State of New Hampshire v. John Doyle

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I understand you reserve one minute. I have. Thank you. Okay. Please proceed. Thank you. May I please the court?

My name is Thomas Barnard. I represent John Doyle. Petition for Non-Emergency Civil Commitment must allege Current dangerousness. That means a current mental illness and a recent dangerous act In anticipation of a possible petition for civil commitment, the state here sought a wholesale disclosure of Doyle's private treatment records to its psychiatrist. When the state's motion was granted, the records were over three years old. The most recent allegation of any dangerous act was also over three years old. And the state already had reports from three, uh, psychological evaluations that were more recent than the records it sought, two of which summarized the relevant portions from the, the same records that it sought the state. Nevertheless, persistent persuading the trial court that, uh, Doyle's records fell within the exception for civil commitment hearings on appeal. The state abandons that argument entirely and advances three new ones. In short, the goal of obtaining Doyle's psychological records has taken on a life of it, of it, though, but it is a result in search of both the legal and a practical justification. I will endeavor to address all four of the, uh, rational that the state has advanced in this case. And, and your position is that the arguments that the state advanced are not preserved? Right. The three arguments that the state advances on appeal should not be addressed by this court. Um, for two of 'em, uh, the state's failure to advance the arguments below deprived Doyle of an opportunity to make a record. And, um, on the third one, the argument under R RSS a 1 35 17 A, the state should be stopped from advancing that argument because the state affirmatively disavowed that argument, um, in the hearing on the state's motion. And Doyle in reasonable reliance on that representation withdrew his appeal of the dangerousness finding. But there is one argument that you agree is preserved. There is one argument that I agree is preserved, and that's the argument, that's the rationale that the trial court adopted. Uh, and that is that the exception for civil commitment hearings covers pre-petition examinations. Um, it does not, the exception applies only to hearings and under any reasonable interpretation of the word hearings, uh, a pre petition psychological examination is not a hearing. It's not a proceeding that takes place in a court. It's not a proceeding Orders present. But how does one do their due diligence prior to bringing the petition? Well, Aren't you advocating that we just file the petition and then see what happens? No, there's an examination, but here the, the court, um, correctly ordered Doyle to report to an examination with the state's chosen psychiatrist. The state's psychiatrist can, uh, conduct a full examination of Doyle, um, can conduct standardized tests. Doyle must answer all that psychiatrist questions, But can't have access to medical records. Um, that examination does not include, um, the evaluation of prior medical records. But here there's a lot that examiner still has a lot, lot Of information cannot include the examination of prior medical records or generally does not include The, the privilege is not abrogated merely because a party is thinking about filing a petition for civil committee. Um, anyone can file a petition for civil committee, uh, against regarding, but is There a prohibition for the evaluator to access prior medical records in order to complete their evaluation? I wouldn't call it a prohibition, but I would call it a privilege. Um, that, that the privilege is not, is not abrogated merely because a party is thinking about filing a petition for civil committee. Why Doesn't the exception in 3 38 32 apply with regard To a court order? Well, I think the, the presumption is going to be that, that if a court issues an order, is it, it is because the court has otherwise determined that the privilege doesn't apply. Um, or that, for instance, there is an essential need, um, for the records. Um, this court has in many cases established a process where, where a litigant can obtain, um, otherwise privileged information. 'cause the privileges are not absolute. They must yield if there is, uh, an essential, so the trial Court had ordered an in camera review and then decided to disclose those records that were pertinent, you wouldn't have an argument. Um, I, I, I wouldn't, um, the, the, the initial inquiry was would be, are these records, um, relevant? Um, and then the court would conduct in camera review, and then the inquiry would be, is there, uh, uh, a compelling justification for disclosure, and is the information not available from some other source? Uh, and if the trial court sustainably, um, made all those findings, we would have no order. Do, do you agree that, uh, speaking of sustainably, the standard review for us is unsustainable exercise of discretion, Not for the trial court's rationale here. The trial court here made, made a ruling of, of law. So our, our review is de Nova. That's right. This court's review of that, that ruling of law is de nova because the ruling of law is that a pre-petition examination is a hearing within, uh, for the purposes of this exception for civil commitment hearings. And that's a pure Question. And if, if we reach the issue of waiver, what is the standard There? Um, well, the standard of