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Connolly v. Board of Social Work
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Decision: 	2002 ME 37
Docket: 	Ken-01-544
Argued: 	January 10,  2002 	
Decided:	February 27, 2002




	[¶1]  Carol Connolly appeals from the judgment entered in District Court
(Augusta, Horton, J.) affirming the decision of the Board of Social Work
Licensure finding her in violation of Board Rules Chapter 5, § 3(C)(7) and
Chapter 5, § 3(C)(11){1} for improperly revealing confidential client information
on two occasions.  Connolly argues, inter alia, that she was entitled to rely
upon her client's consent, that on the first occasion no confidential
information was disclosed, and on the second occasion her client's guardian
had resigned.  We agree in part and disagree in part and, therefore, vacate the
court's judgment.
	[¶2] Linda and Aaron Bernstein served as the guardians for a sixteen year
old ward, who had escaped from an abusive family.  The ward often lived with
custodial families who provided "respite care."  Over the course of several
months the relationship between Mrs. Bernstein and her ward deteriorated as
the ward directed increasing anger at her guardian.  The ward was then residing
in the home of Brian and Becky Murphy.  At the insistence of Mrs. Bernstein,
the ward agreed to meet with Carol Connolly for counselling.  In her initial
meeting with Bernstein, Connolly indicated that she wanted to meet with one
of the ward's respite custodians, Mrs. Murphy.  Mrs. Bernstein testified that
she agreed to this but only so long as she was notified first and was present for
such a meeting.  Connolly asserts that Bernstein consented to this meeting.{2} 
Mrs. Murphy transported the ward to her counselling sessions and waited for
the ward in the waiting room.  After two counselling sessions with the ward,
Connolly met with Mrs. Murphy without notifying Mrs. Bernstein.  Connolly's
treatment notes indicate, and Mrs. Murphy testified, that Connolly asked Mrs.
Murphy questions about the ward's living arrangements and disclosed no
confidential information.
	[¶3] After two months of frustrated attempts to communicate and
intervene in the life of their ward, Mr. and Mrs. Bernstein decided to resign as
guardians; they wrote a general letter to community members and caregivers
involved with the ward's care announcing their decision.  With the support of
the Bernsteins and the ward, the Murphys petitioned for guardianship of the
ward.  The Murphys sought letters from the ward's professional caregivers
supporting their petition.  Carol Connolly wrote a letter, addressed "To Whom
It May Concern," indicating her counselling relationship with the ward,
providing a brief assessment of the ward, and supporting the Murphys' petition. 
Connolly gave the letter to Mrs. Murphy to be filed with the Murphys' petition
seeking guardianship of the ward. 
	[¶4]  The Probate Court held a hearing on the Murphys' petition about
two months after it was filed.  The court appointed the Murphys guardians and
accepted the resignation of the Bernsteins a month later.  The Bernsteins then
filed a complaint with the Board regarding Connolly's professional conduct.
	[¶5] After a two day hearing, the Board found that Connolly twice
violated the Board's rules, fined her a total of $500, and conditioned her
license renewal with the requirement that she spend a year in professional
consultation with another social worker.  Connolly appealed to the District
Court,{3} which affirmed the Board on both counts.  Connolly then took this
appeal from the District Court's judgment.
	[¶6] When as here the District Court, then the Administrative Court,
acts in an appellate capacity, we review the decisions of administrative boards
directly.  Seider v. Bd. of Exam. of Psychologists, 2000 ME 206, ¶ 8, 762 A.2d
551, 555.  We review the factual findings of administrative hearings to
determine whether the board "'abused its discretion, committed an error of law,
or made findings not supported by the substantial evidence in the record.'"  Id.
(quoting Davric Maine Corp. v. Maine Harness Racing Comm'n, 1999 ME 99, ¶ 7,
732 A.2d 289, 293).  We address each of these infractions in turn.

