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MA Court: State's interests don't trump psychotherapist-patient privilege

Posted on September 3, 2010 by Dissent

Dr. Ken Pope mentioned this case on his mail list today, and I thought it might also be of interested to blog readers as it addresses whether the state’s interesting in investigating a psychiatrist trumps psychotherapist-patient privilege.

Here’s the summary of this case from Massachusetts, Board of Registration in Medicine vs. John Doe, as included in the court’s opinion:

This case arises out of an investigation by the Board of Registration in Medicine (board) into the treatment practices of John Doe, a board-certified psychiatrist who specializes in pain management. As part of its investigation, the board subpoenaed the treatment records of twenty-four of Doe’s patients. Doe refused to comply with the subpoena, and pursuant to G.L. c. 233, § 10, [FN2] the board commenced an action to enforce it. A judge in the Superior Court ruled that the records were not protected by the psychotherapist-patient privilege, see G.L. c. 233, § 20B [FN3] (the statute), and ordered Doe to produce them. Doe appealed and we transferred the case on our own motion.

Doe contends that the subpoenaed records are protected by the psychotherapist-patient privilege set out in G.L. c. 233, § 20B. The board argues that the privilege does not apply because Doe does not meet the qualifications of a “psychotherapist” as defined by the statute. The board maintains that Doe devotes most of his time to pain management. Because pain management is not the practice of psychiatry, the argument goes, Doe does not devote a substantial amount of time to the practice of psychiatry as required by the statute. In the alternative, the board contends that, even if Doe is a psychotherapist as defined by the statute, the records must be produced in this case because the board’s compelling need to examine the records in furtherance of its mission to protect the public safety outweighs the confidentiality interests protected by the privilege. The record establishes that pain management is a subspecialty of psychiatry; consequently, Doe devotes a substantial amount of time to the practice of psychiatry. Thus, we conclude that Doe is a psychotherapist within the meaning of the statute. In addition, we conclude that the psychotherapist-patient privilege statute does not permit a weighing of the public interest against the interests protected by the privilege. We therefore vacate the judgment stating that Doe is not a psychotherapist and ordering him to produce the records, and remand to the Superior Court for entry of an order quashing the subpoena.

You can read the entire opinion here.

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