review, um, because the state did not raise the issue of waiver below, essentially the que this court's, the question for this court is, is a finding that Doyle waive the privileges, the one and only one, and one and only correct answer to that question? Essentially, the court is hypothesizing that the trial court found that the, that that Doyle did not waive the privileges, and then asking whether that hypothetical ruling would be sustainable. So if we were to agree with you on the hearing and the scope, your primary legal argument, then we would remand for, uh, the trial court to undertake these other analyses about waiver or essential need. Yeah, I don't, I don't see any reason that the state could not renew its request making the argument, uh, about, uh, waiver. And then the trial court could make those factual findings, um, or that the state couldn't, uh, renew its request and request that the trial court review the records in Cameron, um, the state for the reasons I mentioned before, I believe that the state is stopped from arguing that RSA 1 35 17 a abrogates the privileges. But I do think the trial court in the, in the first instance, should, uh, make the determination of that estoppel because estoppel is essentially an equitable document. If the trial court's rationale is, is correct, the legal ruling that a petition examination constitutes a hearing, um, then anyone could pierce the privilege of anyone's, um, psychological records merely by claiming that they are considering filing a civil commitment or guardianship petition. So hearings refers to what Hearings refers to a hearing in the probate court after a civil commitment petition has been filed. Um, so once the civil commitment petition is filed, the respondent then can move to dismiss, move for summary judgment, um, arguing that, So the statute facilitates the, uh, examining physician's ability to testify at the probate hearing. Is that, is that The, the exam, the, the petitioner's Yes. Uh, expert. Yes, the petitioner's expert can testify in a, uh, in the probate court hearing. But once the, once, that often doesn't happen. I think because once the petition is filed, the court appoints its own psychiatrist, and that psychiatrist evaluates the respondent. And I think it's usually, as a practical matter, it's usually the court appointed psychiatrist who testifies at the hearing. But there's nothing stopping either party from calling your own Expert. So the scenario that you posit, that you say is so worrisome is that if, if I'm thinking about filing a petition about my neighbor, then I guess I could go into court and say, Hey, I am thinking of filing a petition, uh, in regard to my neighbor. So can I get access to his psychiatric records? Yes. Yes. In order to file that petition, you need, um, a psychiatrist or other qualified, um, evaluator to certify that your neighbor meets the standard for dangerousness. Um, so you could say, well, But how do you get into court before you file your petition? Um, We don't have a sort of discovery petition available. So how would you get into court, Right, To seek those records before you filed the, to seek the records? This case sits in a different procedural posture than Justice Bassett thinking about filing on his neighbor. We have a right court determination already. We're already in court, so I'm not seeing how this issue would arise in a different situation. So that's correct. In this case, there were criminal proceedings. Yes. So there was a case in a criminal court. Um, if there, if there haven't been prior criminal proceedings, I don't see any reason why a prospective petitioner couldn't go, um, to probably a probate court, because that would be the court that would have jurisdiction over the petition, um, and argue that there is an essential need to access the records before the evaluation can take place. I guess I don't see the authorization for that kind of bit of litigation. Yeah, I mean, it'd be an equitable petition. It's not set out in the statute. Right. So, so there is precedent court in, in petition of, uh, state of New Hampshire, um, state B McDonald, um, or I'm sorry, um, in, in, in research warrant, medical records of CT that concerned, uh, the police obtaining to attempting to obtain, uh, an individual's medical records by search warrant. And this court said you can't obtain those, direct those records directly by search warrant. There has to be an in camera review review. There has to be court involvement there. Now, obviously, in in, in a search warrant case, there probably isn't criminal complaint filed or an indictment filed. The case doesn't otherwise exist, but for that court Involve, but you have the search, but you have the search warrant pro process, You have a search warrant process. Yes. Right. And I, I guess I'm just not seeing the civil analog to that process. And then the other, well, the other case I would, I would mention is in re grand jury subpoena. And that involved the same issue where the state tried to obtain medical records by subpoena, and the court said you can't obtain medical records directly that way. You have to go through, through the court process. Um, I don't see any reason that a potential, um, litigant in, in civil commitment proceedings couldn't go to a court. Maybe it's, maybe it's the probate court, maybe it's the superior court, because the superior court is the court of general jurisdiction, um, and ask for request an order that there is a, uh, finding that there is, uh, a compelling need to access the records. And, and going