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Seider v. Board of Examiners

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 206
Docket:	Cum-00-311	
Argued:	November 7, 2000	
Decided:	November 29, 2000



	[¶1]  Judith A. Seider appeals from the judgment of the
Administrative Court (Wheeler, J.) affirming a decision and order of the
Board of Examiners of Psychologists.  Seider contends that the Board erred
in numerous respects.  Finding that the record contains substantial,
competent evidence to support the conclusions of the Board, we affirm.
	[¶2]  Seider is a clinical psychologist who was licensed to practice in
the State of Maine.  On February 25, 1992, a mother consulted with Seider
about the possible sexual abuse of her then four-year-old son.  A short time
later, after one observation session with the son, Seider concluded that the
son had been sexually abused and prescribed a course of treatment.  Seider
continued the professional relationship with the son and the mother until
April 21, 1992, when the mother terminated the relationship.
	[¶3] In early 1992, the mother shared physical custody of her
daughter with her former partner, the daughter's biological father.{1} In April
1992, Seider entered into a professional relationship with the daughter and
the father and disclosed to the father that the son had been, and continued
to be, sexually abused.  Because of the alleged ongoing abuse, Seider
expressed concerns that the daughter was also at risk.   Seider entered into
the relationship with the daughter and the father without the mother's
knowledge or consent. The mother never authorized Seider to release the
confidential information to the father.
	[¶4]  In late November 1992, the father-acting on Seider's
recommendations-denied the mother further contact with the daughter.  A
custody dispute ensued between the mother and the father.  In support of
the father, Seider provided an affidavit for use in the custody dispute,
disclosing confidential information concerning the mother.   The mother
never authorized Seider to disclose to any party involved in the custody
dispute information pertaining to her, the son, or the daughter.   
	[¶5] Although she suspected that the children had been sexually
abused, Seider also failed to immediately report her suspicions to the
Department of Human Services as is mandated by the Maine statutory
reporting requirements.  See 22 M.R.S.A. §§ 4011(1) (1992 & Supp. 1999-
2000) (stating psychologist, who "knows or has reasonable cause to suspect
that a child has been or is likely to be abused or neglected, . . . shall
immediately report or cause a report to be made to the department").
Seider suspected that the son had been sexually abused as early as
February 25, 1992, but did not report the suspected abuse to DHS until
April 28, 1992.  Additionally, though she suspected as early as April 1992
that the daughter was at risk of sexual abuse, Seider did not report her
suspicions to DHS until DHS contacted her.  DHS's involvement stemmed
from a notice it received from Dr. Sumner Berkovich-the children's
pediatrician-reporting the suspected sexual abuse of the daughter.  Dr.
Berkovich's call was triggered by a call Seider made to him to discuss the
daughter.  In the course of that conversation, Seider also disclosed to Dr.
