An Act Regarding Confidentiality and Mental Health
Maine Legislature, Session 121, LD 1214
Committee: Judiciary
Sponsors: MARLEY, CANAVAN, HUTION, PATRICK, SUSLOVIC
Amends: 16 MRSA §53-D, 32 MRSA §7061-A, 32 MRSA §13862

Legislative Document 
No. 1214 
H.P.888 
House of Representatives, March 6, 2003 
An Act Regarding Confidentiality and Mental Health 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Representative MARLEY of Portland. 
;r;~/h.~ 
MILLICENT M. MacFARLAND 
Clerk 
Cosponsored by Representatives: CANAVAN of Waterville, HUTION of Bowdoinham, 
PATRICK of Rumford, SUSLOVIC of Portland. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 16 MRSA §53-D is enacted to read: 
§53-D. 
Privileged communications to licensed counseling 
professionals or licensed clinical social workers 
1. 
Definitions. 
As 
used 
in this 
section, 
unless 
the 
context 
otherwise 
indicates, 
the 
following 
terms 
have 
the 
following meanings. 
A. 
"Confidential 
communication" 
means 
information, 
including information obtained by examination of a patient, 
transmitted between 
a 
patient and 
an 
LCP 
or 
between 
a 
patient and 
an 
LCSW 
in the 
course of 
the 
relationship 
between the patient and the LCP or LCSW and in confidence by 
a means that, so far as the patient is aware, discloses the 
information to 
no 
3rd persons other than those 
who 
are 
present to further 
the interest of 
the patient in 
any 
consultation or 
those 
to 
whom 
disclosure 
is 
reasonably 
necessary for the transmission of the information or the 
accomplishment of any purpose for which the LCP or LCSW is 
consulted. 
"Confidential 
communication" 
includes 
a 
diagnosis made and the advice given by the LCP or LCSW in 
the course of the relationship. 
B. 
"Holder of the privilege" means: 
(I) The patient, when the patient has no guardian or 
conservator; 
(2) A guardian or conservator of the patient when the 
patient has a guardian or conservator; or 
(3) The personal representative of the patient if the 
patient is deceased. 
C. 
"Licensed clinical social worker" or 
"LCSW" 
means 
a 
person licensed under Title 32, chapter 83. 
D. 
"Licensed counseling professional" or 
"LCP" 
means 
a 
person licensed under Title 32, chapter 119. 
E. 
"Patient" means a person, couple, family or group that 
consults an LCP or LCSW or submits to an examination by an 
LCP 
or 
LCSW 
for the purpose of securing a 
diagnosis or 
preventive, 
palliative 
or 
curative 
treatment 
of 
the 
consulting person's mental or emotional condition or 
wO~ 
submits 
to 
an 
examination 
of 
the 
person's 
mental 
or 
.. 
emotional condition for the purpose of scientific research 
on mental or emotional problems. 
2. 
Privileged 
communications. 
Except 
as 
provided 
in 
subsection 3, 
a patient has a privilege to refuse to disclose, 
and 
to 
prevent 
another 
from 
disclosing, 
a 
confidential 
communication between patient and LCP or between patient and LCSW 
if the privilege is claimed by: 
A. The holder of the privilege; 
B. 
A 
person 
who 
is 
authorized 
by 
the 
holder 
of 
the 
privilege to claim the privilege; or 
C. 
The person who was the LCP or LCSW at the time of the 
confidential communication, but such a person may not claim 
the privilege if there is no holder of the privilege in 
existence or if the LCP or LCSW is otherwise instructed by a 
person authorized to permit disclosure. 
3. 
Exceptions. 
There is no privilege under this section: 
A. 
As to a communication relevant to an issue concerning 
the mental or emotional condition of the patient if that 
issue has been raised by: 
(1) The patient; 
(2) A party claiming through or under the patient; 
(3) 
A party claiming as a beneficiary of the patient 
through a contract to which the patient is or was 
a 
party; or 
(4) 
The plaintiff ln an action for damages 
for the 
injury or death of the patient; 
B. 
If the 
LCP 
or 
LCSW 
is appointed by court order 
to 
examine 
the 
patient, 
except 
when 
the 
LCP 
or 
LCSW 
is 
appointed by court order upon the request of a lawyer for a 
defendant in a criminal proceeding in order to provide the 
lawyer 
with 
information 
needed 
to 
enable 
the 
lawyer 
to 
advise the defendant whether to enter or withdraw a plea 
based on insanity or to present 
a 
defense based on the 
defendant's mental or emotional condition; 
C. 
If the service§ of 
the 
LCP 
or 
L~SW were 
sQyght or 
QQtaineg tQ engble Qr aid any perSQn tQ !:;Qmmit or plan to 
commit 
g 
crime 
or 
a 
tort 
or 
to 
e§!:;gpe 
getection 
or 
apprehensiQn after the commission Qf g !:;rime or g tQrt; 
D. 
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 intestate 
succession or inter vivos transaction; 
E. 
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 that 
patient, purporting to affect an interest in property; 
F. 
In a proceeding initiated at the reguest of the patient, 
who is a defendant in a criminal action, to determine the 
patient's sanity; 
G. 
If the LCP or LCSW has reasonable cause to believe that 
the patient is in such a mental or emotional condition as to 
be dangerous to the patient or to the person or property of 
another 
and 
that 
disclosure 
of 
the 
communication 
necessary to prevent the threatened danger; 
H. 
In a proceeding brought by or on behalf of the patient 
to establish the patient's competence; 
I. 
