N.C. v. N.H. Bd. of Psychologists, 2015-0412

• Decision Date: 20 September 2016
• Docket Number: No. 2015-0412,2015-0412
• Parties: N.C. v. NEW HAMPSHIRE BOARD OF PSYCHOLOGISTS New Hampshire Board of Psychologists v. Alethea E. Young, Ph.D.
• Court: New Hampshire Supreme Court

169 N.H. 361

148 A.3d 728

N.C.

v.NEW HAMPSHIRE BOARD OF PSYCHOLOGISTS

New Hampshire Board of Psychologists

v.Alethea E. Young, Ph.D.

No. 2015-0412

Supreme Court of New Hampshire.

Argued: April 5, 2016

Opinion Issued: September 20, 2016

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

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

LYNN, J.

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

I

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

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

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

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

In September, S.C. filed a written complaint against Young with the Board. The complaint alleged that Young had breached her professional obligations by: (1) becoming personally over-involved with N.C., thus sacrificing her objectivity; (2) providing counseling to both S.C. and his daughter, thus creating an insurmountable conflict of interest; (3) violating RSA 169–C:29 (2014) by failing to timely report suspected abuse of a child to DCYF; (4) violating RSA 633:1, I-a (2007) and 18 U.S.C. § 1201(a) (2012) by detaining and concealing N.C., who was a minor at the time, from S.C. when she drove N.C. to Vermont without S.C.'s knowledge or consent; and (5) failing to respect S.C.'s wishes that she no longer treat his daughter.

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

Based on S.C.'s complaint, the Board opened an investigation of Young. On November 7, the Board issued a subpoena duces tecum to Young requesting a complete set of records pertaining to N.C. When Young notified N.C. of the subpoena, N.C. instructed Young to assert the psychologist-patient privilege and object to production of the records. Young moved to quash the subpoena, but the Board denied her motion and ordered her to produce the records. N.C., through her mother, sought declaratory relief in the superior court to prohibit the Board from obtaining the records on the basis of the psychologist-patient privilege; the Board moved to dismiss the claim. The Board also filed a petition in superior court for an order compelling Young to produce the records, and Young moved to quash the subpoena.

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

The trial court found that, under RSA 329–B:22 (Supp. 2015), the Board was authorized to subpoena psychological records at any time, but that it must have just cause to do so, even when a subpoena is issued in the course of a formal investigation. The trial court found that, in this case, the Board had sustained that burden because Young was charged with misconduct by formal complaint, the Board is charged with regulating the practice of psychology and has the statutory power to investigate such a complaint, and the privileged records sought were relevant to that investigation. The court granted the Board's motion to dismiss N.C.'s petition for declaratory relief. Applying its ruling to the Board's motion to compel, the court denied Young's motion to quash and ordered compliance with the Board's subpoena. The appellants appeal both orders.

II

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

The parties disagree about what the Board is required to do to obtain privileged records by subpoena. The appellants argue that the Board must engage in a two-step process: first, the Board must establish just cause to issue a subpoena; second, it must obtain a court order compelling compliance with the subpoena. To obtain such an order here, the appellants argue, the Board must establish a sufficient basis for the court to pierce the patient's privilege, which means meeting the standard articulated in cases such as Desclos v. Southern New Hampshire Medical Center, 153 N.H. 607, 616–17, 903 A.2d 952 (2006). The Board argues that it need not obtain a court order before accessing privileged records; it need only establish just cause.

Resolution of this issue requires us to interpret RSA chapter 329-B (Supp. 2015). We review the trial court's statutory interpretation de novo. Olson v. Town of Grafton, 168 N.H. 563, 566, 133 A.3d 270 (2016). In matters of statutory interpretation, we are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. Appeal of THI of NH at Derry, LLC, 168 N.H. 504, 508, 131 A.3d 944 (2016). We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret 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. We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole. Id. at 508–09, 131 A.3d 944. This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id. at 509, 131 A.3d 944. When the language of a statute is plain and unambiguous, we need not look beyond the statute itself for further indications of legislative intent. Id. We also presume that the legislature does not waste words or enact redundant provisions and, whenever possible, we give effect to every word of a statute. In re Search Warrant (Med. Records of C.T.), 160 N.H. 214, 221, 999 A.2d 210 (2010).

RSA chapter 329-B was enacted "to regulate the practice of psychology by practitioners in New Hampshire to assure that the services provided are of a quality consistent with the standard of care within the profession, and to safeguard the public against harm which may be caused by untrained, unskilled, or unlicensed...