceeding may obtain relevant information regarding the condition by statutory discovery; 4. When the patient is an inmate in the custody of the Department of Corrections or a private prison or facility under contract with the Department of Corrections, and the release of the information is necessary: a. to prevent or lessen a serious and imminent threat to the health or safety of any person, or b. for law enforcement authorities to identify or apprehend an individual where it appears from all the circumstances that the individual has escaped from a correctional institution or from lawful custody; or 5. The testimonial privilege created pursuant to this section does not make communications confidential where state and federal privacy law would otherwise permit disclosure. Added by Laws 1978, c. 285, § 503, eff. Oct. 1, 1978. Amended by Laws 1980, c. 113, § 1, eff. Oct. 1, 1980; Laws 2002, c. 468, § 33, eff. Nov. 1, 2002; Laws 2003, c.390, § 10, eff. July 1, 2003; Laws 2004, c. 168, § 5, emerg. eff. April 27, 2004; Laws 2009, c. 241, § 1, eff. Nov. 1, 2009.
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