Com. v. Collett

• Decision Date: 20 September 1982
• Citation: 387 Mass. 424,439 N.E.2d 1223
• Parties: COMMONWEALTH v. Mark COLLETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1223

439 N.E.2d 1223

387 Mass. 424

COMMONWEALTH v. Mark COLLETT.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 4, 1982.

Decided Sept. 20, 1982.

Arnold R. Rosenfeld, Boston, for Mark Collett.

Anne Goldstein, Boston, for Betsy John.

Linda M. Poulos, Legal Asst. to the Dist. Atty. (Michael J. Traft, Asst. Dist. Atty., with her), for the Commonwealth.

Barry L. Mintzer, Boston, for National Association of Social Workers, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

The defendant is charged with murder in the second degree. At a pretrial hearing, the Commonwealth orally moved to compel a licensed certified social worker to disclose communications made to her in her professional capacity by the defendant and other persons. The social worker was represented by counsel. She asserted a social worker's privilege pursuant to G.L. c. 112, § 135. The judge ordered the social worker to disclose "all of the alleged communications" to the judge and to the prosecutor at a pretrial in camera hearing. The order also provided that following this disclosure, the prosecutor was to "inform the judge as to the necessity for the disclosure of any or all of the communications in the case to be tried; that thereafter the judge shall rule as to which of the communications he shall order the social worker to disclose at the trial." The judge subsequently amended his order to permit the defense attorney to be present at the in camera hearing. Acting on the social worker's motion, the judge reserved his order and reported two questions to the Appeals Court pursuant to Mass.R.Crim.P. 34, 378 Mass. 905 (1979), and G.L. c. 231, § 111. We granted the social worker's application for direct appellate review.

The issues reported are:

"1. What is the proper scope of the licensed certified social worker's privilege under G.L. c. 112, sec. 135 in a second degree murder trial when, in her claimed professional capacity and as an employee of a private hospital treating the victim she had interviewed and received pre-indictment information from the defendant, Mark Collett, including but not limited to statements revealing the commission of a crime or a harmful act?

"2. Does a non-party who gave information to the social worker have any enforceable right to prohibit disclosure under G.L. c. 112, sec. 135?"

The social worker's brief additionally raises the issue of whether the in camera hearing violated G.L. c. 112, § 135.

The facts provided in the parties' briefs follow. Betsy John, the social worker involved in this case, is employed by the Massachusetts General Hospital in Boston. The victim, a seven-month-old child, was brought to the hospital on July 9, 1981. She died one week later from her injuries. Shortly after the child was admitted to the hospital, John was assigned to treat the victim's family. She filed a child abuse report as required by G.L. c. 119, § 51A. She interviewed the victim's mother and several other relatives as well as the defendant, who was the mother's boyfriend. When the child died, the social worker immediately notified the district attorney and the medical examiner as required by G.L. c. 119, § 51A. Later in July, Ms. John testified before the Grand Jury for Suffolk County. She testified that during an interview with the defendant, he admitted to her that he hit the victim on the night she was hospitalized and had also hit her in the past. Ms. John refused to disclose any other information, claiming a privilege under G.L. c. 112, § 135. At the pretrial hearing, the Commonwealth orally moved that Ms. John be required to disclose various communications made to her by the defendant, members of the victim's family and professionals working for other agencies. The judge's order states that the alleged communications sought by the Commonwealth "concern the child's appearance and behavior prior to her hospitalization and the feelings, observations, suspicions and hopes [the speakers held] about the child and one another." The Commonwealth also seeks certain statements made by the defendant allegedly denying any wrongdoing.

In 1977, as part of a larger statutory scheme for the licensing and regulation of social workers, the Legislature enacted St.1977, c. 818, § 2, inserted as G.L. c. 112, § 135. The entire statute, as amended by St.1981, c. 91, § 1, is set out below. ¹ General Laws c. 112, § 135, prohibits disclosure by a licensed social worker of information acquired from persons consulting him in his professional capacity with five exceptions. This case is concerned with the exception embodied in subsection (b) which states that a social worker "shall not be required to treat as confidential a communication that reveals the contemplation or commission of a crime or a harmful act." The parties ² disagree about the scope and meaning of this exception. They disagree as well concerning who is the proper party to determine whether the exception applies and how the determination should be made. Finally, they hold differing viewpoints on whose confidences the statute is intended to protect.

