In re Kelly 969 A.2d 443 (N.H.,2009)
by Jesse Goldner, JD

This was a unanimous decision of the New Hampshire Supreme Court reversing an order of the State’s Board of Mental Health Practice (Board) finding that a licensed psychologist, Laurence M. Kelly, Ed.D. had engaged in professional conduct and imposing a variety of restrictions on his practice and other penalties.

A trial judge ordered the psychologist to conduct an evaluation of a father in an action in which the father sought to modify a divorce decree so as to allow overnight and vacation visitation with his minor daughter.  The judge had indicated that before he would consider granting such an order he would require that the father be psychologically evaluated, present expert testimony that he had successfully dealt with anger, control and parenting issues as they related to the daughter, and document the completion of an individual parenting program.  The father retained Dr. Kelly to assist him in satisfying the conditions. 

The psychologist evaluated the father and completed a written report.  He also had a number of therapy sessions with the father; before the sessions he sometimes saw father-daughter interactions.  Prior to the hearing on visitation, the psychologist presented the judge with a written evaluation report elaborating and explaining the testimony that he would give, indicating that  both the father and the daughter would grow from increased interaction, that an appropriate visitation schedule could be developed, and that the father should continue in therapy to deal with a variety of issues.   The letter noted that research supported the idea that the mental health of a child is negatively affected by parental strife and that the roles of both parents are equally critical for the parenting of a healthy child.  It observed that the research also supported the idea that parenting changes both parents and children for the better, and that the father was increasingly committed to being a better parent.

Prior to the hearing, the mother filed a complaint with the Board alleging that the psychologist’s opinions were unethical in that they were made without knowledge of the facts involved in the visitation dispute.  The father responded that he conducted the evaluation in compliance with the court order, that the evaluation was only with respect to the father and his mental health issues and ability to care for the child, and that it was only one piece of information to be considered by the court.  He further explained that he did not make any custody recommendations, and that his observations regarding visitation were based on empirical test data, many years of clinical experience and his knowledge of the father.  He noted that he had not evaluated the daughter nor did he have any opinion regarding the characteristics of anyone but the father.

The Board investigated the complaint and concluded that:

Dr. Kelly never represented ... that his evaluations or opinions were based upon examinations conducted of [the daughter or her mother]. He accurately portrayed in the [report and letter] and in his testimony ... that his evaluative comments were based exclusively on examination of Patient A. In his court testimony, Dr. Kelly further submitted that his many years [of] experience as a psychologist further substantiate his opinions. Asked in Board testimony whether he had an opinion to a reasonable degree of certainty within his science of psychology as to whether the evaluation that he performed had an appropriate basis, Dr. Kelly answered that he did,
and that [i]n a colloquy between [the father] representing himself [at the visitation hearing] and [the trial judge], the judge made clear that the judge and the parties were aware of the limited basis of the evaluation. [The trial judge said to the father that] “[the psychologist] wasn't given a task that in terms of his presenting testimony for you sir that he had to speak to the mother or the Guardian Ad Litem as a condition to do so. I'm aware of that and so is [the mother's attorney].”
Despite these findings, the Board concluded that Dr. Kelly violated APA Code of Conduct, Standards 9.01(a) and (b) [the 2002 version which the New Hampshire Board had adopted and which was applicable at the time of the events in question].   It found that the  recommendations in his Psychological Report “[were] insufficiently substantiated on information and techniques for such opinions for a psychologist,” stating that his opinions “go beyond commenting upon and directing actions that would be strictly those” of the father.  It claimed that the psychologist’s recommendation of “increased visitation with the daughter” and assertions that  “’both would grow from the interaction’” and that “’every other holiday could be worked out between mother and father . . .’  would “require evaluation of and direction to persons [the psychologist] did not examine and concerning whom he had insufficient information.”

The Board then disciplined the psychologist by requiring that he be supervised for twelve months, that he provide a copy of the Board's order to his current employers and affiliates and requiring that the Board's order be a permanent part of his public file.  The psychologist appealed this order to the New Hampshire Supreme Court, which reversed the Board’s determination, finding that its findings did not support the conclusion that the psychologist expressed opinions about the daughter and that the trial court’s order did not request such opinions. 
The Court concluded that throughout the proceedings and in his report the psychologist opinions were offered only with the respect to the father and parent-child relationships in particular.  It noted that the Board’s own report and several of its findings stated that the psychologist’s opinions were limited to the father and that references to the child were “intended in the global sense that children benefit from having an involved father.”

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Author

Jesse Goldner is the John D. Valentine Professor of Law at Saint Louis University School of Law. He also holds secondary appointments in the University's School of Medicine in Pediatrics and Psychiatry, as well as in the University's Center for Healthcare Ethics. He received his J.D. from Harvard Law School, and holds an M.A. in Developmental Psychology from Columbia's Teachers College.