State of New Hampshire v. John Doyle

Whether the court erred by ruling that Doyle’s psychiatric records were exempt from the physician-patient and psychotherapist-patient privileges.

Issue preserved by the State’s motion to authorize disclosure of the records, A* 18, Doyle’s objection, A 20, the State’s motions for a ruling on its motion, A 24, 31, 51, Doyle’s objections, A 26, 46, 54, the parties’ arguments at the hearing on the State’s motion, H 1–9, the court’s orders authorizing disclosure of the records, AD 3, 5, Doyle’s motion to reconsider, A 60, the State’s objection, A 71, and the court’s order denying Doyle’s motion to reconsider, AD 6.

RSA 329:26 Confidential Communications.

The confidential relations and communications between a physician or surgeon licensed under provisions of this chapter and the patient of such physician or surgeon are placed on the same basis as those provided by law between attorney and client, and, except as otherwise provided by law, no such physician or surgeon shall be required to disclose such privileged communications. Confidential relations and communications between a patient and any person working under the supervision of a physician or surgeon that are customary and necessary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with such supervising physician or surgeon. This section shall not apply to investigations and hearings conducted by the board of medicine under RSA 329, any other statutorily created health occupational licensing or certifying board conducting licensing, certifying, or disciplinary proceedings or hearings conducted pursuant to RSA 135-C:27–54 or RSA 464-A. This section shall also not apply to the release of blood or urine samples and the results of laboratory tests for drugs or blood alcohol content taken from a person for purposes of diagnosis and treatment in connection with the incident giving rise to the investigation for driving a motor vehicle while such person was under the influence of intoxicating liquors or controlled drugs. The use and disclosure of such information shall be limited to the official criminal proceedings.

RSA 330-A:32 Privileged Communications.

The confidential relations and communications between any person licensed under provisions of this chapter and such licensee’s client are placed on the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communications to be disclosed, unless such disclosure is required by a court order or allowed by federal law pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or 42 C.F.R. Part 2. Confidential relations and communications between a client and any person working under the supervision of a person licensed under this chapter which are necessary and customary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with the supervising person licensed under this chapter, unless such disclosure is required by a court order. This section shall not apply to hearings conducted pursuant to RSA 135-C:27–54 or RSA 464-A.

In March 2019, the State filed complaints in the Merrimack County Superior Court alleging that John Doyle committed misdemeanor domestic violence and two counts of criminal threatening. A 4–6. In September 2019, the State obtained indictments alleging that Doyle committed second- degree assault and felony domestic violence. A 7–8. All the offenses were alleged to have occurred on March 13 or 14, 2019. A 4–8.

Shortly after the indictments were filed, the court (Tucker, J.) found that Doyle was not competent to stand trial. A 9. Two years later, in September 2021, the court found that Doyle’s competency had not been restored. A 11. In February 2022, the court found that Doyle was dangerous and ordered that he “shall be evaluated for the appropriateness of involuntary treatment as described in RSA 135:17-a, V, ” an evaluation which, the Court ordered, “shall be scheduled by the State.” A 14; see also RSA 135:17-a, V (“The court may order [a] person [found incompetent, unrestored and dangerous] to submit to examinations by a physician, psychiatrist, or psychologist designated by the state for the purpose of evaluating appropriateness and completing the certificate for involuntary admission into the state mental health services system.”). The court continued Doyle’s bail conditions, “with the further condition that [he] report for the evaluation as scheduled.” A 14–15. Doyle appealed the court’s dangerousness finding (Docket No. 2022-0173). A 24. The court, however, did not stay its order pending appeal. A 24, 27.

During these proceedings, the Office of the Forensic Examiner (OFE) issued reports detailing its findings regarding Doyle’s competency, restoration and dangerousness. A 9, 11, 12. In March 2022, the State filed a motion, in the Superior Court, explaining that it planned to file a civil-commitment petition in the Probate Court. A 16. It requested the court’s authorization to disclose the OFE’s reports to the “physician, physician assistant, or [advanced practice registered nurse]” it chose to examine Doyle, and to any court-appointed psychiatrist or receiving facility. A 16. The court granted the State’s motion without objection. A 16.

