Section Review

The application of the Massachusetts psychotherapist-patient privilege in employment cases

David McCay is an associate at Mirick, O’Connell, DeMallie & Lougee LLP in Worcester. He represents businesses, business owners and employers in a variety of business and employment disputes.
One of the issues that frequently arises in employment discrimination and harassment cases is the discoverability of psychotherapist-patient communications and records. Almost universally, plaintiffs in these cases allege that they have suffered emotional distress as a result of the defendant’s wrongdoing. The question then becomes whether and to what extent the defendant(s) should be able to test the truth of the plaintiff’s emotional distress claim through the discovery of the plaintiff’s psychotherapist communications and treatment records.

A deposition of the plaintiff’s psychotherapist or the inspection of the plaintiff’s counseling records may produce relevant information regarding any emotional distress suffered by the plaintiff from whatever cause. From the defense perspective, the discovery may show that the plaintiff suffered little emotional distress, or perhaps suffered emotional distress as a result of something entirely unrelated to the plaintiff’s workplace. On the other hand, the plaintiff’s interest in maintaining the confidentiality of sensitive psychotherapist communications weighs against such discovery. The courts have not been immune to the difficulty in balancing these competing interests. This article will explore how the courts have interpreted the Massachusetts psychotherapist-patient privilege, Massachusetts General Laws chapter 233, section 20B, and the social-worker-patient privilege, General Laws chapter 112, section 135B, with an emphasis on employment discrimination and harassment cases.


Massachusetts recognizes several privileges by which communications can be protected from disclosure. For example, General Laws chapter 233, section 20 protects spousal and parent-child communications; General Laws chapter 233, section 20A sets forth the clergy privilege; Massachusetts Rule of Professional Conduct 1.6 protects attorney-client communications; General Laws chapter 233, section 23C sets forth the mediator privilege; and General Laws chapter 233, section 20J protects rape counselor communications. Massachusetts also recognizes testimonial privileges between a patient and her psychotherapist (General Laws chapter 233, section 20B) and between a patient and a licensed social worker (General Laws chapter 112, section 135B).

A “psychotherapist” is defined to include a person licensed to practice medicine “who devotes a substantial portion of his time to the practice of psychiatry.” It also includes a licensed psychologist, a graduate of or a student enrolled in a doctoral degree program in psychology working under the supervision of a licensed psychologist, and a psychiatric nurse.2 Under the statute, “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.”

While “communications” are protected by the psychotherapist-patient and social worker-patient statutes, certain evidence related to the communications is outside the scope of the privilege and is discoverable. So, for example, the identity of any treating psychotherapist, the dates of the communications and the costs of treatment are not privileged.3

The psychotherapist-patient and social worker-patient privileges are not absolute.4 Both statutes contain express exceptions where a patient has placed her mental and emotional condition at issue as part of her claim and where the interests of justice require the production of such information. Specifically, General Laws chapter 233, section 20B(c) and General Laws chapter 112, section135B(c) both provide in pertinent part:

The privilege granted hereunder shall not apply to any of the following communications:

(c) in any proceeding ... in which the patient introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and (psychotherapist/social worker) be protected.

Under this statutory framework, the issue of whether the plaintiff’s counseling communications and records are discoverable depends largely on the trial court’s determination of whether the plaintiff has introduced his mental or emotional condition, and whether the plaintiff’s right to confidentiality is outweighed by the “interests of justice.” Not surprisingly, the application of this balancing test has led to inconsistent results.

The federal courts also recognize a psychotherapist-patient privilege. Recognition of the federal privilege traces to the United States Supreme Court case of Jaffee v. Redmond.5 Unlike the Massachusetts privilege, however, the federal privilege is not subject to a balancing test. The Jaffee Court expressly rejected the application of an after-the-fact balancing test to determine whether the privilege should be overridden by the evidentiary needs of the party seeking disclosure. The Court reasoned that “[m]aking the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.”6 The analysis under Jaffee and its progeny, while helpful, is of limited relevance given the express exceptions contained in the Massachusetts statutes and the balancing test required by those statutes.

