Reaves v. Bergsrud , 127 N.M. 446 ( 1999 )

HARTZ, Judge

(specially concurring)

{31} I join in Judge Alarid’s opinion, except for paragraphs 19 and 21. Despite pri- or opinions of this Court to the contrary, recognition of the confidentiality of a psychotherapist-patient communication should not depend on whether non-disclosure furthers the interests of the patient. The rule of evidence establishing the psychotherapist-patient privilege states:

A communication is “confidential” if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the ... psychotherapist, including members of the patient’s family.

Rule 11-504(A)(4) NMRA1999. The rule refers to “the interest of the patient” only for the purpose of determining whether the privilege is lost because of the presence of a third person at the time of the communication between the patient and the psychotherapist. If the third person is present to serve “the interest of the patient,” the privilege is preserved. The rule requires no further inquiry into the patient’s interests. See State v. Roper, 1996-NMCA-073, ¶ 11 n. 2, 122 N.M. 126, 921 P.2d 322. We should read the rule as it was promulgated by our Supreme Court, rather than impose additional constraints on exercise of the privilege.