Appeals Court (August 25, 2006)

Pharmacy records are not privileged communications between a patient and psychotherapist pursuant to G.L. c. 233, §20B.

The defendant was convicted of motor vehicle homicide while under the influence of drugs. At trial, the Commonwealth introduced pharmacy records indicating the names and dosages of medications prescribed to the defendant, her doctors' names, and the dates of purchase by the defendant. The defendant appealed her conviction claiming the pharmacy records were privileged communications between a patient and psychotherapist, under G.L. c. 233, §20B, that extended to a third party (the pharmacy). The court rejected the defendant's argument, reasoning that even if the protections of G.L. 233, §20B extended to those with whom the psychotherapist had an agency relationship, no such agency existed here because the psychotherapist did not have the right to control the pharmacist nor did the pharmacist consent to act as an agent. Furthermore, such records are not privileged "communications" (i.e., conversations, correspondence, actions and occurrences relating to diagnosis or treatment), nor are they records, memoranda or notes of privileged communications. Just as G. L. c. 233, §20B, protects compelled disclosure of conversations and other communicative conduct relating to diagnosis and treatment, but not the diagnosis itself, these records merely document the names of the psychotherapist and medications prescribed and purchased by the defendant.