Previously published by HealthCare Review
In New Hampshire, the relations and communications between a mental health practitioner and his or her client are statutorily privileged, protected by disclosure absent a court order. The New Hampshire Supreme Court has ruled, in a case called In the Matter of Berg and Berg, that children are “clients” within the meaning of the privilege statute, and have the right to privacy in their medical records and communications. Remarkably, the court held that mature minors may assert the privilege even against their parents.
Although the Berg case arose in the context of post-divorce litigation, the language of the decision is quite broad. Any health care provider involved in the care of minors should be familiar with the broad implications of the decision.
By way of background, when Mr. and Mrs. Berg divorced, the mother was awarded primary physical custody of the children. The father had specific periods of visitation. The father initiated post-divorce litigation, asking the trial court to find the mother in contempt because the children were not visiting him as scheduled. The father believed that the mother had alienated the children from him. To support that claim, he requested records and notes from the children’s therapists, believing that they would contain evidence of the mother’s interference with his relationship with the children. The therapists refused to produce the records, asserting that disclosure was not in the children’s best interests. The Guardian ad Litem (GAL) who had been appointed by the court to represent the children’s interests asked the court to seal the children’s records. The father objected, and the marital master denied the request to seal, concluding that the father’s legal right to access his children’s medical records was superior to the children’s privacy rights.
An interlocutory appeal to the New Hampshire Supreme Court followed. 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.
Prior to Berg, the prevailing viewpoint was that parents held the exclusive right to assert or waive the psychotherapeutic privilege for their minor children. In Berg, the New Hampshire Supreme Court makes clear that a parent does not have the exclusive right to assert or waive that privilege.
In the event of a dispute about whether the privilege should be waived, the Supreme Court stated that it is up to the trial court to determine whether an assertion or waiver of the privilege is in the child’s best interests.
In making such a determination, the Supreme Court cautioned that the trial court should place particular emphasis on preservation of the child’s ability to engage in open and productive therapeutic treatment.
In Berg, the dispute about access to minor’s medical records arose in the context of a hotly contested custody battle. The Supreme Court offers no suggested procedure for how to get the court to make a determination about whether waiver is in the child’s best interests if there is no pending case. Practitioners faced with such an issue should consult with their supervisor(s) and counsel. Proactive risk management may help to protect the mental health care provider in the event of a Berg dispute.
Careful practitioners will establish policies governing how a Berg conflict about access to records will be handled and explain such policies to both the minor client and his or her parents at the outset of treatment, in connection with the informed consent process.
The New Hampshire Mental Health Bill of Rights requires mental health professionals to engage in documented informed consent with their clients. Given the court’s determination that children are “clients” within the meaning of the statute, psychotherapists should have minors as well as their parents engage in the informed consent process. Of course, some children may be too young to participate; even older children may have difficulty understanding the concepts addressed by the Bill of Rights. As always, the key to good risk management is through documentation and regular supervision.
Jeanmarie Papelian is co-chair of the domestic relations practice group and a member of the firm’s health care practice group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Jeanmarie can be reached at 603-628-1355 or at [email protected] The McLane Law Firm is the largest law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth.