905.03 Annotation Attorney-Client Privilege and the Kovel Doctrine: Should Wisconsin Extend the Privilege to Communications with Third-Party Consultants? Lopez. 102 MLR 605 (2018).
905.04 905.04 Privilege between certain health-care providers and patients.
905.04(1)(1)Definitions. In this section:
905.04(1)(a) (a) “Chiropractor" means a person licensed under s. 446.02, or a person reasonably believed by the patient to be a chiropractor.
905.04(1)(b) (b) A communication or information is “confidential" if not intended to be disclosed to 3rd persons other than those present to further the interest of the patient in the consultation, examination, or interview, to persons reasonably necessary for the transmission of the communication or information, or to persons who are participating in the diagnosis and treatment under the direction of the physician, naturopathic doctor, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor, including the members of the patient's family.
905.04(1)(bm) (bm) “Marriage and family therapist" means an individual who is licensed as a marriage and family therapist under subch. I of ch. 457 or an individual reasonably believed by the patient to be a marriage and family therapist.
905.04(1)(br) (br) “Naturopathic doctor" means a naturopathic doctor, as defined in s. 990.01 (22m), or an individual reasonably believed by the patient to be a naturopathic doctor.
905.04(1)(c) (c) “Patient" means an individual, couple, family or group of individuals who consults with or is examined or interviewed by a physician, naturopathic doctor, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.
905.04(1)(d) (d) “Physician" means a person as defined in s. 990.01 (28), or reasonably believed by the patient so to be.
905.04(1)(dg) (dg) “Podiatrist" means a person licensed under s. 448.63 or a person reasonably believed by the patient to be a podiatrist.
905.04(1)(dm) (dm) “Professional counselor" means an individual who is licensed as a professional counselor under subch. I of ch. 457, an individual who is exercising the privilege to practice, as defined in s. 457.50 (2) (s), in this state, or an individual reasonably believed by the patient to be a professional counselor.
905.04(1)(e) (e) “Psychologist" means a psychologist, as defined in s. 990.01 (31m), or a person reasonably believed by the patient to be a psychologist.
905.04(1)(f) (f) “Registered nurse" means a registered nurse who is licensed under s. 441.06 or who holds a multistate license, as defined in s. 441.51 (2) (h), issued in a party state, as defined in s. 441.51 (2) (k), or a person reasonably believed by the patient to be a registered nurse.
905.04(1)(g) (g) “Social worker" means an individual who is certified or licensed as a social worker, advanced practice social worker, independent social worker, or clinical social worker under subch. I of ch. 457 or an individual reasonably believed by the patient to be a social worker, advanced practice social worker, independent social worker, or clinical social worker.
905.04 Note NOTE: Par. (g) is shown as amended by 2023 Wis. Act 55. 2023 Wis. Act 55, section 77m (1), provides that, if either 2023 Senate Bill 391 or 2023 Assembly Bill 382 is enacted into law, the amendment of par. (g) by 2023 Wis. Act 55 is void.
905.04(2) (2)General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's naturopathic doctor, the patient's podiatrist, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, naturopathic doctor, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.
905.04(3) (3)Who may claim the privilege. The privilege may be claimed by the patient, by the patient's guardian or conservator, or by the personal representative of a deceased patient. The person who was the physician, naturopathic doctor, podiatrist, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor may claim the privilege but only on behalf of the patient. The authority so to do is presumed in the absence of evidence to the contrary.
905.04(4) (4)Exceptions.
905.04(4)(a) (a) Proceedings for commitment, guardianship, protective services, or protective placement or for control, care, or treatment of a sexually violent person. There is no privilege under this rule as to communications and information relevant to an issue in probable cause or final proceedings to commit the patient for mental illness under s. 51.20, to appoint a guardian in this state, for court-ordered protective services or protective placement, for review of guardianship, protective services, or protective placement orders, or for control, care, or treatment of a sexually violent person under ch. 980, if the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist, or professional counselor in the course of diagnosis or treatment has determined that the patient is in need of commitment, guardianship, protective services, or protective placement or control, care, and treatment as a sexually violent person.
905.04(4)(am) (am) Proceedings for guardianship. There is no privilege under this rule as to information contained in a statement concerning the mental condition of the patient furnished to the court by a physician or psychologist under s. 54.36 (1) or s. 880.33 (1), 2003 stats.
