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  • Brian Foley

The Woodlands Texas Criminal Defense Attorney - Texas Rules of Evidence Series RULE 510

Statements made to a psychiatrist or psychologist are generally privileged in Civil cases. There is no privilege for criminal cases. The most likely method to be used by prosecutors in a criminal case would be to send a grand jury subpoena to the psychiatrist or psychologist requesting any and all records related to the treatment of "named defendant."


The Supreme Court of the United States ruled in Jaffee v. Redmond, 518 U.S. 1, 10 (1996) that "Effective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears." "The mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment." Id. I suppose they forgot to say, "unless its a criminal case." This is the kind of flowery language and logical inconsistency that drives lawyers crazy. If you want to have this rule for civil cases fine. But don't pretend that you have the rule because its so imperative to protect the goals of counseling and then not extend it to a criminal case.


In a civil case, Rule 510 protects both the communications made by the patient and records of treatment at all including the identity of the patient.


Separate rules also exist under Tex. Health & Safety Code Chapter 611.

Sec. 611.002.  CONFIDENTIALITY OF INFORMATION AND PROHIBITION AGAINST DISCLOSURE.  (a)  Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential.
(b)  Confidential communications or records may not be disclosed except as provided by Section 611.004 or 611.0045.
(c)  This section applies regardless of when the patient received services from a professional.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1, 1991.  Amended by Acts 1993, 73rd Leg., ch. 903, Sec. 1.11, eff. Aug. 30, 1993.

WHAT ABOUT SUING YOUR PSYCHOLOGIST?


Well the privilege has an exception for legal causes of action that are taken against the psychologist. At that point the patient becomes a party opponent and not only are the communications no longer privileged they are admissions by a party opponent and therefore excluded from the definition of hearsay. In proceedings to revoke the license of the professional providing services communications may also be used and do not have a privilege under Rule 510.


WHAT IF THEY TELL YOU THEY ARE GOING TO KILL SOMEONE?


If you are mental health professional and you believe that there is a probability of imminent physical injury by the patient to the patient or others or immediate mental or emotional injury to the patient then you may disclose confidential information to medical or law enforcement personnel. Typically this can involve what is called a Mental Health Warrant. For more information about Mental Health Warrants check out Chapter 573 of the Texas Health and Safety Code. Police officers do not need to obtain a mental health warrant and can simply make an emergency mental health detention if you believe the threat is imminent.


Sec. 573.001.  APPREHENSION BY PEACE OFFICER WITHOUT WARRANT.  (a)  A peace officer, without a warrant, may take a person into custody, regardless of the age of the person, if the officer:
(1)  has reason to believe and does believe that:
(A)  the person is a person with mental illness; and
(B)  because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and
(2)  believes that there is not sufficient time to obtain a warrant before taking the person into custody.

Sec. 611.004.  AUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION OTHER THAN IN JUDICIAL OR ADMINISTRATIVE PROCEEDING.  (a)  A professional may disclose confidential information only:
(1)  to a governmental agency if the disclosure is required or authorized by law;
(2)  to medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional injury to the patient;
(3)  to qualified personnel for management audits, financial audits, program evaluations, or research, in accordance with Subsection (b);
(4)  to a person who has the written consent of the patient, or a parent if the patient is a minor, or a guardian if the patient has been adjudicated as incompetent to manage the patient's personal affairs;
(5)  to the patient's personal representative if the patient is deceased;
(6)  to individuals, corporations, or governmental agencies involved in paying or collecting fees for mental or emotional health services provided by a professional;
(7)  to other professionals and personnel under the professionals' direction who participate in the diagnosis, evaluation, or treatment of the patient;
(8)  in an official legislative inquiry relating to a state hospital or state school as provided by Subsection (c);
(9)  to designated persons or personnel of a correctional facility in which a person is detained if the disclosure is for the sole purpose of providing treatment and health care to the person in custody;
(10)  to an employee or agent of the professional who requires mental health care information to provide mental health care services or in complying with statutory, licensing, or accreditation requirements, if the professional has taken appropriate action to ensure that the employee or agent:
(A)  will not use or disclose the information for any other purposes;  and
(B)  will take appropriate steps to protect the information;  or
(11)  to satisfy a request for medical records of a deceased or incompetent person pursuant to Section 74.051(e), Civil Practice and Remedies Code.
(b)  Personnel who receive confidential information under Subsection (a)(3) may not directly or indirectly identify or otherwise disclose the identity of a patient in a report or in any other manner.
(c)  The exception in Subsection (a)(8) applies only to records created by the state hospital or state school or by the employees of the hospital or school.  Information or records that identify a patient may be released only with the patient's proper consent.
(d)  A person who receives information from confidential communications or records may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the person first obtained the information.  This subsection does not apply to a person listed in Subsection (a)(4) or (a)(5) who is acting on the patient's behalf.
Added by Acts 1991, 72nd Leg., ch. 76, Sec. 1, eff. Sept. 1, 1991.  Amended by Acts 1995, 74th Leg., ch. 856, Sec. 8, eff. Sept. 1, 1995;  Acts 1999, 76th Leg., ch. 1264, Sec. 1, eff. Sept. 1, 1999.
Amended by: 
Acts 2005, 79th Leg., Ch. 138 (H.B. 741), Sec. 1, eff. September 1, 2005.




