Section 1. Amend
Title 11, Chapter 43, Subchapter I, of the Delaware Code by making insertions
as shown by underlining to state as follows:
Ҥ4319.
Confidential communications involving first responders.
(a) For
purposes of this section:
1.
“Participant” means an individual who participates either in a group or
individual critical incident stress management team intervention.
2. “Critical
incident” means a situation or incident which, during the course of his or her
duties, causes, or may cause, a first responder to experience unusually strong
negative emotional or physical stress.
“Critical incident” includes, but is not limited to, any encounter which
may result in the death of or serious injury to another person or the imminent
potential of such death or serious bodily injury, fatal motor vehicle
accidents, child abuse investigations, death investigations and large scale
man-made or natural disasters.
3. “Critical
Incident Stress Management team” or “CISM” means a team composed of members of
a state, county or municipal law enforcement, fire or emergency medical agency
that is trained, in accordance with standards established by a nationally
accredited critical incident stress management organization or network and
recognized by the Council on Police Training, to assist and provide support to
a first responder who has been involved in a critical incident that may affect,
or has affected, the person’s work performance or general well-being.
4. “Critical
incident stress management services” means consultation, risk assessment,
education, intervention, and other crisis intervention services provided by a
critical incident stress management team to a first responder prior to, during
or after a critical incident.
5. “Critical
incident stress management team member” means an individual who is specially
trained to provide critical incident stress management services and meets the
requirements of a nationally accredited critical incident stress management
organization or network which has been recognized by the Council on Police
Training and has been approved by the Colonel or Chief of the police, fire or
emergency medical services agency of which the individual is a member and has
been approved to function as a CISM team member prior to and at the time the
counseling takes place.
6. “First responders” shall mean federal, state and local
law enforcement officers, fire, and emergency medical services personnel,
hazardous materials response team members, 911 dispatchers, or any individual
who is responsible for the protection and preservation of life, property, and
evidence, and has been sent or directed to respond to a request for assistance
as a result of a critical incident.
7. “Law
enforcement officer” means a police officer as defined in 11 Del. C. §9200(b).
(b) Except as provided
in subsection (d) of this section, all proceedings, communications and records,
including, but not limited to, any
information acquired by a critical incident stress management team, or critical
incident management stress management team member, from a first responder who
has, or is obtaining, assistance from the team, or team member, is confidential
and is not subject to disclosure through compulsory legal process or otherwise
discoverable or admissible in evidence in any action, including but not limited
to, any legal proceeding, trial or investigation unless the confidentiality is
waived by the affected first responder.
(c) Except as
provided under subsection (d), a CISM team member who is conducting a critical
incident stress management counseling session and informs the participant
and/or first responder that the session is being conducted pursuant to the
provisions in §4319, shall not be compelled to disclose any communications made
by the affected first responder in any action, including, but not limited to,
any legal proceeding, trial or investigation, without the consent of the
affected first responder.
(d) Exceptions. The privileges established under subsections
(b) and (c) are not applicable if:
1. The
communication indicates clear and imminent danger to the first responder who
received critical incident stress management services or to other individuals;
2. The first
responder who obtained critical incident stress management services expressly
waives the privilege or gives consent to disclosure of the privileged
communication;
3. The first
responder who obtained critical incident stress management services is deceased
and the surviving spouse or the executor or administrator of the estate of the
deceased first responder expressly waives of gives consent to disclosure of the
privileged communications.
(e) Information otherwise available from the
original source shall not be immune from discovery or use in any civil or
criminal action merely because the information was presented at a time the
first responder obtained critical incident stress management services if the
testimony sought is otherwise permissible and discoverable.
Synopsis
First responders are placed in high-stress situations
every time they are called upon to respond to an emergency or incident, since
the extent of the emergency cannot be anticipated and the eventual outcome
cannot be predicted. Many times first
responders witness the death or serious injury to persons such as a young child
or a fellow officer, become involved in a duty related shooting or in the
investigation of a case where there has been a death or serious bodily injury
inflicted upon a person. For example,
stress caused by critical incidents have led to the law enforcement profession
experiencing the second highest divorce rate in the nation. Similarly, police officers have one of the
highest suicide rates among all professionals, and are more susceptible to
domestic violence than those not affiliated with police work. Any first responder may develop posttraumatic
stress disorder (PTSD) after experiencing a critical incident, or after being
exposed over a period of time to stress that he or she was unable to
alleviate. PTSD can be debilitating to a
first responder’s ability to function effectively in response to an emergency.
This bill
creates a confidentiality privilege between the first responder and a Critical
Incident Stress Management team or team member to encourage first responders to
seek stress management services in order to alleviate the high levels of stress
they may experience as a result of their exposure to a critical incident so
that they may continue to function effectively during emergency situations.
CISM teams and
team members are primarily comprised of first responders who have received
training and certification from a nationally accredited CISM organization or
network on peer-to-peer counseling.
Peer-to-peer counseling is critical to the public safety as well as to safety
and well-being of the first responder in that it is based upon trust and the
confidence that comes from knowing that the officer is speaking with a peer who
has had similar experiences with critical incidents. Imperative to the success
of peer-to-peer counseling is confidentiality of a first responders’ statements
given at the time CISM counseling is obtained by the first responder.
A CISM counselor
may not be compelled to testify in any legal proceeding as to statements made
by a first responder who has received CISM counseling from the counselor to the
extent that the statements are made during the course of a recognized CISM
counseling session.
The criteria for
the privilege to attach are as follows:
1.
The person holding the privilege must be a first
responder;
2.
The first responder must be acting in the course of his
duties at the time he or she is exposed to the incident;
3.
The first responder must have received CISM counseling
as a result of a critical incident;
4.
The CISM counselor must:
a.
Be certified by a nationally accredited Critical Incident
Stress Management organization or network which has been recognized by the
Council on Police Training;
b.
Have been approved by the Colonel or Chief of his or
her police, fire or emergency medical services agency to function as a CISM
counselor prior to and at the time the counseling takes place;
c.
Inform the first responder and/or participant that a
CISM counseling session is being conducted pursuant to the provisions of this
section.
The privilege
created by this bill shall not apply if:
1.
The communication indicates
clear and imminent danger to the first responder who received critical incident
stress management services or to other individuals;
2.
The first responder who
obtained critical incident stress management services expressly waives the privilege
or gives consent to disclosure of the privileged communication; or,
3.
The first responder who
obtained critical incident stress management services is deceased and the
surviving spouse or the executor or administrator of the estate of the deceased
first responder expressly waives of gives consent to disclosure of the
privileged communications.
Author:
Senator Bushweller