through that in-camera review process, where the court Would review those records, I want to address briefly the merits of the three arguments that the state raises for the first time on appeal. Um, the first is that Doyle waived the privileges. Um, he did not, um, a lawyer is required whenever there's a, a bonafide doubt about his client's, uh, competence to raise that issue with the court. That doesn't amount to a claim that the client is incompetent. It's simply the lawyer following their ethical obligation. Um, the state points to the fact that Doyle did provide his records to his hired evaluator, but that was for the limited purpose of evaluating restorable. And ReSTOR ability was long settled by the time the court issued the order, um, requiring the disclosure of Doyle's records here. RSA 1 35 17 A, uh, does not abrogate any of the privileges. The plain language of that statute authorizes a court to order a defendant to submit to examinations. Um, submitting to examinations does not under any plain reading include providing somebody's past, uh, medical. So I'm curious about the thought that the records once revealed regained their privilege status. I think that's kind of interesting. In your brief, you mentioned that they, they regained their privilege status after those other proceedings were completed. Well, I don't Think, I don't think the the records ever lose their privilege status. Um, they might be disclosed for some limited purpose if a court conducts in camera review. Those records are still privileged, even though the court is looking at 'em. Um, and if the court, um, orders that a Harvey has an essential need for the records for particular purpose, those, those records are still privileged. It's not like anyone from the public can access them. Um, the privilege still applies, but there's just a, a limited order. Right? But here they been disclosed to a third party in the criminal proceedings, Right? That bring us to this particular situation that we're addressing now. So they're already out there, and you would say no, only within that, only within that circumstance, You're referring to Doyle disclosing the records to his, to his evaluator. Right. So a, a, a defendant can disclose the records to, to his agent. Without waiving any privilege at all, the defendant can give his medical records to his attorney, there's no Waive. And the whole ReSTOR ability situation, many people access the records for that determination. Several, not many. Several. I'm I'm sorry, what determination? The ReSTOR ability determination. But once that's done, then the door closes again. Right? So in the ReSTOR ability determination, the, the, and, and in fact, for the competency, ReSTOR ability and dangerous mis determination, the OFE had access to the records. Doyle Doyle agreed with that, and his evaluator had access to the records. But that doesn't mean that he waived the privilege, and it doesn't mean that the privilege doesn't apply. Doyle's objection is not to providing these records to a court or to, uh, an agent of the court. Doyle's objection is to providing these records to his advers, the State of New Hampshire.

If the court has no further questions, Attorney Grandy, Uh, good morning. Your honors may please the Court Assistant Attorney General Mike Grandy on behalf of the state. Um, and I'm happy to take questions from your honors. Um, whenever you please your honors, this case is about a very simple proposition. What we're witnessing here is the cycling of a person who likely has a mental illness through our criminal justice system. And the final part of our criminal justice competency statute that is empowered, empowers the state to attempt to connect the person with mental health treatment is where we're encountering a barrier. So your honors, in this case, to conduct a fair evaluation to determine whether or not Mr. Doyle is appropriate for involuntary admission. The state selected RSA 1 35 C 36 evaluator has asked that the underlying medical records that were relied on by the forensic examiners in the case be provided to that evaluator so that he can make a fair determination as to whether or not he thinks Mr. Doyle meets the standards enumerated in RSA 1 35, C 34. Well, why not file the petition? So, your Honor, The, The petition can't be filed unless the evaluator executes a certificate stating that that evaluator believes that the petition that the uh, person meets the standard. And the fear is that the evaluator may come to an erroneous determination if they don't have a full data universe, um, in which to make that determination. So in this case, the evaluator, the 1 35 C evaluator, has the OFE reports, but doesn't have anything to test the validity of those reports. He may not agree with what they say if he sees the underlying records, but we don't know that unless he has 'em and has a chance to review it. And, and as well, your Honor, in this mental health world, establishing kind of a baseline, an independent understanding of the person's condition is going to be very helpful, um, in making that initial determination. Uh, so the petition really could possibly could not be filed because we don't know if the evaluator were to execute the certificate or Not. And the evaluator may have a professional obligation to do a complete evaluation That that may be the evaluator's, um, ethics in, in the situation. I'm, I'm not sure that that's been established in the record of this case, but that that could certainly be the case, your Honor. Uh, so the, the state is entitled