(concurring, with whom Marshall, C.J., and Spina, J., join). I agree with the result and most of the reasoning in the court’s opinion. The precise issue is whether the records summonsed to court should be considered privileged in the absence of the assertion of a privilege or privileges. Our holding is that “as described in the statutes creating [the] privileges [under consideration], some action by the patient or client is necessary to ‘exercise’ the privilege therein created. The privilege is not self-executing.” Ante at 331. This is as far as we have to (and should) go. I specifically reject the portions of the opinion which reach out in dicta to launch an attack on the Bishop-Fuller protocol. It is inappropriate to suggest in this case, without any foundation whatsoever, that the court might be inclined to modify the protocol in any material way. See Commonwealth v. Sheehan, 435 Mass. 183, 191-192 (2001) (Greaney, J., concurring).