905.04(4)(b) (b) Examination by order of judge. If the judge orders an examination of the physical, mental or emotional condition of the patient, or evaluation of the patient for purposes of guardianship, protective services or protective placement, communications made and treatment records reviewed 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.
905.04(4)(c) (c) Condition an element of claim or defense. There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense, or, 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.
905.04(4)(d) (d) Homicide trials. There is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide.
905.04(4)(e) (e) Abused or neglected child or abused unborn child.
905.04(4)(e)2m. 2m. There is no privilege for information contained in a report of child abuse or neglect that is provided under s. 48.981 (3).
905.04(4)(e)3. 3. There is no privilege in situations where the examination of the expectant mother of an abused unborn child creates a reasonable ground for an opinion of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor that the physical injury inflicted on the unborn child was caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.
905.04(4)(em) (em) School violence. There is no privilege for information contained in a report of a threat of violence in or targeted at a school that is provided under s. 175.32 (3).
905.04(4)(f) (f) Tests for intoxication. There is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration, as defined in s. 340.01 (1v).
905.04(4)(g) (g) Paternity proceedings. There is no privilege concerning testimony about the medical circumstances of a pregnancy or the condition and characteristics of a child in a proceeding to determine the paternity of that child under subch. IX of ch. 767.
905.04(4)(h) (h) Reporting wounds and burn injuries. There is no privilege regarding information contained in a report under s. 255.40 pertaining to a patient's name and type of wound or burn injury.
905.04(4)(i) (i) Providing services to court in juvenile matters. There is no privilege regarding information obtained by an intake worker or dispositional staff in the provision of services under s. 48.067, 48.069, 938.067 or 938.069. An intake worker or dispositional staff member may disclose information obtained while providing services under s. 48.067 or 48.069 only as provided in s. 48.78 and may disclose information obtained while providing services under s. 938.067 or 938.069 only as provided in s. 938.78.
905.04 Annotation Sub. (4) (a) applies to proceedings to extend a commitment under ch. 975. State v. Hungerford, 84 Wis. 2d 236, 267 N.W.2d 258 (1978).
905.04 Annotation By entering a plea of not guilty by reason of mental disease or defect, the defendant lost the physician-patient privilege by virtue of sub. (4) (c) and the confidentiality of treatment records under s. 51.30 (4) (b) 4. State v. Taylor, 142 Wis. 2d 36, 417 N.W.2d 192 (Ct. App. 1987).
905.04 Annotation Discussing a psychotherapist's duty to third parties for dangerous patients' intentional behavior. Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159 (1988).
905.04 Annotation A defendant did not have standing to complain that a physician's testimony violated a witness's physician-patient's privilege under this section; the defendant was not authorized to claim the privilege on the patient's behalf. State v. Echols, 152 Wis. 2d 725, 449 N.W.2d 320 (Ct. App. 1989).
905.04 Annotation Under sub. (4) (g), the history of a pregnancy is discoverable. The court may permit discovery of the history as long as information regarding the mother's sexual relations outside of the conceptive period is eliminated. Family Planning Health Services, Inc. v. T.G., 158 Wis. 2d 100, 461 N.W.2d 794 (Ct. App. 1990).
905.04 Annotation Because under sub. (4) (f) there is no privilege for chemical tests for intoxication, the results of a test taken for diagnostic purposes are admissible in an operating while under the influence and operating with a prohibited blood alcohol concentration trial. City of Muskego v. Godec, 167 Wis. 2d 536, 482 N.W.2d 79 (1992).
905.04 Annotation A patient's mere presence in a physician's office is not within the ambit of this privilege. A defendant charged with trespass to a medical facility, s. 943.145, is entitled to compulsory process to determine if any patients present at the time of the alleged incident had relevant evidence. State v. Migliorino, 170 Wis. 2d 576, 489 N.W.2d 678 (Ct. App. 1992).
905.04 Annotation To be entitled to an in camera inspection of privileged records, a criminal defendant must show that the sought after evidence is relevant and may be necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). See also State v. Lynch, 2015 WI App 2, 359 Wis. 2d 482, 859 N.W.2d 125, 11-2680.
