(a) Definitions. As used in this section, an “allied mental health and human services professional” is a licensed marriage and family therapist, a licensed rehabilitation counselor, a licensed mental health counselor, or a licensed educational psychologist.
(b) Privilege. Any communication between an allied mental health or human services professional and a client shall be deemed to be confidential and privileged.
(c) Waiver. This privilege shall be subject to waiver only in the following circumstances:
(1) where the allied mental health and human services professional is a party defendant to a civil, criminal, or disciplinary action arising from such practice in which case the waiver shall be limited to that action;
(2) where the client is a defendant in a criminal proceeding and the use of the privilege would violate the defendant’s right to compulsory process and right to present testimony and witnesses in his or her own behalf;
(3) when the communication reveals the contemplation or commission of a crime or a harmful act; and
(4) where a client agrees to the waiver, or in circumstances where more than one person in a family is receiving therapy, where each such family member agrees to the waiver.
(d) Exception. In criminal actions, such privileged 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. 112, § 163. General Laws c. 112, § 165, outlines license eligibility. A licensed educational psychologist must also be certified as a school psychologist by the Massachusetts Department of Education. G. L. c. 112, § 163.
Subsections (b) and (c). These subsections are taken nearly verbatim from G. L. c. 112, § 172. See Commonwealth v. Vega, 449 Mass. 227, 231, 866 N.E.2d 892, 895 (2007) (the statute creates an evidentiary privilege as well as a confidentiality rule).
These subsections do not prohibit a third-party reimburser from inspecting and copying any records relating to diagnosis, treatment, or other services provided to any person for which coverage, benefit, or reimbursement is claimed, so long as access occurs in the ordinary course of business and the policy or certificate under which the claim is made provides that such access is permitted. G. L. c. 112, § 172. Further, this section does not apply to access to such records pursuant to any peer review or utilization review procedures applied and implemented in good faith. G. L. c. 112, § 172.
Subsection (d). 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.