2024 N.H. 25, State v. Doyle

brief and orally, for the defendant. Thomas Barnard, deputy chief appellate defender, of Concord, on the

for th e State. general (Michael R. Grandy, assistant attorney general, on the brief and orally), John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Doyle, 2024 N.H. 25 Case No. 2023 - 0210 Merrimack

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

135:17 - a, V.” evaluated for the appropriateness of involuntary treatment as described in RSA that the defendant was dangerous to others and ordered that he “shall be competency. Following a further hearing, the court found in February p. 2 2022 on restorability, the trial court found that the defendant had not regained reviewing certain of the defendant’ s mental health records. Following a hearing himself or others. The OFE’s report indicates that t his evaluation included that he had not been restored to competency and that he was dangerous to [¶4] In August 2021, the OFE re - evaluated the defendant and concluded

competency. court ordered that the defendant undergo treatment to be restored to mental health records provided by the defendant. Following a hearing, the trial in addition to interviewing and evaluating the defendant, reviewed medical and restored to competency. In making this determination, the defend ant’s expert, restoration. That ex pert concluded that the defendant was unlikely to be conduct an evaluation related to his competence to stand trial and capacity for stand trial. D efendant ’s counsel requested an independent examiner to September p. 2 2019, the trial court found that the defendant was not competent to in the next 12 months, with appropriate treatment.” (Emphasis omitted.) In defendant was not comp etent to stand trial but “can be restored to competence reached in the report. Nevertheless, the OFE evaluator concluded that the time the report was written and, therefore, formed no basis for the conclusions the defendant’s mental health records but they had not been received as of the [¶3] In its competency report, the OFE indicated that it had requested

disclosed, without order of the Court.” determine competency and may not be used in any other proceeding, or further specified that “[t]he contents of the recor ds produced shall be used only to provide the OFE with certain mental health and medical records. The order defense counsel. In doing so, the court also ordered that defendant’s counsel defendant to undergo a competency evaluation, prompted by a motion from I(a) ( p. 2 2016 & Supp. 2023). In August 2019, the trial court ordered the crimes arising out of a domestic dispute. See RSA 631:4 (2016); RSA 631:2 - b, supported by the record. In March 2019, the defendant was charged with [¶2] The following facts were found by the trial court or a re otherwise

RSA p. 3 3 p. 2 29:26 (2017); RSA 330 - A:32 (Supp. 2022). We vacate and remand. exempt from the physician - patient and psychotherapist - patient privileges. See The defendant argues that the court er red by ruling that his records are appropriateness of involuntary commitment under RSA 135:17 - a, V (2021). physician designated by the State for the purpose of assessing the 3

construe them in harmony with the overall statutory scheme. Id. However, we do not construe statutes in isolation; instead, we attempt to construe all parts of a statute together to effectuate its overall purpose. Id. add language that the legislature did not see fit to include. Id. We also whenever possible and will not consider what the legislature might have said or to its plain and ordinary meaning. Id. We give effect to every word of a statute language of the statute its elf, and, if possible, construe that language according the trial court’s statutory interpretation de novo. Id. We first look to the interpretation. St. Onge v. Oberten, LLC, 174 N.H. p. 3 393, 395 (2021). We review [¶9] Resolving this appeal requires us to engage in statutory

established essential need for th o se records before the trial c ourt. defendant waived the privileges with respect to th o se records; and ( p. 3 3) the State V authorizes the trial court to order the transfer of th o se records; (2) the evaluator under RSA 135:17 - a, V. The Stat e counters that: (1) RSA 135: 1 7 - a, mental health records relied upon by the OFE to the State’s designated that RSA 329:26 and RSA 330 - A:32 allow for the transfer of his medical and [¶8] On appeal, the defendant challenges the trial court’s determination

pending this appeal. defendant’s motion to stay the order authorizing the disclosure of his records [¶7] This ap peal followed. The trial court subsequently granted the

further evaluation.” were available to the court in the criminal case and prompted the order for a conducting the evaluation to be without evidence of the medical records that this ca se, it would make little sense for the mental health professional under RSA 1 p. 3 35 - C:24 -: 54. The court further observed that, “[i]n the context of examination falls within the privilege statutes’ exception s for proceedings initiating the civil commitment process.” Therefore, the court concluded, the it leads to a petition or not, RSA 135:17 - a, V provides a mechanism for exempt from the statutory privileges.” The trial court reasoned that, “[w]hether medical and mental health records provided to the forensic examiner are [¶6] The trial court denied t he defendant’s motion, determining that “the

