Supreme Judicial Court (May 23, 2007)

The confidential communications between an allied mental health professional and a client are privileged communications, similar to the evidentiary privileges for communications with psychotherapists, social workers, and sexual assault and domestic violence counselors.

The defendant was indicted on multiple charges of incest, rape of a child with force and indecent assault and battery on a child. The charges were based on allegations that the defendant sexually assaulted his two younger sisters over the course of several years while they were between the ages of nine and fourteen.

After reporting the abuse, both complainants received counseling and medical services. The defendant moved to obtain access to one of the complainant's mental health treatment records, including her communications with an allied mental health professional (AMHP); her guardian ad litem (GAL) asserted a privilege on her behalf. After a hearing, the superior court concluded that all of the records were privileged, except for the records of communication with the AMHP. The judge reasoned that because the statutory provision rendering communications with AMHPs confidential, G.L. c.112, s.172, differed from similar laws in its form, wording and placement in the general laws, it did not indicate a legislative intent to create a privilege. The Commonwealth appealed, and after allowing the GAL's motion to intervene, a single SJC justice reserved, and reported to the case to the full SJC.

The court addressed the issue of whether the legislature intended AMHPs, unlike most mental health care providers, to be subject to a duty of confidentiality and yet not have their communications protected by an evidentiary privilege. The court noted that s. 172 identifies four instances where the privilege can be waived, and that two of those four relate specifically to legal proceedings, "indicating that the protections of the provision apply when disclosure is sought to be compelled through legal process. That is the very definition of a privilege." The court concluded that "the plain text of the statute reflects a legislative intent to create an evidentiary privilege as well as a confidentiality rule."