2015-0412, N.C. v. New Hampshire Board of Psychologists; New Hampshire Board of Psychologists v. Alethea E. Young, Ph.D.

general, on the brie f and orally), for the New Hampshire Board of Psychologists. Joseph A. Foster, attorney general (Elizabeth A. Lahey, assistant attorney

appellants. Office of Jason Crance, of Hanover (Jason R. Crance on the brief), for the Merlo, and Jennifer B. Hartman, on the brief, and Mr. Vitt orally), and Law Vitt & Associates, PLC, of Norwic h, Vermont (Geoffrey J. Vitt, Sarah J.

No. 2015 - 0412 Merrimack

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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

N.C. has since turned 18 years old and is no longer a minor. 1

with court approval. requested that Young stop treating his daughter, but Young continued to do so, and S.C. was barred from seeing or contacting his daughter. S.C. repeatedly N.C. ’s mother sought and received temporary physical custody of N.C.,

denied that the abuse took place in order to protect her father. to report the situation to DCYF because she believed that N.C. would have as well as her increasing concern for N.C. ’s safety, she had previously declined She admitted that despite her first - hand knowledge of S.C. ’s abusive behavior, Hampshire Department for Children, Youth and Families (DCYF) on August 13. Young reported the incident that occurred on August 8 to the New

informed of his daughter ’ s whereabouts until Sunday morning. up by her mother. N.C. spent the night at her mother’ s house. S.C. was not dropped N.C. off at a restaurant in Montpelier, Vermont, where she was picked night, Young and Dr. Karla Bo urland, who was part of N.C. ’s educational team, that she needed to meet with him before N.C. could return home. Later that When S.C. tried to arrange to pick up his daughter later that day, Young stated or with his daughter, to discuss the abuse that had occurred on August 8. message, and Young re peatedly requested that S.C. me et with her, either alone Throughout the day on Satur day, Young a nd S.C. communicated via text

August 10. would stay at Young’s house and that the three would meet on Saturday, N.C. and S.C. should spend some time apart. All parties agreed that N.C. Young for a therapy session on August 9, during which everyone agreed that in therapy sessions. Following th e August 8 incident, S.C. and N.C. met with aggressive and hum iliating treatment of his daughter, both in public as well as thro ughout her treatment of N.C., she witnessed what she described as S.C.’s physical ly and emotionally abused her on August 8. According to Young, w hen N.C. was still a minor, she informed Young that her father, S.C., had 1 at least two therapy sessions per week since the age of two. In August p. 2 2013, practice in Lyme. N.C. has been a patient of Young for many years, attending is a license d psychologist in the S tate of New Hampshire and maintains a The trial court found, or the record supports, the following facts. Young

affirm. declaratory judgment to prevent the Board from obtain ing the records. We Hampshire Board of Psychologists (Board), and dismiss ing N.C.’s petition for a subpoena for N.C.’s psychological records issued by the appellee, the New of the Superior Court (Smukler, J.) denying Dr. Young’s motion to quash a LYNN, J. The appellants, N.C. and Alethea Young, Ph.D., appeal orders p. 3 3

Board’s motion to dismiss N.C. ’s petition for declaratory relief. Applying its recor ds sought we re relevant to that investigation. T he court granted the has the statutory power to investigate such a complaint, and the privileged comp laint, the B oard is charged with regulating the practice of psychology and sustained that burden because Young was charged with misconduct by formal formal investigation. The trial court found that, in this case, the B oard h ad have just cause to do so, even when a subpoena is issued in the course of a wa s authorized to subpoena psychologica l records at any time, but that it must The trial court found that, under RSA p. 3 329 - B:22 (Supp. 2015), the B oard

showing in order to subpoena records. was conducting a formal investigation, it did not need to make any threshold to overcome N.C.’s assertion of privilege. The B oard asserted that, because it cause to issue a subpoena for privileged records and must obtain a court order In the trial court, the appellant s argued that the B oard must show just

produce the records, and Young moved t o quash the subpoena. B oard also filed a petition in superior court for an order compelling Young to psychologist - patient privilege; t he B oard moved to dismiss the claim. The court to prohibit the B oard from obtaining the records on the basis of the records. N.C., through her mother, sought decl aratory relief in the superior subpoena, but the B oard denied her motion and ordered her to produce the privilege and object to production of the records. Young moved to quash the N.C. of the subpoena, N.C. instructed Young to assert the psychologist - pat ient requesting a complete set of records pertaining to N.C. When Young notified On November 7, the B oard issued a subpoena duces tecum to Young Based on S.C. ’s complaint, the Board opened an inves tigation of Young.