The approach from the bench

Neither the Massachusetts Supreme Judicial Court nor the Appeals Court have addressed this issue in the context of civil, rather than criminal, actions.7 As a result, there is little current guidance from the appellate courts applying the balancing test required by General Laws chapter 233, section 20B(c) and General Laws chapter 112, section 135B(c). Several Massachusetts Superior Court decisions have addressed the psychotherapist-patient privilege issue with inconsistent results. Only two of these cases involve employment-related claims. In Guimares v. Del Prete, the plaintiff alleged sexual harassment, intentional infliction of emotional distress and assault and battery against her supervisor and his employer.8 The plaintiff claimed to have suffered irreparable mental and emotional damages directly caused by the alleged misconduct. The defendants sought to compel the production of the plaintiff’s treatment records from her physician, gynecologist, cardiologist, psychologist and licensed social worker. Judge Brassard, sitting in the Plymouth Superior Court, rejected the notion of performing an in camera review of the records mindful that “the danger lurking in the practice of … in camera review of privileged documents by the trial judge is a confusion between the roles of a trial judge and defense counsel. The judge is not necessarily in the best position to know what is necessary to the defense.”9 Noting that “the plaintiff’s mental and physical health is a critical issue placed in issue by the plaintiff herself, and medical records may reveal mental and emotional distress caused by prior, unrelated events,” the court ordered production of the records with some important limitations.

First, the records were disclosed to defense counsel “solely in his or her capacity as an officer of the court” during regular business hours at the Brockton Superior Court and under arrangements to be made by the clerk. Second, the court ordered that defense counsel not disclose or disseminate the contents of the records to anyone, including the defendants. Third, the court prohibited photocopying of the records, but permitted counsel to read and make notes concerning the records. Finally, the court prohibited introduction of any portion of the records at trial or in any motion or proceeding without prior application to the court.

In Myers v. Tom Foolery’s, Inc., Judge Hilman, sitting in the Worcester Superior Court, denied defendant’s motion to compel the testimony of the plaintiff’s licensed social worker in a sexual harassment and intentional infliction of emotional distress case.10 The plaintiff had testified during her deposition that she had received counseling for reasons unrelated to her employment. Relying on the distinction articulated in Sabree v. United Brotherhood of Carpenters & Joiners11 and McCue v. Kraines12 between “garden-variety” claims of emotional distress and emotional distress claims alleging psychic injury or psychiatric disorder, the court denied the motion to compel with the condition that the plaintiff was foreclosed from calling or referring to the witness. Unfortunately, neither the Myers decision nor the decisions in Sabree or McCue upon which it relies describe the distinction between “garden-variety” claims of emotional distress and claims “alleging psychic injury or psychiatric disorder” in any greater detail.

Several Superior Court decisions have addressed the issue of the psychotherapist-patient privilege in non-employment contexts without a consistent outcome.13 One popular approach to the statutory balancing test is borrowed from the U.S. District Court for the District of Massachusetts in Sabree.14 In Sabree, the plaintiff alleged that the defendant union unlawfully denied him membership on the basis of his race in violation of state and federal antidiscrimination laws. He sought damages for lost wages and emotional distress. The union sought an order compelling production of the plaintiff’s psychotherapist records. The court held that federal law governed the plaintiff’s assertion of the psychotherapist-patient privilege. It further concluded that Sabree’s psychotherapist records were not discoverable because he had not placed his mental condition at issue. The court reasoned that Sabree made only “a ‘garden-variety’ claim of emotional distress, not a claim of psychic injury or psychiatric disorder resulting from the alleged discrimination.”

Several Superior Court decisions have cited Sabree for the proposition that psychotherapist-patient communications are privileged when the plaintiff alleges only “garden-variety” emotional distress, as opposed to a more severe claim of “psychic injury or psychiatric disorder.”15 The dividing line between “garden-variety” emotional distress and more severe emotional distress claims is not altogether clear. On the one extreme, when the plaintiff alleges simply “emotional distress” or “mental suffering,” the claim is typically held to be “garden-variety.”16 In those instances, the privilege protects the psychotherapist records and communications, particularly when the plaintiff does not intend to introduce them at trial. On the other extreme, when the plaintiff alleges emotional distress causing “alcohol and substance abuse, anxiety, depression, insomnia, and suicidal ideation,”17 or “irreparable mental damage and extreme impairment of mental health”,18 the plaintiff has not alleged “garden-variety” emotional distress. When such claims are raised, the privilege will not likely preclude discovery of psychotherapist-patient communications. A claim of “mental impairment” in the form of an “inability to remember and to function well enough to return to work” is also sufficient to put one’s mental or emotional condition at issue.19 Similarly, a claim of “psychological injury which necessitated psychiatric treatment” in a negligence action was sufficient to put the plaintiff’s mental and emotional state at issue and require the production of psychotherapist records.20

Another factor often considered by the court is whether the plaintiff intends to make any affirmative use of the privileged evidence, such as introducing psychotherapist records at trial or calling the psychotherapist as a witness. Judge Agnes articulated this consideration in Linscott v. Burns21 and Donovan v. Pressman22 stating:

In a case in which a patient introduces his or her mental or emotional condition as an element of a claim or defense, disclosure of communications between patient and psychotherapist under G.L. c. 233, §20B(c) should not be ordered unless (1) the patient calls the psychotherapist as a witness or introduces evidence of the communication through her own testimony or otherwise, or (2) the party seeking access to the communication makes a specific showing that the truth-seeking function of the trial will be seriously impaired unless a disclosure of the communication is ordered.

