Printer Friendly

Is threatening to commit suicide confidential - the disclosure of otherwise privileged communications in Massachusetts involuntary civil commitment proceedings.

I. Introduction (1)

Visualize a judge, a clerk, and a court officer seated at a table in a small hospital conference room. At the other end of the conference table a psychotherapist, her patient, and her patient's counsel are seated for the patient's civil commitment hearing. (2) As the psychotherapist begins stating the facts of the patient's condition, the patient brusquely stands up from the table, shoves his plastic chair, and swears at the judge before leaving the room. (3) Imagine that the hearing then continues in the patient's absence, and the patient's treating psychiatrist testifies that the patient has repeatedly communicated the same, specific threat to take his own life. (4) The doctor concludes that due to these threats, the patient is a danger to himself or to others, and recommends that the judge sign the order committing the patient to the hospital for further treatment. Finally, the judge signs the order. (5)

The court in Walden Behavioral Care v. K.I (hereinafter "K.I."), confronted with a situation similar to that outlined above, considered whether, in an involuntary civil commitment hearing pursuant to the statute governing commitment of dangerous persons, a patient's privileged communication with his psychotherapist is waived where the patient is not in custody, and in the psychotherapist's opinion, poses an imminent risk of harm to others or to himself. (6) This note considers the above issue as well as whether such a patient requires a warning that his communications may no longer be confidential if the court waives the psychotherapist-patient privilege in the involuntary civil commitment context. (7) Part B first examines the history of the Massachusetts psychotherapist-patient privilege statute before turning to case law, which has interpreted the psychotherapist-patient privilege and exceptions to understand those decisions' impact on today's understanding of the statute. (8) Part C investigates the psychotherapist-patient privilege statutes around the country, and specifically in Massachusetts, to determine how these statutes have been interpreted through case law and how states apply psychotherapist-patient privilege exceptions in civil commitment proceedings. (9) Part D will further expound upon Massachusetts law, which implicitly suggests that the first exception to the psychotherapist- patient privilege statute, section 20B(a), (hereinafter "the immediate threat of harm exception"), exists precisely for the type of civil commitment proceeding anticipated at the beginning of this note. Lastly, Part D will conclude that the Seabrooks and K.I. courts correctly interpreted the immediate threat of harm exception to the psychotherapist-patient privilege. (10)

In the situation above, the patient did not invoke the psychotherapist-patient privilege in challenging her commitment, although under Massachusetts' law she could have. (11) However, the privilege this statute grants is not without limits. (12) The statute contains several exceptions, two of which are most pertinent to the imagined civil commitment proceeding described above. (13) First, the immediate threat of harm exception states that a psychotherapist can divulge otherwise privileged communication if the patient poses an immediate threat of harm to himself or to others. (14) The exception in section 20B(b), (hereinafter the court-ordered examination exception), adds that during a court-ordered examination, a patient's communication with his psychotherapist will not be considered privileged as long as he has been warned that anything said can be used against him in a future proceeding where his mental health is at issue. (15)

A plain language reading of the psychotherapist-patient privilege statute and its exceptions seem to place this note's hypothetical patient within the immediate threat of harm exception. (16) Currently in Massachusetts, however, no concrete answer binding the entire state exists as to the reach of the psychotherapist-patient privilege statute over communications in civil commitment proceedings. (17) Looking at situations similar to the one above, attorneys and hospitals alike have little guidance in determining whether or not the privilege is applicable in civil commitment proceedings, possess little case law interpreting the applicability of the immediate threat of harm exception in civil commitment proceedings, and are faced with incongruous published guidelines. (18) This note imagines a Massachusetts court faced with the application of the first exception listed under the psychotherapist-patient privilege in an involuntary civil commitment context. (19)

II. A History of Privacy and Civil Commitment

A. Psychotherapist-Patient Privilege

The doctrine of confidentiality of information protects an individual's privacy as well as his right to non-disclosure. (20) In the field of psychotherapy, confidentiality is especially important because it is founded on the premise that the psychotherapist probes into the patient's past experiences in order to uncover the origins of the mental health issue from which the patient currently suffers. (21) Although other forms of privilege, such as the attorney-client privilege, existed as early as the fourteenth century, the psychotherapist-patient privilege only emerged in the (1950) s. (22) Although this privilege is statutory, it is interpreted at common law. (23) The United States Supreme Court first recognized a psychotherapist-patient privilege in (1996), and currently, every state and Washington D.C. has some type of psychotherapist-patient privilege. (24)

Individual states treat psychotherapist-patient privilege differently. (25) As with other privileges, such as the attorney-client privilege, various exceptions and waivers apply to the psychotherapist-patient privilege depending on the state. (26) As states continue amending and constructing psychotherapist-patient privilege statutes, exceptions and waivers to the psychotherapist-patient privilege increase. (27) In general, mental health professionals have both a legal and ethical obligation to refrain from disclosing a patient's information unless a court order or a statute requires them to do so. (28)

B. Involuntary Civil Commitment Proceedings

The extent to which psychotherapist-patient privilege statutes and their exceptions apply in various proceedings demonstrates additional discontinuity between the states. (29) Civil commitment proceedings are an example of a legal proceeding in which, depending on the state, the state's psychotherapist-patient privilege and its exceptions may or may not apply. (30)

Involuntary civil commitment is a civil proceeding based on two public policy rationales: the state's use of police power to protect itself, and commitment of a mentally ill individual who cannot properly protect him or herself. (31) An individual must meet certain standards in order for a facility or for the state to petition for his involuntary civil commitment. (32) Most state statutes require that the patient, or respondent, suffer from mental illness, a developmental disability, or a substance abuse addiction. (33) Generally, the respondent must pose a danger to others or to him or herself. (34) Additionally, the decision to commit the respondent must be "the least restrictive available alternative." (35)

C. The Massachusetts Psychotherapist-Patient Privilege

The Massachusetts psychotherapist-patient privilege statute, first drafted in 1968, was modeled after a 1961 Connecticut statute. (36) Under the Connecticut statute, "commitment proceedings" are explicitly listed as a type of proceeding in which the privilege can be invoked. (37) The Massachusetts state statute more generically states the privilege is available in "any proceeding." (38) Under the Massachusetts statute, should a mental health provider disclose this privileged communication, he could be liable in actionable tort or invasion of privacy. (39) Certain circumstances require that a mental health professional disclose otherwise privileged communications, including the patient's degree of dangerousness. (40) A patient's degree of dangerousness determines whether the circumstances warrant the mental health professional's breach. (41) For example, a patient's dangerousness to self, in the form of suicidality, could constitute such a circumstance. (42)

Like the Connecticut privilege statute, the Massachusetts statute enumerates exceptions to the privilege when the circumstances are such that a mental health provider's breach is permissible. (43) The first two exceptions to the privilege, the immediate threat of harm and court-ordered examination exceptions, are the most applicable in an involuntary civil commitment proceeding like the one described in this note's hypothetical. (44)

D. Involuntary Hospitalization in Massachusetts

In the Commonwealth of Massachusetts, statutes regarding the commitment of dangerous persons specify that such commitments are civil commitment petitions, and as such are not filed as a part of an individual's criminal proceeding. (45) To civilly commit an individual, a facility such as a mental health hospital, must first allege that the individual is suffering from a defined mental illness. (46) The petitioning facility must additionally allege a likelihood of serious harm to the respondent or others "by reason of mental illness" and an absence of a less restrictive alternative to prevent the harm. (47) These legal standards must be established beyond a reasonable doubt. (48) Should the petitioning facility prevail, the court will authorize the facility to retain the individual under its care for a period of up to six months, granting the petitioner the ability to release the individual into the community before that time if it determines that the individual is no longer in need of treatment. (49)

III. Application of the Psychotherapist-Patient Privilege to Civil Commitment Proceedings

Multiple states explicitly recognize involuntary commitment proceedings as an exception to a psychotherapist-patient privilege, including when a patient poses an "imminent danger." (50) Many courts strictly construe this privilege in order to obtain necessary information when state concerns supersede an individual's right to privacy. (51) Other courts have refused to place the state's interests over the individual's. (52) Additionally, several states, including Massachusetts, recognize specific exceptions to the privilege in court-ordered examinations, and in instances where a party places his mental health at issue as a claim or defense. (53) Generally, the mental health care provider must warn the patient that the communication may not be confidential in court ordered examinations and other exams conducted for employment or insurance purposes. (54)

The psychotherapist-patient privilege's applicability in civil commitment proceedings appears in the involuntary hospitalization context because psychotherapists are considered expert witnesses, and often testify at the proceeding in order for the fact finder to determine whether or not the patient is to be hospitalized. (55) Frequently, the psychotherapist's interactions with the respondent constitute the only evidence on which the judge's decision is based. (56) However, the disclosure of the privileged communication also implicates the respondent's constitutional right to privacy. (57)

Florida serves as a prime example of a state that directly lists compelled hospitalization as an exception to the psychotherapist-patient privilege. (58) In balancing the serious nature of civil commitment with the state's interests, the Florida legislature devised a statutory scheme that places society's safety above the potential detriment to psychotherapist-patient confidentiality. (59) In addition to the state's strong interest in protecting the patient and society from harm, the Florida legislature also requires courts to consider all information available regarding the patient's mental health to properly determine whether the patient actually needed to be hospitalized against his will. (60) Similarly, the Supreme Court of Colorado concluded that as long as the treating psychologist's testimony is necessary in order for the fact finder to reach an informed decision, such testimony from the mental health care provider is permissible. (61) Additionally, the State of New York views the respondent's record as necessary to determine whether an individual should be committed. (62) More than facilitating a fact finder's decision in civil commitment hearings, allowing otherwise privileged communications into evidence originates in the state's desire to protect the public, which includes the patient himself, potential third parties, and mental health care providers. (63)

In 1974, the Supreme Judicial Court of Massachusetts applied the statutory privilege to an individual's communications with his psychotherapist where the patient was in custody and undergoing treatment at a center for sexually dangerous persons, where the court appointed the psychiatrist to examine him, and where the psychiatrist then returned to court to report her findings. (64) In such circumstances, the patient is entitled to a warning before confidential communications with the psychotherapist are disclosed. (65) In (2001), the SJC decided in Seabrooks that only the court-ordered examination exception requires this warning. (66) The Seabrooks defendant was convicted of first-degree murder of both his companion and their son. (67) The defendant contended that the forensic psychologist, who examined him after the murders, should not have been allowed to testify at his trial because the testimony violated his right against self-incrimination. (68) The courts held, however, that the forensic psychologist's disclosure of the examination's communications were permissible because the examination was conducted to determine if the defendant was suicidal. (69)

Following Seabrooks, the Northern District Appellate Division of Massachusetts decided in Walden behavioral Health v. K.I., that the immediate threat of harm exception is also applicable in involuntary civil commitment proceedings, and that no warning is necessary. (70) In K.I., a private mental health care facility petitioned to retain one of its patients given its concern regarding the patient's repeated suicide threats. (71) In particular, the K.I. court highlighted the Seabrook court's differentiation between a court-ordered examination and an examination for purposes of treating a patient to "determine whether the defendant was at imminent risk of harm." (72)