mother. later. Young stated that Bourland had dropped N.C. off in Vermont to meet her the abusive incident on August 8, but did not report it to DCYF until days to him until he agreed to meet with her. She also admitted that she learned of treatment, and also admitted that she told S.C. that she would not return N.C. s h e provided backg round information about N.C. and the history of her On Oc tober p. 3 3, Young submitted a written response to the Board. In it,

S.C. ’s wishes that she no longer treat his daughter. to Vermont without S.C. ’s knowledge or consent; and (5) failing to respect concealing N.C., who was a minor at the time, f rom S.C. when she drove N.C. violating RSA 6 p. 3 33:1, I - a (2007) and 18 U.S.C. § 1201(a) (2012) by detaining and (201 p. 4 4) by failing to timely report suspected abuse of a child to DCYF; (4) creating a n insurmountable conflict of interest; (3) violating RSA 169 - C:29 her objecti vity; (2) provi ding counseling to both S.C. and his daughter, thus obligations by: (1) becoming personally over - involved with N.C., th us sacrificing B oard. The complaint alleged that Young had breached h er professional In September, S.C. filed a written complaint against Young with the 4

the statutory scheme. Id. at 509. W hen the language of a statute is plain and statutory language in light of the policy or purpose sought to be advanced by This enables us to better discern the legislature’s intent and to interpret isolation, but rather within the context of the statute a s a whole. Id. at 508 - 09. or unjust result. Id. Moreover, we do not consider words and phrases in parts of a statute together to effectuate its overall purpose and avoid a n absurd language that the legislat ure did not see fit to include. Id. We construe all written and will not consider what the legislature might have said or add ordinary meaning. Id. We interpret legislative intent from the statute as itself, and, if possible, construe that language according to its plain and LLC, 168 N.H. 50 p. 4 4, 508 (2016). We first look to the language of the statute the words of the statute considered as a whole. A ppeal of THI of NH at Derry, interpretation, we are the f inal arbiter of the legislature’ s intent as expressed in Olson v. Town of Grafton, 168 N.H. 563, 566 (2016). In matters of st atutory (Supp. 2015). We review the trial court’s statutory interpretation de novo. Resolution of this issue requ ires us to interpret RSA chapter 329 - B

privileged records; i t need only establish j ust cause. (2006). The Board argues that it need not obtain a court order before accessing Desclos v. S outhern New Hampshire Medical Center, 153 N.H. 607, 616 - 17 privilege, which means meeting the standard articulated in cases such as Board must establish a sufficient basis for the court to pierce the patient’s with the subpoena. To obtain s uch an order here, the appellants argue, the issue a subpoena; second, it must obtain a court order compel ling compliance engage in a two - step process: f irst, the Board must establish just cause to privile ged records by subpoena. The appellants argue that the B oard must The parties disagree about what the Board is required to do to obtain

disclosure. ordering compliance with th e subpoena in order to limit the scope of court erred in not conduct ing an in camera review of the records before that, even if the Board met the burden necessary to pierce the privilege, the that the Board had an essential need for them. Finally, the appellants assert there was a reasonable probability the records were relevant and material and additional burden necessary to pierce the patient’s privilege by showing that the court because the Board failed to sustain what, in their view, is the issue the subpoena, once they objected, the subpoena c ould not be enforced by the subpoena. The appellant s also contend that, even if just cause existed to subpoena because the Board failed to establish that it had just cause to issue On appeal, the appellant s argue that the trial court erred in enforcing the

app eal both orders. quash an d ordered compliance with the B o a rd’s subpoena. The appellant s ruling to the Board’s motion to compel, the court denied Young’s motion to p. 5 5

under state or federal law” provided for by RSA 329 - B:2, V, the appellants Although the Board contends that RSA 32 9 - B:22 is such “an exception

state or federal law.” (Quotation omitted.) which shall not be abridged except by court order or other exception under privacy of his or her psychological records, which belong to the patient and Further, RSA 329 - B:2, V defines “[p] rivilege” as “the right of a patient for

required by a court order. communications to be disclosed, unless such disclosure is chapter shall be construed to require a ny such privileged provided by law between attorney and client, and nothing in this licensee’ s client or patient are placed on the same basis as those person licensed under provisions of this chapter and such The confidential relations and communications between any

in part: that this section must yield to another section, RSA 329 - B:26, which provides, court order to compel compliance with the subpoena. The appellants argue so, and does not require the Board to take the additional step of obtaining a issue su bp oenas for records at any time, p rovided that it has just cause to do The Board argues that the plain languag e of RSA 329 - B:22 allows it to