Rule 510. Mental Health Information Privilege in Civil Cases (a) Definitions. In this rule:

(1) A “professional” is a person: (A) authorized to practice medicine in any state or nation;

(B) licensed or certified by the State of Texas in the diagnosis, evaluation, or treatment of any mental or emotional disorder;

(C) involved in the treatment or examination of drug abusers; or

(D) who the patient reasonably believes to be a professional under this rule.


(2) A “patient” is a person who: (A) consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism and drug addiction; or

(B) is being treated voluntarily or being examined for admission to voluntary treatment for drug abuse.


(3) A “patient’s representative” is: (A) any person who has the patient’s written consent;

(B) the parent of a minor patient; or (D) the personal representative of a deceased patient.

(4) A communication is “confidential” if not intended to be disclosed to third persons other than those:

(A) present to further the patient’s interest in the diagnosis, examination, evaluation, or treatment;

(B) reasonably necessary to transmit the communication; or

(C) participating in the diagnosis, examination, evaluation, or treatment under the professional’s direction, including members of the patient’s family.


(b) General Rule; Disclosure.

(1) In a civil case, a patient has a privilege to refuse to disclose and to prevent any other person from disclosing: (A) a confidential communication between the patient and a professional; and

(B) a record of the patient’s identity, diagnosis, evaluation, or treatment that is created or maintained by a professional.


(2) In a civil case, any person—other than a patient’s representative acting on the patient’s behalf—who receives information privileged under this rule may disclose the information only to the extent consistent with the purposes for which it was obtained.


(c) Who May Claim. The privilege may be claimed by: (1) the patient; or

(2) the patient’s representative on the patient’s behalf.

The professional may claim the privilege on the patient’s behalf—and is presumed to have authority to do so.


(d) Exceptions. This privilege does not apply:


(1) Proceeding Against Professional. If the communication or record is relevant to a professional’s claim or defense in: (A) a proceeding the patient brings against a professional; or

(B) a license revocation proceeding in which the patient is a complaining witness.

(2) Written Waiver. If the patient or a person authorized to act on the patient’s behalf waives the privilege in writing.


(3) Action to Collect. In an action to collect a claim for mental or emotional health services rendered to the patient.


(4) Communication Made in Court-Ordered Examination. To a communication the patient made to a professional during a court-ordered examination relating to the patient’s mental or emotional condition or disorder if: (A) the patient made the communication after being informed that it would not be privileged;

(B) the communication is offered to prove an issue involving the patient’s mental or emotional health; and

(C) the court imposes appropriate safeguards against unauthorized disclosure.


(5) Party Relies on Patient’s Condition. If any party relies on the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication or record is relevant to that condition.


(6) Abuse or Neglect of “Institution” Resident. In a proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of a resident of an “institution” as defined in Tex. Health & Safety Code § 242.002.


Comment to 2015 Restyling: The mental-health-information privilege in civil cases was enacted in Texas in 1979. Tex. Rev. Civ. Stat. art. 5561h (later codified at Tex. Health & Safety Code § 611.001 et seq.) provided that the privilege applied even if the patient had received the professional’s services before the statute’s enactment. Because more than thirty years have now passed, it is no longer necessary to burden the text of the rule with a statement regarding the privilege’s retroactive application. But deleting this statement from the rule’s text is not intended as a substantive change in the law.

Tex. Health & Safety Code ch. 611 addresses confidentiality rules for communications between a patient and a mental-health professional and for the professional’s treatment records. Many of these provisions apply in contexts other than court proceedings. Reconciling the provisions of Rule 510 with the parts of chapter 611 that address a mental-health-information privilege applicable to court proceedings is beyond the scope of the restyling project.


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