2021 New Mexico Statutes
Chapter 61 - Professional and Occupational Licenses
Article 31 - Social Work Practice
Section 61-31-24 - Privileged communications. (Repealed effective July 1, 2032.)
A. A licensed social worker shall not be examined without the consent of his client concerning any communication made by the client to him or any advice given to the client in the course of professional employment; nor shall the secretary, stenographer or clerk of a social worker be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in that capacity; nor shall any person who has participated in any social work practice conducted under the supervision of a person authorized by law to conduct such practice, including group therapy sessions, be examined concerning any knowledge gained during the course of the practice without the consent of the person to whom the testimony sought relates.
B. No licensed social worker may disclose any information he has acquired from a person consulting him in his professional capacity, unless:
(1) he has the written consent of the client or, in the case of death or disability, of his personal representative, any other person authorized to sue or the beneficiary of any insurance policy on his life, health or physical condition;
(2) such communication reveals the contemplation of a crime or harmful act;
(3) the client is under the age of sixteen years or an adult who is mentally fragile and the information acquired indicates that the child or adult was the victim or subject of a crime, in which case the social worker may be required to testify fully in relation to the crime in any examination, trial or other proceeding in which the commission of the crime is a subject of inquiry; or
(4) the person waives the privilege by bringing charges against the social worker.
C. Nothing in this section shall be construed to prohibit a licensed social worker from disclosing information in court hearings concerning matters of adoption, child abuse, child neglect or other matters pertaining to the welfare of children as stipulated in the Children's Code [Chapter 32A NMSA 1978] or to those matters pertaining to citizens protected under the Adult Protective Services Act [27-7-14 to 27-7-31 NMSA 1978].
History: Laws 1989, ch. 51, § 24.
ANNOTATIONSDelayed repeals. — For delayed repeal of this section, see 61-31-25 NMSA 1978.
When statutory privilege conflicts with constitutional or court rule privilege. — The supreme court's constitutional power of superintending control over all inferior courts carries with it the inherent power to regulate all pleading, practice and procedure affecting the judicial branch of government; with respect to privileges, if a statutory privilege is not consistent with a rule of the supreme court, the statutory privilege is not given effect and the constitutional or court rule privilege prevails. State v. Strauch, 2015-NMSC-009, rev'g 2014-NMCA-020.
The provisions of this section that arguably create social worker evidentiary privileges cannot prevent court-ordered disclosure of communications that would be mandated by the discovery and evidence rules of the supreme court; consequently, statements made to a social worker by an alleged child abuser in private counseling sessions are not protected from disclosure in a court proceeding as a result of the specific exception to the physician-patient and psychotherapist-patient evidentiary privilege in Rule 11-504(D)(4) NMRA, which provides that no privilege shall apply for confidential communications concerning any material that a social worker is required by law to report to a public agency. State v. Strauch, 2015-NMSC-009, rev'g 2014-NMCA-020.
Applicability of privilege in a child abuse and neglect case was not required to be addressed because the clear language of Rule 11-504 NMRA, this section, and Section 61-9A-27 NMSA 1978 permits disclosure. State ex rel. Children, Youth & Families Dep't, 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, cert. denied, 129 N.M. 207, 4 P.3d 35.
Recognition of role licensed social workers play in providing treatment to victims of child abuse and neglect would be consistent with the legislature's recognition of the professional nature of their services. State ex rel. Children, Youth & Families Dept. v. Frank G., 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, aff'd, 2006-NMSC-019, 139 N.M. 459, 134 P.3d 746.
Issue not preserved on appeal. — Where defendant argued that the statements he made to social workers, implicating himself in criminal sexual contact with a minor, are privileged, but he did not cite either this section or Jaffee v. Redmond, 518 U.S. 1, 135 L. Ed. 2d 337, 116 S. Ct. 1923 (1996), to support that argument in the trial court, he has not preserved the issue and may not raise it in an appellate court. State v. Neswood, 2002-NMCA-081, 132 N.M. 505, 51 P.3d 1159, cert. denied, 132 N.M. 551, 52 P.3d 411.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 81 Am. Jur. 2d Witnesses §§ 453, 541, 542.
97 C.J.S. Witnesses §§ 252, 254.
