Saturday April 3, 2010


Suppose someone has serious mental health issues. We want such a troubled person to see a psychotherapist. The law should insist upon the utmost confidentiality in psychotherapist communications to encourage that relationship. Yet, such is not the case in Massachusetts. In this state, people seeking the help of a psychotherapist may have their “confidential” communications disclosed when they least want it. Imagine such damning evidence coming out in a child custody case, or a care and protection case when the state seeks to put one’s child in foster care, or when the state seeks to have the child adopted by another without the parent’s consent. That nightmare is a reality in Massachusetts.

It surprises many to learn, that unlike most states, there is no doctor-patient privilege in Massachusetts that would normally protect psychotherapist communications. In 1968, the legislature passed a statute specifically protecting psychotherapist communications. Under Massachusetts law, “a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist…”

Improvidently, in 1974, the Massachusetts legislature added an exception in family law cases. After 1974, in any case involving child custody, adoption, or the dispensing with the need for consent to adoption, the judge may have a hearing in his or her private chamber to decide whether or not to honor the psychotherapist privilege.

Pursuant to Massachusetts statute, “upon a hearing in chambers, [if] the judge, in the exercise of his discretion, determines that the psychotherapist has evidence bearing significantly on the patient’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 patient and psychotherapist be protected,” the judge may compel the patient or the psychotherapist to discuss the confidential communications. As a practicing family law attorney, I can tell you that judges routinely elect to compel patients or psychotherapists to disclose “confidential” psychotherapist communications.

In fact, it is usually the case that patients need not even be informed by the psychotherapist that their communications could be used against them in a court proceeding as a prerequisite for the judge to admit the “confidential” communications into evidence. In 1986, the legislature did add that before a judge can set aside the privilege, “a judge shall determine whether the patient has been informed that such communication would not be privileged.”


But this only applies to cases of adoption or dispensing with the need for consent to adoption, not regular child custody cases or Care and Protection proceedings where the state seeks to place the child in foster care. One court has suggested that the warning need not even be that clear, holding, “The statutory exception by its terms prescribes no particular form that the warning must take, other than to inform the patient that the communications will not be privileged.”

Worse still, the privilege only applies to “communications,” which is not all the information that emanates from the psychotherapist/patient relationship. The privilege usually does not protect the fact, dates or purpose of a hospital admission or visit with a psychotherapist. One court has gone so far as to say that “conclusions based upon objective indicia rather than on communications from [the patient]” are not “communications” and are not privileged. Psychotherapists must disclose portions of records documenting times and lengths of patient appointments, fees, and treatment plans.

Diagnoses are usually not “communications” subject to protection; for instance, a Massachusetts Appeals Court has held that a generalized diagnosis, such as schizophrenia, without more, is not privileged. I have had judges compel my clients to disclose the medication they are on for mental health issues, as well as treatment plans, as well as diagnoses, all justified on the premise that these are not “communications.”

What’s the bottom line for laypeople? Much of what happens when they meet with their psychotherapist, some of the most intimate, damaging, and highly personal information will not even be privileged because it is not a “communication.” And for the “confidential” communications, when it matters most, when custody of their children is on the line, none of it may be privileged.

This is not a wise ordering of relationships in our society. The purpose of an evidentiary privilege is to foster a relationship that benefits the individual and society even thought it comes at the expense of the truth. We want spouses to speak together. We want the penitent to console with a priest. We understand without the evidentiary privilege, people may not get the help they need, and we may not have the statements anyhow out of fear of disclosure. And that is why we value the relationship more than the truth and have evidentiary privileges.

Rinaldo Del Gallo III is a columnist, practicing family law attorney, and spokesperson for the Berkshire Fatherhood Coalition.

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