Does the “compelling need” for patient records by a state body that oversees and regulates physicians trump the statute that protects the confidentiality of psychotherapy records? Not in Massachusetts, according to a September 2, 2010 decision of the Supreme Judicial Court, Board of Registration in Medicine v. John Doe, No. SJC-10556.

At issue in this case were the treatment practices of a board-certified psychiatrist who specialized in “pain management.” Due to a concern that inappropriate prescriptions for pain medication were being written and that Doe himself was impaired, the state’s Board of Registration in Medicine subpoenaed the treatment records of 24 of this psychiatrist’s patients. The psychiatrist refused to comply with 23 of the requests. The psychiatrist took the position that the Massachusetts privilege for psychotherapist-patient communications, Mass. Gen. L. ch. 233, § 20, did not contain an exception that would allow him to comply for such a subpoena.

The Supreme Judicial Court held that “the psychotherapist-patient privilege statute does not permit a weighing of the public interest against the interests protected by the privilege.” The Court explained that “[t]here is obviously a conflict between the confidentiality interest underlying the psychotherapist-patient privilege and the board's need to obtain medical records in the course of its investigations. The Legislature has resolved that conflict in favor of confidentiality by declining to enact a statutory exception to the privilege for board investigations into physician misconduct. With no constitutional considerations implicated, we accept the legislative judgment.”

While this decision only impacts privileged records in Massachusetts, the implications of this decision nevertheless will be far-reaching. Once the logic of this decision is applied in other cases, court orders in civil matters will no longer be viewed as sufficient to override privileges like those found in Mass. Gen. L. ch .233, § 20 and similar statutes (such as that protecting communications with clergy, psychologists, social workers, allied mental health providers, sexual assault and domestic violence counselors).

The court briefs in this matter can be found here.