2008-382, APPEAL OF LAURENCE M. KELLY, Ed.D.

psychologist by the Manchester School District. individuals suffering from substance abuse and he is employed as a school

for children, adolescents and families. He also provides similar services for

Manchester, where he provides consultation, evaluation and treatment services been a licensed psychologist since 1985. He has a private practice in The Board found or the record supports the following facts. Dr. Kelly has

reverse. that he engaged in professional misconduct and imposing discipline. We order of the New Hampshire Board of Mental Health Practice (Board) finding BRODERICK, C.J. The petitioner, Laurence M. Kelly, Ed.D., appeals an

Mental Health Practice. attorney general, on the brief and orally), for the New Hampshire Board of Kelly A. Ayotte, attorney general (Anthony I. Blenkinsop, senior assistant

and to press. Errors may be reported by E-mail at the following address: Gregory M. Sargent on the brief, and Mr. Murphy orally), for the petitioner. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr.

(New Hampshire Board of Mental Health Practice) APPEAL OF LAURENCE M. KELLY, Ed.D page is: http://www.courts.state.nh.us/supreme.

No. 2008-382 editorial errors in order that corrections may be made before the opinion goes Board of Mental Health Practice Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

recommendations:

that he observed their relationship to be a warm and loving one. Patient A and his daughter interacting in his waiting room, and he testified therapy sessions with Patient A. Before the sessions, Dr. Kelly sometimes saw

counseling, and parenting issues. visitation with his daughter. Among other things, his report made the following 5. Individual counseling [for the father] to deal with anxiety, career his daughter every year. 4. [The father] should be allowed to spend two-weeks vacation with father. 3. Every other holiday could be worked out between mother and return her home between 6 or 7 on Sunday every other weekend. p. 2 2. [The father] could pick his daughter up at school on Friday and would grow from the interaction. November 2003 and completed a written report. He also had several one-hour 1. Increase visitation with daughter, both [father and daughter]

order. which he recommended to the trial court that Patient A be permitted overnight hearing on visitation. He testified to the substance of his evaluation report, in Dr. Kelly was subpoenaed by Patient A to testify at the subsequent court

to [his daughter].

Dr. Kelly performed a full psychological evaluation of Patient A in

Patient A retained Dr. Kelly to help him satisfy the conditions set forth in the

related parenting behavior. [with his daughter].” The order provided that: program focusing on age and gender appropriate expectations and order . . . to be in a position to request the reinstatement of overnight visitation 3. Document the successful completion of an individual parenting Patient A received a court order requiring him to satisfy certain conditions “in with anger and control issues and parenting issues as they relate overnight visitation and establish that [he] has successfully dealt p. 2 2. Present supporting expert testimony at a hearing respecting 1. Complete a new psychological evaluation. does the following: resumption of overnight visitation with [his daughter] until he [T]he Court will not entertain a request by [Patient A] for the

divorced father seeking overnight visitation with his minor daughter. In p. 2 2003, This appeal arises out of a consultation by Dr. Kelly with Patient A, a compromises. p. 3 the things he learned.

times and experience each summer. experiences. [Patient A] would like to give his daughter quality vacations that last two weeks long and entail special times and 3

would grow from the interaction” was a statement “regarding [the minor

support the decisions made by the other. Each side should make passing day. He completed a parenting course last year and lives sic

the relationship between parent and child. Most families take

parenting of a healthy child. Specifically, she complained that his opinion that “both [father and daughter] Dr. Kelly with the Board, alleging that he was “out of line” and “unethical.” Prior to the court hearing, Patient A’s ex-wife filed a complaint against communication between mother and father. Each parent should forever. [Patient A] is committed to being a better father with each

supervised and comfortable for the child. child due to . . . feelings of safety and security. Schools are well every other weekend. School is often the best place to pick up a every year. The more normal the visitation schedule the deeper 9. [Patient A] should be allowed two weeks vacation with his daughter

mother and father are equally important and essential for the

father. The best parenting decisions are made by honest and open 8. Every other holiday could be worked out between mother and profound life experience that can change both father and daughter compassion and empathy through effective parenting. It is a the better on both ends. A father can learn patience, love,

return[ ] her [to] her mother’s house between 6:00 or 7:00 p.m. 7. [Patient A] would pickup [] his daughter at school on Friday and

of the child with [Patient A] playing an increasing role. The roles of between parents. Both parents need to work together for the good

the following observations and recommendations with respect to visitation: and explaining, in part, the basis for the recommendations. The letter included interaction. The research states that parenting changes people for 6. Increase visitation with daughter: Both would grow from the

the mental health of the child is impacted adversely by strife 5. Parenting and custody issues: all of the research supports that

judge “to outline [his] testimony revolving around [Patient A],” elaborating upon Prior to the visitation hearing, Dr. Kelly submitted a letter to the trial characteristics of anyone other than Patient A. p. 4 nor did he claim to have provided an opinion of the psychological