IV. Application of Current Case Law and Statutory Schemes

The Massachusetts immediate threat of harm exception stays the psychotherapist-patient privilege if the patient poses an immediate threat of harm to himself or to others. (73) The exception should, therefore, be interpreted to apply to involuntary civil commitment proceedings because the purpose of the statute's threat of immediate harm exception is to protect the individual and the community. (74) Involuntary civil commitment is also aimed at avoiding harm to the patient or others. (75) Protection of the individual from harming himself or others, however, is not the purpose of the court-ordered examination exception of 20B(b). (76) That exception specifies that during a court-ordered examination, the privilege provided for in the statute remains, requiring that the patient be warned that his otherwise privileged communications could be divulged. (77) This second exception also serves to protect the individual, but rather than focusing on protecting the individual against himself, it aims to protect the individual against unlawful governmental intrusions into the individual's constitutional right to privacy. (78) The immediate threat of harm exception does not include this warning requirement. (79) Thus, the principal difference between the immediate threat of harm exception and the court-ordered examination exception is that each enumerated exception under the statute describes a separate and distinct situation. (80) The immediate threat of harm exception applies in an emergency situation, and the court-ordered examination exception does not. (81) The immediate threat of harm exception does not require a warning, while such warning is the principle requirement of the court-ordered examination exception. (82) The immediate threat of harm exception, therefore, applies to involuntary civil commitment proceedings not requiring the court-ordered examination exception's warning because of the element of emergency inherent in the circumstances that give rise to the proceeding. (83) Furthermore, the immediate threat of harm exception presumes that the patient is not in custody but is in need of treatment, and a plain reading of the psychotherapist-patient privilege statute reveals the consistency of this application of the statute with the other Massachusetts statutory schemes. (84)

A. Emergency's Immediacy

This note's hypothetical patient suffered from a mental illness and threatened suicide in a specific manner, constituting an emergency situation in which the patient posed a danger to both himself and possibly to others. (85) His consent to disclose any information he provided to his psychotherapist at the involuntary civil commitment hearing was irrelevant because of this emergency situation. (86) Similarly, a patient suing a doctor for failure to obtain consent will often succeed in a medical malpractice suit unless the doctor was presented with an emergency. (87) The patient's consent to the procedure to prevent his death or serious bodily harm is irrelevant because the normal situation in which the patient's consent would be sought is temporarily replaced by a developing emergency situation to save the patient's life. (88)

Similarly, a patient's consent to allow for the disclosure of information in a hearing, the purpose of which is to keep the patient from harming himself, is irrelevant because of the emergency presented by the potential suicide or other harmful behavior. (89) The requirements set forth in the immediate threat of harm exception, which require "that the patient is in need of treatment in a hospital for mental or emotional illness or that there is a threat of imminently dangerous activity by the patient against himself or another person," are fulfilled when a patient threatens his own life in a specific way that conveys his intent and capability. (90) Therefore, the psychotherapist must be able to disclose statements to institute intervention in the patient's best interest. (91)

The emergency situation contemplated in the immediate threat of harm exception presumes a situation in which the patient is either at large in the community, or faces release into the community, rendering the danger he poses to himself or to others as imminent. (92) This situation differs from that anticipated by the court-ordered examination exception because if a patient is already in custody, the emergency element is not presented, and thus, any threat of harm is not imminent. (93) In Commonwealth v. Lamb, the Supreme Judicial Court of Massachusetts stated that the immediate threat of harm exception in paragraph (a) "appl[ies] to a situation in which a patient is not institutionalized or is about to be discharged from an institution," adding, "[i]t is not ... applicable to the case where the patient is already in the custody of State officials and where there has commenced a deliberate, orderly, judicially-supervised proceeding for determining whether he shall be committed." (94) The Lamb patient, a criminal defendant, was already in the state custody at the time of his commitment hearing. (95) His confinement prevented him from hurting himself or others, and he therefore did not present an imminent threat. (96) Without receiving any kind of warning that his statements would result in his additional detention in the mental health facility, the Lamb defendant was committed to a center "for the care, custody, treatment, and rehabilitation of sexually dangerous persons." (97) The court held that because the defendant was already in custody, and faced additional internment, failure to give him the proper warning set forth in the court-ordered examination exception was a miscarriage of justice because there was no present imminent threat of harmful activity to override his consent. (98)

As the Lamb decision demonstrates, Massachusetts's courts have continuously upheld the court-ordered examination exception in situations where the patient must undergo an evaluation ordered by the court and where the patient is already in custody. (99) For example, in the two cases following the Lamb decision, Dep't of Youth Servs. v. A juvenile and In re Laura L, the courts held that because each defendant was in the state's custody before undergoing a court-ordered examination, each defendant should have been warned that his or her communications could be disclosed. (100)

Civilly committing an individual for his own protection or for the protection of others under the Massachusetts civil commitment statue is not a "psychiatric examination ordered by the court," but rather a determination of whether a person requires treatment due to a mental illness. (101) Unlike the defendants in Lamb and Department of Youth Services, the patient in this hypothetical situation is not in custody. (102) In the Department of Youth Services, for example, the department sought to further detain the defendant past his eighteenth birthday. (103) As the patient in that case was under the control and protection of the department, there was no threat of imminent danger to himself or to others. (104) The court held that he should have been given the Dumb warning that his statements could be used as justification to further detain him due to his mental illness. (105)

Similarly, the court held in In re Laura L that a Lamb warning is also required in a proceeding in which the Department of Social Services seeks an order to declare a parent unfit. (106) The defendant in Laura L made threatening remarks about the judge and the foster mother of her child while pacing outside of the courtroom, and was thus subsequently taken into custody. (107) The judge then ordered that a psychologist evaluate her. (108) Like the defendants in both Lamb and Department of Youth Services, the In the Matter of Laura L defendant was also in custody at the time her statements to her psychologist were disclosed without her full consent. (109) Thus, proceedings in which the immediate threat of harm exception applies, exemplified by this note's hypothetical, differ from proceedings in which defendants are incarcerated when evaluation by a court psychologist is ordered. (110)

Commonwealth v. Seabrooks clarified that the application of the exceptions to the psychotherapist-patient privilege largely turns on the whether or not the patient is seeking treatment when the otherwise confidential statements are made. (111) In Seabrooks, the Court stated that the psychotherapist-patient privilege "makes clear, the introduction of a defendant's mental or emotional condition in a later proceeding is insufficient, withoutmore, to bring the defendant's privileged communications within the exception." (112) The Seabrooks court reasoned that there were "a number of factors" that justified the breach of the psychotherapist-patient's confidential relationship, holding that the "interests of justice in disclosure outweighed the need to protect the defendant's otherwise confidential communications." (113) The court held that despite the defendant's argument that his statements were not permissible because he was not given a Lamb warning, "General Laws c. 233, [section] 20B (b), [was] not applicable." (114) The court further held that the doctor's examination of the patient "[was] not ordered by the court or sought by the prosecution, and [was] not conducted in anticipation of a future proceeding in which the defendant's mental capacity would be at issue." (115) The doctor, rather, "conducted the risk assessments to identify whether the defendant was at imminent risk of harming himself and to recommend any necessary precautions or treatment." (116) The purpose of the immediate threat of harm exception is disclosure of information to prevent an individual from harming himself and to treat him accordingly. (117) The petitioning facility's psychotherapist in this note's hypothetical case, likewise, shares this same purpose--to identify whether the patient posed an imminent risk to himself or others. (118)

Like the hypothetical patient posed at the beginning of this note, the patient in K.I. was not in custody. (119) Relying on the SJC's Seabrook decision, in K.I. the Northern District Appellate Division reasoned, "[t]he purpose of the patient-psychotherapist communications presented in civil commitment hearing is to provide treatment to the patient; it is not to gather evidence to present in court," and the communications "do not take place in anticipation of any future proceeding." (120)

Not only is an emergency situation not presented when a patient is in custody, if the patient is already in custody, then clearly disclosure of the patient-psychotherapist relationship is not made for the purpose of "placing the patient under arrest or under the supervision of law enforcement authorities" because the patient is already confined. (121) In other words, if the threat of immediate harm exception does not apply in a case like the hypothetical above, a plain language reading of the statute leaves few alternative scenarios to the imagination. (122) A hospital or mental health facility petitioning to retain the hypothetical patient in order to protect him from harming himself would satisfy the first requirement of the threat of immediate harm exception. (123) Lamb further interpreted the threat of immediate harm exception's language as applicable in a situation where a patient "is about to be discharged from an institution." (124)

Moreover, a plain language reading of the statute provides further insight into the statute's two goals: 1) to protect the health and safety of the individual seeking mental health care, and 2) to ensure that the confidentiality of the psychotherapist-patient relationship endures. (125) In situations where the threat of immediate harm exception applies, the legislature's intent is that after the threat has been removed, (the patient is no longer able to harm himself or others), then "the provisions of this section shall continue in effect after the patient is in said hospital." (126) The privileged communication between patient and psychiatrist may only be disclosed when an overriding emergency--one that indicates serious bodily harm or death to the patient or others--presents itself. (127) The disclosure of what would otherwise be privileged communication is a minor detour of an otherwise clear and unobstructed path of deference towards doctor-patient confidentiality.

Moreover, a psychotherapist should not be stuck with the choice of either violating privilege with his patient or exposing himself to future litigation. (128) If Massachusetts courts were to hold that a psychotherapist in a commitment hearing could not disclose whether or not his patient presented an imminent threat to himself or to others, when he knew his patient explicitly threatened to do so, the psychiatrist could subsequently face serious claims in tort if the patient's imminent threats came to fruition. (129) A reading of related statutes further dissipates the ambiguity currently clouding the understanding of the Massachusetts's psychotherapist-patient privilege statute's applicability in involuntary civil commitment proceedings. (130) These statutes include the exceptions to the confidentiality of psychologist-patient communications, the duty of licensed mental health professional to warn potential victims of the patient, and reasonable precautions. (131)

The Massachusetts psychologist-patient statute states the patient's communications with his psychologist can be disclosed in situations listed in the psychotherapist-patient privilege statute, when the patient confirms in writing that the communications can be disclosed, or when a "clear and present danger" situation emerges. (132) This statute highlights the situations in which the immediate threat of harm exception of the psychotherapist-patient privilege arises by both citing directly to the psychotherapist-patient privilege statute itself, and by further listing more concrete examples of when the privilege does not apply. (133) For example, the psychologist-patient confidentiality statute not only points directly to the exceptions listed under the psychotherapist-patient privilege statute, such as the immediate threat of harm exception and the court-ordered examination exception, it also echoes similar exceptions to the immediate threat of harm exception such as the instance in which a patient "presents a clear and present danger to himself," and implicitly or explicitly refuses necessary treatment. (134) A plain reading and comparison of both the psychotherapist-patient privilege statute and the psychologist-patient confidentiality statute indicate that the hypothetical patient's suicidal statements and refusal to cooperate represent an example in which otherwise confidential information about his treatment is disclosed as admissible information. (135) Additionally, under the Massachusetts statute outlining the licensed mental health professional's duty to warn and the statute defining reasonable precautions, a mental health professional would not be under a duty to take reasonable precautions to stop harm from occurring "unless [the patient] communicated to the licensed mental health professional an explicit[] threat to kill or inflict serious bodily injury." (136) In the hypothetical case, the patient expressed an unequivocal desire to commit suicide in a specific and plausible manner to his psychotherapist on multiple occasions, satisfying the definition's first circumstance. (137)

The psychiatrist would not be under a duty to take reasonable precautions to stop the harm unless the patient's victim was "reasonably identified." (138) The victim in the hypothetical situation posed at the beginning of this note is plainly identified as the patient himself, so there is no issue of whether the victim can be reasonably identified. (139) Furthermore, the psychiatrist would not be under a duty to take reasonable precautions to stop the harm unless the patient "ha[d] the apparent intent and ability to carry out the threat, and the licensed health professional fail[ed] to take reasonable precautions." (140) The hypothetical patient's identical and repeated threat reveals an "apparent intent" behind his words. (141) Moreover, the fact that the hypothetical patient planned to commit suicide in a specific manner, and repeated this threat conveys the "apparent ... ability to carry out the threat" he made against his own life. (142)