“to a third party without his consent.” See RSA p. 3 329:26; RSA 330 - A:32. released are confidential and privileged and should therefore not be disclosed def endant moved for reconsideration, asserting that the records ordered to be of involuntary commitment. The trial court granted the State’s request. The — to the doctor designated by the State to evaluate the defendant for purposes “to form their opinion” as to his competency to stand trial and dangerousness release of the defendant’s records — which had been “relied upon” by the OFE [¶5] Thereafter, the State sought an order from the trial court to allow the p. 4 4

construed. Stat e v. Willis, 165 N.H. 206, 212 (2013). Both RSA 329:26 and [¶13] It is well settled that statutory privileges should be strictly

psychiatric unit, as the case may be.” Id. system, the state developmental services delivery system, or the secure certificate for involunta ry admission into the state mental health services state for the purpose of evaluating appropriateness and completing the examinations by a physician, psychiatrist, or psychologist designated by the RSA 171 - B:2.” RSA 135:17 - a, V. “T he court may order the person to submit to for the appropriateness of involuntary treatment pursuant to RSA 135 - C:3 p. 4 4 or custody for a reasonable period of time, not to exceed 90 days, to be evaluated himself or herself or others, the court shall order the person to remain in that when a defendant is found not competent, not restored, and “dangerous to trial. State v. Salimullah, 172 N.H. 739, 743 (2020). RSA 135:17 - a, V provides making an initial determination that a defendant is not competent to stand [¶12] RSA 135:17 - a sets forth procedures for a trial court to follow after

preserve”). physician from revealing statements whose confidentiality the patient wishes to the physician - patient privilege belongs to the patient, “who may prevent the patients. Id.; see Nelson v. Lewis, 130 N.H. 106, 109 (1987) (explaining that confidential relationship between physicians and patients and therapists and we have continually sought to safeguard the statutory protections afforded the confidence or th e psychiatrist cannot help the patient. Id. For these reasons, the patient d oes not trust, but a psychiatrist must have the patient’s ailments may be treated with some degree of effectiveness by a doctor whom behind the usual physician - patient privilege. Id. at 68. Many physical public policy behind this privilege might be even more compelling than that Id. With respect to the psychotherapist - patient privilege, we have found the patient s may be both embarrassing and of little real consequence to society. (2011). The privileges recognize t hat much of what physician s learn from their treatment. Petition of State of N.H. (State v. MacDonald), 162 N.H. 6 p. 4 4, 67 by the patient for the purpose of receiving complete medical and psychiatric [¶11] The purpose behind these privileges is to encourage full disclosure

required by a co urt order.” RSA 330 - A:32. such privileged communications to be disclosed, unless such disclosure is pertinent part, that “nothing in this chapter shall be construed to require any such privileged communications.” RSA 329:26. RSA 330 - A:32 states, in provided by law, no such physician or surgeon shall be requir ed to disclose 329:26; RSA 330 - A:32. RSA 329:26 specifies that “except as otherwise the same basis as those provided by law between attorney and client.” RSA between” physicians and p sychotherapists and their patients “are placed on these privilege statutes, “[t]he confidential relations and communications 329:26, and the psychotherapist - patient privilege, see RSA 330 - A:32. Under [¶10] At issue in this case are the physician - patient privilege, see RSA p. 5 5

further review of the case. oral argument but subsequently disqualified herself and did not participate in BASSETT and DONOVAN, JJ., concurred; HANTZ MARCONI, J., sat for

322 (1993). merit and do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, have reviewed the parties’ remaining arguments and determine that they lack further proceedings a nd, in doing so, we express no view on the merits. We information c ould be met here. Accordingly, we remand to the trial court for did not address whether either of the grounds for disclosing privileged RSA 13 p. 5 5:17 - a, V exempts the records at issue from the statutory privileges, it N.H., 162 N.H. at 69 - 70. Because the trial court erroneously concluded that the information concerned is considered “essential.” See Petiti on of State of privilege; or (2) the court orders a piercing of the privilege because disclosure of privileged information may be disclosed: (1) the court finds a waiver of the omitted.) See RSA 330 - A:32. There are gen erally two grounds upon which RSA 330 - A:32 permitting disclosure” if “required by court order.” (Quotation medical records under RSA 135:17 - a, V. . . meets the exception contained in [¶14] Likewise, we reject the State’s assertion that “[a]n order to produce

v. Sumski, Chapter 13 Tr., 176 N.H. 16 p. 5 5, 175 (2023). scheme should it disagree with the conclusion that we reach today. See Brady the statute as written, the legislature is, of course, free to amend the statutory that the legislature did not see fit to include). Although we are bound to apply 395 (we will not consider what the legislature might have said or add language examiner are exempt from the statutory privileges.” See St. Onge, 174 N.H. at [defendant’s] medical and mental health records provided to the forensic matter of law in determin ing that, pursuant to RSA 135:17 - a, V, “the mental health records are privileged. The refore, the trial court erred as a accordance with RSA 329:26 and RSA 330 - A:32, the defendant’s medical and the court - ordered evaluation under section V. We conclude, therefore, that in 135:17 - a autho rize the disclosure of such communications for the purpose of communications at issue in this case. Nor does t he plain language of RSA pursuant to RSA 135:17 - a, V from the protections afforded to the privileged language of RSA 329:26 nor of RSA 330 - A:32 exempt s an evaluation conducted pursuant to RSA 135 - C:27 - 54.” (Emphasis added.) However, n either the plain RSA 330 - A:32 provide that the y “shall not apply” to “hearings conducted