Psychological Association,

and knowledge of Patient A. He did not claim that he evaluated the daughter;

investigation of the child was not the action recommended by [American

visitation that were based upon empirical test data, years of clinical experience made any custody recommendations, only recommendations regarding component considered by the Courts.” Dr. Kelly explained that he had not violation of [the same statute and/or rules].

child would benefit from increased visitation with her father without further A:27, II(c) and/or (d); [4 with the child, her caregivers and therapist,” and that “[his] opinion that the visitation and parenting issues, Dr. Kelly should have conducted interviews

capability of caring for a minor child” and that his evaluation was “only one court, [Dr. Kelly] engaged in professional misconduct in

engaged in professional misconduct in violation of RSA 330-

concluded that “[i]n order to have acted as the expert witness regarding the

the issues to be determined: was to evaluate[ ] [Patient A] with respect to his mental health issues and between Patient A and the minor child by offering testimony in examination . . . as deemed appropriate.” He further asserted that his “piece B. Whether, by reporting recommendations regarding visitation Court Order with the understanding that I would . . . be open to cross Standard] 9.01(a) and/or (b); and/or

Ethical Principles of Psychologists and Code of Conduct, Mhp] 501.02(a)(1); and [American Psychological Association,

visitation between Patient A and the minor child, [Dr. Kelly] A. Whether, by making a recommendation in writing regarding any specific benefit or harm such visits would have on her.” The Board’s report

her therapist or any of her care givers to obtain further information regarding to all children. The report noted that “[h]e did not speak to the child . . . or to In its Notice of Hearing issued after the investigation, the Board identified

Conduct, Standard] 9.01(b).” part of a Court Order. I submitted a psychological report in compliance with a Ethical Principles of Psychologists and Code of

report, noting that Dr. Kelly’s statement was all-inclusive in its scope referring The Board conducted an investigation of the complaint and issued a

letter to the Board, he wrote: “I was requested to evaluate [Patient A] . . . as

Dr. Kelly responded to the complaint, denying any wrongdoing. In his

without knowledge of the issues involved in the family’s visitation dispute. daughter with whom] he has . . . had [no] contact” and that it was made appropriate standard of care for a psychologist under p. 5 counsel for the Board presented no witnesses and no evidence as to the

child yet that wouldn’t benefit from a father being more involved.” Hearing

basis, Dr. Kelly answered that he did. to whether the evaluation that he performed had an appropriate reasonable degree of certainty within his science of psychology as

the global sense that “[o]n sound psychological princip[le]” he “ha[d] not met a psychological characteristics. Rather, they were intended to be understood in recommendations were not professional opinions of the daughter’s

Asked in Board testimony whether he had an opinion to a

Patient A’s visitation with his daughter. Dr. Kelly made clear that his

experience as a psychologist further substantiate his opinions. testimony, Dr. Kelly further submitted that his many years [of] were based exclusively on examination of Patient A. In his court

work provided a sufficient basis for his recommendations with respect to

testing he performed on Patient A, the research in his field and his own clinical thirty years of clinical experience as a psychologist. He also testified that the He identified for the Board the current research in his field and discussed his

daughter or her mother]. He accurately portrayed in the [report opinions were based upon examinations conducted of [the

report, the letter to the trial judge and his testimony at the visitation hearing.

Dr. Kelly never represented . . . that his evaluations or

In its order, the Board found:

http://www.apa.org/ethics/code2002.pdf. Conduct (APA Code of Conduct), Standard 9.01(a)-(b) (2002), at Psychological Association, Ethical Principles of Psychologists and Code of Psychologists and Code of Conduct, Standards 9.01(a) or (b). See American

presented orally by counsel for Dr. Kelly.

During his direct and cross-examination, Dr. Kelly explained how he

a preliminary matter, the Board heard and denied a motion to dismiss and mental health professionals, although no member was a psychologist. As parties stipulated to all exhibits. The Board was comprised of public members At his hearing before the Board, Dr. Kelly was the only witness, and the

disciplinary sanctions authorized by RSA 330-A:27, III. extent [Dr. Kelly] should be subjected to one or more of the C. If any of the above allegations are proven, whether and to what reconsideration was denied. This appeal followed. p. 6 Board’s order become a permanent part of his public file. Dr. Kelly’s motion for whom he had insufficient information. direction to persons Dr. Kelly did not examine and concerning father.” Such a recommendation would require evaluation of and