905.04 AnnotationAffirmed. 2016 WI 66, 371 Wis. 2d 1, 885 N.W.2d 89, 11-2680.
905.04 Annotation The patient's objectively reasonable expectations of confidentiality from the medical provider are the proper gauge of the privilege. State v. Locke, 177 Wis. 2d 590, 502 N.W.2d 891 (Ct. App. 1993).
905.04 Annotation When a patient's medical condition is at issue, the patient-client privilege gives way. Wikrent v. Toys “R" Us, Inc., 179 Wis. 2d 297, 507 N.W.2d 130 (Ct. App. 1993).
905.04 Annotation Ex parte contacts between several treating physicians after the commencement of litigation did not violate this section. This section applies only to judicial proceedings and places restrictions on lawyers, not physicians. Limited ex parte contacts between defense counsel and plaintiff's physicians are permissible, but ex parte discovery is not. Steinberg v. Jensen, 194 Wis. 2d 439, 534 N.W.2d 361 (1995).
905.04 Annotation There is no general exception to privileged status for communications gathered from incarcerated persons. State v. Joseph P., 200 Wis. 2d 227, 546 N.W.2d 494 (Ct. App. 1996), 95-2547.
905.04 Annotation Both initial sex offender commitment and discharge hearings under ch. 980 are “proceedings for hospitalization" within the exception to the privilege under sub. (4) (a). State v. Zanelli, 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), 96-2159.
905.04 Annotation A party may not challenge on appeal an in camera review of records conducted at the party's own request. State v. Darcy N.K., 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998), 97-0458.
905.04 Annotation This section does not regulate the conduct of physicians outside of a courtroom. Accordingly it does not give a patient the right to exclude others from a treatment area. State v. Thompson, 222 Wis. 2d 179, 585 N.W.2d 905 (Ct. App. 1998), 97-2744.
905.04 Annotation When a motion has been made seeking a minor victim's health care records, the state shall give notice to the victim and the victim's parents, providing a reasonable time to object to the disclosure. If the victim does not expressly consent to disclosure, the state shall not waive the materiality hearing under Schiffra, 175 Wis. 2d 600 (1993). Jessica J.L. v. State, 223 Wis. 2d 622, 589 N.W.2d 660 (Ct. App. 1998), 97-1368. Overruled on other grounds. State v. Johnson, 2020 WI App 73, 394 Wis. 2d 807, 951 N.W.2d 616, 19-0664.
905.04 Annotation The psychotherapist-patient privilege does not automatically or absolutely foreclose the introduction of a therapeutic communication. When a therapist had reasonable cause to believe a patient was dangerous and that contacting police would prevent harm and facilitate the patient's hospitalization, the patient's statements fell within a dangerous patient exception to the privilege. State v. Agacki, 226 Wis. 2d 349, 595 N.W.2d 31 (Ct. App. 1999), 97-3463.
905.04 Annotation Under the Schiffra, 175 Wis. 2d 600 (1993), test, an in camera inspection of the victim's mental health records was allowed. The defendant established more than the mere possibility that the requested records might be necessary for a fair determination of guilt or innocence. State v. Walther, 2001 WI App 23, 240 Wis. 2d 619, 623 N.W.2d 205, 99-2058.
905.04 Annotation Release of records containing information of previous assaultive behavior by a nursing home resident was not prohibited by the physician-patient privilege. A nursing home resident does not have a reasonable expectation of privacy in assaultive conduct. The information may be released by court order. Crawford v. Care Concepts, Inc., 2001 WI 45, 243 Wis. 2d 119, 625 N.W.2d 876, 99-0863.
905.04 Annotation An in camera inspection of confidential records under Schiffra, 175 Wis. 2d 600 (1993), is not restricted to mental health records. State v. Navarro, 2001 WI App 225, 248 Wis. 2d 396, 636 N.W.2d 481, 00-0795.
905.04 Annotation The preliminary showing for an in camera review of a victim's mental health records requires a defendant to set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative of other evidence available to the defendant. The information will be necessary to a determination of guilt or innocence if it tends to create a reasonable doubt that might not otherwise exist. State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, 00-1392.