to, uh, provide the records to its selected evaluator for the reasons, uh, the three reasons enumerated in our brief. So first of all, Mr. Doyle, I could see a pretty robust cross-examination. If the evaluator didn't have full access, I, I believe that it could be a very robust cross-examination, and there could conceivably be challenges to the validity of the certificate's execution in the first place in the probate court, which could jeopardize any potential involuntary admission hearing. So it sounds like you're saying that these records are essential to the evaluator's evaluation, but what evidence before the trial court was there to support that? It seems to me the record suggests that the state indicated that the evaluator would like to have these, not that it was essential for, for him to, to get this information. So, your Honor, the state has sought several times throughout the course of this case to, to get the records. And there were motions, renewed motions, a hearing. Um, your honors have the transcript of that hearing. So yes, it is characterized by the state as that the evaluator would like to have the records, um, in at least one of the, one of the motions. But the state goes on to say that with this evaluator, they've always provided the records to him. That's always been the first thing that this evaluator has asked for at the hearing. And this is from the December, uh, 2022 hearing, uh, for which there's a transcript. You know, the judge is asking about this and asking, couldn't couldn't this just be done? Uh, and I think the state makes a, a good statement that, you know, they're not sure, and it's conceivable that the certificate could be executed. But it, that lingering question as to whether or not it's going to be the most full, um, possible evaluation. The lingering question that's sort of hanging there is that not having this underlying data potentially jeopardizes the execution of the Certificate. So why not ask for an in-camera review? Uh, so Your Honor, in, in this case, the records have been provided several times. They're provided without of objection. When the initial order for the provision to the office of Forensic examiner says that there's an opportunity to object, they were provided affirmatively to Mr. Doyle's own expert. They were relied on in the generation of reports that the 1 35 C evaluator now has. Um, they've been relied on in all of the proceedings. And so there's not a need for an in-camera review here, because we, we, the examinations that have related to competency have already happened, and the records have been summarized there. Part of the reason that, that it would be valuable for the 1 35 C evaluator to have them, would simply be to check that all of the records were relied on. And we just know that it's only the records that the forensic examiners and the competency determination had. So there is no need for an in-camera review, it's what was provided to them, so that that can be validity tested against their reports and that the 1 35 C evaluator evaluator can make. So you're making a, a good argument for why it's reasonable, or why in this case it would be the right thing. But it seems to me that we're, we're doing statutory interpretation about whether, whether these records are exempted from confidentiality under the terms of the statute here that talks about hearings. And, and I don't disagree with most of the reasons you're saying why it would be important or a good idea or make it better, make the expert less vulnerable to cross-examination. But that isn't what we're here to look at. So Your Honor, i I, I would make this point, um, the trial court correctly decided this issue and the state can, you know, essentially defend that decision. This, the trial court is empowered under the criminal competency statute to just simply order that these records be provided both RSA three 30, A 32, and RSA 3 29 26. They both have a provision that says that re these records, psychotherapist records and medical records, can be provided by court order under the criminal competency statute 1 35, 17 85. In this very unique procedural posture where someone has been found not competent, not restored, they've been adjudicated dangerous by the trial court. So that relates to their mental health. They then wind their way to the last piece of the criminal competency statute, and that's RSA 1 35 17 A five. And that specifically authorizes the trial court, the criminal court, not a probate court, not a one in a court where there's a 1 35 C, but the, the criminal court to effectuate special provisions that don't apply in 1 35 C to connect a person with an exam, because we've already said there's not gonna be criminal charges against 'em, but we've decided that this person is dangerous and there may be a need to connect this person with mental health treatment. And so now you criminal court in this unique procedural posture, you have an opportunity to order that the person participate in the 1 35 C exam in a 1 35 C that would happen to a person in the world, your neighbor, for example. There's no provision in 1 35 C to compel a person to participate in the predicate exam. There's no provision in 1 35 C to require that that person provide records. I can't imagine a prospective petitioner walking into a superior court and demanding from some action that they filed, that a person's medical records be turned over on suspicion that there might be some person in need of mental health treatment. But that is possible when a person winds their way to