Like the psychologist-patient statute, the "reasonable precautions" statute also reveals the strong likelihood of psychotherapist liability under this hypothetical's set of facts and the current understanding of the psychotherapist-patient privilege statute. (143) If Massachusetts courts deny psychotherapists the ability to disclose information obtained from patients for involuntary commitment determinations, psychotherapists would be unable to take the statutorily required precautions. (144) In the hypothetical case, the patient himself is the victim, and therefore, subsection (a), communication of a threat of death or serious bodily injury, is moot here. (145) Likewise, under subsection (b), notification of law enforcement, it is neither realistic to have law enforcement sit outside a non-detained, suicide risk's apartment each day to make sure he does not commit suicide, nor would such supervision necessarily prevent the patient's suicide. (146) If a person desires to take his own life, he would not likely submit to voluntary hospitalization under subsection (c). (147) Where arranging voluntary hospitalization is no longer an option, the psychotherapist would only have the last reasonable precaution in subsection (d), initiating involuntary commitment proceedings. (148) To take the requisite steps to initiate an involuntary civil commitment proceeding, a petitioning facility would have to disclose privileged information to ensure that any imminent threat to the patient was removed in order to demonstrate to the court beyond a reasonable doubt that the individual must be committed against his will. (149)

Should a psychotherapist not disclose a patient's threats he made against his own life, the psychotherapist could be exposed to any litigation the patient, his estate, or his family might subsequently bring. (150) Patients who communicate an explicit threat to kill or inflict serious bodily injury upon themselves often do possess the apparent intent and ability to carry out the threats they make in confidence to their treating mental health professionals. The professionals' inability to disclose this information at a commitment hearing, and resulting failure to take statutorily required precautions, makes them vulnerable to liability. (151)

V. Conclusion

A Massachusetts court faced with a hypothetical situation like the one above should first look to Seabrooks, which correctly distinguished the immediate threat of harm exception in paragraph (a) from the court-ordered examination exception in paragraph (b) of the Commonwealth's psychotherapist-patient privilege statute. (152) According to the Seabrooks court, the privilege's immediate threat of harm exception applies, and the warning required by the court-ordered examination exception does not apply, where a patient's need for mental health care stems from the provider's diagnosis and/or treatment of the patient, and not where an examination is court ordered or where the patient's mental health status will be at issue in subsequent litigation. (153) The unique situation in which involuntary civil commitment may be required presents an emergency situation in which, especially in the case of a threatened suicide, the patient's consent to disclose threats to his own life is irrelevant because the patient is in need of treatment for his suicidality.

The hypothetical situation posed at the beginning of this note differs from the situations discussed in earlier Massachusetts cases because the state has not placed the hypothetical patient in custody, and imminent danger looms ever at large. A plain reading of the Massachusetts psychotherapist-patient privilege statute's language confirms what Commonwealth v. Lamb held, a patient and his health care provider's communications are only made available to the court where an overriding emergency places others or the patient himself in danger. (154) Thus, this note's hypothetical patient more closely mirrors the Seabrooks and K.I. patients. (155) Like Colorado, Florida, New York, and other states, the Commonwealth should admit privileged communications when those communications are essential to the issue of whether the patient should be involuntarily committed due to his or her mental illness. (156) This measure could save a suicidal patient's life.

A narrower interpretation of the Massachusetts psychotherapist-patient statute and its exceptions expands the umbrella of protection mental health treatment can provide, and does not, without cause, strip the patient of his due process rights simply because the patient suffers from mental health issues. The statute seeks to further protect such patients, not foster additional harm. (157) Such an approach would also save the mentally ill individual's family from unimaginable heartbreak, the mental health care provider from a wrongful death or other lawsuit, and society from preventable danger. Mental health patients, their families, mental health providers, and society constitute the "interests of justice" that the Seabrooks court ruled the Commonwealth must protect by breaching confidentiality of a limited privilege statute in narrow circumstances. (158) Echoing the legislature's intent to protect mentally ill individuals and society, the K.I. court's plain reading of the psychotherapist-patient privilege statute also resulted in a determination that caring and treating for a patient threatening suicide could be life-saving. (159) Under the set of facts this note presents, the Massachusetts psychotherapist-patient privilege should be read and understood to place an individual's life over his liberty.

(1) See generally Walden Behavioral Care v. K.I., NO. 13-ADMS-10004, 2013 Mass. App. Div. LEXIS 34 (Mass. App. Ct. 2013) (focusing on civil commitment hearing prompted in treatment facility). This note's introduction is loosely based on Walden Behavioral Care v. K.I. (hereinafter K.I.), in which the court raised the issue presented in this hypothetical. Id. See infra note 6 and accompanying text (stating issue presented in this note's hypothetical and providing relevant statutes). In K.I., the issue was "whether in a proceeding to commit and retain an individual in a hospital because of a likelihood of serious harm created by the individual's mental illness, G.L. c. 123, [section][section] 7, 8, the individual may assert the patient-psychotherapist privilege, G.L. c. 233, [section] 20B, thereby preventing the introduction of patient-psychotherapist communications into evidence at such proceeding." K.I., 2013 Mass. App. Div. LEXIS 34, at 3. See also infra notes 70- 73 and accompanying text (providing additional facts from K.I. and related discussion).

(2) See John Parry, Civil Mental Disability Law, Evidence and Testimony: A Comprehensive Reference Manual for lawyers, Judges and Mental Disability Professionals 467. "Civil commitment is the legal process for admitting patients into mental hospitals and ... similar ... facilities...." Id. See also infra Parts B-C (discussing civil commitment generally and civil commitment specifically in Massachusetts).

(3) See PARRY, supra note 2, at 485 (discussing respondent patient's general right to attend own hearing).

(4) See K.I., 2013 Mass. App. Div. LEXIS 34, at 1-2.

(5) See id.

(6) See Mass. Gen. Laws ch. 123, [section][section] 7-8 (2012) (providing instances in which mental health facility superintendent can petition commitment of dangerous persons); Mass. Gen. Laws ch. 233, [section] 20B(a) (2012). See also supra note 1 and accompanying text (stating issue in K.I. case on which this note's hypothetical and discussion is based).

(7) See, e.g., Fla. Stat. Ann. [section] 90.242(3) (a) (West 2011) (since repealed). See also Fla. Stat. Ann. [section] 90.503(4) (West 2011). The Florida statute distinguishes between involuntary hospitalization in which no warning is required and court-ordered examination where a warning is required. Id. See also infra note 64 (discussing the warning requisite of court-ordered examinations in Massachusetts). Thus far in Massachusetts, such a warning is not applicable in involuntary civil commitment proceedings. K.I., 2013 Mass. App. Div. LEXIS 34, at 15; infra note 19 (noting the aforementioned statutory interpretation remains unsettled).

(8) See discussion infra Part B (discussing application of psychotherapist-patient privilege to civil commitment proceedings).

(9) See discussion infra Part C.

(10) See Commonwealth v. Seabrooks, 433 Mass. 439, 448-50 (2001) (holding court-ordered examination exception inapplicable where defendant assessed for immediate threat of suicide); K.I., 2013 Mass. App. Div. LEXIS, at 25. See also supra note 1 (holding immediate threat of harm exception suspends privilege in involuntary civil commitment hearings); infra note 18 (citing Seabrooks, K.I., and inconsistent state guidelines); infra discussion Part D (discussing Massachusetts case law interpreting immediate threat of harm and court ordered examination exceptions).

(11) See supra note 1 (introducing discussion about invoking psychologist-client privilege in K.I.). Whether the respondent could invoke the "psychologist-patient" privilege was that case's principle issue. K.I, 2013 Mass. App. Div. LEXIS, at 3. This note seeks to further discuss the K.I. issue in Massachusetts because whether the exceptions to the privilege have been recognized in involuntary commitment proceedings in the Commonwealth has not yet been concretely determined. See infra note 18 (comparing differing views on exception's applicability in involuntary civil commitment in Massachusetts). See also infra Part C (discussing Massachusetts's psychotherapist-patient privilege statute and its exceptions). See also Mass. Gen. Laws ch. 233 [section] 20B (2013) (providing patient power to withhold privilege and preventing witnesses disclosing communications regarding diagnosis and treatment). See also infra note 25 (defining psychotherapist-patient privilege in Massachusetts and in other states).

(12) See eg., Commonwealth v. Stockhammer, 409 Mass. 867, 883 (1991) (stating communications governed by [section] 20B, unlike other statutory privileges, are not statements of absolute privilege).

(13) See Mass. Gen. Laws ch. 233 [section] 20B(a)-(b).

(14) See Mass. Gen. Laws ch. 233 [section] 20B(a). See also infra note 44 (providing full text for immediate threat of harm exception).

(15) See Mass. Gen. Laws ch. 233 [section] 20B(b). See also infra note 44 (providing full text for court-ordered examination exception).

(16) See Mass. Gen. Laws ch. 233 [section] 20B(a) (providing that communications admissible where patient creates "threat of imminently dangerous activity"). See also Commonwealth v. Gove, 366 Mass. 351, 354 (1974) (stating in interpreting statutory language, statute's meaning derives itself from plain language reading); International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983). "[T]he primary source of insight into the intent of the Legislature is the language of the statute." Id. See also infra discussion Part D (arguing plain language reading of statute reveals legislature's goals of both societal protection and confidentiality).

(17) See infra note 18 (juxtaposing appellate division case, Judicial Practice Guidelines, and Mental Health Practice Treatise with differing views).

(18) See Walden Behavioral Care v. K.I., 2013 Mass. App. Div. LEXIS 34 (2013) at 15 (holding immediate threat of harm exception should be interpreted to apply to civil commitment proceedings); Commonwealth v. Seabrooks, 433 Mass. 439, 448-50 (2001) (determining defendant assessed for suicidality unable to claim privilege under court-ordered examination exception). The K.I. decision, while directly on point with the issue this note's hypothetical raises, is not a binding decision throughout the Commonwealth of Massachusetts. Chickel v. Mass. Transp. Auth., 2001 Mass. App. Div. 241, 242 (2001) ("[t]he principle of stare decisis is not applicable among the several Appellate Division Districts"). Therefore, until the Supreme Judicial Court of Massachusetts decides this precise issue, the controversy surrounding the issue of whether a patient can invoke the psychotherapist-patient privilege in an involuntary civil commitment remains. The fact that this debate is ongoing is further evidenced by K.I.'s lengthy dissent. 2013 Mass. App. Div. at 29 (J, Pierce, dissenting) (concluding psychotherapist examining patient in connection with involuntary civil commitment should discuss patient's confidentiality limits). See, e.g., Commonwealth of Mass. Dist. Ct. Dept. of the Trial Ct. Standards of Judicial Prac., Civ. Comm. And Authorization of Med. Treatment for Mental Illness, No. 4-79 at 61 (December 2011), available at http://www.mass.gov/courts/docs/ forms/district/mental-health-standards.pdf (noting "the [section] 20B(a) exception is probably not available in civil commitment") (emphasis added); contra 53 Mass. Prac. Mental Health Law [section] 12.8 (2012) (stating that if proceeding is not court ordered, the threat of immediate harm exception is available).

(19) See supra note 11 (providing the facts of this note's hypothetical situation); see also discussion infra Section D (arguing the immediate threat of harm exception is applicable in involuntary civil commitments in Massachusetts).

(20) 4-20 Treatise on Health Care Law [section] 20.12 (Lexis 2014) ("Confidentiality ... [constitutes] ... privilege [protecting] ... against ... disclosure ... or as ... right [protecting] against ... invasions of individual privacy."). See infra note 24 (discussing codification of patient privacy law (HIPAA) because of privacy's importance as a societal value).

(21) See Cal. Evid. Code [section] 1014 (West 2012) (commenting on patient privacy's particular importance in the psychoanalysis context). The comment by the Senate Committee on Judiciary's Comment added that "[psychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient's life." Id. Therefore, due to the therapy's intimate nature, a patient seeking care would be reluctant to share all relevant information for the psychotherapist to make a correct diagnosis and treat the patient accordingly if disclosure of such embarrassing details could occur. Id. See also Sam A. Mackie, Proof of Unauthorised Disclosure of Confidential Patient Information by a Psychotherapist, 24 Am. Jur. Proof of Facts 3d 123 (updated 2014) (defining the treatment and the nature of psychotherapy).