In evaluating Doyle’s competency, restoration and dangerousness, the OFE obtained Doyle’s psychiatric records from August 2016 to August 2019. A 18. Shortly after obtaining authorization to disclose the OFE’s reports to its examiner, the State filed a motion to authorize the OFE to additionally disclose Doyle’s psychiatric records to its examiner, whom it then identified as Daniel Lampignano. A 18. The State cited RSA 135-C:36, I(c), which requires that a petition for civil commitment include “[a] certificate from a physician, physician assistant, or advanced practice registered nurse... who has examined the person sought to be admitted within 5 days of the date the petition is filed, ” attesting “that, based on this examination, such person satisfies the standard set forth in RSA 135-C:34.” A 18; RSA 135-C:36, I(c).

The grounds for the State’s motion were exceptions in RSA 329:26, setting forth the physician-patient privilege, and in RSA 330-A:32, setting forth the psychotherapist-patient privilege. A 18. Those exceptions only exempt from the physician-patient and psychotherapist-patient privileges “hearings conducted pursuant to [the civil-commitment statutes].” Even though no civil commitment proceedings had been initiated and, thus, no civil-commitment hearing had been scheduled, the State nevertheless requested that the court authorize the disclosure of Doyle’s privileged records on the ground that Lampignano “would like to review” them. A 18. Doyle objected, noting that disclosure of his privileged records was not necessary for Lampignano to examine him or to determine whether to sign the certificate. A 20–21. Over the next six months, the State did not schedule the examination or otherwise act to initiate civil commitment proceedings. A 24–25, A 27. In September 2022, the State filed a motion seeking a ruling on its motion to authorize the disclosure of Doyle’s records. A 24. Doyle objected, noting that the State had not scheduled his examination. A 26–27.

The court denied the State’s motion, ruling that, due to Doyle’s pending appeal of its dangerousness finding, it “lack[ed] jurisdiction to act in a way that furthers the operation of the order under review, ” A 30, a rationale not previously advanced by Doyle, A 26–28.

In October 2022, the State filed a renewed motion seeking a ruling on its motion to authorize the disclosure of Doyle’s records. A 31. Doyle objected, noting again that disclosure of the records was not necessary for Lampignano to examine him and that the State had not scheduled such an examination. A 46–49. On December 12, 2022, the court held a hearing on the issue. H 1–9.

At the hearing, the court asked the State whether the records were necessary to complete the examination. H 7. The State responded, “I’m not sure I know the answer to that question. My guess is that [Lampignano] could do an evaluation without the records. The question would be how accurate that evaluation would be.” H 7. It added that, in prior cases in which the State hired Lampignano to examine an individual for potential civil commitment, he routinely requested and received the individual’s medical and psychiatric records. H 7–8. The court took the matter under advisement. H 8.

In early March 2023, Doyle moved to withdraw his appeal of the dangerousness finding. A 53; see also H 3 (State noting that its motion to authorize the disclosure of Doyle’s records was not dependent on the dangerousness finding); State v. Woodham, No. 2021-0337 (N.H. June 29, 2023) (non- precedential order) (dangerousness finding became moot after 90 days, and appeal of dangerousness finding did not “present[] a matter of sufficiently pressing public interest or the potential for stigmatization that warrant[ed] deciding it on the merits.”). This Court granted the motion. A 53. The State then filed a second renewed motion seeking a ruling on its motion to authorize the disclosure of Doyle’s records, noting that Doyle had withdrawn his appeal. A 51. Doyle again objected, noting that it had been over a year since the court ordered the State to schedule his examination and that it had failed to do so. A 54–57. He reiterated that disclosure of his privileged records was unnecessary for such an examination. A 57.

On March 15, 2023, the Superior Court granted the State’s motion to authorize the disclosure of Doyle’s psychiatric records to Lampignano. AD 3, 5. The next day, Doyle filed a motion for reconsideration. A 60. The statutory exceptions on which the State relied, he argued, “only provide for the privilege to be pierced after a civil commitment petition has been filed.” A 67. Because “no such petition ha[d] been filed, ” he argued, the court erred by authorizing disclosure of his privileged records. A 67. The State objected. A 71.