Under this analysis, the party seeking to discover psychotherapist-patient communications is entitled to such discovery when the plaintiff plans to use such communications affirmatively. Such affirmative use of privileged communications is effectively a waiver of the psychotherapist-patient privilege. It also is consistent with the notion that the plaintiff should not be able to use the psychotherapist-patient privilege as both a sword to introduce evidence substantiating a claim of emotional distress and a shield to prevent full disclosure of the same evidence.

Common themes and

While the results are not always predictable, the cases, taken together, reveal a number of common themes that Superior Court judges take into consideration when balancing the “interests of justice” with the protection of the psychotherapist-patient or social worker-patient relationship under General Laws chapter 233, section 20B(c) and General Laws chapter 112, section135B(c). These include:

1. What type of emotional distress has the plaintiff claimed?

Is it simple emotional distress or mental suffering, or does the claim rise to the level of mental impairment, cognitive deficiency or psychiatric disorder? The more serious the claim, the more likely the court will permit discovery regarding psychotherapist-patient communications.

2. What are the circumstances of the
psychotherapist-patient communications?

Are the communications related to the plaintiff’s employment? Are they temporally distant from the plaintiff’s employment. The more distant in time and relation the psychotherapist-patient communications are to the plaintiff’s employment, the less likely it is that the discovery will be considered “important to the interests of justice.”

3. Is the plaintiff attempting to use the
protected communications as a sword and a shield?

If the plaintiff intends to make affirmative use of the psychotherapist-patient communications or records at trial, the privilege is likely to be deemed waived and the discovery will be permitted. On the other hand, if the plaintiff asserts the privilege to prevent discovery of psychotherapist-patient communications, the plaintiff is likely foreclosed from offering such evidence at trial.

4. If the court permits discovery of counseling records, the confidentiality of those records will be strictly enforced by the court.

In some instances, the records may not be copied without leave of court, and the records are likely to be deemed for attorney’s eyes only. The potential boundaries that might be established for disclosure are limited only by the creativity and persuasiveness of counsel.

In this already confusing area, the Supreme Judicial Court’s recent decision in Stonehill College v. Mass. Commission Against Discrimination23 relative to the proof required for emotional distress claims in employment discrimination cases may add a further twist and support the discovery of psychotherapist-patient communications and records. In doing so, the decision also raises questions about the continuing vitality of the “garden variety” concept.

In Stonehill College, the court held that the plaintiff must prove emotional distress and causation independent of proof of discrimination or retaliation. An award of emotional distress damages must rest upon a clear factual basis. Further, a sufficient causal connection must be shown between the discrimination and the emotional distress. “Emotional distress existing from circumstances other than the actions of the respondent, or from a condition existing prior to the unlawful act, is not compensable.”

A strict application of Stonehill College may require that employers defending employment-related claims be given the opportunity to attempt to meet the plaintiff’s proof by discovering evidence related to (1) the existence of the plaintiff’s emotional distress and (2) its causes. A plaintiff’s psychotherapist records and communications are the most direct and reliable evidence available concerning alleged emotional distress and its causes. Without it, the defense may have little opportunity to show the plaintiff’s emotional distress “exists from circumstances other than the actions of the respondent” or from a pre-existing condition, neither of which are compensable under Stonehill College.

In the absence of appellate guidance on the application of the psychotherapist-patient privilege in civil cases, the trial court decisions interpreting the statutory balancing test show a considerable range of results. The results will continue to be driven by the facts and circumstances of each case, including the nature of the emotional distress claim; the nature, timing and content of the psychotherapist-patient communications; and the use intended, if any, by the party seeking to prevent disclosure of psychotherapist communications.

End notes

1. The author wishes to thank Richard C. Van Nostrand for his assistance with this article.[back]

2. G.L. c. 233, §20B.[back]

3. See Commonwealth v. Neumyer, 432 Mass. 23, 29 (2000) (time, date and fact of communication to sexual assault hotline not a privileged communication); Commonwealth v. Clancy, 402 Mass. 664, 667 (1988); Sorenson v. H & R Block, Inc., 197 F.R.D. 199, 203-04 (D.Mass. 2000) (“a psychotherapist or social worker’s identity and dates or costs of treatment are subject to disclosure regardless of a privilege or subsequent waiver thereof”).[back]

4. Commonwealth v. Stockhammer, 409 Mass. 867, 883-84 (1991). [back]

5. 518 U.S. 1 (1996). [back]