(22) See In re Selser, 15 N.J. 393, 396, 403 (1954) (describing the attorney-client privilege as "ancient," dating back to 1577 England). Daniel A. Cantu, When Should Federal Courts Require Psychotherapists To 'Testify About 'Their Patients? An Interpretation of Jaffee v. Redmond, 1998 U Chi. Legal F. 375 (1998); see also Model Rules of Professional Conduct [section] 1.6 (2014) (providing mandatory "Confidentiality of Information" rule for attorneys); PARRY supra note 2, at 3-31 (summarizing a history of civil commitment proceedings); Michael Perlin, Law and Mental Disability, 1-9 (1994) (providing brief history of involuntary civil commitment); David B. Canning, Privileged Communications in Ohio and What's on the Horizon: Ohio House Bill 52 Accountant-Client Privilege, 31 Akron L. Rev. 505, 506-13 (1998) (summarizing a general history of privileges in the law).

(23) Jaffee v. Redmond, 518 U.S. 1, 4 (1996) (noting recognition of psychotherapist-patient privilege is result of states' legislative, and not judicial, action).

(24) Id. at 6, 12 (noting recognition of privilege "appropriate" for federal courts because each state had already done so). Prior to 1996, states separately adopted their own form of the privilege throughout the decades following the privilege's emergence in the 1950s. Id. at 12. The federal court policy is to allow "[s]tates [to] bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one." Id. at 12-13. Thus, when the Supreme Court faced the Jaffee decision, the Court reasoned that"[d]enial of the federal privilege ... would frustrate the purposes of the state legislation that was enacted to foster these confidential communications," and the federal psychotherapist-patient privilege was created. Id. at 13. In addition to the Jaffee decision of 1996, Congress passed the Health Insurance Portability and Accountability Act. See Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as various sections of Titles 18, 26, 29, and 42 of the United States Code) (hereinafter HIPAA). The purpose of this legislation was to "improve portability and continuity of health insurance coverage in the group and individual markets, to combat waste, fraud, and abuse in health insurance and health care delivery, to promote the use medical savings accounts, to improve access to long-term care services and coverage, [and] to simplify the administration of health insurance[.]" Id. HIPAA provisions must be read in conjunction with state privacy laws. See id. at [section] 1178(b). "Nothing ... shall be construed to invalidate ... procedures established under any law providing for ... investigation or intervention." Id. Therefore, despite HIPAA's enactment, each state has its own version of a confidential communications statute. See Ala. Code. [section] 34-26-2 (2013); Alaska Stat. [section] 08.29.200 (2012); Ariz. Rev. Stat. Ann. [section] 32-2085 (West 2013); Ark. Code. Ann. [section] 17-97-105 (2013); Cal. Evid. Code [section][section] 1012, 1014 (West 2012); Colo. Rev. Stat. [section] 12-43-218 (2013); Conn. Gen. Stat. [section][section] 52-146c, d (2013); Del. Code. Ann. tit. 16, [section] 5161 (2013); D.C. Code [section] 7- 1201.02 (1979); Fla. Stat. [section] 90.503 (2006); GA. CODE Ann. [section][section] 24-9-20 to -30 (Repealed by Laws 2011, Act 52, [section] 2, eff. January- 1, 2013); Haw. Rev. Stat. [section] 504-1 (2008); Idaho Code Ann. [section] 54-2314 (2013); 740 111. Comp Stat. 110/3 (1990); IND. CODE [section] 16-40-4-7 (West 2013); IOWA Code [section] 622.10 (2012); Kan. Stat. Ann. [section][section] 65-5810, 65-5603c (2012); Ky. Rev. Stat. Ann. [section] 216.515 (West 2005); La. Code Evid. Ann. art. 510 (2001); ME. Rules of Evidence, Rule 503 (2008); Md. Code Ann. Cts. & Jud. Proc. [section] 9-109 (2013); Mass. Gen. Laws ch. 233 [section] 20B (2000); Mich. Comp. Laws [section] 330.1750 (1996); Minn. Stat. Ann. [section] 144.294 (West 2007); Miss. R. of Evid. 501 (2005); Mo. Ann. Stat. [section] 354.515 (West 1997); Mont. Code. Ann. [section] 26-1-807 (West 2009); Neb. Rev. STAT. [section] 38-2136 (West 2007); Nev. Rev. Stat. [section] 49.209 (1995); N.H. Rev. Stat. [section] 316-A:27 (2005); N.J. Stat. Ann. [section] 45:14B-28 (1998); NMRA Rule 11-504 (West 2013); N.Y. C.P.L.R. [section] 4507 (Consol. 1984); N.Y. Mental Hygiene Law [section] 81.09(d) (McKinney 2011); N.C. Gen. Stat. Ann. [section] 8-53.3 (1999); N.D. Cent. Code Ann. [section] 25-03.1-43 (2011); Ohio Rev. Code Ann. [section] 4732.19 (West 2013); Olka. Ann. Stat. tit. 12, [section] 2503 (2009); OR. Rev. Stat. [section] 40.230 (1987); 42 PA. Cons. Stat. Ann. [section] 5944 (1989); R.I. Gen. Laws [section] 40.1-5-27.1 (2013); S.C. Code Ann. [section] 44-22-90 (1991); S.D. Codified Laws [section] 19-13-7 (2013); Tenn. Code Ann. [section] 24-1-207 (2000); Tex. Occ. Code Ann. [section] [section] 159.002, 159.003 (West 2011, 2005); Utah R. Evid, Rule 506 (West 2011); VT. Stat. Ann. tit. 12 [section] 1612 (West 2009) (proposed legislation); Va. Code Ann. [section] 8.01-400.2 (West 2005); Wash. Rev. Code. Ann. [section] 71.05.360 (West 2009) (proposed legislation); W. VA. CODE, [section] 27-3-2 (2007); Wis. Stat. Ann. [section] 905.04 (West 2010) (proposed legislation); Wyo. Stat. Ann. [section] 33-27-123 (West 2009).

(25) See supra note 24 (noting all fifty states have a confidential communications statute). Throughout this note, this psychotherapist-patient privilege will be referred to as the "psychotherapist-patient privilege" as it is called in Massachusetts, however, other states refer to similar privilege statutes as the psychologist-patient privilege or a similarly named privilege, such as a confidential communications statute. See People v. Dist. Court, Cnty. of Adams, 797 P.2d 1259, 1260 (1990)(referring to the privilege as a "psychologist-client privilege"). See also supra note 24 (listing the confidential communication statute in each state, which have differing titles). The Massachusetts legislature named the relevant statute "psychotherapist-patient privilege." Mass. Gen. Laws ch. 233 [section] 20B (stating title of statute as "Privileged Communications between Patients and Psychotherapists"). Massachusetts also has a psychologist-patient confidentiality statute. See infra notes 133 (providing the relevant language of Mass. Gen. Laws ch. 112 [section] 129A (2001)). Over time, the psychotherapist-patient privilege statute has included more and more mental health care professionals. Mass. Gen. Laws ch. 233 [section] 20B. For example, "psychotherapist" is further defined as follows:

   [A] person licensed to practice medicine, who devotes a substantial
   portion of his time to the practice of psychiatry.
   "Psychotherapist" shall also include a person who is licensed as a
   psychologist by the board of registration of psychologists; a
   graduate of, or student enrolled in, a doctoral degree program in
   psychology at a recognized educational institution as that term is
   defined in section 118, who is working under the supervision of a
   licensed psychologist; or a person who is a registered nurse
   licensed by the board of registration in nursing whose certificate
   of registration has been endorsed authorizing the practice of
   professional nursing in an expanded role as a psychiatric nurse
   mental health clinical specialist, pursuant to the provisions of
   section eighty B of chapter one hundred and twelve.


Id. However, the privilege is not inclusive of all mental health care professional. See, e.g., Jackie Gardina, The Nature and Extent of Privilege For Mental Health Professionals in Massachusetts, 84 Mass. L. Rev. 5, 21 (1999) (noting that courts "have essentially been unwilling" to extend the privilege to the agent of a professional, as defined under the statute). Massachusetts also has a specific psychologist-patient confidentiality exceptions statute, which cites to the psychotherapist-patient statute. See infra notes 132, 133. Compare Cal. Evid. Code [section] [section] 1012, 1014, with infra notes 33, 24 ("A broad privilege should apply to both psychiatrists and certified psychologists."), with Fla. Stat. [section] 90.503, with infra note 34, and infra note 54 (noting "the privilege should be disallowed to protect the patient and society."). See also Boyd Isherwood, The Psychologist-Patient Privilege: Time for a Change in Kansas, or Is It All in Our Heads? 37 Washburn L. J. 659, 692 (1998"|T]he extent of protection [of privilege] in each state is far from uniform.").

(26) See supra note 24 (providing each state's equivalent statute to the Massachusetts' psychotherapist-patient privilege statute). Some states even treat the psychologist-patient privilege statute the same as their attorney-client privilege. See infra note 29 (citing several state statutes that treat attorney-client and psychotherapist-patient similarly). See also Parry, supra note 2, at 417 (noting "other exceptions to provider-patient privileges vary by state").

(27) See, e.g., Mass. Gen. Laws ch. 233 [section] 20B (citing amendments in 1974, 1977, 1985, 1986, 1987, 1989 1990, and 2000). See also Parry, supra note 2, at 415 (noting "the scope and number of waivers and other exceptions ... have increased over the years"). First, however, it is important to differentiate the terms waiver and privilege from one another because each term signifies a different manner in which a right to privileged communication is stayed although the terms are often used interchangeably. See id. at 415-16. A waiver of a privilege is a patient's overt act that suspends the protection the privilege would otherwise provide, such as by placing the protective information at issue as either a defense or claim in a legal proceeding. Id. at 415. On the other hand, an exception excludes certain circumstances or situations from the privilege's protection. Id.

(28) See, e.g., Tex. Occ. Code Ann. [section] 159.002. "[C]ommunication ... in connection with ... professional services as a physician to ... patient, is confidential." Id.

(29) See supra note 24 (citing each state's own psychotherapist-patient privilege or similarly formed statute). Twenty states and the District of Columbia specifically list "compelled hospitalization" or "involuntary civil commitment" as exceptions to the state's psychotherapist-patient privilege statute. See supra note 24. These states include: Alaska, Colorado, Florida, Hawaii, Iowa, Kansas, Maine, Mississippi, New Jersey, New Mexico, New York, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin. See supra note 24. Other states allow disclosure of otherwise privileged communication if the purpose behind the disclosure stems from the mental health professional's duty to warn a third party of an impending threat. See e.g., Neb. Rev. Stat. [section] 38-2136 (2008). Some states, like Louisiana, allow disclosure but require that the patient be warned that his communications are not confidential. See LA. Code Evid. Ann. art. 510 (2005). Several others treat the privilege the same as the attorney-client privilege. See Ala Code [section] 34-26-2 (2010); Ariz. Rev. Stat. Ann. [section] 32-2085 (2012); Ark. Code. Ann. [section] 17-97-105 (2010); Mont. Code. Ann. [section] 26-1-807 (2013); supra note 38. See also Perlin, supra note 22, at 104 (stating "courts are split" as to whether the privilege "applies to ... involuntary civil commitment").