905.04 Annotation The test set out in Shiffra, 175 Wis. 2d 600 (1993), and Green, 2002 WI 68, pertaining to access to privileged mental health records applies to a defendant requesting confidential records during postconviction discovery, and the defendant should be required to meet the preliminary Shiffra-Green burden. State v. Robertson, 2003 WI App 84, 349 Wis. 2d 349, 661 N.W.2d 105, 02-1718.
905.04 Annotation Communications with an unlicensed therapist were privileged because of the patient's reasonable expectation that they would be and because the unlicensed therapist worked under the direction of a physician. Johnson v. Rogers Memorial Hospital, Inc., 2005 WI 114, 283 Wis. 2d 384, 627 N.W.2d 890, 03-00784.
905.04 AnnotationThe 2020 constitutional amendment creating article I, section 9m, of the Wisconsin Constitution grants standing to a crime victim to oppose and to make arguments supporting the victim's opposition to a defendant's Shiffra, 175 Wis. 2d 600 (1993), motion for an in camera review. That grant of standing applies retrospectively to a victim's request for standing. Article I, section 9m, therefore abrogates the holding regarding standing in Jessica J.L., 223 Wis. 2d 622 (1998). State v. Johnson, 2020 WI App 73, 394 Wis. 2d 807, 951 N.W.2d 616, 19-0664.
905.04 Annotation Filing a mandatory report under s. 48.981 (3) does not waive any privilege from testifying. Sub. (4) (e) 2m. provides only that there is no patient-provider privilege for “information contained in a report" of child abuse or neglect that is provided under s. 48.981 (3). State v. Hineman, 2023 WI 1, 405 Wis. 2d 233, 983 N.W.2d 652, 20-0226.
905.04 Annotation The privilege under this section is not a principle of substantive law, but merely an evidentiary rule applicable at all stages of civil and criminal proceedings, except actual trial on the merits in homicide cases. 64 Atty. Gen. 82.
905.04 Annotation A person claiming a privilege in a communication with a person who was not a medical provider under sub. (1) (d) to (g) has the burden of establishing that he or she reasonably believed the person to be a medical provider. United States v. Schwenson, 942 F. Supp. 902 (1996).
905.045 905.045 Domestic violence or sexual assault advocate-victim privilege.
905.045(1)(1)Definitions. In this section:
905.045(1)(a) (a) “Abusive conduct" means abuse, as defined in s. 813.122 (1) (a), of a child, as defined in s. 813.122 (1) (b), interspousal battery, as described under s. 940.19 or 940.20 (1m), domestic abuse, as defined in s. 813.12 (1) (am), sexual exploitation by a therapist under s. 940.22, sexual assault under s. 940.225, human trafficking involving a commercial sex act under s. 940.302, or child sexual abuse under s. 948.02, 948.025, or 948.05 to 948.11.
905.045(1)(c) (c) A communication or information is “confidential" if not intended to be disclosed to 3rd persons other than persons present to further the interest of the person receiving counseling, assistance, or support services, persons reasonably necessary for the transmission of the communication or information, and persons who are participating in providing counseling, assistance, or support services under the direction of a victim advocate, including family members of the person receiving counseling, assistance, or support services and members of any group of individuals with whom the person receives counseling, assistance, or support services.
905.045(1)(d) (d) “Victim" means an individual who has been the subject of abusive conduct or who alleges that he or she has been the subject of abusive conduct. It is immaterial that the abusive conduct has not been reported to any government agency.
905.045(1)(e) (e) “Victim advocate" means an individual who is an employee of or a volunteer for an organization the purpose of which is to provide counseling, assistance, or support services free of charge to a victim.
905.045(2) (2)General rule of privilege. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated among the victim, a victim advocate who is acting in the scope of his or her duties as a victim advocate, and persons who are participating in providing counseling, assistance, or support services under the direction of a victim advocate, if the communication was made or the information was obtained or disseminated for the purpose of providing counseling, assistance, or support services to the victim.
905.045(3) (3)Who may claim the privilege. The privilege may be claimed by the victim, by the victim's guardian or conservator, or by the victim's personal representative if the victim is deceased. The victim advocate may claim the privilege on behalf of the victim. The victim advocate's authority to do so is presumed in the absence of evidence to the contrary.
905.045(4) (4)Exceptions. Subsection (2) does not apply to any report concerning child abuse that a victim advocate is required to make under s. 48.981 or concerning a threat of violence in or targeted at a school that a victim advocate is required to make under s. 175.32.
