Mass. R. Evid. 503

As amended through February 29, 2024

Section 503 - Psychotherapist-Patient Privilege

(a)Definitions. As used in this section, the following words shall have the following meanings:

(1) A "patient" is a person who, during the course of diagnosis or treatment, communicates with a psychotherapist.

(2) A "psychotherapist" is (A) a person licensed to practice medicine who devotes a substantial portion of time to the practice of psychiatry; (B) a person who is licensed as a psychologist by the board of registration of psychologists or a graduate of, or student enrolled in, a doctoral degree program in psychology at a recognized educational institution, who is working under the supervision of a licensed psychologist; or (C) a person who is a registered nurse licensed by the board of registration in nursing whose certificate of registration has been endorsed authorizing the practice of professional nursing in an expanded role as a psychiatric nurse mental health clinical specialist.

(3) "Communications" includes conversations, correspondence, actions, and occurrences relating to diagnosis or treatment before, during, or after institutionalization, regardless of the patient's awareness of such conversations, correspondence, actions, and occurrences, and any records, memoranda, or notes of the foregoing.

(b)Privilege. Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto, and in legislative and administrative proceedings, 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 relative to the diagnosis or treatment of the patient's mental or emotional condition. This privilege shall also apply to patients engaged with a psychotherapist in marital therapy, family therapy, or consultation in contemplation of such therapy. If a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in the patient's behalf under this section. A previously appointed guardian shall be authorized to so act.

(c)Effect of Exercise of Privilege. Upon the exercise of the privilege granted by this section, the judge or presiding officer shall instruct the jury that no adverse inference may be drawn therefrom.

(d)Exceptions. The privilege granted hereunder shall not apply to any of the following communications:

(1)Disclosure to Establish Need for Hospitalization or Imminently Dangerous Activity. A disclosure made by a psychotherapist who, in the course of diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or presents an imminent threat of dangerous activity, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the patient in such hospital, provided, however, that the provisions of this section shall continue in effect after the patient is in said hospital, or placing the patient under arrest or under the supervision of law enforcement authorities;

(2)Court-Ordered Psychiatric Exam. A disclosure made to a psychotherapist in the course of a psychiatric examination ordered by the court, provided that such disclosure was made after the patient was informed that the communication would not be privileged, and provided further that such communications shall be admissible only on issues involving the patient's mental or emotional condition but not as a confession or admission of guilt;

(3)Patient Raises the Issue of Own Mental or Emotional Condition as an Element of Claim or Defense. A disclosure in any proceeding, except one involving child custody, adoption, or adoption consent, in which the patient introduces the patient's 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 patient and psychotherapist be protected;

(4)Party Through Deceased Patient Raises Issue of Decedent's Mental or Emotional Condition as Element of Claim or Defense. A disclosure in any proceeding after the death of a patient in which the patient's mental or emotional condition is introduced by any party claiming or defending through, or as a beneficiary of, the patient 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 patient and psychotherapist be protected;

(5)Child Custody and Adoption Cases. A disclosure in any case involving child custody, adoption, or the dispensing with the need for consent to adoption in which, upon a hearing in chambers, the judge, exercising 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; provided, however, that in such cases of adoption or the dispensing with the need for consent to adoption, a judge shall first determine that the patient has been informed that such communication would not be privileged;

(6)Claim Against Psychotherapist. A disclosure in any proceeding brought by the patient against the psychotherapist, and in any malpractice, criminal, or license revocation proceeding, in which disclosure is necessary or relevant to the claim or defense of the psychotherapist; or

(7)Child Abuse or Neglect. A report to the Department of Children and Families of reasonable cause to believe that a child under the age of eighteen has suffered serious physical or emotional injury resulting from sexual abuse, pursuant to G. L. c. 119, § 51A.

(8)Exception. In criminal actions, such confidential communications may be subject to discovery and may be admissible as evidence, subject to applicable law.

Mass. Guid. Evid. 503

This Guide was last amended effective 1/1/2023.

Subsection (a). This subsection is taken nearly verbatim from G. L. c. 233, § 20B.

Subsection (b). This subsection is taken nearly verbatim from G. L. c. 233, § 20B. The psychotherapist-patient privilege recognizes the critical role of confidentiality in this medical specialty. Usen v. Usen, 359 Mass. 453, 457 (1971). This privilege is not self-executing. Commonwealth v. Oliveira, 438 Mass. 325, 331 (2002). See also Commonwealth v. Pickering, 479 Mass. 589, 596-597 (2018). The Supreme Judicial Court has left open whether privilege applies in group therapy settings.

