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A Review of the New Hampshire Supreme Court's Decision In the Matter of Eugene Berg and Kathleen Quigley Berg

Written by: David Wolowitz

Co-written by Jeanmarie Papelian.

In a remarkable ruling which will affect therapists who treat children, the New Hampshire Supreme Court recently held that parents do not have the exclusive right to assert or waive the therapist/client privilege on their child's behalf.

The facts of this case are familiar. 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.

Eugene initiated post-divorce litigation, asking the 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 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 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.

The Court noted that children are protected by the therapist/client privilege described in RSA 330-A:2. 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". In fact, in a custody dispute, the interests of the parents may be adverse to the child's interest. Accordingly, the Court stated that the trial court must determine whether waiver or assertion of the privilege is in the child's best interest. The Court instructed the trial courts to give particular emphasis to preserving the child's ability to engage in treatment in making such a determination. The trial court may exercise its discretion to appoint a GAL to address this issue. It may also grant the GAL the right to inspect the treatment records, or it may conduct an in-camera (private) review.

The Supreme Court declined to rule on Eugene's argument that his constitutional right to confront adverse witnesses would be violated if his request for the records was denied. However, the decision appeared to suggest that if a child's therapist testified, then constitutional protections would operate to permit a parent in Eugene's situation access to the records.

The Court also reviewed the applicable HIPAA regulation, 45 C.F.R. 164.502 (g)(3)(ii)(B), which states that a healthcare provider may not provide access to protected information about a minor to a parent if doing so is "prohibited by an applicable provision of state or other law, including applicable case law". The Supreme Court specifically defined its own decision in Berg as "applicable case law" within the meaning of that regulation. Accordingly, in a Berg situation, a therapist may not disclose the records without a court order granting permission to do so.

The Berg opinion dramatically changes the rules for therapists dealing with children. Practitioners should review their office policies and protocols, and amend them to conform to this new law so that they specify what will happen in the event parents of a minor client disagree about disclosure of their child's records. The policy should be clearly explained to parents at the outset of treatment of a child. And as always, careful documentation is essential at every step.

Space limitations do not permit us an opportunity to go into possible policies and protocols to deal with the impact of this decision. It is better suited as a topic for a seminar. Also, space limitations do not permit us to address the apparent contradictions between the Berg decision and existing Board of Mental Health Rules. However, practitioners should keep in mind the current rules require that a practitioner turn over records to a client upon request within 30 days.

David Wolowitz and Jeanmarie Papelian are directors in the law firm of McLane, Graf, Raulerston and Middleton. Jeanmarie Papelian is the co-Chair of the firm's Domestic Relations Practice Group.

David Wolowitz provides risk management advice to mental health professional and organizations and represents licensees before the New Hampshire Board of Mental Health Practice.

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