On April 2, 2023, the court denied Doyle’s motion for reconsideration. AD 6–8. It ruled that RSA 329:26 and RSA 330-A:32 “‘explicitly except’ from the privilege ‘involuntary proceedings and hearings conducted pursuant to’ [RSA 135-C:27–54]” and that “[p]roceedings in a civil commitment action include the pre-petition evaluation.” AD 7. Thus, it ruled, Doyle’s psychiatric records “[we]re exempt from the statutory privileges.” AD 8.

On April 13, 2023, Doyle appealed from this ruling. A 77. On April 18, 2023, the Superior Court granted Doyle’s motion to stay its order authorizing disclosure of his records pending resolution of this appeal, noting that “[t]he State is not precluded from proceeding with the evaluation of whether [Doyle] is appropriate for involuntary treatment, albeit without the medical records sought in the State’s motion.” A 74.

The confidential relations and communication between a patient and his or her physician or psychotherapist are privileged by statute. While these privileges do not apply to civil-commitment “hearings, ” here, no civil-commitment hearing was scheduled. Indeed, no civil-commitment petition was even filed. The State merely asserted that it was considering filing a civil-commitment petition and that the psychiatrist it hired to examine Doyle “would like to review” his private psychiatric records. By ruling that Doyle’s records were, for these reasons, exempt from the physician-patient and psychotherapist-patient privileges, the court erred.

They provide that “[t]he confidential relations and communication between” physicians or psychotherapists and their patients “are placed on the same basis as those provided by law between attorney and client.” RSA 329:26; RSA 330-A:32. Except as otherwise provided, no physician or psychotherapist may be required to disclose privileged communication. RSA 329:26, RSA 330-A:32. Physicians and psychotherapists, however, have a duty to disclose “a serious threat of physical violence against a clearly identified or reasonably identifiable victim or victims, or a serious threat of substantial damage to real property.” RSA 329:31, I; RSA 330-A:35, I.

A psychiatrist is both a physician and a psychotherapist. In re State, 162 N.H. 64, 68 (2011); In re Haines, 148 N.H. 380, 381 (2002); RSA 330-A:2, VIII. Here, there is no dispute that Doyle’s psychiatric records constitute “confidential relations and communications” under both statutes. See In re C.T., 160 N.H. 214, 220 (2010) (the physician-patient privilege includes “medical reports... generated by a physician as a consequence of the confidential relationship with his patient.”). There is no evidence that Doyle has ever communicated to any treatment provider “a serious threat of physical violence against a clearly identified or reasonably identifiable victim or victims, or a serious threat of substantial damage to real property.”

“The purpose behind these privileges is to encourage full disclosure by the patient, for the purpose of receiving complete medical and psychiatric treatment.” In re State, 162 at 67. “The privileges recognize that much of what a physician learns from his patient may be both embarrassing and of little real consequence to society.” Id.

“[T]he public policy behind [the psychotherapist-patient] privilege may be even more compelling than that behind the usual physician-patient privilege, ” because “[m]any physical ailments might be treated with some degree of effectiveness by a doctor whom the patient did not trust, but a psychiatrist must have his patient’s confidence or he cannot help him.” Id. at 68 (quotation omitted). “The psychiatric patient confides more utterly than anyone else in the world.” In re Kathleen M., 126 N.H. 379, 382 (1985). “He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame.” Id. “The mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.” Desclos v. S. New Hampshire Med. Ctr., 153 N.H. 607, 610 (2006). “It is difficult if not impossible for a psychotherapist to function without being able to assure patients of confidentiality and, indeed, privileged communication.” Id.

“For these reasons, [this Court] ha[s] continually sought to safeguard the statutory protections afforded the confidential relationship between physicians and patients and therapists and patients.” In re State, 162 N.H. at 68; see also State v. Sawtell, 152 N.H. 177, 179 (2005) (“Traditionally, [this Court] ha[s] carefully guarded the confidential relationship between patients and their medical providers.”). In light of the purposes behind the statutory privileges, this Court strictly construes them. Sawtell, 152 N.H. at 180. Even where the privileges apply, they are “not absolute”; they “must yield when disclosure of the information concerned is considered essential.” In re State, 162 N.H. at 70. This Court has set forth a three-step process, explained in Section D below, pursuant to which a court may compel the disclosure of privileged records for which a litigant has shown an “essential need.” Id.

RSA 135-C:34. Jurisdiction over non-emergency petitions for civil commitment is vested exclusively in the Probate Court. RSA 135-C:20, II.

