2015 ORS 40.230¹
Rule 504. Psychotherapist-patient privilege

(1) As used in this section, unless the context requires otherwise:

(a) "Confidential communication" means a communication not intended to be disclosed to third persons except:

(A) Persons present to further the interest of the patient in the consultation, examination or interview;

(B) Persons reasonably necessary for the transmission of the communication; or

(C) Persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family.

(b) "Patient" means a person who consults or is examined or interviewed by a psychotherapist.

(c) "Psychotherapist" means a person who is:

(A) Licensed, registered, certified or otherwise authorized under the laws of any state to engage in the diagnosis or treatment of a mental or emotional condition; or

(B) Reasonably believed by the patient so to be, while so engaged.

(2) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of the patient’s mental or emotional condition among the patient, the patient’s psychotherapist or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.

(3) The privilege created by this section may be claimed by:

(a) The patient.

(b) A guardian or conservator of the patient.

(c) The personal representative of a deceased patient.

(d) The person who was the psychotherapist, but only on behalf of the patient. The psychotherapist’s authority so to do is presumed in the absence of evidence to the contrary.

(4) The following is a nonexclusive list of limits on the privilege granted by this section:

(a) If the judge orders an examination of the mental, physical or emotional condition of the patient, communications made in the course thereof are not privileged under this section with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

(b) There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient:

(A) In any proceeding in which the patient relies upon the condition as an element of the patient’s claim or defense; or

(B) After the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.

(c) Except as provided in ORCP 44, there is no privilege under this section for communications made in the course of mental examination performed under ORCP 44.

(d) There is no privilege under this section with regard to any confidential communication or record of such confidential communication that would otherwise be privileged under this section when the use of the communication or record is allowed specifically under ORS 426.070 (Initiation), 426.074 (Investigation), 426.075 (Notice and records of treatment prior to hearing), 426.095 (Commitment hearing), 426.120 (Examination report) or 426.307 (Court hearing). This paragraph only applies to the use of the communication or record to the extent and for the purposes set forth in the described statute sections. [1981 c.892 §33; 1987 c.903 §1]

(Rule 504)

See also annota­tions under ORS 44.040 in permanent edi­tion.

Notes of Decisions

Where defendant telephoned Dammasch State Hospital and told recep­tionist that he wanted to speak to a doctor because he "just killed a man" communica­tion was not confidential and, therefore, was not privileged; sub­se­quent state­ments to psychiatrist were not communica­tions made for purpose of diagnosis or treat­ment where psychiatrist's purpose was to keep defendant on telephone until police arrived rather than to es­tab­lish psychotherapist-patient rela­tionship and, therefore, those state­ments were not privileged. State v. Miller, 67 Or App 637, 680 P2d 676 (1984)

Defendant hospital's duty of confidentiality did not extend beyond patient to patient's family where facts disclosed did not concern family and did not arise out of any family involve­ment in patient's treat­ment. Doe v. Portland Health Centers, Inc., 99 Or App 423, 782 P2d 446 (1989)

Where legislature intended to exclude per­son who is specifically consulted for drug and alcohol dependency from defini­tion of psychotherapist, mother could not claim psychotherapist-patient privilege as to evidence about her drug and alcohol treat­ment in termina­tion of parental rights case. State ex rel Juv. Dept. v. Ashley, 312 Or 169, 818 P2d 1270 (1991); 112 Or App 153, 826 P2d 130 (1992)

Abroga­tion of privilege by ORS 419B.040 (Certain privileges not grounds for excluding evidence in court proceedings on child abuse) with regard to child abuse cases applies to psychotherapist communica­tion with patient accused of abuse. State ex rel Juvenile Dept. v. Spencer, 198 Or App 599, 108 P3d 1189 (2005)

Law Review Cita­tions

22 WLR 607 (1986)

Chapter 40

(Generally)

Notes of Decisions

General rule is that polygraph evidence is inadmissible in pro­ceed­ing governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Where state law completely precludes reliable, ma­te­ri­ally exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitu­tion. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), aff'd State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Oregon Evidence Code articulates min­i­mum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identifica­tion evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Cita­tions

59 OLR 43 (1980); 19 WLR 343 (1983)

Chapter 40

Evidence Code

Annota­tions are listed under the heading "Under former similar statute" if they predate the adop­tion of the Evidence Code, which went into effect January 1, 1982.


1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.