905.045(5) (5)Relationship to s. 905.04. If a communication or information that is privileged under sub. (2) is also a communication or information that is privileged under s. 905.04 (2), the provisions of s. 905.04 supersede this section with respect to that communication or information.
905.045 History History: 2001 a. 109; 2013 a. 334; 2015 a. 351; 2017 a. 143.
905.05 905.05 Husband-wife and domestic partner privilege.
905.05(1)(1)General rule of privilege. A person has a privilege to prevent the person's spouse or former spouse or domestic partner or former domestic partner from testifying against the person as to any private communication by one to the other made during their marriage or domestic partnership. As used in this section, “domestic partner" means a domestic partner under ch. 770.
905.05(2) (2)Who may claim the privilege. The privilege may be claimed by the person or by the spouse or domestic partner on the person's behalf. The authority of the spouse or domestic partner to do so is presumed in the absence of evidence to the contrary.
905.05(3) (3)Exceptions. There is no privilege under this rule:
905.05(3)(a) (a) If both spouses or former spouses or domestic partners or former domestic partners are parties to the action.
905.05(3)(b) (b) In proceedings in which one spouse or former spouse or domestic partner or former domestic partner is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a 3rd person committed in the course of committing a crime against the other.
905.05(3)(c) (c) In proceedings in which a spouse or former spouse or domestic partner or former domestic partner is charged with a crime of pandering or prostitution.
905.05(3)(d) (d) If one spouse or former spouse or domestic partner or former domestic partner has acted as the agent of the other and the private communication relates to matters within the scope of the agency.
905.05 History History: Sup. Ct. Order, 59 Wis. 2d R1, R130 (1973); 1991 a. 32; 2009 a. 28.
905.05 Cross-reference Cross-reference: As to testimony of husband and wife in paternity action regarding child born in wedlock, see s. 891.39.
905.05 Annotation A wife's testimony as to statements made by her husband was admissible when the statements were made in the presence of two witnesses. Abraham v. State, 47 Wis. 2d 44, 176 N.W.2d 349 (1970).
905.05 Annotation Spouses can be compelled to testify as to whether the other was working or collecting unemployment insurance, since such facts are known to third persons. Kain v. State, 48 Wis. 2d 212, 179 N.W.2d 777 (1970).
905.05 Annotation A wife's observation, without her husband's knowledge, of her husband's criminal act committed on a public street was neither a “communication" nor “private" within the meaning of sub. (1). State v. Sabin, 79 Wis. 2d 302, 255 N.W.2d 320 (1977).
905.05 Annotation “Child" under sub. (3) (b) includes a foster child. State v. Michels, 141 Wis. 2d 81, 414 N.W.2d 311 (Ct. App. 1987).
905.05 Annotation The privilege under sub. (1) belongs to the person against whom testimony is being offered. While an accused may invoke the privilege to prevent his or her spouse from testifying against him or her, the witness spouse may not invoke it to prevent his or her own testimony. Umhoefer v. Police & Fire Commission, 2002 WI App 217, 257 Wis. 2d. 539, 652 N.W.2d 412, 01-3468.
905.05 Annotation Under sub. (3) (b), it is irrelevant whether the acts of the defendant that constitute a crime against a third party are the same acts that constitute a crime against the spouse or different acts. State v. Richard G.B., 2003 WI App 13, 259 Wis. 2d 730, 656 N.W.2d 469, 02-1302.
905.05 Annotation When all outgoing telephone calls made by inmates of a jail were recorded and that policy was disclosed to all inmates, the defendant knowingly exposed the content of the call to a third party. That constituted a waiver of any marital privilege. State v. Eison, 2011 WI App 52, 332 Wis. 2d 331, 797 N.W.2d 890, 10-0909.
905.05 Annotation The fact that the defendant was untruthful in his statements to his wife was not an exception to the marital privilege. State v. Eison, 2011 WI App 52, 332 Wis. 2d 331, 797 N.W.2d 890, 10-0909.
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2021-22 Wisconsin Statutes updated through 2023 Wis. Act 71 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on February 14, 2024. Published and certified under s. 35.18. Changes effective after February 14, 2024, are designated by NOTES. (Published 2-14-24)