Petition of Smith

• Decision Date: 30 December 1994
• Docket Number: No. 93-636,93-636
• Citation: 139 N.H. 299,652 A.2d 154
• Parties: Petition of Roland Spencer SMITH, Psy.D. (New Hampshire Board of Examiners of Psychology and Mental Health Practice).
• Court: New Hampshire Supreme Court

Page 154

652 A.2d 154

139 N.H. 299

Petition of Roland Spencer SMITH, Psy.D. (New Hampshire Board of Examiners of Psychology and Mental Health Practice).

No. 93-636.

Supreme Court of New Hampshire.

Dec. 30, 1994.

Sulloway & Hollis, Concord (Margaret H. Nelson and Sean M. Dunne on the brief, Ms. Nelson orally), for petitioner.

Jeffrey R. Howard, Atty. Gen. (Douglas N. Jones, Asst. Atty. Gen., on the brief and orally), for State, as amicus curiae.

Linda E. Fraas, Concord, for the complainant, joined in the State's brief.

HORTON, Justice.

The petitioner, Roland Spencer Smith, Psy.D., petitions for a writ of certiorari seeking to vacate a decision of the New Hampshire Board of Examiners of Psychology and Mental Health Practice (board) permanently revoking his certificate to practice psychology for engaging in unprofessional conduct within the meaning of RSA 330-A:14 (1984). Dr. Smith argues that the board erred by: (1) not having every member of the hearing panel present for testimony of the complainant and Dr. Smith that was used by the panel to determine issues of credibility; (2) failing to specify allegations made against him, thereby violating his right to be apprised of charges against him; (3) considering treatment he provided more than three years prior to the date of the notice of hearing; (4) addressing alleged ethical violations that occurred during a period when the board's administrative rules had lapsed; (5) basing the decision to revoke his certificate, in part, on his religious beliefs; and (6) permanently revoking his certificate. We vacate and remand.

From September 1988 through March 1991, Dr. Smith treated the complainant. In March 1992, the complainant filed a complaint with the board alleging that Dr. Smith misdiagnosed her psychological condition as multiple personality disorder, breached her confidentiality, caused her to become too dependent on him, and otherwise provided unusual and substandard treatment. In response to the complaint, Dr. Smith provided the board with a detailed letter denying many of the complainant's allegations and offering explanations for the remainder.

The board reviewed the complaint and appointed Anne L. Boedecker, Ph.D. to investigate. Because the investigation revealed evidence sufficient to warrant a hearing, the board issued a notice of hearing.

Upon receipt of the notice of hearing, Dr. Smith filed a number of motions with the board including: a motion to strike certain paragraphs of the complaint based on a list of first amendment rights; a motion to strike and dismiss several paragraphs in the complaint for failure to adequately specify grounds; a motion to limit evidence based on laches; and a motion to dismiss and/or exclude allegations to incidents occurring after the board's rules had lapsed. The board denied all of Dr. Smith's motions.

The board conducted hearings on nine days, from September 1992 through January 1993. The board found that Dr. Smith did not breach the patient's confidentiality and his delay in providing patient records did not rise to the level of unprofessional conduct, but concluded that Dr. Smith's treatment of the complainant reflected a pattern of "grossly incompetent and plainly unprofessional" conduct and his continued certification posed a threat to the safety of potential patients within the meaning of RSA 330-A:14, II(d). The board permanently revoked Dr. Smith's certificate.

I. Due Process

Dr. Smith argues that the failure of every member of the hearing panel to be present for testimony that was used to assess the credibility of the complainant and Dr. Smith violated his right to due process under the State and Federal Constitutions. We agree.

We address Dr. Smith's State constitutional claim first, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), citing federal law only if it aids our analysis. State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985). Because we find a State constitutional violation under this analysis and vacate, we need not analyze his federal constitutional claim.

Our decision in Petition of Grimm, 138 N.H. 42, 635 A.2d 456 (1993), governs this case. In Grimm, the petitioner appealed from the board's finding that he engaged in sexual relations with the complainant and thereby acted unprofessionally within the meaning of RSA 330-A:14, II(d). The only direct evidence concerning whether the petitioner and the complainant engaged in sexual relations was the conflicting testimony of the complainant and petitioner. The resolution of the conflicting testimony depended on the hearing panel's assessment of their credibility. We held that the failure of every member of the hearing panel to be present for the testimony of Dr. Grimm and the complainant violated Dr. Grimm's right to due process. Similarly, in the present case, the testimony of the complainant and the petitioner conflicts, and the resolution of that conflict depends on the hearing panel's assessment of their credibility.

