Section 507. Social
Worker–Client Privilege
(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.
NOTE
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.