the end of the criminal. But 17 a only speaks in terms of examinations. It doesn't refer to records. And 17 a isn't part of the carve out in the, in the privilege statutes. So, your Honor, I I would, I would say that 17 a five describes that the court ordered the person to participate in the evaluation. And it says that, that they, that, uh, I believe it says order the person to participate in the examination or an examination. Um, it also describes an evaluation of appropriateness of treatment. And so it says, Yeah, to submit to examinations by a physician, et cetera, designated by the state for purposes of evaluating appropriateness and completing the certificate. But it doesn't, it doesn't speak to records or waiving the, the, uh, Privilege. It doesn't directly, uh, say that, your Honor, but I, I think that inherent in the idea of a person fully submitting to an examination where the purpose is to say, is this person appropriate for potential mental health treatment? If the necessary predicate evaluator is saying, I need those records in order to even initiate a petition, I think that the records are So, isn't, isn't that a question of law for us? Isn't our standard de novo as opposed to, uh, what you argue? Uh, well, I believe that, I believe that the, the decision below would be depended on, uh, sustainable discretionary, your Honor. But I, I think that this issue is addressed in our brief in that the state set is arguing that there should be a rule when you're in this very unique procedural posture, uh, that a person is wound their way To the No, I understand, but it's not, we are, we're interpreting this constellation of statutes. And I think, I mean, wouldn't you agree that that part of our review is de novo as, as opposed to unsustainable exercise discretion? Uh, I suppose it would be, your Honor, I think that, I think that the application of the judge's order under one, uh, 17 A is as it applies to the provisions in three 30, a 32 and 3 29 26, that are very clear that court orders just simply allow the provision of record. So while it's not specific in 17 a, those two privilege statutes just simply say by a court order, the records can be provided. And, and here I think we're in this unique spot where we either have an enormous obstacle to potentially connecting people with mental health treatment, or we don't. But if the evaluators are saying, well, we need the same records that the forensic evaluators had, I think that the privilege statutes just simply allow, uh, the judge to exercise their authority under 1785 to order the records. Um, so your honor, it, that was essentially the 17 a five argument that the state makes, um, for why the records should be provided. The, the third argument that we make in our brief is that there's an essential need, um, for the records. And so, your Honor, as I I mentioned, we're talking about the same records that the forensic evaluators in the case had the opportunity to review the same records that have been relied on, in this case, by all of the different parties. And so when, when we have a situation where those records have been voluntarily provided, relied on, and there's reports that are based on them that quote, that quote, different aspects of a person's treatment over years, that there is going to be always an essential need for those records. Well, shouldn't, this, shouldn't, isn't essential needs sort of the quintessential, uh, fact intensive inquiry by the trial court rather than by us in the first instance In this sort, in this specific sort of procedural circumstance, I think where we know that there are records, and again, they, they already have been relied on. There's, I think there's just always an essential need, and it's, we're not talking about a large universe of people. I mean, again, you have to be found not confident, not restored, dangerous, all of these criminal court determinations. And then it's when you are at this final stage, which is really just about whether or not there's gonna be this opportunity to connect a person with potential mental health treatment down the road, in that circumstance, in this factual circumstance, I think there's an essential,

So there would be an avenue available to the state if, if we were to adopt Mr. Barnard's, uh, interpretation of the statute and construed hearing to be narrow and actually mean a hearing, there would still be an avenue available to the state if there were an essential need and if, uh, certain, and, and, and you were talking about, uh, dangerousness and that you'd go into court and convince a court that the privilege should be pierced. And he's not arguing that though it could never be pierced. He's just saying that's how the procedure should go. What's, what's wrong with that? And do you agree that the court could do that? The state could do that. Um, so, so I agree, your Honor, that the state could do that. I think that would be an onerous process. But I, I would, um, also answer, your Honor, that this case sort of illustrates why I think that's going to be, um, a clunky process. I mean, here, you know, the, the Mr. Doyle sort of characterizes the 1 35 C evaluator as like this higher gun in the state's expert. This is a predicate evaluator that is necessary for initiating an involuntary admission petition. And so if that person is saying, I need to look at the underlying records that are the basis of these reports that I already have, I, I think we're gonna see cases where defendants are just thinking of themselves. I'm always going to object to the