Mass. R. Evid. 508

As amended through February 29, 2024

Section 508 - Allied Mental Health or Human Services Professional Privilege

(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 as part of the defense;

(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)Mental Health Counselor Exception. With respect to a mental health counselor, the privilege does not apply to the following communications:

(1) if a mental health counselor, in the course of diagnosis or treatment of the client, determines that the client 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 the determination, discloses the communication either for the purpose of placing or retaining the client in the hospital, although this section shall continue in effect after the patient is in the hospital or placed under arrest or under the supervision of law enforcement authorities;

(2) if a judge finds that the client, after having been informed that a communication would not be privileged, has made a communication to a mental health counselor in the course of a psychiatric examination ordered by the court, although the communication shall be admissible only on issues involving the patient's mental or emotional condition and not as a confession or admission of guilt;

(3) in a proceeding, except one involving child custody, in which the client introduces the client'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 client and mental health counselor be protected;

(4) in a proceeding after the death of a client in which the client's mental or emotional condition is introduced by any party claiming or defending through or as beneficiary of the patient as an element of the claim or the 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 client and mental health counselor be protected;

(5) in the initiation of proceedings under G. L. c. 119, § 23(a)(3) or § 24, or G. L. c. 210, § 3, to give testimony in connection therewith;

(6) in a proceeding whereby the mental health counselor has acquired the information while conducting an investigation pursuant to G. L. c. 119, § 51B;

(7) in a case involving child custody, adoption, or the dispensing with the need for consent to adoption where, upon a hearing in chambers, the court exercises its discretion to determine that the mental health counselor has evidence bearing significantly on the client's ability to provide suitable care or custody, and it is more important to the welfare of the child that the communication be disclosed than that the relationship between client and mental health counselor be protected, although in the case of adoption or the dispensing with the need for consent to adoption, the court shall determine that the client has been informed that the communication should not be privileged; or

(8) in a proceeding brought by the client against the mental health counselor and in any malpractice, criminal, or license revocation proceeding in which disclosure is necessary or relevant to the claim or defense of the mental health counselor.

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

Mass. Guid. Evid. 508

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 (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 taken nearly verbatim from G. L. c. 112, § 172A. General Laws c. 112, § 172A, deals with the evidentiary privilege held by clients of mental health providers in court proceedings, while G. L. c. 112, § 172, deals with the confidentiality requirement adhered to by mental health providers. The confidentiality requirement need not be invoked by the client to be in effect, but it can be waived under certain circumstances covered in G. L. c. 112, § 172.

General Laws c. 119, § 23(a)(3), deals with children who are without proper care due to the death or incapacity, unfitness, or unavailability of a parent or guardian. General Laws c. 119, § 24, involves petitions and testimony regarding abuse or neglect of children. General Laws c. 210, § 3, involves petitions for adoption. General Laws c. 119, § 51B, involves investigations regarding the abuse or neglect of children.

In the absence of a court order, a warning in accordance with Commonwealth v. Lamb, 365 Mass. 265, 270 (1974), 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) ( Lamb warning required when department ordered psychiatrist to interview juvenile in its custody).

Cross-Reference: Section 503(d)(2), Psychotherapist-Patient Privilege: Exceptions: Court-Ordered Psychiatric Exam.

Subsection (e). 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.