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Seider v. Board, attorneys and footnotes

Attorney for plaintiff:	

Christopher C. Taintor, Esq., (orally)	
Norman, Hanson & DeTroy	
P O Box 4600	
Portland, ME 04112-4600	

Attorneys for defendant:

Andrew Ketterer, Attorney General
Judith M. Peters, Asst. Atyy. Gen. (Orally)
6 State House Station
Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . The son's father is not involved in this action. {2} . Although designated as a report, the document is a fifty-one page self-serving explanation and justification for Seider's views and actions. {3} . Seider filed a petition for review on April 4, 1997, almost two years after the Board's order, but because the Board failed to include, in its order, written notice of Seider's appellate rights as required by 5 M.R.S.A. § 9061 (1989), Seider was allowed to advance her petition. See Seider v. Bd. of Exam'rs of Psychologists, 1998 ME 78, 710 A.2d 890. {4} . Seider suggests that the lost testimony actually benefitted her. She offers, for instance, the testimony of Judy Potter, one of the father's attorneys in the underlying custody case, to support a proposition she makes. Seider then suggests that Potter's testimony must be accepted as authority for the proposition because the State can present no evidence to rebut it, having lost the testimony of Altshuler as a result of the audiotape malfunction. {5} . Principle 5.02 provides: Psychologists have a primary obligation and take reasonable precautions to respect the confidentiality rights of those with whom they work or consult, recognizing that confidentiality may be established by law, institutional rules, or professional or scientific relationships. APA Code of Conduct, Principle 5.02 (1992). {6} . The relevant confidentiality provisions of the AASPB Code provide, in pertinent part: 1. In general. The psychologist shall safeguard the confidential information obtained in the course of practice, teaching, research, or other professional services. With the exceptions set forth below, the psychologist shall disclose confidential information to others only with the informed written consent of the client. . . . . 12. Confidentiality after termination of professional relationship. The psychologist shall continue to treat as confidential information regarding a client after the professional relationship between the psychologist and the client has ceased. AASPB Code of Conduct, Sections III(E)(1) & (12) (1991). {7} . Principle 5.03 provides: (a) In order to minimize intrusions on privacy, psychologists include in written and oral reports, consultations, and the like, only information germane to the purpose for which the communication is made. (b) Psychologists discuss confidential information obtained in clinical or consulting relationships, or evaluative data concerning patients, individual or organizational clients, students, research participants, supervisees, and employees, only for appropriate scientific or professional purposes and only with persons clearly concerned with such matters. APA Code of Conduct, Section 5.03 (1992). {8} . Principle 5.01(a) requires "[p]sychologists [to] discuss with persons . . . with whom they establish a scientific or professional relationship . . . (1) the relevant limitations on confidentiality, including limitations where applicable in group, marital, and family therapy . . ., and (2) the foreseeable uses of the information generated through their services." APA Code of Conduct, Principle 5.01(a)(1) & (2) (1992). There is no record evidence showing there were any limitations on the parties' confidentiality privileges. It must be presumed, therefore, that any and all discussions in the parties' consultations with Seider are confidential and are subject to all the protections of confidentiality available within the law. {9} . M.R. Evid. 503(b) provides the general rule for a patient's confidentiality privilege. It states that: A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional condition, including alcohol or drug addiction, among the patient, the patient's physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family. M.R. Evid. 503(b). There are exceptions to this general rule, however. M.R. Evid. 503(e) provides, in relevant part: (2) Examination by Order of the Court. Except as otherwise provided in subdivision (c), if the court orders an examination of the physical, mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise. (3) Condition an Element of the Claim or Defense. There is no privilege under this rule as to communications relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which the condition of the patient is an element of the claim or defense of the patient, or of any party claiming, through or under the patient or because of the patient's condition, or claiming as a beneficiary of the patient, through a contract to which the patient is or was a party, or after the patient's death, in any proceeding in which any party puts the condition in issue. M.R. Evid. 503(e)(2) & (3). {10} . Principle 5.05 provides: (a) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose, such as (1) to provide needed professional services to the patient or the individual or organizational client, (2) to obtain appropriate professional consultations, (3) to protect the patient or client or others from harm, or (4) to obtain payment for services, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose. (b) Psychologists also may disclose confidential information with the appropriate consent of the patient or the individual or organizational client (or of another legally authorized person on behalf of the patient or client), unless prohibited by law. APA Code of Conduct, Principle 5.05 (1992). {11} . Principle 1.14 provides: Psychologists take reasonable steps to avoid harming their patients or clients, research