"A registered psychologist has a legally protected property interest in his psychologist's certificate," and thus is entitled to procedural due process. Grimm, 138 N.H. at 46, 635 A.2d at 459. While, in general, "an administrative officer may act on a record of testimony by witnesses whom he has not personally seen or heard," such a procedure is not proper "where the board elects to make factual determinations as a hearing panel and ... disposition turns on the credibility of the witnesses' testimony." Id. at 46-47, 635 A.2d at 459. All members of the hearing panel acting as fact finders must be present for testimony of the complainant and Dr. Smith that concerns the disputed factual basis of a complaint where determination of those disputed facts rests, in some material part, on the fact finder's assessment of their credibility, as shown by their demeanor or conduct at the hearing. See New England Coalition v. U.S. Nuclear, Etc., 582 F.2d 87, 100 (1st Cir.1978). This is such a case.

The board held hearings on nine days over a period of four months. Although there were six members on the hearing panel, only one member attended all the meetings in their entirety. Members were absent during crucial testimony, including considerable portions of Dr. Smith's direct testimony and both the complainant's and Dr. Smith's cross-examination.

Despite numerous absences, the board made findings on the credibility of both the complainant and petitioner. The board rejected Dr. Smith's proposed finding that the complainant lacked credibility and made an explicit finding that Dr. Smith was not credible:

Dr. Smith was not a credible witness. He was argumentative, quibbled over minor points, deflected attention from primary treatment issues presented, and made facially questionable statements concerning relevant facts which he later retracted in the face of questioning or requests to produce verifying records....

The State argues that this finding of credibility did not turn upon visual observation of Dr. Smith's demeanor, appearance, or conduct while testifying, but rather upon statements made during the proceeding that lacked probative value on their face. Reviewing the board's explicit findings, we conclude that demeanor and conduct entered into the determination of credibility.

The board's credibility findings led it to accept the complainant's account of her treatment rather than Dr. Smith's account. These factual determinations materially affected the outcome of the hearing. Resolution of these issues against Dr. Smith was used as evidence that his conduct was unprofessional. In addition, the board rejected testimony offered by Dr. Smith's expert witness because the board disagreed with several of his underlying factual assumptions that were based on Dr. Smith's account of the complainant's treatment.

Dr. Greaves testified on behalf of Dr. Smith stating that while Dr. Smith may have mishandled the case, his conduct was not unethical. The board rejected Dr. Greaves' testimony, in part, because they disagreed with a number of his factual assumptions. Specifically, Dr. Greaves proceeded under the assumption that Dr. Smith had not forced names of an "alter ego" on the complainant, but the board found that he had. In determining this issue the board had for consideration Dr. Smith's testimony that he did not suggest names for any "alters" and the complainant's testimony that it was Dr. Smith who identified these. Such a determination required the panel to evaluate the credibility of both parties. The board also rejected Dr. Greaves' factual assumption that Dr. Smith neither encouraged the complainant's dependency on him nor threatened the complainant to remain in treatment with him. Dr. Smith testified that he repeatedly attempted to have the complainant see an in-patient therapist, that he contacted a therapist concerning the complainant but was told that no more in-patients were being accepted, and that he gave the complainant the name of another therapist experienced with multiple personality disorder. Dr. Smith testified that he did not insist on referring the complainant to another therapist because she indicated that she did not want to start the therapy process all over again. Because Dr. Smith did not document any of these transactions, the board had to determine these issues based on his credibility. The State urges us to apply what is in essence a harmless error standard for this due process violation. The State asks that the court review the record without considering the findings based upon the demeanor, appearance, or conduct of live witnesses to determine whether there was sufficient evidence to support the board's decision to revoke. The State asserts that if there is sufficient evidence without considering the findings based on demeanor, appearance, or conduct, the absences of board members are irrelevant. We decline to adopt this standard. When the board's decision to sanction a...