6. Id. at 17. [back]

7. See Commonwealth v. Pelosi, 441 Mass. 257 (2004); Commonwealth v. Fuller, 423 Mass. 216 (1996); Commonwealth v. Bishop, 416 Mass. 169 (1993) (all addressing the privilege issue in the context of requests by criminal defendants for counseling records of victims). [back]

8. 5 Mass. L. Rep. 180, 1996 Mass. Super. LEXIS 588 (Brassard, J.). [back]

9. Id. quoting Stockhammer, 409 Mass. at 867; Clancy, 402 Mass. at 670. The procedure of in camera review of potentially privileged records by the trial judge, as outlined by the Supreme Judicial Court in Bishop, is not frequently employed to determine the discoverability of psychotherapist communications in civil cases.[back]

10. 10 Mass. L. Rep. 592, 1999 Mass. Super. LEXIS 405 (Hillman, J.).[back]

11. 126 F.R.D. 422 (D.Mass. 1989).[back]

12. 1 Mass. L. Rep. 298, 1993 Mass. Super. LEXIS 228 (Fremont-Smith, J.).[back]

13. See Martin v. Walgreen Eastern Co., 2005 Mass. Super. LEXIS 141 (Agnes, J.) (privilege issue in pharmacological negligence claim; records ordered produced); Morgan v. Geran, 12 Mass. L. Rep. 587, 2001 Mass. Super. LEXIS 53 (Connolly, J.) (deceased defendant’s psychological evaluation ordered produced in priest abuse claim); Jacobs v. Vachon, 11 Mass. L. Rep. 307, 2000 Mass. Super. LEXIS 35 (Hamlin, J.) (plaintiff’s mental health care records in medical malpractice claim ordered produced); Perrin v. S & A Enterprises, Inc., 9 Mass. L. Rep. 619, 1999 Mass. Super. LEXIS 68 (Hillman, J.) (plaintiff in automobile tort claim alleges diminished mental capacity and learning deficit; psychological and psychiatric records ordered produced). Compare Linscott v. Burns, 18 Mass. L. Rep. 685, 2005 Mass. Super. LEXIS 19 (Agnes, J.) (counseling records ordered produced in automobile tort claim if plaintiff calls psychotherapist or offers proof of psychotherapist communications); Sherman v. Krauth, 16 Mass. L. Rep. 260, 2003 Mass. Super. LEXIS 153 Page, J.) (defendant’s request to inspect plaintiff’s psychiatric and counseling records in medical malpractice case denied); Donovan v. Prussman, 12 Mass. L. Rep. 65, 2000 Mass. Super. LEXIS 403 (Agnes, J.) (production of plaintiff’s psychiatric records denied because plaintiff did not intend to offer records or communications as evidence).[back]

14. 126 F.R.D. at 426. Sabree was decided before the Supreme Court recognized the psychotherapist-patient privilege in Jaffee and expressly rejected any “balancing component of the privilege implemented by … a small number of States.” 518 U.S. at 17. Massachusetts, of course, is one of those states. See Mass. Gen. Laws ch. 233, § 20B(c). [back]

15. See, e.g., Robart v. Alamo Rent-A-Car, LLC, 19 Mass. L. Rep. 154, 2005 Mass. Super. LEXIS 122 (Gaziano, J.); Jacobs, 11 Mass. L. Rep 307; Doe, No. 501 v. O’Neil, 2006 Mass. Super LEXIS 80 (Locke, J.).[back]

16. See Sherman, 16 Mass. L. Rep. 260 (alleged “mental pain and suffering” in wrongful death action is classic “garden variety” emotional distress claim); McCue, 1 Mass. L. Rep. 298 (plaintiffs claiming “severe emotional distress” and “loss of consortium” in wrongful death action are making “garden-variety” claim of emotional distress).[back]

17. See Doe, No. 501, 2006 Mass. Super LEXIS 80 (ordering production of psychotherapy records in clergy abuse case).[back]

18. See Jacobs, 11 Mass. L. Rep. 307 (production of mental health records ordered in medical malpractice action because plaintiff introduced psychic damage as element of claim).[back]

19 . Donovan, 12 Mass. L. Rep. 65 (finding that plaintiff put emotional harm at issue but denying motion to compel production of psychiatrist records because plaintiff did not plan to affirmatively use them at trial).[back]

20. Kippenhan v. Chaulk Servs., Inc., 2 Mass. L. Rep. 121, 1994 Mass. Super. LEXIS 644 (Fremont-Smith, J.).[back]

21. 18 Mass. L. Rep. 685.[back]

22. 12 Mass. L. Rep. 65.[back]

23. 441 Mass. 549, 576 (2004).[back]

24. Id.[back]

©2017 Massachusetts Bar Association