A. Connolly's Conversation with Mrs. Murphy.

	[¶7] Connolly asserts that irrespective of whether or not Mrs. Bernstein
provided adequate consent, she revealed no confidential information in her
meeting with Mrs. Murphy.  The Board contends that the mere fact that
Connolly revealed that she was counselling the ward is sufficient to find a
breach of Board rules and its code of ethics.  In the circumstances of this case,
we find the Board's assertion to be unpersuasive.
	[¶8]  The custodian in this case, Mrs. Murphy, knew that the ward was in
counselling with Connolly because she was driving the ward to the counselling
sessions, at the direction of Mrs. Bernstein.  Thus, the Board's conclusion that
Connolly violated the ward's confidentiality by disclosing the existence of
counselling defies logic.  Mrs. Murphy testified at Connolly's hearing.  When
asked on direct examination about what Connolly had asked or told her, she
responded that the conversation focused on the ward's life at home:
"[B]asically it was how did we feel [the ward] was doing in our home, did we
have any concerns with behavior or did we see anything that we had concerns
about, how did [the ward] become [sic] into our home, did we know about her
natural mother."  Connolly's treatment notes support Mrs. Murphy's
	[¶9]  Neither Murphy nor Connolly was asked what confidential
information Connolly revealed to Murphy.  The Board argues that the one-hour
session between Connolly and Murphy compels a conclusion that Connolly
revealed confidential information.  The Board, however, must have substantial
evidence on the record upon which it may base its findings.  Based on the
length of the meeting between Connolly and Murphy, the Board's conclusion
that confidential information was disclosed is speculative.  The Board's finding
that Connolly disclosed confidential client information is not supported by any
evidence, let alone substantial evidence. 

B. Connolly's Letter Addressed "To Whom It May Concern."

	[¶10]  Connolly argues, inter alia, that she did not breach confidentiality
because the Bernsteins had effectively resigned as guardians and, therefore,
there was no one who could consent other than the ward, and she had
provided her consent.{4}  The Maine Probate Code states that a guardianship
does not terminate "until it has been approved by the court."  18-A M.R.S.A. §
5-210 (1998).  Notwithstanding the actions the Bernsteins took to resign as
guardians, they retained the authority, responsibility and liability of legal
guardians until the Probate Court issued its orders appointing the Murphys as
guardians and accepting the Bernsteins' final account. 
	[¶11]  Connolly also argues that the ward's mental condition was at
issue thereby allowing her to inform the court of her view of the ward's needs. 
See 32 M.R.S.A. § 7005 (1999).  This statutory exception to the social worker-
client privilege, however, only operates when the social worker "may be required
to testify in any civil or criminal action, suit, or proceeding at law. . . ." Id. 
Connolly was not compelled by any court order to testify. 
	[¶12]  Even if the Bernsteins' resignation was effective or Connolly had
been compelled to testify, her letter is too broadly published to qualify as a
limited disclosure allowed by the statute and professional rules for exceptional
circumstances.  Connolly's letter was addressed "To Whom It May Concern,"
and given to a third party, Mrs. Murphy.  The professional rules require that
any disclosure must be limited to the greatest extent possible, and Connolly's
letter goes well beyond such a limited disclosure.  Substantial evidence in the
record supports the Board's finding that, by publishing the "To Whom It May
Concern" letter, Connolly violated Board Rules.
	The entry is: 
Judgment is vacated and remanded to the
District Court for remand to the Board of
Social Work Licensure for further
proceedings consistent with this opinion.

Attorney for plaintiff: Arthur J. Greif, Esq. (orally) Gilbert & Greif, P.A. P O Box 2339 Bangor, ME 04402-2339 Attoneys for defendant: G. Steven Rowe, Attorney General Judtih M. Peters, Asst. Attorney General (orally) 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . The applicable subsections of the Board's Code, Chap. 5, § 3(C)(7) & (11) read as follows: (C) Gross Negligence, Incompetency or Misconduct Gross negligence, incompetency, or misconduct in the practice of professional social work includes, but is not limited to: . . . . (7) failing to maintain the confidentiality of client information, except as otherwise required by law; . . . . (11) engaging in conduct which violates the Code of Ethics adopted by the National Association of Social Workers in 1996 . . . . {2} . The Board of Social Work Licensure Code of Ethics requires that a social worker obtain the consent of a client before releasing confidential client information. When the client is a minor the capacity to consent rests with the client's parents or legal guardians. {3} . The District Court has jurisdiction to hear appeals from licensing boards and commissions. 4 M.R.S.A. § 152(10) (Supp. 2001); M.R. Civ. P. 80C. {4} . Connolly also argues that under the "mature minor" exception the ward's consent was sufficient. Connolly's testimony before the Board does not support her argument, and suggests that she did not rely on the maturity of the ward in deciding to write the letter. We note that we have only applied this exception in one case which presented exceptional circumstances. In re Swan, 569 A.2d 1202 (Me. 1990).