ENGROSSED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 15

(By Senator Wooton)

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[Originating in the Committee on the Judiciary;

reported February 16, 1993.]

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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 privileged communications between duly licensed psychotherapists and their patients; and providing that they may not be required to testify in civil cases about facts obtained in the course of treatment.

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 between psychotherapists and patients.

(a) Definitions:
(1) "Psychotherapist" is:
(A) A person authorized to practice medicine in any state who is engaged in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addictions.
(B) A person licensed or certified as a psychologist under the laws of this state or any state when the certification requirements or licensure requirements are substantially similar to the requirements in this state and who is engaged in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addictions.
(2) A "patient" is a person who consults or is interviewed by a psychotherapist for purposes of diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addictions.
(3) "Communication" includes conversations, correspondence, actions and occurrences relating to diagnosis or treatment, regardless of the patient's awareness of such conversations, correspondence, action and occurrences, and any records, tape recordings, memoranda or notes of the foregoing.
(4) A communication between psychotherapist and patient is "confidential" when it is not intended to be disclosed to third persons other than:
(A) Those persons present, including family members, to further the interest of the patient in the consultation, examination or interview;
(B) Those persons necessary for the transmission of the communication; or
(C) Those persons who are participating in the diagnosis andtreatment of the patient under the direction of the psychotherapist or reasonably believed to be so by the patient.
(b) General rule of privilege. -- In civil proceedings, a patient has a privilege to refuse to disclose, and to prevent any other person from disclosing confidential communications, whenever made, relating to diagnosis or treatment of the patient's mental or emotional condition between the patient and psychotherapist or under the supervision of, or in cooperation with, the psychotherapist in the accomplishment of the objectives of diagnosis or treatment.
(c) Who may claim the privilege. -- The patient or the patient's attorney on behalf of the patient; a guardian or conservator of the patient; a committee, personal representative of a deceased patient; a psychotherapist on behalf of the patient.
(d) Exceptions to a claim of privilege. --
(1) Examination by order of court. -- The privilege does not apply when the court orders an examination of the mental or emotional condition of a patient, whether a party or witness, to communications made in the course of the examination pertaining to the purpose for which the examination is ordered: Provided, That the privilege does apply to any admission of guilt to the commission of a crime.
(2) Proceedings for hospitalization. -- The privilege does not apply to a proceeding for hospitalization brought pursuant to article five, chapter twenty seven of this code.
(3) Imminent danger. -- The privilege does not apply when a psychotherapist, in the course of diagnosis or treatment of thepatient, finds that disclosure is necessary to protect the patient or another against a clear and substantial danger of imminent injury.
(4) Crime or fraud. -- The privilege does not apply when the services of the psychotherapist were sought, obtained or used to enable or aid anyone to commit or plan a crime or fraud, or to escape detection or apprehension after the commission of a crime or fraud.
(5) Breach of duty arising out of psychotherapist-patient relationship. -- The privilege does not apply when a communications is relevant to an issue of breach, by the psychotherapist or by the patient, of a duty arising out of the psychotherapist-patient relationship.
(6) Child abuse and neglect. -- The privilege does not apply when the psychotherapist is required to report the suspected abuse or neglect of a child pursuant to article six-a, chapter forty-nine of this code and does not apply in any action brought pursuant to article six of said chapter.
(e) The protections provided by the provisions of this section are in addition to those protections provided in section one, article three, chapter twenty-seven of this code.