329 - B:22, VI. from hospit als and other health care providers licensed in this state.” RSA just cause, at any time subpoena psychological records from its licensees and at any time.” RSA 329 - B:22, V(a). Under paragraph VI, the Board “may, with subpoenas for psychological records as provided in paragraph VI may be issued only in a formal investigation or an adjudicatory hearing, except that testimony, and issue subpoenas for witnesses and for documents and objects RSA 329 - B:21, I (c). The Board “may administer oaths or affirmations, preserve charges that a person licensed under th is chapter has committe d misconduct.” way that an investigation may be initiated is “[u]pon written complaint which concerning practitioners licensed under the chapter. RSA 329 - B:21, I. One “may, for just cause, undertake an investigat ion or disciplinary proceedings” unskilled, or unlicensed practitioners.” RSA 329 - B:1. To this end, the Board safeguard the public against harm which may be caused by untrained, quality consistent with the standard of care within the profession, and to by practitioners in New Hampshire to assure that the services provided are of a RSA chapter 329 - B was enacted “to regulate the practice of psychology

214, 221 (2010). every word of a statute. In re Search Warrant (Med. Records of C.T.), 1 p. 6 60 N.H. words or enact redundant provisions and, whenever po ssible, we give eff ect to of legislative intent. Id. We also presume that the legislature does not waste unambiguous, we need not look beyond the statute itself for further indications 6

contain no such requirement, see, e.g., RSA 329:18, IV(a) (2011); RSA 32 p. 6 6 - B:3 8 (Supp. 2015). importance of confidentiality in the psychologist - patient relationship, since other statutes Indeed, the just cause prerequisite arguably can itself be viewed as recognizing the heightened permits the Board to issue a subpoena for privileged records when it has just cause to do so. health care field. However, this does not change the fact that RSA chapter 329 - B plainly as deser ving of greater protection than applicable to other professional relationships in t he demonstrates that the legislature viewed confidentiality in the psychologist - patient relationship The appellants may be correct in asserting that the absence of such an exception 2

authorizing the issuance of subpoenas would render meaningless RSA 329 appellants ’ interpretation is illogical because requiring a court ord er issue a subpoena for psychological records. T he Board contends that the that RSA 329 - B:22, VI imposes up on the Board is that it have just cause to add language to the statute because, by its plain terms, the only requirement The Board argues that r equiring it to demonstrate essential need would

Redmond, 518 U.S. 1, 10 (199 p. 6 6). Matter of Berg & Berg, 152 N.H. 658, 664 - 65 (2005); see also Jaffee v. confidentiality in relationships between patients and psychologists. See In the pierce a patient’s privilege is proper given the particular importance of just cause as well as what, in their view, is the higher standard needed to 162 N.H. 64, 7 0 (2011). The appellants assert that requiring the Board to show the records. See id. at 615 - 17; Petition of State of N.H. (State v. MacDonald), records are relevant and material; and (2) the Board has an essential need for Board must show: (1) there is a reasonable probability that the requested sought to obtain confidential record s over a patient’s objection — that is, the the standard that we have articulated in past cases in which a third party omitted)). To pierce the privilege, t he appellants assert, the Board must meet the privilege; or (2) the court orders a piercing of the privilege.” (citatio ns disclosure of privileged information may occur: (1) the court finds a waiver of See Desclos, 153 N.H. at 611 (“Generally, there are two means by which privilege, the court may issu e such an order only by piercing N.C. ’s privilege. create an exception, and because there is no claim that N.C. waived her Th e appellants further argue that, because RSA 329 - B:22 and :26 do not

31 p. 6 6 - A:2 p. 7 7 (2015) (chiropractors). 2 (2011) (nurses); RSA 328 - F:28 (2011) (allied health professionals); and RSA 329 - B:26 with RSA 329:26 (2011) (physicians and surgeons); RSA 326 - B:35 conducted by the regulatory board, RSA 329 - B:26 does not. Compare RSA relationships provide explicit exceptions to the privilege for i nvestigations statutes that govern the regulation of health professions involving confidential disclosure of privileged records. The appellants also note that, although other argue, the statute requires the Bo ard to obta in a court order to compel B:26 (emphasis added). When the sections are read together, the appellants to be disclosed, unless such disclosure is required by a court order.” RSA 329 this chapter shall be construed to require any such privileged communications respond that it can not be because RSA 329 - B:26 clearly s tates that “nothing in 7

quash, or on a petition for declaratory judgment, both of which were utilized in this case. Such an order can take the form of a court’s ruling on a patient ’s or psychologist’s motion to 3

court to enforce a subpoena for psychological records issued by the Board, the We find it unnecessary to address the appellants ’ contention that, for a