“Any responsible person” may file a petition to civilly commit any other person. RSA 135-C:35. Among other things, the petition must include:

The standard set forth in RSA 135-C:34 requires that “the person [be] in such mental condition as a result of mental illness as to create a potentially serious likelihood of danger to himself or to others.” Mental illness, by itself, is not sufficient to satisfy this standard. In re G.W., ___ N.H. ___ (July 13, 2023). Rather, the standard additionally requires “a recent dangerous act, ” one “demonstrating actual or likely serious bodily injury.” Id.; see also RSA 135-C:36 (the petition “shall include... “[t]he specific acts or actions that the petitioner alleges satisfy RSA 135-C:34”).

After a petition is filed, the Probate Court is required to schedule a hearing and to “order the person sought to be admitted to make himself available for an examination by a psychiatrist designated by the court prior to the date of the hearing.” RSA 135-C:37; RSA 135-C:40. The designated psychiatrist is required to file a report with the court, on or before the day of the hearing, addressing, among other things, whether the person “meets the standard in RSA 135-C:34” and whether civil commitment is “necessary.” RSA 135-C:40. The court, “after hearing all the evidence, ” and applying a “clear and convincing evidence” standard, makes the ultimate determinations of whether the standard set forth in RSA 135-C:34 is satisfied and, if so, whether to order civil commitment. RSA 135-C:45, I; G.W., ___ N.H. at ___. If the court orders civil commitment and the medical director of the receiving facility “determines that obtaining information is essential to the care or treatment of [the] person, ” then the person’s prior healthcare providers “may provide [to the facility]... information essential to the medical or psychiatric care of the person admitted.” RSA 135-C:19-a, II.

On appeal, this Court noted that the testimony at issue fell within the physician-patient privilege, but that the privilege “yield[s] when there are sufficiently compelling countervailing considerations.” Id. at 382. The State argued that “the very nature of involuntary commitment proceedings... provides sufficiently compelling grounds to warrant exempting them from the physician-patient privilege.” Id. It noted that it was required to prove mental illness and dangerousness beyond a reasonable doubt1, observed that the civil-commitment statutes were “concerned with the protection of mentally ill persons and other members of society” and asserted that “the testimony of the treating psychiatrist [wa]s the best evidence with which to demonstrate mental illness and potential dangerousness.” Id. For these reasons, it argued, “the physician-patient privilege should not apply to [civil-commitment] hearings.” Id. This Court rejected the State’s argument. Id. “We can find no reason, ” it held, “to... negat[e] the legislative purposes and policy which the psychiatrist-privilege is designed to foster by making a per se exception to this privilege for [civil-commitment] hearings.” Id. at 383. It noted that “the physician-patient privilege [wa]s... statutory... and that there [wa]s no indication that the legislature intended to except [civil-commitment] hearings.” Id. While this Court rejected a per se exemption for civil- commitment proceedings, it held that “the circumstances in individual cases may compel such an exemption, ” namely if the psychiatrist’s testimony were “essential” and “the only available source by which to prove” the civil-commitment requirements. Id. This Court found that, in all three cases, the psychiatrist’s testimony was not “essential, ” noting that, in two of the cases, the psychiatrist’s testimony was not the only available source. Id. at 385–87. It reversed judgment in two of the cases while finding the error harmless in the third. Id. at 385–88.

In the following year, 1986, the legislature enacted House Bill 226. Laws 1986, ch. 212. The bill primarily overhauled the State’s mental-health laws, but the legislature also addressed the issue presented in Kathleen M. Id. The bill amended RSA 329:26, setting forth the physician-patient privilege, and what was then RSA 330-A:19, setting forth the psychiatrist-patient privilege, by providing, in relevant part, “This section shall not apply to hearings conducted pursuant to RSA 135-C:27–54, ” the civil-commitment statutes. Laws 1986, 212:2, :3. This exception persists today in statutes setting forth the chiropractor-patient, nurse-patient, physician-patient, psychologist-patient and psychotherapist- patient privileges. RSA 316-A:27 (chiropractor-patient privilege); RSA 326-B:35, III (nurse-patient privilege); RSA 329:26 (physician-patient privilege); RSA 329-B:26 (psychologist-patient privilege); RSA 330-A:32 (psychotherapist-patient privilege).

