H. B. 2496
(By Delegates Warner, Pettit, Huntwork, Walters,
and Petersen)
[Introduced March 5, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend article three, chapter fifty-seven of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
ten, relating to evidence and witnesses; competency of
witnesses; and pyschotherapist-patient privilege.
Be it enacted by the Legislature of West Virginia:
That article three, chapter fifty-seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section ten,
to read as follows:
ARTICLE 3. COMPETENCY OF WITNESSES.
§57-3-10. Communications to psychotherapist not subject to
being compelled as testimony; exceptions.
(a) No psychotherapist, as defined by the provisions of this
section, may be compelled to testify in any criminal or grand
jury proceedings or in any domestic relations action in any court
of this state:
(1) With respect to any confession or communication, made to
that person, in his or her professional capacity in the course of
an examination by the psychotherapist without the consent of the
person making such confession or communication; or
(2) With respect to any communication made to such person,
in his or her professional capacity, by either spouse, in
connection with any effort to reconcile estranged spouses,
without the consent of the spouse making the communication. This
subsection is in addition to the protection and privilege
afforded pursuant to section ten-a, article two, chapter
forty-eight of this code.
(b) Definitions. -- As used in this section, the following
definitions apply:
(1) "Confidential communication between patient and
psychotherapist" means information, including information
obtained by an examination of the patient, transmitted between a
patient and his psychotherapist in the course of that
relationship and in confidence by a means which, so far as the
patient is aware, discloses the information to no third persons
other than those who are present to further the interest of the
patient in the consultation or those to whom disclosure is
reasonably necessary for the transmission of the information or
the accomplishment of the purpose for which the psychotherapist
is consulted and includes a diagnosis made and the advice given
by the psychotherapist in the course of that relationship.
(2) "Holder of the privilege" means:
(A) The patient when he has no guardian or conservator;
(B) A guardian or conservator of the patient when the
patient has a guardian or conservator;
(C) The personal representative of the patient if the
patient is dead.
(3) "Patient" means a person who consults a psychotherapist
or submits to an examination by a psychotherapist for the purpose
of securing a diagnosis or preventive, palliative, or curative
treatment of his physical or mental or emotional condition or who
submits to an examination of his or her mental or emotional
condition for the purpose of scientific research on mental or
emotional problems.
(4) "Persons" includes partnerships, corporations,
associations and other groups and entities.
(5) "Psychotherapist" means:
(A) A person authorized, or reasonably believed by the
patient to be authorized, to practice medicine in any state or
nation who devotes, or is reasonably believed by the patient to
devote, a substantial portion of his or her time to the practice
of psychiatry.
(B) A person licensed as a psychologist.
(C) A person licensed as a clinical social worker, when he
or she is engaged in applied psychotherapy of a nonmedical
nature.
(D) A person who is serving as a school psychologist and
holds a credential authorizing such service issued by the state.
(E) A person licensed as a marriage, family and child
counselor.
(F) A person registered as a psychological assistant who is
under the supervision of a licensed psychologist or board
certified psychiatrist, or a person registered as a marriage,
family and child counselor intern who is under the supervision of
a licensed marriage, family and child counselor, a licensed
clinical social worker, a licensed psychologist, or a licensed
psychotherapist certified in psychiatry.
(G) A person registered as an associate clinical social
worker who is under the supervision of a licensed clinical social
worker, a licensed psychologist, or a board certified
psychiatrist.
(H) A person exempt from the Psychology Licensing Law who is
under the supervision of a licensed psychologist or board
certified psychiatrist.
(I) A psychological intern who is under the supervision of
a licensed psychologist or board certified psychiatrist.
(J) A trainee, who is fulfilling his or her supervised
practicum and is supervised by a licensed psychologist, board
certified psychiatrist, a licensed clinical social worker, or a
licensed marriage or family counselor.
(6) "Psychotherapist-patient privilege" means the patient,
whether or not a party, has a privilege to refuse to disclose and
to prevent another from disclosing, a confidential communication
between patient and psychotherapist if the privilege is claimedby:
(A) The holder of the privilege;
(B) A person who is authorized to claim the privilege by the
holder of the privilege;
(C) The person who was the psychotherapist at the time of
the confidential communication, but such person may not claim the
privilege if there is no holder of the privilege in existence or
if he is otherwise instructed by a person authorized to permit
disclosure;
(D) A minor under mental health treatment or counseling.
(c) When psychotherapist required to claim privilege. -- The
psychotherapist who received or made a communication subject to
the privilege under this article shall claim the privilege
whenever he is present when the communication is sought to be
disclosed and is authorized to claim the "psychotherapist-patient
privilege."
(d) Exceptions. -- There is no privilege under this section
for the following situations:
(1) A communication relevant to an issue concerning the
mental or emotional condition of the patient if such issue has
been tendered by:
(A) The patient;
(B) Any party claiming through or under the patient;
(C) Any party claiming as a beneficiary of the patient
through a contract to which the patient is or was a party; or
(D) The plaintiff in an action brought for damages for theinjury or death of the patient.
(2) If the psychotherapist is appointed by order of a court
to examine the patient, but this exception does not apply where
the psychotherapist is appointed by order of the court upon the
request of the lawyer for the defendant in a criminal proceeding
in order to provide the lawyer with information needed so that he
or she may advise the defendant whether to enter or withdraw a
plea based on insanity or to present a defense based on his or
her mental or emotional condition.
(3) If the psychotherapist is appointed by the division of
corrections to examine a patient.
(4) If the services of the psychotherapist were sought or
obtained to enable or aid anyone to commit or plan to commit a
crime or a tort or to escape detection or apprehension after the
commission of a crime or a tort.
(5) As to a communication relevant to an issue between
parties all of whom claim through a deceased patient, regardless
of whether the claims are by testate or interstate succession or
by inter vivos transaction.
(6) As to a communication relevant to an issue of breach, by
the psychotherapist or by the patient, of a duty arising out of
the psychotherapist-patient relationship.
(7) As to a communication relevant to an issue concerning
the intention of a patient, now deceased, with respect to a deed
of conveyance, will or other writing, executed by the patient,
purporting to affect an interest in property.
(8) As to a communication relevant to an issue concerning
the validity of a deed of conveyance, will or other writing,
executed by a patient, now deceased, purporting to affect an
interest in property.
(9) In a proceeding initiated at the request of the
defendant in a criminal action to determine his sanity.
(10) If the psychotherapist has reasonable cause to believe
that the patient is in such mental or emotional condition as to
be dangerous to himself or to the person or property of another
and that disclosure of the communication is necessary to prevent
the threatened danger.
(11) In a proceeding brought by or on behalf of the patient
to establish his competence.
(l2) As to information that the psychotherapist or the
patient is required to report to a public employee or as to
information required to be recorded in a public office, if such
report or record is open to public inspection.
(13) If the following circumstances exist:
(A) The patient is a child under the age of sixteen; and
(B) The psychotherapist has reasonable cause to believe that
the patient has been the victim of a crime and that disclosure of
the communication is in the best interest of the child.
NOTE: The purpose of this bill is to establish a
psychotherapist-patient privilege where the psychotherapist may
not be compelled to testify in a court proceeding. It also sets
out exceptions to this privilege.
§57-3-10 is new; therefore, strike-throughs and underscoring
have been omitted.