(30) See supra note 25 (comparing California, a state not permitting disclosure, and Florida, which explicitly does). See also Perlin, supra note 22, at 104. Perlin notes that in some states, "the privilege does not apply to information obtained and records prepared in the course of an evaluation ... [for] the court may determine[] that the information in question is needed to come to an 'informed decision' as to whether or not commitment should be ordered," while in others "the privilege has been held specifically applicable to the involuntary civil commitment context." Id. at 104-05. See also Cantu, supra note 22, at n.73. "A majority of states allow otherwise confidential information to be used (1) in involuntary civil commitment." Id. See also Parry, supra note 2 at 467 (defining civil commitment); See id. at 467 (acknowledging civil commitment may be categorized differently state to state). There are different types of civil commitment including voluntary, third-party, extended involuntary, short-term involuntary, recommitment, and outpatient/conditional release. Id. For purposes of this note, the hypothetical petitioning psychotherapist introduced at the beginning of this note is seeking short-term involuntary commitment, but this note will refer to the patient's commitment as involuntary civil commitment generally. See supra note 1.

(31) See Perlin, supra note 22, at 6.

(32) See Parry, supra note 2, at 473 (noting extended involuntary standards are often the jurisdiction's standards for other commitment types).

(33) See, e.g., Ala Code [section] 22-52-10.4 (Supp. 2012) (requiring mental illness and potential for present and ongoing physical danger); Ariz. Rev. Stat. Ann. [section] 36-540 (A) (Supp. 2012) (requiring mental illness and potential for physical danger to patient or others); Cal. Welf. & Inst. Code [section] 5250 (1998) (requiring mental illness and/or grave disability and potential for physical harm); R.I. Gen. Laws [section] 40.1-5-2 (2006) (requiring substantial risk of physical harm); Wash. Rev. Code Ann. [section] 71.05.240 (Supp. 2013) (requiring, after considering less restrictive measures, mental disorder and/or likelihood of physical harm). See also Parry, supra note 2, at 473 (listing 44 jurisdictions that include this first criteria).

(34) See supra note 33 (citing state statutes requiring patient be deemed allegedly mentally ill). See also Parry, supra note 2, at 474. Parry notes that 19 states employ the term "grave disability," 9 states incorporate future harm, and 23 jurisdictions require that the dangerous element found actually link to the first criteria, the diagnosed mental illness. Id.

(35) See e.g., Wyo. Stat. Ann. [section] 25-10-1100 (2013) (requiring court to consider least restrictive and most therapeutic measures); Del. Code. Ann. tit. 16 [section] 5010 (2012) (requiring court to impose measures least restrictive to patient's liberty and dignity); Ky. Rev. Stat. Ann. [section] 202A.026 (2013) (requiring court impose least restrictive form of treatment). See also People v. District Court, County of Adams, 797 P.2d 1259, 1263 (Colo. 1990). The County of Adams court noted that one of the aims of the Colorado's statute regarding the care and treatment of mentally ill individuals is to "deprive a person of liberty for purposes of care and treatment only when less restrictive alternatives are unavailable and only when the person's safety or the safety of others is endangered." Id.

See also Parry, supra note 2, at 475 (emphasizing standard as requirement in 26 states). More than anything, this requirement determines "if, where, and under what conditions" the state commits the respondent. Id.

(36) Usen v. Usen, 359 Mass. 453, 457 (1971). "The 1968 statute ... [has] been modeled on a statute enacted in Connecticut in 1961." Id.; see also Conn. Gen. Stat. [section] 52-146c (2013). The Connecticut statute has since been amended in 1982, 1989, and 1992. Id.

(37) Conn. Gen. Stat. [section] 52-146c (2013).

(38) Id. "Except as provided ... in civil ... actions, in juvenile, ... commitment ... proceedings ... all communications shall be privileged." Id. Compare Mass. Gen. Laws ch. 233 [section] 20B (Supp. 2013). "[I]n any court proceeding ... in any proceeding preliminary ... in legislative ... administrative proceedings ... patient [has] ... privilege." Id.; see also Commonwealth v. Brandwein, 435 Mass. 623 (2002). The Brandwein court noted that "unambiguous wording of [section]20B specifies ... only grants ... evidentiary privilege within ... course of a proceeding. " Id. at 629.

(39) Alberts v. Devine, 395 Mass. 59, 69 (1985). However, to raise the privilege, the patient must make an objection. Commonwealth v. Benoit, 410 Mass. 506, 517 (1991). The mere existence of the statute does not disqualify a mental health provider from testifying. Id. Only the patient, the mental health provider, or the patient's guardian or estate executor may assert the privilege. In re Adoption of Diane, 400 Mass. 196 (1987) (noting a patient or guardian can raise privilege); Commonwealth v. Kobrin, 395 Mass. 284 (1985) (explaining a psychiatrist called before grand jury with patient's records could invoke privilege); District Attorney for the Norfolk Division v. Magraw, 417 Mass. 169 (1994) (explaining an executor of estate permitted to waive privilege on behalf of decedent patient).

(40) Mass. Gen. Laws ch. 123 [section] 36B (Supp. 2013) (imposing duty on mental health professional in certain situations). Although generally, mental health providers do not owe a duty to third parties in Massachusetts, a duty arises where a patient made an explicit threat to kill or inflict serious bodily injury on a reasonably identified victim coupled with the patient's apparent ability and intent to effectuate the threat. Id. See also Shea v. Caritas Carney Hosp., Inc. 79 Mass. App. Ct. 530, 536 (2011) (rephrasing from statute's plain language limited circumstances when mental health professionals have duty to warn). The patient must have a "history of physical violence" of which the mental health provider is aware, and the patient must also represent a "clear and present danger." Mass. Gen. Laws ch. 123 [section] 36B (Supp. 2013). The mental health professional will be held liable if she fails to take "reasonable precautions" as defined by Mass. Gen. Laws ch. 123 [section] 1 (2010); see infra notes 131, 133 (providing the statute's full text). See also Mass. Gen. Laws ch. 123 [section] 36B (2013); infra note 129. Under the reasonable precautions statute, a mental health professional has taken reasonable precautions to avoid the harm if he does at least one of the following: 1) communicate the patient's threat to the identified victim or victims; 2) notify law enforcement in the area in which the patient lives; 3) arrange for the patient to be voluntarily hospitalized; or 4) take appropriate steps to arrange for the patient's involuntary hospitalization. Id. See also Parry, supra note 2, at 49 (noting dangerousness, despite multiple definitions, encompasses three elements of risk: "severity, probability, and imminence"). See Mental Health Professionals' Duty to Protect/Warn, National Conference of State Legislatures, January 2013, available at http://www.ncsl.org/research/heaIth/mental-health-professionals-duty-towarn.aspx (showing a map of differing laws requiring disclosure of information relating to dangerousness).

(41) See supra note 40 (listing "clear and present danger" requirement); see generally Parry, supra note 2, at 664-82 (discussing dangerousness collectively, dangerousness to self, and dangerousness to others).

(42) See In Re Guardianship of Roe, 383 Mass. 415, 448-49 (1981) (citing suicide prevention as an important state interest). The Roe court summarized several state interests that supersede individual liberties quoting from Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, (1977). Id. These interests include "(1) the preservation of life; (2) the protection of the interests of innocent third parties; (3) the prevention of suicide; and (4) maintaining the ethical integrity of the medical profession." Id. The Roe court also noted that the most important state interest, the preservation of life, did not come into play in this particular case because "[t]here was no evidence that the ward was suicidal." Id. at 450. See also Parry, supra note 2, at 673 (noting that suicidality is most pertinent in involuntary civil commitment proceedings); see infra note 90 (discussing suicide or threatening suicide as a clear instance in which the threat of immediate harm exception to the privilege should be used). Risk factors, such as depression, are viewed as "vague indications" of a risk of suicide, which would not meet the clear and convincing evidence standard needed to involuntarily hospitalize the patient. Parry, supra note 2, at 673. However, a patient's overt attempt at taking his own life, or threatening suicide could raise to the level of sufficiently clear and convincing evidence to warrant involuntary commitment. Id. In the same vein, Massachusetts, both historically and currently, has not recognized an individual's right to die. Stephen J. Orlando, The Doctor Will See You for the Last Time Noun Physician-Assisted Suicide in Massachusetts, 46 Suffolk U. L. Rev. 243, 243 (2013). "Massachusetts is in line with the majority of states in prohibiting [physician assisted suicide]." Id. In the context of involuntary commitment to prevent suicide, it follows that the legislature has not understood the taking one's life as one of the freedoms protected by the Fourteenth Amendment. But see Adam J. Falk, Sex Offenders, Mental Illness, and Criminal Responsibility: The Constitutional Boundaries of Civil Commitment After Kansas v. Hendricks, 25 Am. J. L. Med. 117, 120 (1999) (stating that civil commitment implicates a deprivation of liberty). Similarly, if presented with an emergency situation, medical care professionals can act to save a patient's life even if the patient cannot give consent. Mohr v. Williams, 95 Minn. 261, 269 (1905).

(43) See Mass. Gen. Laws ch. 233 [section] 20B(a)-(f2000); Conn. Gen. Stat. [section] 52-146c(c)(l)-(61992).

(44) See Mass. Gen. Laws ch. 233 [section] 20B(a). The immediate threat of harm exception provides:

   If a psychotherapist, in the course of his diagnosis or treatment
   of the patient, determines that the patient is in need of treatment
   in a hospital for mental or emotional illness or that there is a
   threat of imminently dangerous activity by the patient against
   himself or another person, and on the basis of such determination
   discloses such communication either for the purpose of placing or
   retaining the patient in such hospital, provided however that the
   provisions of this section shall continue in effect after the
   patient is in said hospital, or placing the patient under arrest or
   under the supervision of law enforcement authorities.


Id.; see also Gardina, supra note 25 (describing situations in which patients can invoke psychotherapist-patient privilege). Gardina describes the psychotherapist-patient privilege as one that arises in situation in which a "psychotherapist or social worker believes the client is a threat to himself or herself or others and is in need of treatment in a hospital or in need of the supervision of law enforcement authorities [then the communication is not privileged]." Gardina, supra note 25 at.21. The court-ordered examination exception provides that:

   If a judge finds that the patient, after having been informed that
   the communications would not be privileged, has made communications
   to a psychotherapist in the course of a psychiatric examination
   ordered by the court, provided that such communications shall be
   admissible only on issues involving the patient's mental or
   emotional condition but not as a confession or admission of guilt.


Id. See also supra note 18 (juxtaposing contrary predictions regarding whether immediate harm threat exception is applicable in civil commitment proceedings).

(45) Mass. Gen. Laws ch. 123 [section][section] 7, 8 (2013).

(46) Id. See also 104 Mass. Code Regs. 27.05 (2013). The code defines mental illness in the involuntary civil commitment context as one that is determined to be a "substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life," excluding substance abuse. Id.

(47) Mass. Gen. Laws ch. 123 [section] 7 ("superintendent may petition ... court ... for ... commitment ... [of patient] who[] ... would create ... likelihood of serious harm"); see also Commonwealth v. Nassar, 380 Mass. 908, 917 (1980). "]A]11 concerned in ... law and its administration should strive ... [for] ... the least burdensome or oppressive controls." Id. A hearing on the petition must take place within five days of the petition's filing. Mass. Gen. Laws ch. 123 [section] 7(c). If this time limit is not honored, any subsequently entered involuntary commitment order can be vacated. Id. (stating "the hearing shall be commenced within 5 days of the filing of the petition").

