(a) Definitions. As used in this section, the following words shall have the following meanings:
(1) Client. A “client” is a person with whom a social worker has established a social worker–client relationship.
(2) Communications. “Communications” includes conversations, correspondence, actions, and occurrences regardless of the client’s awareness of such conversations, correspondence, actions, and occurrences and any records, memoranda, or notes of the foregoing.
(4) Social Worker. As used in this section, a “social worker” is a social worker licensed pursuant to the provisions of G. L. c. 112, § 132, or a social worker employed in a State, county, or municipal governmental agency.
(b) Privilege. A client shall have the privilege of refusing to disclose and of preventing a witness from disclosing any communication, wherever made, between said client and a social worker relative to the diagnosis or treatment of the client’s mental or emotional condition. If a client is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in the client’s behalf under this section. A previously appointed guardian shall be authorized to so act.
(c) Exceptions. The privilege in Subsection (b) shall not apply to any of the following communications:
(1) if a social worker, in the course of making a diagnosis or treating the client, determines that the client 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 client 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 client in such hospital; provided, however, that the provisions of this section shall continue in effect after the client is in said hospital, or placing the client under arrest or under the supervision of law enforcement authorities;
(2) if a judge finds that the client, after having been informed that the communications would not be privileged, has made communications to a social worker in the course of a psychiatric examination ordered by the court; provided, however, that such communications shall be admissible only on issues involving the client’s mental or emotional condition but not as a confession or admission of guilt;
(3) in any proceeding, except one involving child custody, adoption, or adoption consent, in which the client introduces his or her 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 the client and the social worker be protected;
(4) in any proceeding after the death of a client in which the client’s mental or emotional condition is introduced by any party claiming or defending through or as a beneficiary of the client 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 client and social worker be protected;
(5) in the initiation of proceedings under G. L. c. 119, §§ 23(C) and 24, or G. L. c. 210, § 3, or to give testimony in connection therewith;
(6) in any proceeding whereby the social worker has acquired the information while conducting an investigation pursuant to G. L. c. 119, § 51B;
(7) in any other 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 social worker has evidence bearing significantly on the client’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 client and social worker be protected; provided, however, that in such case of adoption or the dispensing with the need for consent to adoption, a judge shall determine that the client has been informed that such communication would not be privileged;
(8) in any proceeding brought by the client against the social worker and in any malpractice, criminal, or license revocation proceeding in which disclosure is necessary or relevant to the claim or defense of the social worker; or
(9) in criminal actions, such privileged communications may be subject to discovery and may be admissible as evidence, subject to applicable law.
Subsections (a)(1)–(2). These subsections are taken nearly verbatim from G. L. c. 112, § 135.
Subsection (a)(4). This subsection is taken nearly verbatim from G. L. c. 112, §§ 135A and 135B. See Bernard v. Commonwealth, 424 Mass. 32, 35, 673 N.E.2d 1220, 1222 (1996) (State police trooper employed as a peer counselor qualified as a social worker for purposes of this section).
Subsection (b). This subsection is taken nearly verbatim from G. L. c. 112, § 135B. See Commonwealth v. Pelosi, 441 Mass. 257, 261 n.6, 805 N.E.2d 1, 5 n.6 (2004) (characterizing records prepared by clients’ social worker as privileged; privilege is not self-executing).
Subsections (c)(1)–(8). These subsections are taken nearly verbatim from G. L. c. 112, § 135B.
The social worker–client privilege is set forth in G. L. c. 112, § 135B. General Laws c. 112, § 135A, addresses the general duty of confidentiality of certain social workers. See Commonwealth v. Pelosi, 441 Mass. 257, 261 n.6, 805 N.E.2d 1, 5 n.6 (2004). The privilege is not self-executing. See Commonwealth v. Oliveira, 438 Mass. 325, 331, 780 N.E.2d 453, 458 (2002).
Subsection (c)(9). 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.