Berkovich that the mother herself had been sexually abused.  The mother
never authorized the disclosure.  
	[¶6]  Because of these reports, DHS initiated an investigation.  On
January 12, 1993, it issued an investigative subpoena to Seider, requesting
"[a]ny and all notes, records, and evaluations, regarding [the daughter, the
father, the mother, and the son]." In response to the subpoena, Seider
provided treatment records for the mother, the son, the father, and the
daughter, together with a fifty-one page explanation, hereinafter referred to
as "51-page explanation,"{2} divulging confidential information pertaining to
the mother, the son, and the daughter. 
	[¶7]  Based on the foregoing events, the mother filed a complaint
with the Board, asserting that Seider had breached her obligations of
confidentiality.   The matter was heard by the Board over four days in the
spring of 1995.   In a decision and order dated July 14, 1995, the Board
found 12 violations of the 1992 American Psychological Association Ethical
Principles of Psychologists and Code of Conduct.  These include four
separate violations of Principle 5.02, two separate violations of Principle
5.03, and one violation each of Principles 1.14, 1.15, 1.17(c), 2.01(b),
2.04(b), and 7.03.  In addition, the Board found three violations of the 1991
American Association of State Psychology Boards Code of Conduct.  These
include two violations of Sections III(E)(8) and III(I)(1), taken in
conjunction, and one violation of Section III(E)(3).  Upon Seider's petition
for review,{3} the Administrative Court affirmed the findings of the Board. 
This appeal followed. 
	[¶8]  When a decision of an administrative agency is challenged on
appeal, we review the action of the agency directly.  CWCO, Inc. v.
Superintendent of Ins., 1997 ME 226, ¶ 6, 703 A.2d 1258, 1261 (citing
Nyer v. Maine Unemployment Ins. Comm'n, 601 A.2d 626, 627 (Me. 1992)). 
"The standard of review is 'limited to whether the [governmental agency]
abused its discretion, committed an error of law, or made findings not
supported by substantial evidence in the record.'" Davric Maine Corp. v. 
Maine Harness Racing Comm'n, 1999 ME 99, ¶ 7, 732 A.2d 289, 293
(citation omitted); see also CWCO, Inc., ¶ 6, 703 A.2d at 1261 (stating that,
in reviewing an administrative agency decision, the issue before the court is
not whether it would have reached the same conclusion as the agency, "but
whether the record contains competent and substantial evidence that
supports the result reached."); Bischoff v. Bd. of Trustees, 661 A.2d 167,
170 (Me. 1995) (holding Law Court will not overturn conclusions supported
by competent and substantial evidence).  
	[¶9]  An administrative decision will be sustained if, on the basis of
the entire record before it, the agency could have fairly and reasonably found
the facts as it did.  CWCO, Inc., ¶ 6, 703 A.2d at 1261 (citing Aviation Oil Co.
v. Dep't of Envtl. Prot., 584 A.2d 611, 614 (Me. 1990)).  Inconsistent
evidence will not render an agency decision unsupported.  Bischoff, 661
A.2d at 170.  The burden of proof rests with the party seeking to overturn
the agency's decision. Id.  That party must prove that no competent
evidence supports the Board's decision.  Id.   
A.  Lost Testimonial Evidence 

