This is an appeal by the mother of a minor child from a decree entered in the Probate Court removing
1. The parties were divorced on December 9, 1966, and custody of the child was awarded to the mother. On August 22, 1969, the father filed a petition for an order temporarily restraining the mother from removing the child from the Commonwealth. On August 26, 1969, the temporary restraining order prayed for was issued and temporary custody was awarded to the father but, by agreement, physical custody remained with the mother pending trial. On Friday, September 26, 1969, at the trial, the father moved to amend the petition to seek award of custody to him.
Over the mother's objection and exception, the judge allowed the motion to amend, "with the provision that this case will be put over to the first part of the week until you have an opportunity to produce evidence that you want and the type of evidence that you are required to present." Later on the same day, Friday, counsel for the mother (not her counsel on this appeal) agreed that the trial should resume Monday morning, if he were allowed "to answer the call of the list in Middlesex." Counsel for the father agreed to this, and the trial reconvened Monday, September 29, 1969, and lasted through Thursday, October 2, 1969.
The allowance of the motion to amend was a matter within the discretion of the judge. Rule 7 of the Probate Courts (1959). G.L.c. 231, § 51. See Clifford v. Clifford, 354 Mass. 545, 546-547. There was no abuse of discretion.
2. The mother excepted to the admission of evidence disclosing communications between her and two psychotherapists, claiming privilege under G.L.c. 233, § 20B, inserted by St. 1968, c. 418.
"Apparently the legislation making this hearsay evidence [in hospital records] admissible was enacted primarily to relieve the physicians and nurses of public hospitals from the hardship and inconvenience of attending court as witnesses to facts which ordinarily would be found recorded in the hospital books." Leonard v. Boston Elev. Ry. 234 Mass. 480, 482. See McClean v. University Club, 327 Mass. 68, 75. There is no indication of any legislative purpose to forestall the protection of privileged communications, and if there were it would yield to subsequent legislation granting a privilege. The 1968 statute granting the privilege
3. The father requested the judge to proceed under one of six exceptions stated in the 1968 privilege statute, negating application of the statute: "(e) In any child custody case in which either party raises the mental condition of the other party as part of a claim or defense, and the psychotherapist believes that disclosure is necessary because the mental condition of the patient would seriously impair his ability to care for the child, and thereafter makes such disclosure to the judge in chamber; and the judge then determines that the mental or emotional condition of the patient would in fact seriously impair his ability to provide suitable custody, and that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected."
Neither doctor testified that he held the belief required by the statute. The judge did not make any determination except that one of the doctors "is testifying in a custody case." Nor did he receive any disclosure "in chamber." There was indeed no attempt to follow the procedure prescribed.
"In Massachusetts, the area of privileges concerning confidential communications is limited.... No general physician-patient privilege exists (see Kramer v. John Hancock Mut. Life Ins. Co. 336 Mass. 465, 467) but by St. 1968, c. 418 (inserting G.L.c. 233, § 20B), a privilege has been created with respect to certain communications between a patient and a psychotherapist." In the matter of Pappas,
4. The father contends that any error with respect to the privilege was not prejudicial in view of the other evidence and the judge's findings. The mother contends that gross deviations from the procedure prescribed by the 1968 statute can never be harmless. We need not pass on the latter contention, since it is clear that the judge relied heavily on the evidence erroneously admitted. Compare Clifford v. Clifford, 354 Mass. 545, 548.
5. The decree is reversed. The case is remanded to the Probate Court for further proceedings consistent with this opinion. Costs and expenses of appeal are to be awarded in the discretion of the Probate Court.