Laws about Private Communications
Vermont

A victim receiving direct services from a crisis worker has the privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made by the victim to the crisis worker, including any record made in the course of providing support, counseling, or assistance to the victim. 12 V.S.A. § 1614(b).

Separately, the “Patient’s Privilege” statute provides that, unless the patient waives the privilege or unless the privilege is waived by an express provision of law, medical professionals including a person authorized to practice medicine, a registered professional or licensed practical nurse, or a mental health professional as defined in 18 V.S.A. § 7101(13) shall not be allowed to disclose any information acquired in attending a patient in a professional capacity, including joint or group counseling sessions, and which was necessary to enable the provider to act in that capacity. 12 V.S.A. § 1612(a).

Under the Vermont Rules of Evidence, a patient has a privilege to refuse to disclose and to prevent any other person, including a person present to further the interest of the patient in the consultation, examination or interview, from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, dental, or emotional condition, including alcohol or drug addiction, among himself, his physician, dentist, nurse, or mental health professional, and persons who are participating in diagnosis or treatment under the direction of a physician, dentist, nurse, or mental health professional, including members of the patient's family. Vt. R. Evid. 503(b).

The privilege described in 12 V.S.A. § 1614(b) appears from the statute to be absolute. The privileges described in 12 V.S.A. § 1612(a) and Vt. R. Evid. 503 are qualified.

Holder of Privilege:

• 12 V.S.A. § 1614(b): The victim holds the privilege. Both the victim and the crisis worker may claim the privilege, but the crisis worker may only claim the privilege on behalf of the victim.
• Vt. R. Evid. 503(c): The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician, dentist, nurse, or mental health professional at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.
• In In re C.I., Juvenile, 155 Vt. 52, 580 A.2d 985 (1990), the Vermont Supreme Court ruled that a patient could not claim doctor-patient privilege on behalf of his mother, finding that privilege was personal to patient and could be claimed only by the patient, his guardian or conservator.

Waiver of Privilege:

• 12 V.S.A. § 1614: No procedure specified.
• 12 V.S.A. § 1612(a): The privilege applies “unless the patient waives the privilege or unless the privilege is waived by an express provision of law.” See “Exceptions to the Privilege,” discussed below.

In Rose v. Vermont Mut. Ins. Co., 2007 WL 3333394 (D. Vt. Nov. 8, 2007), a federal district court analyzing 12 V.S.A. § 1612 and Vt. R. Evid. 503 took a broad view of waiver with respect to the psychotherapist-patient privilege, holding that the plaintiff had waived the privilege by bringing a personal injury action and claiming damages for lost income, lost earning capacity, activity impairment, and emotional distress.

A communication is confidential only if it was not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendering of services to the victim or those reasonably necessary for the transmission of the communication. 12 V.S.A. § 1614(a)(2). The person to whom the communication was made may also be subject to mandatory reporting requirements (see below), which under Vermont law automatically override most privileges and confidentiality rights.

12 V.S.A. § 1612: There are several exceptions to the privileges afforded under the statute:

• Identification by dentist; crime committed against patient under 16. A dentist shall be required to disclose information necessary for identification of a patient. A physician, dentist, chiropractor, or nurse shall be required to disclose information indicating that a patient who is under the age of 16 years has been the victim of a crime.
• Mental or physical condition of deceased patient.
  • A physician, chiropractor, or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under the statute, except information which would tend to disgrace the memory of the decedent, either in the absence of an objection by a party to the litigation or when the privilege has been waived: (a) by the personal representative, or the surviving spouse, or the next of kin of the decedent; or (b) in any litigation where the interests of the personal representative are deemed by the trial judge to be adverse to those of the estate of the decedent, by any party in interest; or (c) if the validity of the will of the decedent is in question, by the executor named in the will, or the surviving spouse or any heir-at-law or any of the next of kin or any other party in interest.
  • A physician, dentist, chiropractor, mental health professional, or nurse shall be required to disclose any information as to the mental or physical condition of a deceased patient privileged under subsection (a) of this section upon request to the Chief Medical Examiner.

Vt. R. Evid. 503: There are several exceptions to the privileges afforded under the rule:

• Mental Health Proceedings. There is no privilege under this rule in proceedings under that part of Title 18 of Vermont Statutes Annotated on mental health for any communications to or from a mental health professional while he is attending the patient.
• Examination by Order of Court. If the court orders an examination of the physical, mental, or emotional condition of a patient whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise or unless the state seeks to admit communications obtained in an examination of the mental or emotional condition of a patient in a criminal case for the purpose of proving the commission of a criminal offense or for the purpose of impeaching the testimony of the patient.
• Condition an Element of Claim or Defense. Communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense, unless the state seeks to admit information obtained in the examination of the mental or emotional condition of a patient in a criminal case for the purpose of proving the commission of a criminal offense or for the purpose of impeaching the testimony of the patient.
• Dental Identification. There is no privilege for information acquired by a dentist that is necessary for the identification of a patient.
• Victims of Crime Under the Age of 16. There is no privilege for information indicating that a patient who is under the age of 16 years has been the victim of a crime.
• Required Reports. There is no privilege for reports of a patient's medical condition required to be made by statute.
• Risk of Harm to a Child. In any proceeding under Rules 4.0-4.3 of the Vermont Rules for Family Proceedings to determine parental rights or responsibilities or parent-child contact, and in any proceeding under Chapter 55 of Title 33, Vermont Statutes Annotated, there is no privilege under this rule if the court, after hearing, finds on the basis of evidence other than that sought to be obtained, that: (1) in any such case lack of disclosure of the communication would pose a risk of harm to the child as defined in 33 V.S.A. § 4912, or in a proceeding to terminate parental rights the communication would be relevant under 33 V.S.A. § 5540(3); (2) the probative value of the communication outweighs the potential harm to the patient; and (3) the evidence sought is not reasonably available by any other means.