— merely because a prospective petitioner contemplates filing such a petition.

“In matters of statutory interpretation, this [C]ourt is the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” State v. Jordan, ___ N.H. ___ (June 29, 2023). It “first look[s] to the language of the statute itself, and, if possible, construe[s] that language according to its plain and ordinary meaning.” Id. It “interpret[s] legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. It “construe[s] all parts of a statute together to effectuate its overall purpose and to avoid an absurd or unjust result.” Id. Issues of statutory construction are reviewed de novo. Id. By its plain language, the 1986 amendment only abrogates the privileges for civil-commitment “hearings.” Laws 1986, 212:2, :3. A “hearing” is a “session, ” “setting, ” or “proceeding” that takes place within a court, administrative agency, or legislative body. Black’s Law Dictionary 865 (11th ed. 2019); accord Black’s Law Dictionary 721 (6th ed. 1990). A physician, physician assistant, or advanced practice registered nurse, hired by a prospective litigant, is not a court, administrative agency, or legislative body. Thus, a pre- petition examination, conducted by a physician, physician assistant, or advanced practice registered nurse hired by a prospective litigant contemplating filing a civil-commitment petition, is not a “hearing.”

RSA 135-C:36 supports this common-sense, plain- language construction. It was enacted by the same 1986 law that enacted the exception for civil-commitment “hearings” upon which the State relies. Laws 1986, 212:1. It requires that a civil-commitment petition include a certificate from a qualified evaluator “who has examined the person sought to be admitted within 5 days of the date the petition is filed and who agrees that, based on this examination, such person satisfies the standard set forth in RSA 135-C:34.” RSA 135-C:36, I(c) (emphasis added). Had the legislature envisioned that the evaluator would, in addition to the examination, also rely on the individual’s medical and mental-health records, it would not have mandated that the evaluation be “based on th[e] examination, ” without referencing those other sources of information.

RSA 135-C:43, also enacted by the same 1986 law, additionally supports Doyle’s statutory construction. It sets forth various rights that “the person sought to be admitted” has at civil-commitment “hearings, ” including “the right to legal counsel, ” “the right... to present evidence on his or her own behalf, ” “the right... to cross-examine witnesses, ” “the right to summon as a witness the [court-appointed] psychiatrist who filed the report pursuant to RSA 135-C:40 and to cross-examine him or her, ” and the right to “[a] transcript” or “audio recording, ” which “shall be retained by the court.” RSA 135-C:43, I.

This statute demonstrates that the legislature understood the word “hearings” to refer to adversarial proceedings in court, not to out-of-court medical examinations. It would be extremely unorthodox, if not absurd, to suggest that a patient undergoing a medical examination has a right to counsel, to present evidence, to cross-examine witnesses, or to record the examination. Moreover, “the [court-appointed] psychiatrist who file[s] the report pursuant to RSA 135-C:40” does so only after a petition is filed. See RSA 135-C:40 (“Upon receipt of the petition, the court shall order the person sought to be admitted to make himself available for an examination by a psychiatrist designated by the court prior to the date of the hearing.”). The examination conducted by a prospective petitioner’s chosen physician, physician assistant, or advanced practice registered nurse takes place before the petition is filed. RSA 135-C:36, I(c). It would be illogical for the legislature to enact a right to “summon” and “cross- examine” a witness about an examination that has not yet occurred.

In re C.T. i s analogous. There, this Court noted that the statute setting forth the physician-patient privilege “specifically” excepted from the privilege blood and urine samples and the results of laboratory test for blood and alcohol in connection with criminal prosecutions for driving while intoxicated. C.T., 160 N.H. at 221. It then considered whether this exception applied to “other medical records.” Id. “The fact that the legislature specifically excepted from the privilege certain samples and test results for use in prosecutions of driving while intoxicated charges leads to the corollary conclusion that the legislature intended to retain the privilege for other medical records in such circumstances.” Id. The same reasoning applies here. The fact that the legislature specifically excepted civil-commitment “hearings” from the privileges leads to the corollary conclusion that the legislature intended to retain the privileges when no such hearing is pending.