Board’s order to his current employers and affiliates and mandating that the

“every other holiday could be worked out between mother and

mother’s attorney].” Litem as a condition to do so. I’m aware of that and so is [the

of supervision for twelve months, requiring that he provide a copy of the things, restricting his professional license, requiring that he engage in a period “both would grow from the interaction” and then asserts that recommends increased visitation with the daughter, opining that, actions that would be strictly those of Patient A. Dr. Kelly adequate basis for assessment in violation of [motion to dismiss because hearing counsel presented no evidence that he did at the court hearing on visitation, the Board found: “[T]hese comments lack On appeal, Dr. Kelly argues that: (1) the Board erred in denying his you sir that he had to speak to the mother or the Guardian Ad

The Board imposed discipline upon Dr. Kelly, including, among other

9.01(a) and (b).” Dr. Kelly’s opinions go beyond commenting upon and directing APA Code of Conduct, Standards]

With respect to his letter to the trial judge outlining his anticipated testimony wasn’t given a task that in terms of his presenting testimony for evaluation. [The trial judge said to Patient A that] “[Dr. Kelly] the judge and the parties were aware of the limited basis of the

information and techniques for such opinions for a psychologist. Psychological Report [were] insufficiently substantiated on Dr. Kelly’s five enumerated recommendations as reflected in his

of Conduct, Standards 9.01(a) and (b). The Board found, in relevant part that: because his letter to the trial judge and his evaluation report violated visitation hearing] and [the trial judge], the judge made clear that APA Code Nonetheless, the Board concluded that Dr. Kelly engaged in misconduct

(Citations and brackets omitted.)

[i]n a colloquy between [Patient A] representing himself [at the

recommendation repeatedly throughout his testimony” and that “expressed the limitation of the basis of his psychological report and The Board also granted Dr. Kelly’s request for findings that he efforts they made and the result of those efforts, clarify the

p. 7 techniques sufficient to substantiate their findings. . . . statements, including forensic testimony, on information and 7

such an examination is not practical, psychologists document the

recommendations, reports, and diagnostic or evaluative

their statements or conclusions. When, despite reasonable efforts, conducted an examination of the individuals adequate to support psychological characteristics of individuals only after they have (b) Except as noted in 9.01(c), psychologists provide opinions of the of the regulation and with the purpose the regulation is intended to serve.

interpretation of the rule, that deference is not absolute.

the regulatory scheme as a whole and not piecemeal. (a) Psychologists base the opinions contained in their Bases for [Psychological] Assessments

the basis for the alleged misconduct. Standard 9.01 provides: We first examine APA Code of Conduct, Standard 9.01, which constitutes failure to adhere to the id. at 79. excess of its authority. See still examine its interpretation to determine if it is consistent with the language

158 N.H. 76, 78 (2008). Although we accord deference to the Board’s

ascribing the plain and ordinary meanings to the words used and looking at We review the Board’s interpretation of its administrative rules de novo, profession . . . as adopted by . . . the American Psychological Association.”). 541:13 (2007). 501.02(a)(1) (“A [psychologist] shall adhere to the ethical principles of the

constitutes professional or dishonorable conduct for a psychologist includes practitioner. See RSA 330-A:27, II(c) (2004). The Board’s definition of what of discipline was grossly disproportionate to the alleged misconduct and in alleged unprofessional or dishonorable conduct by a mental health mitigating factors in its imposition of discipline; and (4) the Board’s imposition The Board has the authority to conduct disciplinary hearings for any commencement of the proceeding; (3) the Board failed to consider several unreasonable. Appeal of Lowy, 156 N.H. 57, 60 (2007). satisfied by a clear preponderance of the evidence that its order was unjust or reverse its decision only if it is erroneous as a matter of law, or if we are of fact, see Appeal of City of Manchester, 153 N.H. 289, 292 (2006), and we will

See RSA 330-A:29, VII (2004). We defer to the Board’s findings

Our standard of review for the Board’s decisions is governed by RSA

violated his right to be notified of the charges against him at the not have an adequate basis for his opinions and testimony; (2) the Board p. 8 Hearing counsel presented no evidence to show that Dr. Kelly provided an

could reasonably have been misled about the scope or bases of his opinions. recommendations, whether they were presented in court or in writing. No one involved and the trial judge were fully aware of the limitations of his

He was not ordered to evaluate the daughter, and at all times the parties

Patient A as they related to his capacity to have visitation with his daughter. evaluation. He was subpoenaed to testify about his opinions concerning comply with a court order requiring Patient A to undergo a psychological

with Patient A was circumscribed by court order. He was retained solely to

years of clinical experience. Dr. Kelly’s entire psychologist-patient relationship respect to Patient A and parent-child relationships generally, based upon his made with respect to the daughter in particular, but were offered only with

expressed that none of the opinions or recommendations he provided were

review of the record reveals that Dr. Kelly consistently and repeatedly

trial court’s order did not request or require such opinions.