(48) See Superintendent of Worcester State Hosp. v. Hagberg 374 Mass. 271, 276 (1978) ("we think the standard of proof beyond a reasonable doubt applies"). The court reasoned that in involuntary civil commitment, the fact finder should determine whether a patient should be committed or not by using the proof beyond a reasonable doubt standard rather than the standard of '"clear and convincing proof." Id. at 272. Traditionally, the '"clear and convincing proof" standard was the standard used because "in civil cases [like involuntary commitment proceedings] ... [it] related to findings and rulings of a judge rather than a jury, principally involving attempts to prove by oral evidence matters ordinarily required to be proved by written evidence." Id. at 275. The proof beyond a reasonable doubt standard, on the other hand, is "probably pretty' well understood, but not easily defined." Criminal Model Jury Instruction 2.180--Reasonable Doubt, Massachusetts Continuing Legal Education (3d ed., 2d supp., 20132009). The jury in a criminal trial is charged with the following definition of proof beyond a reasonable doubt at a trial's closing: "Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, for everything in the lives of human beings is open to some possible or imaginary doubt.... A charge is proved beyond a reasonable doubt if, after you have compared and considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true." Id. The Hagberg court noted that "modern cases ... treat clear and convincing proof as less demanding than proof beyond a reasonable doubt" despite the fact that the court has "sometimes treated" the two standards as the same. Hagberg 374 Mass, at 275. In Hagberg, the petitioning facility, Worcester State Hospital, sought to commit the defendant, a seventy-year old woman unable to care for herself, who, as such, allegedly posed a danger to herself. Id. at 272-73. The court reasoned that while not confronting the same stigma as a criminal facing a guilty finding, "the defendant stood to lose her freedom and to be labeled mentally ill." Id. at 276. Thus, the court concluded, the stricter standard of "proof beyond a reasonable doubt," more associated with criminal rather than civil cases also applies in civil commitment proceedings. Id.

(49) Mass. Gen. Laws ch. 123 [section] 8(d) (1992).

(50) See supra note 29 (noting 18 states and DC have statutes explicitly listing involuntary civil commitment as exception to privilege). See also Gardina, supra note 25 (standing for proposition that privilege does not extend to patients in need of hospitalization).

(51) See Fla. Stat. Ann. [section] 90.503, (2006). "The language ... provides that ... psychotherapist need only have 'reasonable cause to believe' ... patient requires hospitalization." Id. See supra note 24 (citing each state's confidential communications statute). See also Parry, supra note 2 at 415-16, 418 (describing "[e]xigent public health and safety concerns also may create a cognizable exception").

(52) See supra note 25 (quoting California statute's judiciary comment refusing to jeopardize important psychotherapist-patient relationship). Even though states recognize the privilege as qualified, some states such as New Hampshire, as an example, view the psychiatrist-patient communication as integral in protecting the patient's privacy, effectuating a successful outcome of the patient's treatment, and preventing mentally ill individuals from fearing to seek mental health care in the form psychotherapy. In re Kathleen M., 126 A.2d 379, 475 (N.H. 1985). See also Perlin, supra note 22 at 6; 4-20 Treatise on Health Care Law [section] 20.12 (Lexis 2013).

(53) See e.g., Mass. Gen. Laws ch. 233 [section] 20B(c) (2013). "In any proceeding ... which ... patient introduces his mental or emotional condition as ... claim or defense." Id. See also supra note 24 (listing each state's comparable statute); Cantu, supra note 22, at n. 383-84.

(54) See e.g., Fla. Stat. Ann. [section] 90.503; supra note 24; Perlin, supra note 22, at 104 (noting Florida statute allows suspension of privilege in court-ordered examinations where patient warned). See also Parry, supra note 2 at 418.

(55) See, e.g., People v. Dist. Court, Cnty of Adams, 797 P.2d 1259, 1267 (Colo. 1990) (explaining "so long as such [expert] testimony is necessary to an informed decision [disclosure is permitted].") See also Sam A. Mackie, J.D., Proof of Unauthorised Disclosure of Confidential Patient Information by a Psychotherapist, 24 Am. Jur. Proof of Facts 3D 123 (1994); 4-20 Treatise on Health Care Law [section] 20.12(d) (Lexis 2013) ("person most knowledgeable ... will be ... treating physician, [therefore] jurisdictions have exceptions to ... privilege.").

(56) See infra note 57 (providing various sources stating disclosure is necessary to determine whether court should order commitment).

(57) See In Re Guardianship of Roe, 383 Mass, at 452; see also supra note 42 (stating that the least intrusive means requirement stems from the right to privacy). See also Perlin, supra note 22, at 105. (discussing disclosure privilege in different situations).

(58) Fla. Stat. [section] 90.503(4)(a). The Florida statute demonstrates that "]t]here is no privilege ... [f]or communications relevant to an issue in proceedings to compel hospitalization.... " Id.

(59) Id. at legislative note (4)(a). Another example of placing the safety of the public over individual liberty interests emerges in other areas of legislation as well such as the clash between criminal background checks and HIPAA, as an example. See HIPAA Privacy Rule and the National Instant Criminal Background Check System (NICS), 78 Fed. Reg. 23872 (proposed Apr. 23, 2013) (placing public safety over otherwise protected identity of involuntary committed patient); supra note 24 (discussing HIPAA generally). See also Parry, supra note 2 at, 49 (defining dangerousness).

(60) See Fla. Stat. [section] 90.503(4)(a)-(c).

(61) See People v. Dist. Court, County, of Adams, 797 P.2d 1259, 1266-67 (Colo. 1990). The court made an absolute ruling regarding the statute, Colo. Rev. Stat. [section] 13-90-107 (2013), which states that otherwise privileged testimony of a treating mental health professional is admissible in order to determine if an individual should be committed. Id. "Psychologist" and "psychotherapist" are treated the same under the statute. Id.

(62) People ex rel. Adams v. Acrish, 133 A.D.2d 873 (N.Y. 1987) (holding the patient's whole hospital record is admissible in a civil commitment proceeding). See also N.Y. Mental Hyg. Law [section] 9.27 (McKinney 2007) (discussing involuntary admission on medical certification). Louisiana, North Carolina, and Pennsylvania serve as additional examples. See B.W. Best, Annotation, Privilege, in Judicial or Quasi-Judicial Proceedings, Rising from Relationship Between Psychiatrist or Psychologist and Patient, 44 A.L.R. 3d 24 (1972), (citing Re Deville, 610 So. 2d 1070 (La App. 3d Cir. 1992) (holding privilege inapplicable to bar admission of records and testimony), Re Farrow, 41 N.C.App. 680 (1979) (holding physician-patient privilege in statute is inapplicable to civil commitment proceedings), and Commonwealth ex rel. Platt v. Platt, 404 A.2d 410 (Pa. Super. Ct. 1979) (holding that patient's right to privacy was required to give way to interests of society).

(63) See In Re Guardianship of Roe, 421 N.E.2d 40, 43 (Mass. 1981) (discussing certain interests taking priority of an individual's liberty and right to privacy); supra note 59, infra notes 75 and 78 (addressing the issue of society's safety over importance of confidential communication). See also Parry, supra note 2 at 440-44 (discussing wrongful death by suicide, failure to protect third parties, and provider's ensuing liability). Parry discusses how "wrongful death by suicide has been one of the more frequently files psychiatric malpractice claims. Id. at 440.

(64) Commonwealth v. Lamb, 365 Mass. 265, 265 (1974). The Lamb decision created what are known as "Lamb warnings." Id. The warning requires that the mental health provider explain to the patient that for purposes of a court ordered examination, the privilege will not protect the patient's communications. Id. In re Laura L., 54 Mass. App. Ct. 853 (2002) (concluding judge's admitting evidence without court appointed psychologist giving knowing Lamb warnings violated privilege). Mass. Gen. Laws ch. 233 [section] 20B(b). "[I]f a judge finds that the patient, after having been informed that the communications ... not ... privileged"; Lamb, 365 Mass, at 269. The court held that a court-ordered interview between psychotherapist and patient was within "exclusive ambit of [the court-ordered examination exception]"; In re Laura L., 54 Mass. App. Ct. at 854; Dep't of Youth Servs. v. A Juvenile, 398 Mass. 516, 524-25 (1986) (holding admission of psychiatrist's diagnosis error where juvenile was not warned according to Lamb Rule). See Peter M. Lauriat and James F. McHugh, Massachusetts Expert Witness [section] 22.2.7 (2013). The Lamb, In re Laura and Dept. Youth Serv's, holdings regarding court ordered examinations in the court-ordered examination exception have created confusion with respect to the immediate threat of harm exception, which states that although the threat of immediate harm exception "would seem ... inapplicable in civil commitment proceedings ... case law suggests otherwise." Id. (suggesting requirement to give Lamb warnings applies whether or not examination is court ordered). Compare with Commonwealth v. Seabrooks, 433 Mass. 439, 450-51 (2001) and K.I., 2013 Mass. App. Div. at 15, supra note 10. However, the court more recently held that the warning provided for in the court-ordered examination exception is not applicable where the mental health provider assessed a defendant's suicidality, the examination was neither court ordered nor sought by the prosecution, and was not conducted in anticipation of a future proceeding where the defendant's mental health would be at issue. See infra discussion Part D (highlighting Seabrooks and K.I. as case law correctly distinguishing between both exceptions). See also infra note 75 (acknowledging that some states require warning in court-ordered examinations)

(65) See supra notes 51, 59, 67, and infra note 86 (discussing the creation and application of warnings the court-ordered examination exception requires). The prevention of a "substantial likelihood of a miscarriage of justice" motivates this warning requirement. See supra note 64 (citing In re. Laura L., Dept. Youth Servs., and Seabrooks).

(66) See supra note 64 (discussing Seabrooks).

(67) Seabrooks, 433 Mass. 439-40.

(68) Id. at 440.

(69) Id. at 450 (noting "examinations were not ordered by the court or sought by the prosecution"). See also infra notes 99-118 and accompanying text (further discussing the Seabrooks court's reasoning behind its holding).

(70) Walden Behavioral Health v. K.I., 2013 Mass. App. Div. 34, 1 (2013); see also supra notes 10, 17, and 64 (discussing privileged communications between patients and psychotherapists and when privileges do not apply). See also infra notes 111-118 (discussing the Seabrooks reasoning and its relevance to the K.I. decision).

(71) K.I., 2013 Mass. App. Div. at 1-2.

(72) Id. at 13.

(73) See supra notes 14, 44 (listing exception to privilege provided by Mass. Gen. Laws ch. 233 [section] 20B(a) (2000)).

(74) See Lamb, 365 Mass. 265 at 268. The court comments that the "Legislature's intent" regarding the threat of immediate harm exception is to stay privilege when the imminent threat emerges of an individual "who should be in custody will instead be at large." Id. Thus, the legislature's intent with respect to the exception to the statute provided for in subsection (a) serves to protect the public. Id.

(75) See also Perlin, supra note 22, at 16-17 (stating "civil commitment is employed to vindicate societal interests"). These interests include both the "protection of others from the mentally ill," and also "the protection of the mentally ill persons' own health and welfare." Id. at 16. See also infra notes 58-59 and accompanying text (discussing public safety concerns superseding confidentiality's importance in mental health care provider-patient relationship).

(76) See Lamb, 311 N.E.2d at 49-51. The court stated that in reading the statute in its entirety, the construction "deems a court-ordered interview between a psychotherapist and a patient ... to be within the exclusive ambit of [the court-ordered examination exception]." Id. at 50. The court then distinguishes the court-ordered examination exception from the threat of immediate harm exception by stating the court-ordered examination exception's "policy." Id. This policy is to allow a court to ordered examination to use an expert's psychiatric evidence. Id. Because the legislature recognizes "certain risks for the person to be examined," it created the notice requirement so that the patient is informed that the privilege will not apply in a court ordered examination situation. Id. The Lamb court concluded that the necessity of this requirement is particularly important in a case such as the one it faced at bar because the patient ran "the risk of commitment as a sexually dangerous person" based on what he said in an interview "which in the normal course of affairs would be accorded confidentiality." Id. See also supra notes 14, 15, and accompanying text (juxtaposing the two different circumstances in which the threat of immediate harm exception and the court-ordered examination exception come into play).

(77) See supra note 44 (citing the court-ordered examination exception in its entirety).

(78) See supra notes 35, 51 (discussing preference of society's safety over privileged communications); see also infra note 79.

(79) See supra note 44 (quoting the threat of immediate threat of harm exception).

