Allen v. Holyoke Hospital

Abrams, J.

(dissenting, with whom Liacos and Lynch, JJ., join). The court does a disservice to the litigants and the trial *388judge by not considering whether exceptions (b) and (f) of G. L. c. 112, § 135, apply so as to make the Department of Social Services’ reports and investigation available to the defendants. It is accurate to state that the trial judge did not ask that question. It is clear, however, that the court thinks the trial judge’s reading of G. L. c. 112, § 135, is too narrow. See ante at 376-377. Why then does the court also not think that the judge’s “conclusion” that exception (b) does not apply might be too narrow a reading of the exception?1 By failing to consider whether exceptions (b) and (f) apply, the court invites the possibility of a reversal on appeal. I therefore dissent from the court’s failure to address the applicability of G. L. c. 112, § 135 (b) and (f).

General Laws c. 112, § 135, is a small portion of a comprehensive legislative scheme concerned with the care of children in this Commonwealth. The court fails to consider the entire legislative scheme in answering questions 1 (a) and 1 (b). To ascertain the meaning of the words “harmful act,” “we must examine the entire statutory scheme governing investigatory reports in matters concerning children, mindful that ‘statutes in the same field are to be construed together, if possible, so as to form an harmonious whole.’ ” Duro v. Duro, 392 Mass. 574, 579 (1984), quoting Mercy Hosp. v. Rate Setting Comm’n, 381 Mass. 34, 40 (1980). See also Casey v. Massachusetts Elec. Co., 392 Mass. 876, 881 (1984); Negron v. Gordon, 373 Mass. 199, 201-202 (1977).

In an effort to demonstrate that the defendants bear no, or only partial, responsibility for the death of the plaintiff’s son, *389the defendants here seek access to records compiled by the department’s social workers that may indicate conduct harmful toward the child by the plaintiff. Paragraph (b) of § 135 provides that a social worker may not “treat as confidential a communication that reveals the contemplation or commission of a crime or a harmful act.” In his report, the judge did not indicate whether the relevant department records relate to “harmful acts.”2 He did find, however, the information “would probably be of great assistance [to the defendants] in warding off the claims which the plaintiff has brought against them” and that it “might bear upon the cause of the decedent’s illness and death.” From this statement, I cannot imagine how such information would not relate to “harmful acts” toward the victim. If the judge read Commonwealth v. Collett, 387 Mass. 424 (1982), as equating “crime” with “harmful act,” that reading is too narrow, both on the facts of Collett and on principles of statutory construction. See Casa Loma, Inc. v. Alcoholic Beverages Control Comm’n, 377 Mass. 231, 234 (1979) (no provision of legislative enactment should be treated as superfluous). Alternatively, the judge may have read the phrase “commission of a . . . harmful act” as referring only to acts of violence visited upon the child, rather than a “mere” lack of care amounting to “neglect.” That reading also unduly restricts the meaning of the term “harmful acts.”

The determination whether an act is harmful at least should be made by reference to G. L. c. 119, §§ 24, 51A and 5IB (1984 ed. & Supp. 1985). See G. L. c. 112, § 135 (f). The court does not discuss the applicability of these statutes. Paragraph (f), inserted by St. 1985, c. 524, added a new exception “where the social worker had acquired the information while conducting an investigation pursuant to section fifty-one B of *390chapter one hundred and nineteen.” Chapter 119, § 51B (1), requires the Department of Social Services to “investigate and evaluate” information reported to it under G. L. c. 119, § 51A. Section 51A requires various professionals,3 who “have reasonable cause to believe that a child under the age of eighteen years is suffering serious physical or emotional injury resulting from abuse inflicted upon him including sexual abuse, or from neglect, including malnutrition . . . [to] immediately report such condition to the department” (emphasis supplied). Clearly, the Legislature considers “neglect” — the failure to provide proper care and nutrition to a child — as a form of “abuse” that can be “inflicted” on a child. As such, neglect is the “commission of a . . . harmful act” for purposes of exception (b). To hold otherwise is to fragment the statutes pertaining to the proper care of children.

Similarly, G. L. c. 112, § 135 (d), exempts from the social worker privilege information developed for purposes of initiating a petition for care and protection under G. L. c. 119, § 24. Such a petition may be filed when a person alleges that a child is “without: (a) necessary and proper physical or educational care and discipline or; (b) is growing up under conditions or circumstances damaging to the child’s sound character development or; (c) who lacks proper attention of parent, guardian with care and custody, or custodian or; (d) whose parents, guardian or custodian are unwilling, incompetent or unavailable to provide any such care, discipline or attention.” Under the terms of G. L. c. 119, § 24, such allegations, if shown, amount to “serious abuse or neglect.”

In enacting c. 112, “[t]he Legislature has determined that while the preservation of the confidential relationship [between social workers and clients] is an important objective, under *391certain circumstances, this goal must give way in favor of other societal interests.” Collett, supra at 428. It is anomalous to assume, as the court does, that, with respect to information connecting a child’s death to the quality of care he received from his parents, the Legislature struck the balance in favor of disclosure in exceptions (d) and (f), but struck the balance in favor of confidentiality in exception (b), if the impetus for the social worker’s investigation and report was something other than a complaint made under G. L. c. 119, § 51A, or a report of an investigation under G. L. c. 119, § 51B, or a petition for care and protection under G. L. c. 119, § 24.

Because G. L. c. 112, § 135 (b), exempts from the social worker privilege any communications which relate directly to the fact or immediate circumstances of conduct harmful toward a child, whether by commission of overt acts or omission of required parental duties, I conclude that the defendants are entitled to the reports.

The court does not discuss any of the exceptions “because the reported questions make no mention of the exceptions, and because the judge’s memorandum explaining his reasons for reporting the questions says that the statutory exceptions are ‘immaterial’ to the case.” Ante at 378 n.5. Neither reason is persuasive. The reported question refers generally to G. L. c. 112, § 135; that reference to the entire section necessarily includes a reference to the lettered paragraphs therein. The judge’s passing reference to the exceptions being “immaterial” comes in his description of the statute. It does not appear in the reported question and does not represent a specific finding made by the judge after individualized consideration of each exception against the facts of the case. In these circumstances, the court is not bound to omit a consideration of the exceptions.

Because G. L. c. 112, § 135 (f), unambiguously requires disclosure of reports made under G. L. c. 119, § 5IB, I assume that if any such reports exist in this case, the judge would have ordered their release without certifying any question to this court But that point is not clear and the court’s decision is silent on this point. There is no question that exception (f) applies retroactively. See City Council of Waltham v. Vinciullo, 364 Mass. 624, 628 (1974) (statutory amendments to the rules of evidence operate retroactively).

The statute mandates reporting by any “physician, medical intern, hospital personnel engaged in the examination, care or treatment of persons, medical examiner, psychologist, emergency medical technician, dentist, nurse, chiropractor, podiatrist, osteopath, public or private school teacher, educational administrator, guidance or family counselor, day care worker, probation officer, clerk/magistrate of the district courts, social worker, foster parent, firefighter or policeman.”