	[¶10]  As a result of an audiotape malfunction on the third and final
day of hearing before the Board, a portion of the Board's questions to Seider
and her responses and the testimony of witness Kenneth Altshuler were
lost.  Seider argues that the loss of such testimony means that the record is
incomplete, making it impossible for us to meaningfully review the Board's
findings, and, therefore, the Board's decision should be vacated.    
	[¶11] The record before us is composed of the full testimony of six
witnesses, the complete direct and cross-examination of Seider, fifty pages
of the Board's questions to Seider and her responses, four multi-paged,
single-spaced submissions prepared by Seider for the Board, and 584 pages
of documentary exhibits.  Seider does not argue that the lost portion of the
record materially affected her case, nor has she pointed to any harm or
prejudice to her from the loss of Altshuler's testimony or from the loss of
the Board's direct examination of her and her responses to its questions.{4}  
Contrary to Seider's assertion, the record-totalling 1288 pages in length-is
composed of substantial, competent evidence sufficient to permit a
meaningful review.
B.  Board's Finding of Violation of Principles 5.02 and 5.03 is Supported by
Facts and Law 

	[¶12]  The Board found that Seider's 51-page explanation "disclosed
much more information than was needed to comply with the [DHS]
subpoena" and that the information was disclosed "without an explicit
release and, at times, not based on adequate evaluation." Specifically, the
Board found Seider's disclosure of such information constituted four
violations of the confidentiality provisions-including Principle 5.02 of the
APA Code,{5} which became effective on December 1, 1992, and Sections
III(E)(1) & (12) of the 1991 AASPB Code{6} to the extent that any of the four
confidentiality violations occurred prior to the effective date of the APA
	[¶13]  Seider contends that the Board's findings that she violated
Principles 5.02 and 5.03{7} are not supported by the facts or the law of this
case.  She argues that the Board's findings cannot stand because the APA
Code does not define the circumstances that give rise to "confidentiality
	[¶14]  Principle 5.02 compels psychologists to protect the
confidentiality of those with whom they work or consult and provides that
"confidentiality may be established by law, institutional rules, or professional
or scientific relationship." APA Code of Conduct, Principle 5.02 (1992).  The
duty of maintaining confidentiality is established at the very start of a
relationship.  Principle 5.03(b) further prescribes that "[p]sychologists
discuss confidential information obtained in clinical or consulting
relationships, or evaluative data . . . only for appropriate scientific or
professional purposes and only with persons clearly concerned with such
matters." APA Code of Conduct, Principle 5.03(b) (1992).   By virtue of
Principle 5.03(b), a psychologist should regard as confidential any
information that he or she obtains in a professional relationship with
another individual.{8} 
	[¶15]  Together, Principles 5.02 and 5.03 make clear that any
information a psychologist obtains in the course of a professional
relationship with another individual is confidential and is, therefore, subject
to all the protections of confidentiality available within the bounds of the law. 
The determinative factor, then, becomes whether Seider entered into a
professional relationship with the mother and the son.  With respect to the
son, there is no dispute.  Seider readily admits that the son was her client.  
	[¶16]  Seider claims the mother was not her client but, rather, was
merely an adjunct to her consultation with the son.  The Board, on the other
hand, asserts that Seider's relationship with the mother rose to the level of
a professional relationship, entitling the mother to confidentiality privileges. 
The record demonstrates that Seider elicited personal information from the
mother and spoke to the mother about the mother's personal history, her
background, her own sexual abuse, and her treatment history.  There is
substantial, competent evidence in the record, therefore, that Seider
established a professional relationship with the mother.  The mother is
entitled to confidentiality privileges.

C.  Confidentiality Privilege Not Lost by Disclosure

	[¶17]  Seider argues that, pursuant to M.R. Evid. 503,{9} the
information in controversy lost its confidential character because the
mother had disclosed much of the same information to the father and to Dr.
Berkovich prior to meeting with Seider.  Generally, the scope of the patient-
psychologist privilege is limited to "confidential communications." Hallacy v.
Steen, 670 A.2d 1371, 1376 (Me. 1996).  M.R. Evid. 503 defines a
"confidential communication" as follows: 
(4) A communication is "confidential" if not intended to be
disclosed to third persons other than those present to
further the interest of the patient in the consultation,
examination, or interview, or persons reasonably necessary
for the transmission of the communication, or persons who
are participating in the diagnosis and treatment under the
direction of the physician or psychotherapist, including
members of the patient's family.   
M.R. Evid. 503(a)(4).   Seider's reliance on Rule 503 is misplaced.  The
privilege under Rule 503 belongs to the mother and speaks to the mother's
right to "refuse to disclose and prevent any other person from disclosing
confidential information." M.R. Evid. 503(b).  It does not give Seider any
affirmative rights, other than to claim the privilege on behalf of, not against,
the mother.  See M.R. Evid. 503(d) (stating "[t]he person who was the
physician or psychotherapist at the time of the communication is presumed
to have authority to claim the privilege but only on behalf of the patient"
(emphasis added)).  Even if the mother waived her confidentiality privilege,
Rule 503 does not authorize Seider to disclose, without reservation and
without consent, confidential information relating to the mother and the
son.  It is irrelevant, therefore, whether the mother communicated the
same information to other persons.   
	[¶18]  Seider's rights and duties regarding confidentiality are
prescribed by the psychologist codes of conduct, including Principles 5.01-
5.11 of the APA Code and by Section III(E) of the AASPB Code.  These codes
ethically obligate Seider to treat any information, once gained through a
professional relationship, as confidential regardless of who else knows it. 
Section III(E)(12) of the AASPB Code, moreover, provides that these
obligations continue even after the professional relationship ends.   Seider,
consequently, violated her professional codes of conduct when she
voluntarily, and without the mother's consent, disclosed to the father, the
father's attorney, and Dr. Berkovich confidential information obtained during
her professional relationship with the mother.

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