(80) See supra note 44 (quoting text of exception from court-ordered examination exception of Mass. Gen. Laws ch. 233 [section] 20B). See also Parry, supra note 2, at 604 (defining court ordered examination as "courts ... commissioning evaluations in the interests of justice"). See also id. at 467 (defining civil commitment as "legal process for admitting patients into mental hospitals and ... similar facilities"). The former constitutes court action by commissioning an order, while the latter is an avenue of protection of important state interests available to a state or a particular facility. Id. See also Standards of Judicial Prac.: Civ. Comm. and Authorization of Med. Treatment for Mental Illness, No. 4-79 at 20-21 (Commonwealth of Mass. Dist. Ct. Dept, of Trial Ct. 2011) (listing standards and rules for facilities filing petitions); Mass. Gen. Laws ch. 123 [section] 7(a) (2012) (noting a "superintendent of a facility may petition the district court"); 104 Mass Code Regs. [section] 25.03 (limiting actors who can file petitions for civil commitment to medical or similar directors); Baybridge Hospital v. Jackson, 2010 Mass. App. Div. 12, 1-2 (Mass. App. Ct. 2010) (defining authority of facility directors to petition district court).

(81) See supra note 44 (supplying text of immediate threat of harm and court-ordered examination exceptions).

(82) See supra note 44.

(83) See supra note 44. See also discussion infra Part D (arguing that emergency triggers immediate threat of harm exception, temporarily suspending privilege).

(84) See discussion infra Part D, 1-4 (discussing emergency and custody in civil commitment, discernible from plain language reading of statute).

(85) See supra note 1 and accompanying text. The hypothetical situation at the beginning of this note described the patient as having repeatedly communicated the same, precise plan to end his life. See supra note 4 and accompanying text. See also Linda Matchan, Suicide Attempt-Survivors Go Public In Hope of Aiding Many At Risk, Boston Globe, (May 13" 2014), http://www.boston globe.com/lifestyle/style/2014/04/28/suicide-attempt-survivors-speak-about-their-experienceshoping-reach-those- risk/ffrjBg4qQPLHlvi9srqKBP/story.html (listing recent suicide statistics in the United States). Matchan notes, "[t]he Centers for Disease Control and Prevention lists suicide as the 10th leading cause of death in the United States. In 2010, the last year for which there are national statistics, there were 38,364 suicides in the United States. According to a 2012 CDC report, more than 1 million adults attempt suicide each year, and an estimated 2.2 million reported making suicide plans in the previous year." Id. See also Lesley Russell, Mental Health Care Services In Primary Care: Tackling the Issues in the Context of Health Care Reform, Center for American Progress, 1, 3 (Oct. 2010), available at http://www.americanprogress.org/issues/ 2010/10/pdf/mentalhealth.pdf. Russell states that "80 percent to 90 percent of people who die by suicide are suffering from a mental illness" and that "on average, the higher the number of psychiatrists, psychologists, and social workers per capita in a state, the lower the suicide rate." Id. at 9; National Alliance on Mental Illness, Teenage Suicide, http://www.nami.org/ Content/ContentGroups/Helplinel/Teenage_Suicide.htm (last visited May 13, 2014).

(86) See Mohr v. Williams, 95 Minn. 261, 270 (1905) (holding physician liable for assault and battery because no emergency existed to override patient's consent). This doctrine is often applied in medical malpractice cases, where an emergency can override the physician's duty to obtain informed consent. Id.

(87) See id.

(88) See id. at 269-70.

(89) See supra notes 73, 74 and accompanying text (discussing inherent problem with physician's testimony as only evidence regarding patient's mental health).

(90) See Mass. Gen. Laws ch. 233 [section] 20B(a) (acknowledging "imminently dangerous activity by the patient against himself," as grounds for staying privilege). See also supra note 1 (describing such a situation in the hypothetical patient narrative). The statute only requires that either the patient be in need of treatment or that he pose an imminent threat to himself or others. Mass. Gen. Laws ch. 233 [section] 20B. The legislature's provision for either situation demonstrates its desire to protect both the mentally ill individual and the public. Id. By incorporating in the statute that either situation triggers an exemption to the privilege, the legislature casts a larger net than if it required that an individual had to both present an emergency situation and require care. Id. Additionally, that the legislature requires only a "threat," and not an actual attempt at causing harm to oneself or to another further demonstrates that the legislature intent to provide for a broader range of circumstances in which a mentally ill individual, or members of the public, could be in danger. Id. For example, if the statute specifically required a showing that an individual attempt harm before the petitioning facility could breach the privilege, it would minimize the circumstances in which the privilege could be breached because a mere threat in that instance would not constitute a showing of an attempt of harm under the statute. Compare Mass. Gen. Laws ch. 233 [section] 20B(a), supra note 44 (providing immediate threat of harm exception of privilege statute). Courts have, rather, understood every word in a statute to possess meaning and therefore, must give those words effect. Commonwealth v. Gove, 366 Mass. 351, 354 (1974) (explaining that "fn]o portion of the statutory language may be deemed superfluous."). Therefore, since a statute's language "should constitute the principal source of insight into legislative purpose," the fact that the legislature included either a threat or a need for treatment remains demonstrative of the legislature's intent to provide for a broad range of possibilities in which the individual or the public would need the protection the breach of the privilege provides. Id.

(91) See Russell, supra note 85 (highlighting that mental health providers' involvement directly corresponds to a lower likelihood of patient suicide).

(92) See supra note 84 (discussing the issue of custody). See also infra notes 108, 112, 122, and infra discussion Part D, (arguing that custody eliminates the presence of emergency).

(93) See supra note 90 at 267-68 (agreeing with appeals courts that court-ordered examination exception applies specifically to court ordered examination).

(94) See Commonwealth v. Lamb, 365 Mass, at 267-69; supra note 64 (discussing Lamb warnings).

(95) Commonwealth v. Lamb, 1 Mass. App. Ct. 530, 534 (1973) ("[T]he subject is already a prisoner under sentence and supervision at the time proceedings ... commenced."). The defendant was previously committed as a sexually dangerous person for an indeterminate statutory period of one day through life to a treatment center. Id. at 530. The appeals court stated, and the SJC later agreed, that despite the lack of legislative history available with respect to the threat of immediate threat of harm exception, the exception's concluding clause, "or placing the patient under arrest or under the supervision of law enforcement officers, ... appears to contemplate a patient who is or is about to be at large." Id at 534 (internal citations omitted). See also supra note 70 (discussing Lamb's distinction between the immediate threat of harm and court-ordered evaluation exceptions). The appeals court concluded that because the defendant was already in custody and sentenced, only the court-ordered examination exception applied, Lamb, 1 Mass. App. Ct. at 535.

(96) Lamb, 365 Mass, at 268 (differentiating threat of immediate harm emergency exception from all other situations where privilege remains).

(97) Id at 266.

(98) Id. at 270-71. See supra note 65 (defining and discussing "miscarriage of justice").

(99) See Dep't of Youth Servs. v. A Juvenile, 398 Mass. 516, 517, 524-25 (1986) (ruling that juvenile already sentenced and in custody should have received Lamb warnings); In re Laura L., 54 Mass. App. Ct. 853, 855 (2002) (asking DSS attorney to apply for warrant of apprehension for defendant after she threatened court). A judge issues a warrant of apprehension where, in his discretion, a person's conduct triggers the necessary or proper response of detention. Rosemary B. Minehan & R. Marc Kantrowitz 53 Mass. Prac. Mental Health Law [section] 7.31 (2012). The purpose of the warrant is first to detain the individual and then bring him or her immediately before the judge. Id.

(100) See Dep't of Youth Sens., 398 Mass, at 517-18; In re Laura L., 54 Mass. App. Ct. at 853-54; supra note 64 (discussing the facts of each case and why the court-ordered examination applied). See also infra notes 102-110 and accompanying text (providing court's reasoning determining why court-ordered examination exception applied to Lamb and its progeny). Although the Seabrooks defendant was already in custody at the time of his examination by the forensic psychologist, he had been placed on suicide watch unlike the defendants. Commonwealth v. Seabrooks, 433 Mass. 439, 466 (2001). The court's reasoning further distinguishes the Seabrooks defendant's examination in custody with the examination of the Lamb, Dep't of Youth Servs., and In re Laura L defendants by stating that the Seabrooks defendant's examination was also "not conducted in anticipation of a future proceeding in which the defendant's mental capacity would be at issue." Id. at 450-51. In Iamb, the defendant's mental health was again at issue to determine if he should still be deemed a sexually dangerous person and therefore remain in detention. 365 Mass, at 265-66. Likewise, in Dep't of Youth Sens., the court also ordered that the defendant be assessed for the purpose of determining whether he was still la threat to the community as a sexually dangerous person. 398 Mass, at 517. Lastly, in In re Laura L, her mental health was placed at issue because the court had to determine her suitability as a fit parent. 54 Mass. App. Ct. at 855. See also supra note 64 and infra notes 103-110 and accompanying text (discussing the significance of a patient's mental health at issue in a future proceeding).

(101) Compare supra note 44 (restating both of the threat of immediate harm exceptions) with Seabrooks, 433 Mass, at 450-51 (holding court-ordered examination exception inapplicable where defendant evaluated for immediate threat to self); see also supra note 64 (distinguishing between assessing defendant specifically for immediate threat of harm to self and court evaluation).

(102) Compare supra note 1 with supra notes 99-100 and accompanying text.

(103) Dep't of Youth Sens., 398 Mass, at 517.

(104) Id.

(105) Id. at 525; see also supra note 64 (discussing Lamb warnings).

(106) In re Laura L., 54 Mass. App. Ct. 853, 860 (2002).

(107) Id. at 855.

(108) Id. at 855.

(109) Id. at 856 (quoting psychologist's notes that defendant's understanding of the Lamb warning '"appeared somewhat impaired").

(110) See supra notes 1-5 and accompanying text. See also K.I., 2013 Mass. App. Div. at 1. The hypothetical patient at the beginning of this note was not charged with a crime and was not in custody; instead, he sought treatment, through which his suicidal ideations surfaced, and described to his psychotherapist a specific manner in which he would terminate his life. Id. See also supra note 95 (describing facts of Lamb and its progeny as criminal defendants in state custody).

(111) Commonwealth v. Seabrooks, 433 Mass. 439, 449 (2001).

(112) Id. at 448-49.

(113) Id. at 449.

(114) Id. at 450.

(115) Id. at 450-51.

(116) Id. at 451.

(117) Seabrooks, 433 Mass, at 451. See also supra notes 74, and 75 (discussing the common purpose shared by Mass. Gen. Laws ch. 233, [section] 20B(b) and involuntary civil commitment proceedings under Mass. Gen. Laws ch. 123, [section][section] 7, 8).

(118) See supra note 1 (discussing the case upon which this note's hypothetical is based).

(119) K.I., 2013 Mass. App. Div. at 2, 3 (stating in case facts that patient undergoing treatment at private facility and not criminal defendant).

(120) Id. at 134. See also supra note 64 (comparing Seabrooks with Lamb, Dept. Youth Servs, and Laura L.). Unlike the latter three defendants, the Seabrooks defendant and the K.I. patient underwent assessments to determine if they posed a risk to themselves rather than determining if further detention in state custody was warranted. See Seabrooks, 433 Mass, at 451 (describing that "[the doctor] conducted assessments to identify whether the defendant was at imminent risk of harming himself'); 2013 Mass. App. Div. at 1-3 (stating Walden sought to keep patient for treatment after its determination that patient was suicidal); Lamb, 365 Mass, at 265 (providing defendant committed to hospital to determine if he remained sexually dangerous person); Dept. Youth Servs., 398 Mass, at 517, 518 (holding defendant be further committed because remained sexually dangerous person); Laura L., 54 Mass. App. Ct. at 855 (stating court arrested defendant and ordered examination in midst of parental unfitness proceedings). See also supra notes 67-72 (discussing Seabrooks and K.I.)

