(a) Definitions. As used in this section, the following words shall have the following meanings:
(1) A “patient” is a person who, during the course of diagnosis or treatment, communicates with a psychotherapist.
(2) A “psychotherapist” is (A) a person licensed to practice medicine who devotes a substantial portion of his or her time to the practice of psychiatry; (B) a person who is licensed as a psychologist by the board of registration of psychologists or a graduate of, or student enrolled in, a doctoral degree program in psychology at a recognized educational institution, who is working under the supervision of a licensed psychologist; or (C) a person who is a registered nurse licensed by the board of registration in nursing whose certificate of registration has been endorsed authorizing the practice of professional nursing in an expanded role as a psychiatric nurse mental health clinical specialist.
(3) “Communications” includes conversations, correspondence, actions, and occurrences relating to diagnosis or treatment before, during, or after institutionalization, regardless of the patient’s awareness of such conversations, correspondence, actions, and occurrences, and any records, memoranda, or notes of the foregoing.
(b) Privilege. Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto, and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition. This privilege shall also apply to patients engaged with a psychotherapist in marital therapy, family therapy, or consultation in contemplation of such therapy. If a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in his or her behalf under this section. A previously appointed guardian shall be authorized to so act.
(c) Effect of Exercise of Privilege. Upon the exercise of the privilege granted by this section, the judge or presiding officer shall instruct the jury that no adverse inference may be drawn therefrom.
(d) Exceptions. The privilege granted hereunder shall not apply to any of the following communications:
(1) Disclosure to Establish Need for Hospitalization or Imminently Dangerous Activity. A disclosure made by a psychotherapist who, in the course of diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or that there is a threat of imminently dangerous activity by the patient against himself or herself or another person, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the patient in such hospital, provided, however, that the provisions of this section shall continue in effect after the patient is in said hospital, or placing the patient under arrest or under the supervision of law enforcement authorities;
(2) Court-Ordered Psychiatric Exam. A disclosure made to a psychotherapist in the course of a psychiatric examination ordered by the court, provided that such disclosure was made after the patient was informed that the communication would not be privileged, and provided further that such communications shall be admissible only on issues involving the patient’s mental or emotional condition but not as a confession or admission of guilt;
(3) Patient Raises the Issue of Own Mental or Emotional Condition as an Element of Claim or Defense. A disclosure in any proceeding, except one involving child custody, adoption, or adoption consent, in which the patient introduces the patient’s mental or emotional condition as an element of a claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected;
(4) Party Through Deceased Patient Raises Issue of Decedent’s Mental or Emotional Condition as Element of Claim or Defense. A disclosure in any proceeding after the death of a patient in which the patient’s mental or emotional condition is introduced by any party claiming or defending through, or as a beneficiary of, the patient as an element of the claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected;
(5) Child Custody and Adoption Cases. A disclosure in any case involving child custody, adoption, or the dispensing with the need for consent to adoption in which, upon a hearing in chambers, the judge, in the exercise of his or her discretion, determines that the psychotherapist has evidence bearing significantly on the patient’s ability to provide suitable care or custody, and that it is more important to the welfare of the child that the communication be disclosed than that the relationship between patient and psychotherapist be protected; provided, however, that in such cases of adoption or the dispensing with the need for consent to adoption, a judge shall first determine that the patient has been informed that such communication would not be privileged;
(6) Claim Against Psychotherapist. A disclosure in any proceeding brought by the patient against the psychotherapist, and in any malpractice, criminal, or license revocation proceeding, in which disclosure is necessary or relevant to the claim or defense of the psychotherapist; or
(7) Child Abuse or Neglect. A report to the Department of Children and Families of reasonable cause to believe that a child under the age of eighteen has suffered serious physical or emotional injury resulting from sexual abuse, pursuant to G. L. c. 119, § 51A.
(8) Exception. In criminal actions, such confidential communications may be subject to discovery and may be admissible as evidence, subject to applicable law.
Subsection (a). This subsection is taken nearly verbatim from G. L. c. 233, § 20B.
Subsection (b). This subsection is taken nearly verbatim from G. L. c. 233, § 20B. The psychotherapist-patient privilege recognizes the critical role of confidentiality in this medical speciality. Usen v. Usen, 359 Mass. 453, 457, 269 N.E.2d 442, 444 (1971). This privilege is not self-executing. Commonwealth v. Oliveira, 438 Mass. 325, 331, 780 N.E.2d 453, 458 (2002).
Scope of the Privilege. “The privilege gives the patient the right to refuse to disclose and to prevent another witness from disclosing any communication between patient and psychotherapist concerning diagnosis or treatment of the patient’s mental condition.” Commonwealth v. Clancy, 402 Mass. 664, 667, 524 N.E.2d 395, 397 (1988). The privilege does not protect the facts of the hospitalization or treatment, the dates, or the purpose of the hospitalization or treatment, if such purpose does not implicate communications between the witnesses and the psychotherapist. Id. See Commonwealth v. Kobrin, 395 Mass. 284, 294, 479 N.E.2d 674, 681 (1985) (holding, in context of grand jury investigation into Medicaid fraud, that patient diagnosis is not privileged but portions of records that “reflect patients’ thoughts, feelings, and impressions, or contain the substance of the psychotherapeutic dialogue are protected”).
The privilege is evidentiary and applies only “in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings.” G. L. c. 233, § 20B. See Commonwealth v. Brandwein, 435 Mass. 623, 628–630, 760 N.E.2d 724, 728–730 (2002) (psychotherapist not prohibited by G. L. c. 233, § 20B, from informing police of statements made to her in her office by a client who confessed to a robbery and turned over a firearm).
Subsection (c). This subsection is taken verbatim from G. L. c. 233, § 20B.
Subsection (d)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(a).
Subsection (d)(2). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(b). See also Commonwealth v. Lamb, 365 Mass. 265, 270, 311 N.E.2d 47, 51 (1974) (patient’s communications to a psychotherapist in a court-ordered evaluation may not be disclosed against the patient’s wishes absent a warning that the communications would not be privileged).
Subsection (d)(3). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(c). In Commonwealth v. Dung Van Tran, 463 Mass. 8, 20–21, 972 N.E.2d 1, 11–12 (2012), the Supreme Judicial Court found that the defendant did not put his mental or emotional condition in issue where “the defense was not that the defendant was incapable of forming the intent necessary to support conviction but, rather, that he lacked the requisite intent to harm another.” Id. at 20, 972 N.E.2d at 11. The court held that the “Commonwealth may not introduce against a defendant statements protected by the psychotherapist-patient privilege on the ground that the defendant himself placed his mental or emotional condition in issue, unless the defendant has at some point in the proceedings asserted a defense based on his mental or emotional condition, defect, or impairment.” Id. at 21, 972 N.E.2d at 12.
Subsection (d)(4). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(d).
Subsection (d)(5). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(e).
Subsection (d)(6). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(f).
Subsection (d)(7). This subsection is derived from G. L. c. 119, § 51A.
Subsection (d)(8). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145–146, 859 N.E.2d 400, 418–419 (2006) (establishing protocol in criminal cases governing access to and use of material covered by statutory privilege). See Introductory Note to Article V, Privileges and Disqualifications.