As to information that the LCP or LCSW is required by 
law to report to a public official; or 
J. In a child protection proceeding in which the information 
is determined by the court to be necessary for determination 
of any issue involving the health, safety or welfare of a 
child 
or 
pursuant 
to 
an 
investigative 
subpoena 
issued 
pursuant to Title 22, section 4021. 
4. 
Waiver of privilege. 
This subsection governs waiver of 
the privilege provided by this section. 
A. 
Except as otherwise provided in this section, the right 
of any person to claim a privilege under this section is 
waived with respect to 
a 
communication protected by 
the 
privilege if any holder of the privilege, without coercion L 
has disclosed a significant part of the communication or has 
consented to such a disclosure made by anyone. 
Consent to 
disclosure is manifested by any statement or other conduct 
of 
the 
holder 
of 
the 
privilege 
indicating 
consent 
to 
disclosure, including failure to claim the privilege in any 
proceeding in which the holder has the legal standing and an 
opportunity to claim the privilege. 
B. 
When 2 or more persons are joint holders of a privilege 
under this section, a waiver of the right of a particular 
, 
joint holder to claim the privilege does not affect the 
right of another joint holder to claim the privilege. 
C. 
A disclosure that is itself privileged is not a waiver 
of any privilege. 
D. 
A disclosure in confidence of a privilege under this 
section is not a waiver of the privilege if the disclosure 
is 
reasonably 
necessary 
for 
the 
purpose 
for 
which 
the 
licensed counseling professional or licensed clinical social 
worker was consulted. 
5. 
No comment or inference permitted. 
If a privilege under 
this section is or was exercised in the instant proceeding or on 
a prior occasion, neither the presiding officer nor counsel may 
comment upon the exercise of the privilege, and no presumption 
arises because of the exercise. 
The trier of fact may not draw 
any inference 
from 
the exercise of the privilege as 
to the 
credibili ty of the witness or as to any matter at issue in the 
proceeding. 
At 
the request of 
a 
party who 
may be adversely 
affected by an inference that may be drawn by the jury, the court 
shall instruct the jury that no presumption arises because of the 
exercise of the privilege and the jury may not draw an inference 
from the exercise of the privilege as to the credibility of the 
witness or as to any matter at issue 1n the proceeding. 
6. 
Court ruling on claim of privilege. 
When a court 1S 
ruling on a privilege under this section and is unable to do so 
without requiring disclosure of the information claimed to be 
privileged, 
the 
court 
may 
require 
the 
persons 
from 
whom 
disclosure is sought or other person authorized to claim the 
privilege, or both, to disclose the information in chambers out 
of 
presence 
and 
hearing 
of 
all 
persons 
except 
the 
person 
authorized to claim the privilege and others permitted by that 
person. 
If 
the 
judge 
determines 
that 
the 
information 
is 
privileged, 
neither the 
judge nor 
any other person may 
ever 
disclose what was disclosed in chambers without the consent of 
the person authorized to permit disclosure. 
_ 
Burden of proof. 
When 
a privilege is claimed on the 
ground that the matter sought to be disclosed is a communication 
made in confidence in the course of the relationship between 
patient 
and 
LCP 
or 
patient 
and 
LCSW, 
the 
communication 
is 
presumed to have been made in confidence and the opponent of the 
claim 
of privilege has 
the 
burden of establishing that 
the 
communication was not confidential. 
8. 
Access for reimbursement or review not denied. 
This 
section does not prevent a 3rd-party reimburser, in the ordinary 
course of determining eligibility for or entitlement to benefits, 
from 
inspecting 
and 
copying 
records 
relating 
to 
diagnosis, 
treatment or other services provided to any person, including a 
minor or incompetent person, 
for which coverage, 
benefit, 
or 
reimbursement is claimed as long as the policy or certificate 
under which the claim is made provides that access to those 
records is permitted. 
Disclosure of confidential communications 
to the 3rd-party reimburser for the purpose specified in this 
subsection is not 
an express 
or 
constructive waiver 
of 
the 
privilege with regard to that confidential communication. 
This 
section does not prevent access to any records pursuant to any 
peer 
review 
or 
utilization 
review 
procedure 
applied 
and 
implemented in good faith. 
9. 
No repeal of other privileges. 
This section does 'not 
repeal by implication any other statute or rule of court relating 
to privilege. 
Sec. 2. 32 MRSA §7061-A is enacted to read: 
§7061-A. 
Privileged communication 
When present and authorized to do 
so, 
a 
person licensed 
under this chapter shall claim the privilege provided under Title 
16, 
section 
53-D 
for 
confidential 
communications 
between 
a 
patient and the licensed person. 
Sec. 3. 32 MRSA §13862. as amended by PL 2001, c. 345, §10, 
is repealed and the following enacted in its place: 
§13862. 
Privileged communication 
When present and authorized to do 
so, 
a 
person licensed 
under this chapter shall claim the privilege provided under Title 
16, 
section 
53-D 
for 
confidential 
communications 
between 
a 
patient and the licensed person. 
SUMMARY 
This bill revises and expands the current laws regarding the 
privilege 
against 
disclosure 
of 
confidential 
communications 
between patients and licensed counseling professionals, such as 
marriage and family therapists, and between patients and licensed 
clinical social workers. 
It provides a number of exceptions to 
the 
privilege, 
including 
allowing 
disclosure: 
in 
certain 
criminal 
proceedings; 
when 
the 
patient 
is 
deceased 
and 
the 
information is needed regarding a will or deed; when reporting is 
required by law, such as reporting of child abuse or elder abuse: 
and 
when 
needed 
to 
determine 
certain 
matters 
in 
a 
child 
protection proceeding. The bill also specifies when the privilege 
is considered to be waived and sets forth procedures for courts 
in handling claims of privilege. 
•