RULE 504.1 COMMENTARY

The rejected privilege rules proposed by the U.S. Supreme Court in 1972, see Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975), contained no general physician-patient privilege but only a "psychotherapist-patient" privilege. The case for psychotherapists and their patients was made in the original Advisory Committee's Note:

Among physicians, the psychiatrist has a special need to maintain confidentiality. His capacity to help his patients is completely dependent upon their willingness and ability to talk freely. This makes it difficult if not impossible for him to function without being able to assure his patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule...there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment. The relationship may well be likened to that of the priest-penitent or the lawyer-client.

Accordingly, unenacted federal Rule 504 and Uniform Rule of Evidence 503 provide the models for this rule. Both provisions include within the definition of psychotherapist "a person licensed or certified as a psychologist under the laws of any state or nation." The present rule limits the privilege to communications between a client and a psychologist licensed under the provision of Hawaii Rev. Stat. ch. 465 (1976). In all other respects, the rule faithfully tracks the provisions of Rule 504 supra.

Case Notes

Mother could not invoke psychologist-client privilege where counseling sessions were held pursuant to a family court order and the communications between psychologist and mother were made known to the department of human services. 8 H. App. 161, 795 P.2d 294.