Dr. Kelly’s statement was all-inclusive in its scope referring to all children. A

the conclusion that Dr. Kelly expressed opinions about the daughter, and the substantiate his findings. However, the Board’s findings of fact do not support daughter that were not based upon information and techniques sufficient to

conclusions and recommendations. and the sources of information on which they based their psychologist has violated the [The Board’s own report of its investigation of the complaint noted that warranted or necessary for the opinion, psychologists explain this

Board appears to have concluded that Dr. Kelly expressed opinions about the In its rulings with regard to APA Code of Conduct, Standard 9.01(a), the

Introduction and Applicability at 2. itself determine whether . . . legal consequences occur.” APA Code of Conduct,

Standard may vary depending on the context” and that “[w]hether a consultation or supervision and an individual examination is not Conduct further provides that “the application of an [APA Code of Conduct] psychologists work.” APA Code of Conduct, Preamble at 3. The APA Code of “the welfare and protection of the individuals and groups with whom extent of their conclusions or recommendations. . . . circumstances of this case. One goal of the APA Code of Conduct is to promote interpretation and application of the APA Code of Conduct to the On the record before us, we hold that the Board erred in its

(c) When psychologists conduct a record review or provide

validity of their opinions, and appropriately limit the nature and probable impact of their limited information on the reliability and by Dr. Kelly were insufficient to substantiate his recommendations.

p. 9 recommendation constituted an opinion of a psychological characteristic of the

presented no evidence to show that the information and techniques relied upon Patient A’s requested reinstatement of overnight visitation. Hearing counsel experience formed a sufficient basis for his recommendations with respect to

an opinion as to the daughter, the Board’s ruling failed to address how this the statement that “both would grow from the interaction,” did in fact provide found that the recommendation to “[i]ncrease visitation with daughter,” and

sum, Dr. Kelly testified that the evaluation, research and his own clinical

father. Assuming, without deciding, that the Board could reasonably have

field of psychology, which Dr. Kelly said supports his recommendations. In visitation hearing. The record contains evidence about current research in the of a psychological characteristic of an individual other than Patient A. represented in his report, his letter to the trial judge and his testimony at the

of

were intended in the global sense that children benefit from having an involved that, in addition, it found that Dr. Kelly’s opinions that his opinions were limited to Patient A, and that references to the child the Standard. It is possible that the Board intended these statements to mean investigation of the complaint as well as several of the Board’s findings stated Code of Conduct, Standard 9.01(b). The Board’s own report of its initial

Standard 9.01(b). This Standard applies only if Dr. Kelly provided an opinion his testimony before the Board, Dr. Kelly explained how the results were We now turn to the Board’s application of APA Code of Conduct, basis for the assessments embodied in Dr. Kelly’s court testimony, in violation

information from additional, unnamed individuals or sources to comply with

Dr. Kelly used on Patient A and the significance of the results they yielded. In The record provides thorough explanations of the evaluation procedures room, the Board stated: “[S]uch contacts fall short of a professionally adequate With regard to Dr. Kelly’s observations of the father and daughter in his waiting we disagree. Kelly did not examine and concerning whom he had insufficient information.” his findings as required by the APA Code of Conduct. If this is the case, then A were not based upon information and techniques sufficient to substantiate

9.01(a) to mean that Dr. Kelly should have examined or otherwise gathered order suggests that the Board interpreted APA Code of Conduct, Standard [APA Code of Conduct, Standards] 9.01(a) and (b).” The language of the

recommendations “would require evaluation of and direction to persons Dr. Conduct, Standard 9.01(a) was non-specific, stating that Dr. Kelly’s We observe that the Board’s ruling on the alleged violation of APA Code of

undermined the welfare and protection of those with whom he worked. opinion concerning any individual other than Patient A or that his conduct p. 10 10

counsel failed to carry that burden. proposition by a preponderance of the evidence.” We conclude that hearing

affirmative of a proposition shall have the burden of proving the truth of that

alleged misconduct rests with hearing counsel: “The party asserting the DALIANIS, DUGGAN and HICKS, JJ., concurred.

standard of care. However, Reversed.

arguments. in professional misconduct, we need not address the parties’ remaining Having determined that the Board erroneously found Dr. Kelly engaged

206. p. 10 10(a) still mandates that the burden of proof for establishing Dr. Kelly’s

testimony is not necessary in all cases to establish a violation of the applicable and Appeal of Beyer, 122 N.H. 934, 939-40 (1982), provide that expert We agree with the State that Petition of Grimm, 138 N.H. 42, 55 (1993),

pursuant to the APA Code of Conduct. See id. daughter such that an examination of the daughter would be required