participants, students, and others with whom they work, and to minimize harm where it is foreseeable and unavoidable. APA Code of Conduct, Principle 1.14 (1992). {12} . Principle 1.15 provides: Because psychologists' scientific and professional judgments and actions may affect the lives of others, they are alert to and guard against personal, financial, social, organizational, or political factors that might lead to misuse of their influence. APA Code of Conduct, Principle 1.15 (1992). {13} . Principle 2.01(b) states, in relevant part: (b) Psychologists' assessments, recommendations, reports, and psychological diagnostic or evaluative statements are based on information and techniques (including personal interviews of the individual when appropriate) sufficient to provide appropriate substantiation for their findings. APA Code of Conduct, Principle 2.01(b) (1992). {14} . Principle 2.04(b) provides: (b) Psychologists recognize limits to the certainty with which diagnosis, judgments, or predictions can be made about individuals. APA Code of Conduct, Principle 2.04(b) (1992). {15} . Principle 1.17 provides, in relevant part, that: (c) If a psychologist finds that, due to unforeseen factors, a potentially harmful multiple relationship has arisen, the psychologist attempts to resolve it with due regard for the best interests of the affected person and maximal compliance with the Ethics Code. APA Code of Conduct, Section 1.17(c). {16} . Principle 7.03 provides, in full: In most circumstances, psychologists avoid performing multiple and potentially conflicting roles in forensic matters. When psychologists may be called on to serve in more than one role in a legal proceeding-for example, as consultant or expert for one party or for the court and as a fact witness-they clarify role expectations and the extent of confidentiality in advance to the extent feasible, and thereafter as changes occur, in order to avoid compromising their professional judgment and objectivity and in order to avoid misleading others regarding their role. APA Code of Conduct, Principle 7.03 (1992). {17} . Section III(E)(3) states, in full: 3. Services involving more than one interested party. In a situation in which more than one party has an appropriate interest in the professional services rendered by the psychologist to a client or clients, the psychologist shall, to the extent possible, clarify to all parties prior to rendering the services the dimensions of confidentiality and professional responsibility that shall pertain in the rendering of services. Such clarification is specifically indicated, among other circumstances, when the client is an organization. AASPB Code of Conduct, Section III(E)(3) (1991). {18} . Section III of the AASPB Code states, in relevant part: E. PROTECTING CONFIDENTIALITY OF CLIENTS 8. Reporting of abuse of children and vulnerable adults. The psychologist shall be familiar with any relevant law concerning the reporting of abuse of children and vulnerable adults, and shall comply with such laws. . . . . I. VIOLATIONS OF LAW 1. Violation of applicable statutes. The psychologist shall not violate any applicable statute or administrative rule regulating the practice of psychology. AASPB Code of Conduct, Sections III(E)(8) & (I) (1) (1991). {19} . Section 4012 provides, in full: 1. Immediate report. Reports regarding abuse or neglect shall be made immediately by telephone to the department and shall be followed by a written report within 48 hours if requested by the department. 2. Information required. The reports shall include the following information if within the knowledge of the person reporting: A. The name and address of the child and the persons responsible for his care or custody; B. The child's age and sex; C. The nature and extent of abuse or neglect, including a description of injuries and any explanation given for them; D. A description of sexual abuse or exploitation; E. Family composition and evidence of prior abuse or neglect of the child or his siblings; F. The source of the report, the person making the report, his occupation and where he can be contacted; G. The actions taken by the reporting source, including a description of photographs or x rays taken; and H. Any other information that the person making the report believes may be helpful. 22 M.R.S.A. § 4012 (1992) (emphasis added). {20} . Section 4014 provides, in pertinent part: 1. Reporting and proceedings. A person . . . participating in good faith in reporting under this subchapter or participating in a related child protection investigation or proceeding, including, but not limited to, a multidisciplinary team, out-of-home abuse investigating team or other investigating or treatment team, is immune from any criminal or civil liability for the act of reporting or participating in the investigation or proceeding. Good faith does not include instances when a false report is made and the person knows the report is false. Nothing in this section may be construed to bar criminal or civil action regarding perjury or regarding the abuse or neglect which led to a report, investigation or proceeding. 22 M.R.S.A. § 4014(1) (1992). {21} . Section 4021 provides, in relevant part, that "[a] person who complies with a subpoena is immune from civil or criminal liability that might otherwise result from the act of turning over or providing information or records to the department." 22 M.R.S.A. § 4021(1)(A)(2) (1992 & Supp. 1999-2000). {22} . Section 4011 provides: 1. Reasonable cause to suspect. When, while acting in a professional capacity, an adult who is a . . . psychologist . . . knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected, that person shall immediately report or cause a report to be made to the department. 22 M.R.S.A. § 4011(1)(1992 & Supp. 1999-2000).

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