Scope of the Privilege. "The privilege gives the patient the right to refuse to disclose and to prevent another witness from disclosing any communication between patient and psychotherapist concerning diagnosis or treatment of the patient's mental condition." Commonwealth v. Clancy, 402 Mass. 664, 667 (1988). The privilege is case-specific, and a waiver in one proceeding is not a waiver in a subsequent proceeding. Care & Protection of M.C., 479 Mass. 246, 263 (2018). The privilege does not protect the facts of the hospitalization or treatment, the dates, or the purpose of the hospitalization or treatment, if such purpose does not implicate communications between the witnesses and the psychotherapist. Clancy, 402 Mass. at 667. See Commonwealth v. Kobrin, 395 Mass. 284, 294 (1985) (holding, in context of grand jury investigation into Medicaid fraud, that patient diagnosis is not privileged but portions of records that "reflect patients' thoughts, feelings, and impressions, or contain the substance of the psychotherapeutic dialogue are protected").

The privilege is evidentiary and applies only "in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings." G. L. c. 233, § 20B. See Commonwealth v. Brandwein, 435 Mass. 623, 628-630 (2002) (psychotherapist not prohibited by G. L. c. 233, § 20B, from informing police of statements made to her in her office by a client who confessed to a robbery and turned over a firearm).

Presence of Third Party. A conversation with a psychotherapist may still be privileged under G. L. c. 233, § 20B, notwithstanding the presence of a required police guard. See Commonwealth v. Waweru, 480 Mass. 173, 185 (2018).

Subsection (c). This subsection is taken verbatim from G. L. c. 233, § 20B.

Subsection (d)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(a). See Walden Behavioral Care v. K.I., 471 Mass. 150, 154 (2015).

Subsection (d)(2). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(b). See

Commonwealth v. Lamb, 365 Mass. 265, 270 (1974) (patient's communications to a psychother apist in a court-ordered evaluation may not be disclosed against the patient's wishes absent a warning that the communications would not be privileged). See also Commonwealth v. Harris, 468 Mass. 429, 452 (2014) ( Lamb warnings given at the beginning of court-ordered competency evaluations should contain a warning that the results of the competency evaluation may be used against the defendant where the defendant offers evidence at trial in support of a defense of lack of criminal responsibility.).

In the absence of a court order, a Lamb -type warning is not required where the examiner is a diagnosing or treating psychotherapist of a patient involuntarily committed to a mental health facility pursuant to G. L. c. 123, § 12(b). Walden Behavioral Care v. K.I., 471 Mass. 150, 154 (2015). Contrast Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 524-526 (1986).

Subsection (d)(3). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(c). In

Commonwealth v. Dung Van Tran, 463 Mass. 8, 20-21 (2012), the Supreme Judicial Court found that the defendant did not put his mental or emotional condition in issue where "the defense was not that the defendant was incapable of forming the intent necessary to support conviction but, rather, that he lacked the requisite intent to harm another." Id. at 20. The court held that the "Commonwealth may not introduce against a defendant statements protected by the psychotherapist-patient privilege on the ground that the defendant himself placed his mental or emotional condition in issue, unless the defendant has at some point in the proceedings asserted a defense based on his mental or emotional condition, defect, or impairment." Id. at 21. See Care & Protection of M.C., 479 Mass. 246, 263 (2018) (introduction of psychiatric evidence at care and protection proceeding does not waive privilege, and such evidence is not admissible at criminal trial unless privilege holder puts mental health at issue).

Subsection (d)(4). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(d).

Subsection (d)(5). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(e). Upon a party's assertion of the psychotherapist-patient privilege, the judge, and not a guardian ad litem, must inspect the psychotherapist's records in camera to determine whether the records are subject to the privilege. See P.W. v. M.S. , 67 Mass. App. Ct. 779, 785-786(2006). A judge may appoint a discovery master or additional guardian ad litem to assist in the process of reviewing records, but the judge must make the determination whether the privilege applies to the records. See Id. at 786 & n.10.

Subsection (d)(6). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(f).

Subsection (d)(7). This subsection is derived from G. L. c. 119, § 51A.

Subsection (d)(8). This subsection is derived from Commonwealth v. Dwyer, 448 Mass. 122, 145-146 (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.