records. I'm always gonna claim privilege. I, I think that it's going to create, um, a, a very clunky process that's going to lead to, to this exact circumstance. I mean, learned Privilege is sort of by their nature clunky, but it haven't, hasn't there been a determination that it's worth the clunkiness There? There has been, your Honor, but there has also been a determination that when a court orders that the privilege be pierced, that it be pierced. And that's very clear in both of the privilege statutes. And then in this very highly specific procedural circumstance, the court is exercising its authority to pierce that privilege with a limited purpose of potentially effectuating this connection with treatment. And we're not, I guess I'm stuck on, if we were to restrict this to just the hearing, what purpose does that serve? I mean, so you've already filed the petition. I guess maybe if you have someone, an evaluator who's willing to do a certificate on an incomplete record, now you get to the hearing. What, what's the point? Yes, your Honor. I, so I think that brings up two points. First, I think it would be difficult to quantify the number of petitions that would never get filed, because there would be difficulty getting in the door in the first place. We wouldn't know how many former criminal defendants would've been adjudicated, dangerous and potentially needed mental health treatment never get connected. And as well, your Honor, I agree that under 1 35 CI think the records could be sought under the authority of 1 35 C anyways. So it would essentially render the concept of determining dangerousness in the criminal court redundancy, sort of in, almost in I relevancy. Why would the criminal court go to all of this effort, say, yes, this person is dangerous and they may need mental health treatment, but we're gonna say no. The evaluator that's necessary to kick that off may not look at the underlying data. If, if I were to have filed my brief and summarize all the underlying documents in the case, but I said, I'm not gonna provide them at the court, this court would rightly say, you know, you lose, get outta here. 'cause the underlying data is critical to these types of evaluations. Can I, uh, didn't the state disavow the dangerousness argument below? I, I have read the transcript, your Honor, from the December hearing, um, there was no agreement. Certainly the, uh, withdrawal in this court filed by, uh, filed by the defendant doesn't talk about any agreement. I'm not aware of any agreement. And the language in the transcript that's cited is a rationale. I mean, I could only say that that would be very unreasonably relied on, um,

for the proposition that the state has disavowed that argument. Thank you. Thank you very much. Attorney Grandy. Thank you, your Honor. Partner. Thank you. I'd like to, uh, address three points starting with Justice Hans Marco's question about why you can have this exception, um, for a hearing. And the, the answer is that the ultimate decision of whether a defendant meets the dangerousness standard and should be involuntary involuntarily committed, is made by the probate court judge, um, after hearing evidence at that hearing. And the purpose of that exception is to ensure that the probate court judge, not a particular party, but the judge, um, has access to those privileged records. And we agree, But the parties have to present their argument At At the hearing. At the hearing, At the hearing, right. So the parties can have access. If the case makes it to a hearing, then the parties can have access to those records so that they can present it the, to the judge. The purpose is that the judge has the information probate court judge, not the parties. Isn't that part of the preparation of the petition? It Is, but I mean, There would be a motion to dismiss on the petition. It never gets to a hearing. Exactly. And if that takes place, then, then there's no, there's no reason to pierce the privilege. There's no reason to give the, the judge the, those privilege, that privilege records, because the judge never makes that Determination, sort of a catch 22, you file an incomplete petition, it gets dismissed. So you never get to the determination in this step of a comprehensive process where certain decisions have already been made. Well, the, the petition, It sort of makes no sense to me. Yeah. The petition isn't going to be incomplete because the evaluator will, will have, in this case, the evaluator will conduct an in-person evaluation of the evaluator has all of the OFE records. The evaluator has all of the court's orders, um, explaining why the court bound Doyle, um, not competent and not restored, and most importantly dangerous. Um, and if the state believes that there is, that there's some records that aren't accurately reflected in the OFE reports, um, then the state can ask for in-camera review. That's possible. There might be some records that aren't reflected in the Report, or the defendant has access and could poke holes in the State's case. I'm sorry. So the defendant has those records, so could pull holes in the state's case? Well, If the defendant starts doing that, then he's waive, then he's waived the pro. If he's ping holes in the State's case, he's doing it at the probate court hearing. And if you're at the probate court hearing, I agree. Everybody Has doesn't apply. You can make your other two points. Sorry. Sure. Thank you. So Attorney Barn, your red light's on? Yeah, but I, I threw 'em off if being there. Thank You. Mr. Case Is submitted.