The appellants, N.C. and Alethea Young, Ph.D., appeal orders of the Superior Court
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,
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
Based on S.C.'s complaint, the Board opened an investigation of Young. On November 7, the Board issued a 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.
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
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
Resolution of this issue requires us to interpret RSA chapter 329-B (Supp. 2015). We review the trial court's statutory interpretation
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 practitioners." RSA 329-B:1. To this end, the Board "may, for just cause, undertake an investigation or disciplinary proceedings" concerning practitioners licensed under the chapter. RSA 329-B:21, I. One way that an investigation may be initiated is "[u]pon written complaint which charges that a person licensed under this chapter has committed misconduct." RSA 329-B:21, I(c). The Board "may administer oaths or affirmations, preserve testimony, and issue subpoenas for witnesses and for documents and objects only in a formal investigation or an adjudicatory hearing, except that subpoenas for psychological records as provided in paragraph VI may be issued at any time." RSA 329-B:22, V(a). Under paragraph VI, the Board "may, with just cause, at any time subpoena psychological records from its licensees and from hospitals and other health care providers licensed in this state." RSA 329-B:22, VI.
The Board argues that the plain language of RSA 329-B:22 allows it to issue subpoenas for records at any time, provided that it has just cause to do so, and does not require the Board to take the additional step of obtaining a court order to compel compliance with the subpoena. The appellants argue that this section must yield to another section, RSA 329-B:26, which provides, in part:
Further, RSA 329-B:2, V defines "[p]rivilege" as "the right of a patient for privacy of his or her psychological records, which belong to the patient and which shall not be abridged except by court order or other exception under state or federal law." (Quotation omitted.)
Although the Board contends that RSA 329-B:22 is such "an exception under state or federal law" provided for by RSA 329-B:2, V, the appellants respond that it cannot be because RSA 329-B:26 clearly states that "
The appellants further argue that, because RSA 329-B:22 and :26 do not create an exception, and because there is no claim that N.C. waived her privilege, the court may issue such an order only by piercing N.C.'s privilege.
The Board argues that requiring it to demonstrate essential need would add language to the statute because, by its plain terms, the only requirement that RSA 329-B:22, VI imposes upon the Board is that it have just cause to issue a subpoena for psychological records. The Board contends that the appellants' interpretation is illogical because requiring a court order authorizing the issuance of subpoenas would render meaningless RSA 329-B:22, V and VI, which grant the Board subpoena power, and would impede the Board's ability to conduct investigations. The Board also contends that the essential need standard is not necessary to protect the psychologist-patient privilege because the relationship is adequately protected by the just cause requirement of RSA 329-B:22, VI.
We agree with the appellants that the statute requires a court order to obtain a patient's records when there is an objection to compliance with a subpoena based upon a claim of privilege. Given the plain language of RSA 329-B:26 that "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," the just cause requirement in RSA 329-B:22, VI cannot be an exception to the patient's privilege provided for by RSA 329-B:2, V. To adopt the Board's position would require us to ignore the language of RSA 329-B:26, which we decline to do.
RSA 329-B:22 and :26 can be read together, without conflict. The Board may issue a subpoena for psychological records at any time, provided that it has just cause. However, when a privilege-based objection is made to the subpoena, the Board must seek a court order to compel compliance.
We disagree with the Board's contention that requiring a court order renders RSA 329-B:22 meaningless. RSA 329-B:22 establishes the standard—just cause—that must be satisfied in order for the Board to access psychological records, and it is the standard that must be utilized both by the Board, in issuing a subpoena for such records, and by the court, in enforcing a subpoena for the records. In the absence of the just cause standard set forth in RSA 329-B:22, VI, the statute would lack a criterion by which courts are to determine whether a subpoena should be enforced. Thus, RSA 329-B:22 serves a useful purpose, notwithstanding that subpoenas for psychological records are not self-executing. Requiring a court order also does not impede investigations because the same showing required of the Board to issue a subpoena under RSA 329-B:22—just cause—is required for the court to enforce the subpoena.
We find it unnecessary to address the appellants' contention that, for a court to enforce a subpoena for psychological records issued by the Board, the Board
The Board received a written complaint from S.C. alleging a number of instances of serious misconduct by Young.
The Board subpoenaed all of N.C.'s records for the length of her relationship with Young. The appellants contend that the subpoena was overbroad and that the Board was required to establish probable relevance and essential need as to the entirety of the records that it sought. The appellants suggest that only the records involving Young's professional services rendered around the time of the incident in August 2013 should be disclosed. However, unlike in
We continue to recognize and respect the importance of the psychologist-patient privilege,
DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.