(121) See Commonwealth v. Lamb, 1 Mass. App. Ct. 530, 534 (1973). Specifically, the court reasoned:

   If the treatment center were considered to be a 'hospital' for the
   purposes of (a), and if a psychiatrist, 'for the purpose of ...
   retaining the patient in such hospital' for an indeterminate period
   under G. L. c. 123A, [section] 6, should be permitted to testify to
   privileged communications made to him while the prisoner is
   undergoing sixty days of examination and diagnosis under that
   section, there would appear to be no reason why the psychiatrist
   should not also be permitted to testify to similar communications
   made to him by one who has already been committed under that
   section for an indeterminate period but who seeks to be released
   under one or more of the procedures found in G. L. c. 123A,
   [section] 9 (as most recently amended by St. 1966, c. 608).
   However, to permit such testimony in the latter type of situation
   would be to render entirely illusory the provision in (a) that the
   privilege "shall continue in effect after the patient is in said
   hospital.


Id. at 535.

(122) See Mass. Gen. Laws ch. 233 [section] 20B(a) (2012). The threat of immediate harm exception specifies that the privilege is inapplicable when the disclosure is made for the following purposes: "[F]or the purpose of placing the patient under arrest or under the supervision of law enforcement authorities...." Id. The purpose behind this is to eliminate a potential emergency situation brought on by an imminent threat made by the patient. See supra note 90 (discussing legislative intent); supra note 16 (arguing for plain language reading of the statute).

(123) See, e.g, People v. District Court, County of Adams, 797 P.2d 1259, 1266 (1990).

(124) See Commonwealth v. Lamb, 365 Mass. 265, 268 (1974). In Lamb, the Massachusetts appeals court noted that, "the threat of immediate harm exception appears to contemplate a patient who is or is about to be at large." Lamb 1 Mass. App. Ct. at 533. Agreeing with the Appeals Court, the Supreme Judicial Court of Massachusetts (hereinafter "SJC") stated, "[the] language is intended to apply to a situation in which the patient is not institutionalized or is about to be discharged from an institution." Lamb, 365 Mass, at 268. Moreover, the SJC in making the distinction between the threat of immediate harm exception's applicability in that case, poses a hypothetical not unlike that at the beginning of this note. Id. The court supposed:

   [For the threat of immediate harm exception] to be applicable, one
   would have to find in this case that Dr. Cohen 'in the course of
   his diagnosis' determined that the defendant was 'in need of
   treatment in a hospital for mental or emotional illness' and that
   he disclosed the communication 'for the purpose of placing or
   retaining the patient in such hospital.'


Id.

(125) Mass. Gen. Laws ch. 233 [section] 20B(a), (b) (2012). See supra note 122 (proposing the plain language reading of the statute most accurately conveys legislative intent).

(126) Mass. Gen. Laws ch. 233 [section] 20B(a) (emphasis added).

(127) See supra note 44 (providing the language of the threat of immediate harm exception in its entirety); supra notes 44, 90, 96, and 122 (relating the immediate threat of harm exception and emergency situations).

(128) See Mass. Gen. Laws ch. 233 [section] 20B (2012), with Mass. Gen. Laws ch. 123 [section] 36B. (2012); Parry, supra note 2 (recognizing high psychiatric malpractice cases).

(129) See supra note 40 and infra notes 131 and 143 (discussing statutory imposed liability under Mass. Gen. Laws ch. 123, [section] 36B). Mass. Gen. Laws ch. 123 [section] 36B provides in pertinent part:

   There shall be no duty owed by a licensed mental health
   professional to take reasonable precautions to warn or in any other
   way protect a potential victim or victims of said professional's
   patient ... unless: (a) the patient has communicated to the
   licensed mental health professional an explicit threat to kill or
   inflict serious bodily injury upon a reasonably identified victim
   or victims and the patient has the apparent intent and ability to
   carry out the threat, and the licensed mental health professional
   fails to take reasonable precautions.


Mass. Gen. Laws ch. 123 [section] 36B (emphasis supplied).

(130) See infra notes 131-151and accompanying text (arguing statutory schemes fortify proposition that immediate threat exception is applicable in involuntary commitment).

(131) Mass. Gen. Laws ch. 112, [section]129A (2012) (Confidentiality of Psychologist-Patient Communications; Exceptions); id. at [section] 36B (Duty of Licensed Mental Health Professional to Warn Potential Victim of Patient; No Cause of Action for Disclosure of Confidential Communications); Mass. Gen. Laws ch. 123, [section] 1 (2012) (defining "reasonable precautions").

(132) Mass. Gen. Laws ch. 112, [section] 129 A (2003) (Confidentiality of Psychologist-Patient Communications; Exceptions).

(133) Id. The statute provides in pertinent part:

All communications between a licensed psychologist and the individuals with whom the psychologist engages in the practice of psychology are confidential ... except under the following circumstances: (a) pursuant to the provisions of section twenty B of chapter two hundred and thirty-three or any other law; (b) upon express, written consent of the patient; (c) upon the need to disclose information which protects the rights and safety of others if:

(1) the patient presents a clear and present danger to himself and refuses explicitly or by his behavior to voluntarily accept further appropriate treatment. In such circumstances, where the psychologist has a reasonable basis to believe that a patient can be committed to a hospital pursuant to chapter one hundred and twenty-three, he shall have a duty to seek said commitment. The psychologist may also contact members of the patient's family or other individuals if in the psychologist's opinion, it would assist in protecting the safety of the patient; or

(2) the patient has communicated to the psychologist an explicit threat to kill or inflict serious bodily injury upon a reasonably identified person and the patient has the apparent intent and ability to carry out the threat. In such circumstances the psychologist shall have a duty to take reasonable precautions. A psychologist shall be deemed to have taken reasonable precautions if said psychologist makes reasonable efforts to take one or more of the following actions:

(a) communicates a threat of death or serious bodily injury to a reasonably identified person;

(b) notifies an appropriate law enforcement agency in the vicinity where the patient or any potential victim resides;

(c) arranges for the patient to be hospitalized voluntarily;

(d) takes appropriate steps to initiate proceedings for involuntary hospitalization pursuant to law.

(3) the patient has a history of physical violence which is known to the psychologist and the psychologist has a reasonable basis to believe that there is a clear and present danger that the patient will attempt to kill or inflict serious bodily injury upon a reasonably identified person. In such circumstances the psychologist shall have a duty to take reasonable precautions. A psychologist shall be deemed to have taken reasonable precautions if said psychologist makes reasonable efforts to take one or more of the following actions:

(a) communicates a threat of death or serious bodily injury to the reasonably identified person;

(b) notifies an appropriate law enforcement agency in the vicinity where the patient or any potential victim resides;

(c) arranges for his patient to be hospitalized voluntarily;

(d) takes appropriate steps to initiate proceedings for involuntary hospitalization pursuant to law.

(4) nothing contained herein shall require a psychologist to take any action which, in the exercise of reasonable professional judgment, would endanger himself or increase the danger to a potential victim or victims.

(5) the psychologist shall only disclose that information which is essential in order to protect the rights and safety of others.

Id.

(134) Id. at (a) (pointing explicitly to Mass. Gen. Laws ch. 233, [section] 20B: (2000): Privileged Communications Patients and Psychotherapists).

(135) Compare id. (outlining exceptions to privileged communications between patients and psychotherapists), with Mass. Gen. Laws ch. 112, [section]129A (2003) (stating all communications between licensed psychologist and patient as privileged).

(136) Compare id. (outlining the duty of licensed psychologist to warn potential victim), with Mass. Gen. Laws ch. 123, [section] 1 (2003) (defining reasonable precautions).

(137) Mass. Gen. Laws ch. 112, [section] 129A (c)(1) (2003) (describing first exception of duty of confidentiality between patient and psychologist).

(138) Id. at (c)(2) (describing second exception of duty of confidentiality between patient and psychologist).

(139) Id. at (c)(3) (describing third exception of duty of confidentiality between patient and psychologist).

(140) Id. (describing fourth exception of duty of confidentiality between patient and psychologist).

(141) See supra notes 1-5, and 133 (stating hypothetical patient's facts duty of confidentiality exceptions).

(142) See supra notes 1-5 and 140.

(143) See Mass. Gen. Laws ch. 123, [section] 36B (2003) (outlining duty of psychologist to warn potential victim of patient). Under the statute there will be no cause of action for disclosure of confidential communications. Id. See also Mass. Gen. Laws ch. 123, [section] 1 (defining "reasonable precautions"). In pertinent part, Mass. Gen. Laws ch. 123, [section] 1 states:

[A]ny licensed mental health professional shall be deemed to have taken reasonable precautions, as that term is used in section thirty-six B, if such professional makes reasonable efforts to take one or more of the following actions as would be taken by a reasonably prudent member of his profession under the same or similar circumstances:

(a) communicates a threat of death or serious bodily injury to the reasonably identified victim or victims;

(b) notifies an appropriate law enforcement agency in the vicinity where the patient or any potential victim resides;

(c) arranges for the patient to be hospitalized voluntarily;

(d) takes appropriate steps within the legal scope of practice of his profession to initiate proceedings for involuntarily hospitalization

Id.

(144) See id. (providing only four ways in which a mental health care provider can avoid liability).

(145) Id. at [section] 1(a).

(146) Id. at [section] 1(b).

(147) Id. at [section] 1(c).

(148) Mass. Gen. Laws ch. 123, [section] 1 (d).

(149) See supra note 48 (providing Massachusetts commitment statute language).

(150) See PARRY, supra note 2, at 440-50 (discussing causes of actions available to patients and their families). Parry lists several causes of action such as wrongful death by suicide, failure to protect a patient from harm, patient-caused injuries in the failure to protect third parties, improper discharge from commitment, failure to commit, false imprisonment, and false commitment. Id.

(151) See supra notes 143-150 and accompanying text (comparing the statutory requirements of reasonable precautions with the choices actually available to hypothetical's psychotherapist). See also supra notes 74, 76 and accompanying text (identifying issues in instances where mental health professional is only party with pertinent evidence).

(152) Commonwealth v. Seabrooks, 433 Mass. 349, 450-51 (2001).

(153) Id.

(154) 365 Mass. 265, 267-69 (1974).

(155) Seabrooks, 433 Mass, at 450-51; Walden Behavioral Care K.I., NO. 13-ADMS-10004, 2013 Mass. App. Div. Lexis 34 (Mass. App. Ct. 2013).

(156) See supra note 24 (listing states which authorize otherwise privileged communications' disclosure to facilitate commitment determinations).

(157) See supra note 74 (arguing legislature's intent is to protect society and the individual patient).

(158) See Seabrooks, 433 Mass, at 448.

(159) K.I. at 24-25 (noting that being "urged ... by ... compelling voices in his head, K.I. would ... [be] free to carry out ... plan"). The K.I. court refused to "interpret these statutes in a way that produce[d] [the] absurd result" of allowing the patient to take his own life when the psychotherapist had evidence of these communications, the disclosure of which could result in the opposite occurrence. Id. The court concluded, "We will not interpret these statutes in a way that produces this absurd result, particularly where a common sense reading of the statutes, indicating that the patient-psychotherapist privilege does not apply to civil commitment proceedings, produces a more 'effectual and harmonious' result." Id. at 25.

Caitlin Wolter, J.D. Candidate, Suffolk University Law School, 2015; B.A., College of Holy Cross, 2009. Ms. Wolter may be contacted at cmwolter@suffolk.edu.
COPYRIGHT 2014 Suffolk University Law School
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2014 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Wolter, Caitlin
Publication:Journal of Health & Biomedical Law
Date:Sep 22, 2014
Words:16886
Previous Article:A mental health system in crisis and innovative laws to assuage the problem.
Next Article:Mental health law - expanding the discovery requirements for criminal defendants who plan to argue a mental condition at trial.
Topics:

Terms of use | Privacy policy | Copyright © 2019 Farlex, Inc. | Feedback | For webmasters