1. Statutory purpose. The privilege established by c. 112, § 135, is one of several provided by Massachusetts law. ³ The enactment is a legislative recognition that the confidentiality of a person's communications to a social worker is a necessity for successful social work intervention. See Note, The Social Worker-Client Relationship and Privileged Communications, Wash.U.L.Q. 362 (1965). As a New York court has said: "Whether the protected relationship involves physician, psychologist or certified social worker, all share the common purpose of encouraging the patient or client fully to disclose the nature and details of his illness or his emotions without fear of later revelation by one in whom he placed his trust and confidence." Perry v. Fiumano, 61 App.Div.2d 512, 516, 403 N.Y.S.2d 382 (N.Y.1978). Disclosures of confidential information can harm more than the individual social worker-client relationship involved. If it becomes known that confidences are violated, other people may be reluctant to use social work services, and may be unable to use them to maximum benefit. The purpose of enacting a social worker-client privilege is to prevent the chilling effect which routine disclosures may have in preventing those in need of help from seeking that help. See Yaron v. Yaron, 83 Misc.2d 276, 283-284, 372 N.Y.S.2d 518 (N.Y.Sup.Ct.1975); Usen v. Usen, 359 Mass. 453, 457, 269 N.E.2d 442 (1971). See generally, Annot., Communications to Social Worker as Privileged, 50 A.L.R.3d 563 (1973). The Legislature has determined that while the preservation of the confidential relationship is an important objective, under certain circumstances, this goal must give way in favor of other societal interests. Therefore, the Legislature has carved out five exceptions to the statutory privilege.

2. Privilege of nonparty. We now consider to whom the privilege created by the statute extends. The statute provides that it protects information "acquired from persons consulting [the social worker] in his professional capacity." The Commonwealth argues that the statute only applies when a professional relationship exists between a social worker and a client. The Commonwealth further argues that John's only client was the child who was admitted to the hospital and that the defendant and other persons with whom John spoke during the course of her assignment were not her clients and therefore cannot assert a claim of privilege. The social worker argues that the privilege applies to all those persons who consulted her in her professional capacity, even those who are not parties to this action, and she further contends that she is duty-bound to raise the privilege issue on behalf of those persons.

We do not have information before us concerning John's specific duties and the circumstances surrounding her assignment to the victim's case. However, common sense tells us that in a case of suspected child abuse, especially one involving a child of seven months, part of the social worker's professional duties would necessarily involve consulting with members of the victim's family and others closely connected to the victim's home situation. It is clear that the social worker spoke with the defendant and the victim's family members in the course of fulfilling her professional responsibilities. The defendant appears to be a person who consulted the social worker in her professional capacity and is therefore entitled to claim the privilege under the statute. The phrase, "persons consulting him" would seem, at first blush, to require the client to initiate the contact or engagement of the licensed social worker. However, at least in the sphere of public welfare, the social worker generally makes the initial foray and this is especially true in cases of child abuse. Therefore, for the statute to have much meaning and for it to do its job, this language should include those relationships with clients which have been first established by the social worker; otherwise, the statute would suffer from a useless restrictiveness. Some other States which have enacted statutes on social workers' privilege have restricted their scope. For example, the New York statute, N.Y.Civ.Prac.Law § 4508 (Consol.1978), protects communications made to a social worker by "his client." See People v. Lipsky, 102 Misc.2d 19, 23-24, 423 N.Y.S.2d 599 (N.Y.County Ct.1979). The South Dakota statute, S.D. Codified Laws Ann. § 36-26-30 (1977), protects communications "necessary to enable [the social worker] to render services in his professional capacity." See State v. Martin, 274 N.W.2d 893 (S.D.), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 112 (1979). The client qualification was contained in several earlier versions of the Massachusetts statute which were not passed by the Legislature. 1971...