HF 768

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to evidentiary privilege; providing a 
  1.3             privilege for public safety peer counseling debriefing 
  1.4             that makes any information or opinion stated at the 
  1.5             debriefing confidential; providing for recovery of 
  1.6             damages in case of breach of the peer counseling 
  1.7             privilege; providing municipal tort liability when 
  1.8             municipal employees involved in public safety peer 
  1.9             counseling debriefings breach the evidentiary 
  1.10            privilege; amending Minnesota Statutes 1994, section 
  1.11            595.02, subdivision 1; proposing coding for new law in 
  1.12            Minnesota Statutes, chapter 595. 
  1.13  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.14     Section 1.  Minnesota Statutes 1994, section 595.02, 
  1.15  subdivision 1, is amended to read: 
  1.16     Subdivision 1.  [COMPETENCY OF WITNESSES.] Every person of 
  1.17  sufficient understanding, including a party, may testify in any 
  1.18  action or proceeding, civil or criminal, in court or before any 
  1.19  person who has authority to receive evidence, except as provided 
  1.20  in this subdivision: 
  1.21     (a) A husband cannot be examined for or against his wife 
  1.22  without her consent, nor a wife for or against her husband 
  1.23  without his consent, nor can either, during the marriage or 
  1.24  afterwards, without the consent of the other, be examined as to 
  1.25  any communication made by one to the other during the marriage. 
  1.26  This exception does not apply to a civil action or proceeding by 
  1.27  one against the other, nor to a criminal action or proceeding 
  1.28  for a crime committed by one against the other or against a 
  1.29  child of either or against a child under the care of either 
  2.1   spouse, nor to a criminal action or proceeding in which one is 
  2.2   charged with homicide or an attempt to commit homicide and the 
  2.3   date of the marriage of the defendant is subsequent to the date 
  2.4   of the offense, nor to an action or proceeding for nonsupport, 
  2.5   neglect, dependency, or termination of parental rights.  
  2.6      (b) An attorney cannot, without the consent of the 
  2.7   attorney's client, be examined as to any communication made by 
  2.8   the client to the attorney or the attorney's advice given 
  2.9   thereon in the course of professional duty; nor can any employee 
  2.10  of the attorney be examined as to the communication or advice, 
  2.11  without the client's consent.  
  2.12     (c) A member of the clergy or other minister of any 
  2.13  religion shall not, without the consent of the party making the 
  2.14  confession, be allowed to disclose a confession made to the 
  2.15  member of the clergy or other minister in a professional 
  2.16  character, in the course of discipline enjoined by the rules or 
  2.17  practice of the religious body to which the member of the clergy 
  2.18  or other minister belongs; nor shall a member of the clergy or 
  2.19  other minister of any religion be examined as to any 
  2.20  communication made to the member of the clergy or other minister 
  2.21  by any person seeking religious or spiritual advice, aid, or 
  2.22  comfort or advice given thereon in the course of the member of 
  2.23  the clergy's or other minister's professional character, without 
  2.24  the consent of the person.  
  2.25     (d) A licensed physician or surgeon, dentist, or 
  2.26  chiropractor shall not, without the consent of the patient, be 
  2.27  allowed to disclose any information or any opinion based thereon 
  2.28  which the professional acquired in attending the patient in a 
  2.29  professional capacity, and which was necessary to enable the 
  2.30  professional to act in that capacity; after the decease of the 
  2.31  patient, in an action to recover insurance benefits, where the 
  2.32  insurance has been in existence two years or more, the 
  2.33  beneficiaries shall be deemed to be the personal representatives 
  2.34  of the deceased person for the purpose of waiving this 
  2.35  privilege, and no oral or written waiver of the privilege shall 
  2.36  have any binding force or effect except when made upon the trial 
  3.1   or examination where the evidence is offered or received.  
  3.2      (e) A public officer shall not be allowed to disclose 
  3.3   communications made to the officer in official confidence when 
  3.4   the public interest would suffer by the disclosure.  
  3.5      (f) Persons of unsound mind and persons intoxicated at the 
  3.6   time of their production for examination are not competent 
  3.7   witnesses if they lack capacity to remember or to relate 
  3.8   truthfully facts respecting which they are examined. 