The court h ere, citing In re Sandra H., 150 N.H. 634 (2004), ruled that RSA 329:26 “‘explicitly except[s]’ from the privilege ‘involuntary commitment proceedings and hearings conducted pursuant to’ [the civil-commitment statutes].” AD 7. The court correctly cited Sandra H. — there, this Court asserted, in dicta, that “[t]he legislature [after 1985] amended the statutes to explicitly except involuntary commitment proceedings and hearings conducted pursuant to [the civil- commitment statutes].” Id. at 639. A close examination of the amendments, however, reveals that this assertion was mistaken; regarding the civil-commitment process, the legislature excepted only “hearings, ” not “proceedings.” Prior to 1986, the physician-patient privilege already contained an exception for “disciplinary proceedings” conducted by certain occupational-licensing boards. Laws 1969, 386:1. It provided, “This section shall not apply to disciplinary proceedings conducted by the board of registration in medicine under RSA 329:17, the board of nursing education and nurse registration under RSA 326-B:12, the board of examiners of nursing home administrators under RSA 151-A:11, or any other statutorily created medical occupational licensing board conducting disciplinary proceedings.” Laws 1969, 386:1. The psychotherapist-patient privilege did not contain such an exception. Laws 1957, 121:1.

The 1986 bill added, to each privilege, the exception for civil-commitment “hearings.” Laws 1986, 212:2, :3. It provided, “This section shall not apply to hearings conducted pursuant to RSA 135-C:27–54, ” the civil-commitment statutes. Laws 1986, 212:2, :3.

In 1995, the legislature modified the physician-patient privilege in two relevant respects. Laws 1995, 286:23. First, it made changes to the exception for activities conducted by occupational licensing boards. Laws 1995, 286:23. Second, it combined that exception with the civil-commitment exception to form a single sentence: “This section shall not apply to investigations and hearings conducted by the board of medicine under RSA 329, any other statutorily created health occupational licensing or certifying board conducting licensing, certifying, or disciplinary proceedings or hearings conducted pursuant to RSA 135-C:27–54.” Laws 1995, 286:23.

In 2000, the legislature added “or RSA 464-A, ” the chapter governing guardianships, to the end of this sentence. Laws 2000, 294:4. This sentence has not been amended since 2000.

In its quest for brevity, the legislature may, in 1995, have sacrificed clarity. But a close reading of the sentence in question — with consideration of the statute’s history — demonstrates that the statute sets forth two distinct exceptions. The first exception is for “investigations and hearings, ” carried out by various occupational licensing boards, while those boards are “conducting” various “proceedings.” The second exception is for “hearings” under the civil-commitment and guardianship statutes. Thus, the civil-commitment and guardianship exception applies only to “hearings”; it does not apply to “proceedings.”

Even if the physician-patient privilege did not apply to civil-commitment “proceedings, ” that would not support the court’s order here, for two reasons.

First, “proceedings” do not encompass a prospective litigant’s preparation for filing a petition. A proceeding is “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.” Black’s Law Dictionary 1457 (11th ed.

2019); accord Black’s Law Dictionary 1204 (6th ed. 1990). The activities of an individual retained by a prospective litigant in preparation for filing a petition do not constitute a “proceeding.”

Second, while the word “proceedings” appears in the statute setting forth the physician-patient privilege, it does not appear in the statute setting forth the psychotherapist- patient privilege. RSA 330-A:32. Doyle’s records were protected under both privileges. Even if non-hearing civil- commitment “proceedings” are excepted from the physician- patient privilege, they are not excepted from the psychotherapist-patient privilege.

Under the court’s statutory interpretation, the legislature enacted a provision that is directly contrary to legal tradition and prevailing norms. Involuntary commitment is a civil proceeding. State v. Hudson, 121 N.H. 6, 12 (1981). In almost all civil proceedings, each party is entitled to obtain information — “discovery” — from the other. See generally, Gordon J. MacDonald, Wiebusch on New Hampshire Civil Practice and Procedure § 22.01 (4th ed. 2014). But the right to discovery generally attaches only after a litigant has filed a “initial pleading” setting forth the nature and factual basis of their claim. Id. § 22.04.

