2007 Spring, Pg. 24. Minor Secrets, Major Headaches: Psychotherapeutic Confidentiality After Berg.

• Author: by Attorneys David Wolowitz and Jeanmarie Papelian

New Hampshire Bar Journal

2007.

2007 Spring, Pg. 24.

Minor Secrets, Major Headaches: Psychotherapeutic Confidentiality After Berg

New Hampshire Bar JournalSpring 2007, Volume 48, No. 1Health Care & the LawMinor Secrets, Major Headaches: Psychotherapeutic Confidentiality After Bergby Attorneys David Wolowitz and Jeanmarie PapelianThe New Hampshire Supreme Court's July 13, 2005, decision entitled In The Matter of Kathleen Quigley Berg and Eugene E. Berg(fn1) has profound implications for anyone dealing with issues related to the confidentiality of psychotherapy records of minors. This review of Berg focuses on the decision's impact on two groups with strong, and sometimes competing, interests in these issues: domestic relations attorneys and psychotherapists.

In its remarkable ruling, the New Hampshire Supreme Court made two head-turning findings:

parents do not have the exclusive right to assert or waive the therapist-client privilege on their child's behalf, and,

the assertion or waiver of this privilege by a minor of "sufficient maturity" may be given "substantial weight" by the trial court, even if that is contrary to their parents' wishes. Further, others, including the guardian ad litem and the child's therapist, may assert the privilege. The decision has far reaching implications for anyone dealing with children who are in psychotherapy.

THE DECISION

The facts of this case are common enough. When Eugene Berg and Kathleen Quigley Berg divorced, Kathleen was awarded primary physical custody of their four children. The parents shared joint legal custody, and Eugene had specific periods of visitation.(fn2)

Eugene initiated post-divorce litigation, asking the trial court to find Kathleen in contempt. The children were not visiting him as scheduled, and he alleged that Kathleen had alienated the children from him. Eugene requested records and notes from the children's therapists to determine whether they contained evidence of Kathleen's alleged interference with his relationship with the children. The therapists refused to produce the records on the grounds that disclosure would not serve the children's best interests.

The guardian ad litem (GAL) who had been appointed by the trial court to represent the children's interests asked the court to seal the children's records. Kathleen assented. Eugene objected. The marital master denied the request to seal, stating that the legal right of a custodial parent to access his children's medical records overrides the children's privacy rights.

In an interlocutory appeal, the Supreme Court was asked to address three questions:

1. Do children have a right to privacy for their medical records and communications?

2. Does the court have the authority to seal the therapy records of the parties' minor children when one parent demands access to the records for purposes of litigation?

3. Should the court have the authority to seal the therapy records of minor children when the parents are in conflict about the release and access to such records?

   The Court answered all three questions in the affirmative.

   In analyzing the questions presented, the Supreme Court considered and rejected Eugene's argument that a parent's right to raise his or her children is superior to the children's privacy interests. It held that while parents do have a constitutional right to raise and care for their children, that right is not absolute. The state, as parens patriae, may intervene if a child's welfare is at stake. "Thus, the superior court has the authority to determine whether it is in the best interests of a child involved in a custody dispute to have confidential and privileged therapy records revealed to his or her parents." 152 N.H. at 661.

   The Court noted that children are "clients" protected by the therapist-client privilege codified in RSA 330-A:32. The statute does not specify who may claim the privilege on behalf of the child. In rejecting Eugene's argument that only a parent may do so, the Court noted that Eugene's argument "assumed that a parent will act solely with the children's best interests in mind. Unfortunately, this assumption may not always be warranted in the context of divorce and custody proceedings". Id. at 662. In fact, in a custody dispute, the interests of the parents may be adverse to the child's interest.

   The Court held that as "clients" under RSA 330-A:32, minors may "claim" the privilege. Parents, as legal guardians may do so as well, but their right is not exclusive. Indeed, the Court extended the right to "claim" the privilege to the client's therapist, without explanation, but apparently by analogy to role of the attorney in an attorney-client relationship covered by the attorney-client privilege which is referenced in RSA 330-A:32.

   In an age when it often seems that the exceptions to confidentiality swallow the rule, the Court analyzed and reaffirmed the public policy underlying the therapist-client privilege. Citing Jaffee v. Redmond, 518 U.S.1, 116 S. Ct. 1923 (1996), the landmark decision of the United States Supreme Court recognizing a psychotherapeutic privilege, the Court stated that "the public policy behind the therapist-client privilege may be even more compelling than that behind the usual physician-patient privilege." Berg, 152 N.H. at 664. The Court recognized the "serious risk that permitting parents unconditional access to the therapy records of their children would have a chilling effect on the therapist-client relationship, thus denying the children access to productive and effective therapeutic treatment." Id. at 665.

   Having concluded that a parent does not have the exclusive right to...