  3.9      (g) A registered nurse, psychologist, consulting 
  3.10  psychologist, or licensed social worker engaged in a 
  3.11  psychological or social assessment or treatment of an individual 
  3.12  at the individual's request shall not, without the consent of 
  3.13  the professional's client, be allowed to disclose any 
  3.14  information or opinion based thereon which the professional has 
  3.15  acquired in attending the client in a professional capacity, and 
  3.16  which was necessary to enable the professional to act in that 
  3.17  capacity.  Nothing in this clause exempts licensed social 
  3.18  workers from compliance with the provisions of sections 626.556 
  3.19  and 626.557.  
  3.20     (h) An interpreter for a person handicapped in 
  3.21  communication shall not, without the consent of the person, be 
  3.22  allowed to disclose any communication if the communication 
  3.23  would, if the interpreter were not present, be privileged.  For 
  3.24  purposes of this section, a "person handicapped in 
  3.25  communication" means a person who, because of a hearing, speech 
  3.26  or other communication disorder, or because of the inability to 
  3.27  speak or comprehend the English language, is unable to 
  3.28  understand the proceedings in which the person is required to 
  3.29  participate.  The presence of an interpreter as an aid to 
  3.30  communication does not destroy an otherwise existing privilege. 
  3.31     (i) Licensed chemical dependency counselors shall not 
  3.32  disclose information or an opinion based on the information 
  3.33  which they acquire from persons consulting them in their 
  3.34  professional capacities, and which was necessary to enable them 
  3.35  to act in that capacity, except that they may do so:  
  3.36     (1) when informed consent has been obtained in writing, 
  4.1   except in those circumstances in which not to do so would 
  4.2   violate the law or would result in clear and imminent danger to 
  4.3   the client or others; 
  4.4      (2) when the communications reveal the contemplation or 
  4.5   ongoing commission of a crime; or 
  4.6      (3) when the consulting person waives the privilege by 
  4.7   bringing suit or filing charges against the licensed 
  4.8   professional whom that person consulted.  
  4.9      (j) A parent or the parent's minor child may not be 
  4.10  examined as to any communication made in confidence by the minor 
  4.11  to the minor's parent.  A communication is confidential if made 
  4.12  out of the presence of persons not members of the child's 
  4.13  immediate family living in the same household.  This exception 
  4.14  may be waived by express consent to disclosure by a parent 
  4.15  entitled to claim the privilege or by the child who made the 
  4.16  communication or by failure of the child or parent to object 
  4.17  when the contents of a communication are demanded.  This 
  4.18  exception does not apply to a civil action or proceeding by one 
  4.19  spouse against the other or by a parent or child against the 
  4.20  other, nor to a proceeding to commit either the child or parent 
  4.21  to whom the communication was made or to place the person or 
  4.22  property or either under the control of another because of an 
  4.23  alleged mental or physical condition, nor to a criminal action 
  4.24  or proceeding in which the parent is charged with a crime 
  4.25  committed against the person or property of the communicating 
  4.26  child, the parent's spouse, or a child of either the parent or 
  4.27  the parent's spouse, or in which a child is charged with a crime 
  4.28  or act of delinquency committed against the person or property 
  4.29  of a parent or a child of a parent, nor to an action or 
  4.30  proceeding for termination of parental rights, nor any other 
  4.31  action or proceeding on a petition alleging child abuse, child 
  4.32  neglect, abandonment or nonsupport by a parent.  
  4.33     (k) Sexual assault counselors may not be compelled to 
  4.34  testify about any opinion or information received from or about 
  4.35  the victim without the consent of the victim.  However, a 
  4.36  counselor may be compelled to identify or disclose information 
  5.1   in investigations or proceedings related to neglect or 
  5.2   termination of parental rights if the court determines good 
  5.3   cause exists.  In determining whether to compel disclosure, the 
  5.4   court shall weigh the public interest and need for disclosure 
  5.5   against the effect on the victim, the treatment relationship, 
  5.6   and the treatment services if disclosure occurs.  Nothing in 
  5.7   this clause exempts sexual assault counselors from compliance 
  5.8   with the provisions of sections 626.556 and 626.557.  