Traditionally, “a party who had no independent contractual, equitable, or statutory right to information could not commence discovery until the case had been brought.” Id. § 22.06. Today, courts permit discovery prior to the commencement of an action only if it would be impossible for the plaintiff to commence the action without the requested information. See Robbins v. Kalwall Corp., 120 N.H. 451, 452 (1980) (injured employee entitled to examine the oven that allegedly caused her injuries to determine the manufacturer’s name); Gutbier v. Hannaford Bros. Co., 150 N.H. 540, 544 (2004) (noting that, without the manufacturer’s name, the plaintiff in Robbins “could not file suit against the manufacturer”). Even in this exceedingly rare circumstance, this Court has never authorized discovery, prior to commencement of an action, of privileged information. See Robbins, 120 N.H. at 452 (noting that, with respect to the non-privileged information at issue in that case, “every member of the community has a general and public duty to disclose all matters known to him, to the end that truth may be established in litigation”). Privileged or not, a prospective plaintiff has no right to obtain discovery, prior to the commencement of an action, “from a known potential adversary to determine if litigation, [which] could otherwise [be] brought, is justifiable.” Gutbier, 150 N.H. at 544. For these reasons, it would be an extraordinary break with legal tradition and precedent if the legislature granted prospective plaintiffs the right to obtain otherwise privileged information merely on the ground that they were considering filing a civil action. To allow a prospective petitioner’s hired physician, physician assistant, or advanced practice registered nurse to rummage through an individual’s private medical and mental-health records in search of grounds to seek the individual’s involuntary commitment would amount to a “fishing expedition, ” severely undermining the entire reason for enacting the privileges in the first place. Nothing in RSA 329:26, RSA 330-A:32, or their histories suggests that the legislature intended to authorize such an endeavor. The court’s statutory construction, if affirmed, would produce absurd results. Any person may file a petition to commit any other person. See RSA 135-C:35 (“Any responsible person may petition for a hearing relative to the need for admission on an involuntary basis of another person due to mental illness.”); RSA 135-C:2 (failing to define “responsible person”). Under the court’s interpretation, any person may compel any other person to turn over their medical and mental health records to the demanding person’s hired physician, physician assistant, or advanced practice registered nurse, merely by declaring that they are considering filing a petition for civil commitment. It gets worse. The exception the court relied upon applies not only to civil-commitment hearings under RSA 135-C:27–54, but also to guardianship hearings under RSA Chapter 464-A. RSA 329:26; RSA 330-A:32. Like a petition for civil commitment, “any individual” may file a petition for guardianship. RSA 464-A:4, I. Instead of a certificate issued by a physician, physician assistant, or advanced practice registered nurse, however, a guardianship petition requires that the petitioner file “[a] statement... containing facts showing the necessity for the appointment of a guardian..., including specific factual allegations as to the proposed ward’s financial transactions, personal actions or actual occurrences which are claimed to demonstrate his or her inability to manage an estate, or to provide for personal needs for health care, food, clothing, shelter, or safety.” RSA 464-A:4, III. Under the court’s interpretation — that the exception applies to a prospective litigant’s required “pre- petition” activities — any person may compel the disclosure of any other person’s medical and mental-health records, directly to the demanding person, merely by asserting that they are considering filing a petition for guardianship. This Court should not presume that the legislature intended such absurd results. Petition of Miles, 175 N.H. 405, 409 (2022). Doyle’s statutory construction, in contrast, is simple, reasonable, and consistent with the plain language of the statutory exception. If a petitioner files a petition for civil commitment or guardianship, and if that petition survives any motion for dismissal or summary judgment, then, at the hearing on the petition, the physician-patient and psychotherapist-patient privileges do not apply. The petitioner may subpoena the respondent’s medical and mental-health treatment providers to give otherwise-privileged testimony or to produce otherwise-privileged records. But, prior to that hearing, the privileges apply, so absent a case- specific showing of “essential need, ” In re State, 162 N.H. at 70, a prospective petitioner and his or her agents may not access a prospective respondent’s private medical and mental-health records.