enforce the subpoena. subpoena under RSA 329 - B:22 — just cause — is required for the court to investigations because the same showing required of the Board to issue a records are not self - executing. Requiring a court order also does not impede serves a useful purpose, notwithstanding that subpoenas for psycholo gical determine whether a subpoena should be enforced. Thus, RSA 329 - B:22 in RSA 329 - B:22, VI, t he statute would lack a criter i on by which courts are to subpoena for the records. In the absen ce of the just cause standard set forth Board, in issuing a subpoena for such records, and by the court, in enforcing a psychological records, and it is the standard that must be utilized both by the just cause — that must be satisfied in order for the Board to access renders RSA 329 - B:22 meaningless. RSA 329 - B:22 establishes the standard — We disagree with the Board’s contention that requiring a court order

review the Board’s d etermination that just cause exists to issue it. determi ni ng whether to compel compliance with the subpoena, the court must subpoena, the Board must seek a court order to compel compliance. W hen 3 has just cause. However, when a privilege - based objection is made to the may issue a subpoena for psychological records at any time, provided that it RSA 329 - B:22 and :26 can be read together, without conflict. The Board

redundant words” (quotation omitted)). and that the legislature is presumed not to have used superfluous or statutory construction that all of the word s of a statute must be given effect of Personnel, 158 N.H. 338, 345 (2009) (noting the “elementary principle of B:26, which we decline to do. See State Employees Assoc. of N.H. v. N.H. Div. adopt the Board’s po sition would require us to ignore the language of RSA 329 an exception to the patient’s privilege p rovided for by RSA 329 - B:2, V. To by a court order,” the just cause requirement in RSA 329 - B:22, VI cannot be privileged communications to be disclosed, unless such disclosu re is required 32 9 - B:26 that “nothing in this chapter shall be construed to require any such subpoena based up on a claim of privilege. Given t he plain language of RSA obtain a patient’s records when there is an objection to compliance with a We agree with the appellants that the statute requires a court order to

requirement of RSA 329 - B:22, VI. privilege because the relationship is adequately protected by the just cause essential need standard is not necessary to protect the psychologist - patient Board’s ability to conduct investigations. The Board also contends that the B:22, V and VI, which grant the Board subpoena power, and would impede the p. 8 8

an element of the crime); In re Grand Jury Subpoena (Medical Records of mental health records that were relevant to victim’s mental capacity, which was N.H. at 65 - 66 (criminal defendant sought sexual assault victim’s medical and that they were relevant to the issue of damages); Petition of State of N.H., 162 claim sought patient’s psychological records created prior to the injury, arguing Compare, e.g., Desclos, 153 N.H. at 609 (defendants in medical negligence whether Young deviated from accep ted standards of professional conduct. disclosure was to investigate the nature of that relationship itself to determine collateral to the professional - patient relationship, here, the purpose of the third par ty because of their relevanc e to some discrete matter or issue unlike in Desclos and other cases in which privileged records were sought by a around the time of the incident in August 2013 should be disclosed. However, suggest that only the records involving Young’s professional services rendered essential need as to the entirety of the records that it sought. The appellants overbroad and that the Board was required to establish probable relevanc e and relationship with Young. The appellants contend that the subpoena was The Board subpoenaed all of N.C. ’s records for the leng th of her

basis for enforcing the Board’s subpoena. we conclude that t he trial court did not er r in finding that there was a proper that such information would not be available from alternative sources. In sum, essential need for the information contained in the subpoen aed records, and psychologist - patient relationship, it is readily apparent that the Board had an from her treatment of both N.C. and S.C. — and the private nature of the Young had become over - involved with N.C. and had a conflict of interest arising d ue to the nature of the misconduct alleged — including particularly that treatment would likely contain relevant and material information. Additionally, of the two provi ded ample justification for concluding that the records of such professional interactions with N.C. and S.C. during the course of her treatment Furthermore, the very fact that the allegations pertained to Young’s clearly provided the Board with just cause to launch an investigation. written response and her answers corroborated much of th e complaint. This The Board had more than S.C. ’s complaint, however. Young submitted a the complaint, and that S.C. had an improper motive in filing the complaint. appellants contend that the Board did not verify the accuracy or credibility of instances of serious misconduct by Young. See RSA 329 - B:21, I(c). The The Board received a written complaint from S.C. alleging a number of

id. at 60 p. 9 9, we conclude that the Boa rd met the standard in this case. to a disclosure sought by a nother third party, as was the case in Desclos, see a subpoena issued by the body charged with regulating a licensee, as opposed at 615 - 17. Eve n if we assume, without deciding, that this standard applies to information; and (2) it has an essential need for the records. Desclos, 153 N.H. reasonable probability the subpoenaed records contain material and relevant additional requirement above and beyond just cause, that: (1) there is a Board must demonstrate, either as part of its showing of just cause or as an 9

DALIANIS, C.J.