  5.9      "Sexual assault counselor" for the purpose of this section 
  5.10  means a person who has undergone at least 40 hours of crisis 
  5.11  counseling training and works under the direction of a 
  5.12  supervisor in a crisis center, whose primary purpose is to 
  5.13  render advice, counseling, or assistance to victims of sexual 
  5.14  assault.  
  5.15     (l) A person cannot be examined as to any communication or 
  5.16  document, including worknotes, made or used in the course of or 
  5.17  because of mediation pursuant to an agreement to mediate.  This 
  5.18  does not apply to the parties in the dispute in an application 
  5.19  to a court by a party to have a mediated settlement agreement 
  5.20  set aside or reformed.  A communication or document otherwise 
  5.21  not privileged does not become privileged because of this 
  5.22  paragraph.  This paragraph is not intended to limit the 
  5.23  privilege accorded to communication during mediation by the 
  5.24  common law. 
  5.25     (m) A child under ten years of age is a competent witness 
  5.26  unless the court finds that the child lacks the capacity to 
  5.27  remember or to relate truthfully facts respecting which the 
  5.28  child is examined.  A child describing any act or event may use 
  5.29  language appropriate for a child of that age. 
  5.30     (n) A communication assistant for a telecommunications 
  5.31  relay system for communication-impaired persons shall not, 
  5.32  without the consent of the person making the communication, be 
  5.33  allowed to disclose communications made to the communication 
  5.34  assistant for the purpose of relaying. 
  5.35     (o) A peace officer, firefighter, medical emergency person, 
  5.36  dispatcher, or other persons involved with prehospital public 
  6.1   safety emergency services, engaged in a public safety peer 
  6.2   counseling debriefing of a person who was involved in a critical 
  6.3   incident, shall not, without the permission of the person being 
  6.4   debriefed, be allowed to disclose any information or opinion 
  6.5   which the peer group member has acquired during the debriefing. 
  6.6      For purposes of this paragraph, "public safety peer 
  6.7   counseling debriefing" means a group process oriented debriefing 
  6.8   session held for peace officers, firefighters, medical emergency 
  6.9   persons, dispatchers, or other persons involved with public 
  6.10  safety emergency services that is designed to help a person who 
  6.11  has suffered an occupation-related traumatic event begin the 
  6.12  process of healing and effectively dealing with posttraumatic 
  6.13  stress. 
  6.14     Sec. 2.  [595.09] [BREACH OF PEER COUNSELING EVIDENTIARY 
  6.15  PRIVILEGE; DAMAGES RECOVERABLE; MUNICIPAL LIABILITY.] 
  6.16     Subdivision 1.  [BREACH OF PRIVILEGE; RECOVERY OF DAMAGES.] 
  6.17  When a peer counselor subject to the peer counseling privilege 
  6.18  established in section 595.02, subdivision 1, paragraph (o), 
  6.19  violates the privilege thereby causing the person protected by 
  6.20  the privilege to suffer any loss, including but not limited to 
  6.21  economic loss, loss of a career opportunity, or loss of 
  6.22  licensure, the person protected by the privilege may commence a 
  6.23  civil action against the peer counselor to recover actual and 
  6.24  punitive damages, and in addition costs, disbursements, and 
  6.25  reasonable attorney fees. 
  6.26     Subd. 2.  [MUNICIPAL TORT LIABILITY.] When a municipality 
  6.27  authorizes an employee to act as a peer counselor in a public 
  6.28  safety peer counseling debriefing, the employee is presumed to 
  6.29  be acting within the scope of employment and, if the employee 
  6.30  breaches the peer counseling privilege described in subdivision 
  6.31  1, the municipality is liable for any damages ensuing from the 
  6.32  breach.  The municipality shall be liable for actual and 
  6.33  punitive damages, and in addition costs, disbursements, and 
  6.34  attorney fees under the municipal tort liability provisions of 
  6.35  chapter 466. 
  6.36     Subd. 3.  [DEFINITION.] "Municipality" has the definition 
  7.1   assigned to the term in section 466.01, subdivision 1.