Even if this Court finds th at the statutes are ambiguous, legislative history supports Doyle’s interpretation. The abrogation of the physician-patient and psychotherapist- patient privileges for civil-commitment hearings was fiercely debated. Consoldating the Mental Health Laws and Continuing a Study Committee: Hearing on HB 226 Before the S. Comm. on Pub. Insts./Health and Human Servs. (Apr. 16, 1986) at 13 (reprinted at A 93) (statement of Michael Fuerst, of New Hampshire Legal Assistance, seeking to limit abrogation of privilege), 15 (reprinted at A 95) (statement of Julie Crafts, Chair of the New Hampshire Coalition of Mental Health Consumers’ Association: “[I]f my doctor were to come into probate court, or any other kind of court[, ] and say that this person said this and this to me... [, ] even if it was to get me treatment[, ] I would never trust another treatment person in my life”), 18 (reprinted at A 98) (statement of Michael Brown, a mental-health practitioner: “[H]av[ing] the mental health person... come to court and testify... [would be] a terrible erosion o[f] the treatment process”), 22 (reprinted at A 102) (statement of John Wallace, representing the Division of Mental Health, supporting abrogation of the privilege). But neither the proponents nor the opponents of that abrogation envisioned that the privileges would be abrogated merely because a prospective petitioner was considering filing a civil- commitment petition. See id. at 22 (reprinted at A 102) (Wallace explaining that the Division of Mental Health proposed the exception at “the urging of judges who were hearing these cases because they felt restricted by [Kathleen M.], that they weren’t able to get... the evidence to make that decision.”).

To say that the privileges apply is not, of course, to say th at they are absolute. They “must yield when disclosure of the information concerned is considered essential.” In re State, 162 N.H. at 70. The process for piercing such a privilege involves three steps. First, “the party seeking to pierce the privilege must... establish a reasonable probability that the records contain information that is material and relevant to the party’s defense or claim.” Id. Second, if that showing is made, the court reviews the records in camera. Id. Third, following in camera review, the court determines whether there is an “essential need” to disclose the information contained in the records. Id. “To establish essential need, the party seeking the privileged records must prove both that the targeted information is unavailable from another source and that there is a compelling justification for its disclosure.” Id.; see also Desclos, 153 N.H. at 617–19 (explaining both the unavailability and compelling- justification requirements).

Here, h owever, the State did not claim — and the court did not find — that the disclosure of Doyle’s psychiatric records was essential. To the contrary, when the court asked the prosecutor whether the records were necessary to complete the examination, he responded, “I’m not sure I know the answer to that question. My guess is that [Lampignano] could do an evaluation without the records.” H 7. The State did not claim that the targeted information was unavailable from another source. See RSA 135:17-c (providing that court documents related to competency and restoration — but not dangerousness — be kept under seal); RSA 135:17-c, III (providing that the court’s written findings of lack of competency or restoration, “which describe the evidence which was relied upon to make its determination, ” are public); A 16 (granting the State’s motion to authorize the disclosure of “any and all OFE reports prepared in these cases” to its examiner).

The State, moreover, failed to identify “a recent dangerous act” demonstrating “actual or likely serious bodily injury.” G.W., ___ N.H. at ___. Such an act is a required component of both the dangerousness standard set forth in RSA 135-C:34 and the civil-commitment petition; absent such an act, no civil commitment petition can be filed, regardless of the existence or severity of mental illness. Id.; RSA 135-C:36. By the time the State filed its motion seeking disclosure of Doyle’s psychiatric records, the acts charged in the indictments and complaints were three years old. A 4–8, 18. By the time the court granted the motion, they were four years old. AD 3, 5. An individual’s privileged records cannot reasonably be said to be “essential” to the filing of a petition that cannot, in any event, be filed.

In i ts order s granting the State’s motion and denying Doyle’s motion for reconsideration, the court did not find that Doyle’s records were material and relevant to the State’s hypothetical civil-commitment petition, did not order in camera review, did not find that the targeted information was unavailable from another source and did not find that there was a compelling justification for their disclosure. Rather, the court simply concluded that Doyle’s psychiatric records “[we]re exempt from the statutory privileges.” AD 8. Because this ruling constituted legal error, this Court must reverse.

WHEREFORE, John Doyle respectfully requests that this Court reverse.

Undersigned counsel requests 15 minutes oral argument.

The appealed decisions were in writing and are set forth in a separate appendix containing no other documents. This brief complies with the applicable word limitation and contains 6, 484 words.

I hereby certify that a copy of this brief is being timely provided to Mike R. Grandy and Audriana Mekula, Assistant Attorneys General, through the electronic filing system’s electronic service.