In a 2006 decision analyzing Vt. R. Evid. 503, the Supreme Court of Vermont permitted limited disclosure of a minor’s school counseling records in a sexual assault trial. In that case, the court only allowed in camera review of the counseling records as they pertained to the victim’s veracity. The Court was clear that the records being disclosed were not counseling records between a sexual assault therapist and a victim. Rather, the only counseling records eligible for in camera review in the case were those pertaining to issues of trustworthiness addressed by the victim and her school counselors at times unrelated to the alleged offenses. State v. Rehkop, 2006 VT 72, ¶ 27, 180 Vt. 228, 238, 908 A.2d 488, 497 (Vt. 2006).

12 V.S.A. § 1614 (Crisis Workers):

Confidential Communication: Any communication not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of services to the victim or those reasonably necessary for the transmission of the communication. 12 V.S.A. § 1614(a)(2).

Sexual Assault Crisis Program: A program organized for the purpose of providing assistance, counseling, or support services to victims of abuse or sexual assault. 12 V.S.A. § 1614(a)(1)(A).

Crisis Worker: An employee or volunteer who: (1) provides direct services to victims of abuse or sexual assault for a domestic violence program or sexual assault crisis program incorporated or organized for the purpose of providing assistance, counseling, or support services; (2) has undergone 20 hours of training; (3) works under the direction of a supervisor of the program, supervises employees or volunteers, or administers the program; and (4) is certified by the director of the program. 12 V.S.A. § 1614(a)(1)(A)-(D).

12 V.S.A. § 1612 (“Patient’s Privilege”)

Mental Health Professional: A person with professional training, experience, and demonstrated competence in the treatment of mental illness, who shall be a physician, psychologist, social worker, mental health counselor, nurse, or other qualified person designated by the Vermont Commissioner of Mental Health. 18 V.S.A. § 7101(13) (12 V.S.A. § 1612(a) refers to this definition).

Vt. R. Evid. 503

Patient: A person who consults or is examined or interviewed by a physician, dentist, nurse, or mental health professional. Vt. R. Evid. 503(a)(1).

Mental Health Professional: A qualified person designated by the Commissioner of Mental Health and Mental Retardation or a physician, psychologist, social worker, or nurse with professional training, experience and demonstrated competence in the treatment of mental illness, or a person reasonably believed by the patient to be a mental health professional. Vt. R. Evid. 503(a)(5)

Confidential Communication: 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 diagnosis and treatment under the direction of a physician, dentist, nurse or mental health professional, including members of the patient's family or other participants in joint or group counseling sessions. Vt. R. Evid. 503(a)(6)

Vermont has a mandatory reporting framework for child abuse and neglect.  33 V.S.A § 4913.

The following are mandated reporters under this statute:

(1) Health care providers (e.g., physicians, surgeons, osteopaths, chiropractors, physician assistants, resident physicians, interns, VT hospital administrators, registered nurses, licensed practical nurses, medical examiners, emergency medical personnel, dentists, psychologists, and pharmacists);

(2) Individuals who are employed by a school district or an approved or recognized independent school, or who are contracted and paid by a school district or an approved or recognized independent school to provide student services (e.g., school superintendents; headmasters of approved or recognized independent schools; school teachers; student teachers; school librarians; school principals; and school guidance counselors);

(3) Child care workers;

(4) Mental health professionals;

(5) Social workers;

(6) Probation officers;

(7) Employees, contractors, and grantees of the Agency of Human Services who have contact with clients;

(8) Police officers;

(9) Camp owners, administrators, or counselors;

(10) Members of the clergy; or

(11) Employees of the Office of the Child, Youth, and Family Advocate.

33 V.S.A. § 4913(a).

A mandated reporter who reasonably suspects abuse or neglect of a child must, within 24 hours, report the matter to the Vermont Commissioner for Children and Families or his/her designee, and the report must contain (i) the name and address or other contact information of the reporter; (ii) the names and addresses of the child and the parents or other persons responsible for the child’s care, if known; (iii) the age of the child; (iv) the nature and extent of the child’s injuries together with any evidence of previous abuse and neglect of the child or the child’s siblings; and (v) any other information that might be helpful in establishing the cause of the injuries or reasons for the neglect as well as in protecting the child and assisting the family. 33 V.S.A § 4914

A person may not refuse to make a required report on the grounds that making the report would violate a privilege or disclose a confidential communication (except that members of the clergy are not required to make a report that would be based on information received in a communication that is (i) made to a member of the clergy acting in his or her capacity as a spiritual advisor; (ii) intended by the parties to be confidential at the time the communication is made; (iii) intended by the communicant to be an act of contrition or a matter of conscience; and (iv) required to be confidential by religious law, doctrine or tenet).  33 V.S.A. § 4913(i)-(j).

12 V.S.A. § 1612

12 V.S.A. § 1614

18 V.S.A. § 7101

33 V.S.A. § 4913

33 V.S.A. § 4914

Vt. R. Evid. 503