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Seider v. Board, part 2
D.  Seider Was Not Permitted By Law To Voluntarily Disclose Confidential
Information Because of the Pending Child Custody Litigation

	[¶19] In a custody dispute between the mother and the father,
Seider prepared an affidavit divulging, without the mother's consent,
confidential information pertaining to the mother and the son.   Seider
asserts, pursuant to M.R. Evid. 503, that "the confidentiality inher[ent] in
the psychotherapist-patient relationship disappears when the subject of that
relationship is put 'in issue' in a legal proceeding," and that Principle 5.05{10}
of the APA Code allows for the disclosure of confidential information,
without consent, "as mandated by law, or where permitted for a valid
purpose."  Seider asserts that the custody litigation represents one such
valid purpose contemplated by Principle 5.05 and that she was, therefore,
permitted to disclose confidential information without liability.
	[¶20]  Seider's reliance on M.R. Evid. 503(e)(3) (see supra note 9) is
misplaced.  "Subsection (e)(3) excepts from communications relevant to a
condition that is an element of a claim or defense of the patient.  It is based
on principles of waiver.  It does not allow a party to seek damages with
reference to a physical or mental condition and at the same time suppress
evidence relevant to that condition." Richard H. Field & Peter L. Murray,
Maine Evidence, § 503.4 (2000 ed.).  The operative focus in Rule 503(e)(3) is
on the patient/client.  Whether or not a patient/client waives his or her
privilege, a psychologist cannot rely upon this rule to volunteer that
patient/client's confidential information without reservations, as Seider did
here.  The child custody litigation, therefore, did not permit Seider to
volunteer confidential information obtained in a professional relationship
with the mother.
   
E.  Seider's 51-page Explanation Violated Principle 5.02

	[¶21]  The Board found that Seider violated Principle 5.02 (see
supra note 5) when she gave "confidential information to DHS without a
release and beyond [sic] the scope of the investigative subpoena."  The
investigative subpoena asked for "[a]ny and all notes, records, reports, and
evaluations, regarding [the daughter, the father, the mother, and the son]." 
	[¶22]  Seider argues that Principle 5.05 (see supra note 10) allows
psychologists to disclose confidential information when "mandated by law." 
She contends that "22 M.R.S.A. §§ 4011 and 4012 [see infra notes 19 and
22] required her to make a report setting forth 'any . . . information . . . [she]
believe[d] may be helpful' to the Department's investigation."  Seider argues
that these provisions immunize her from liability for her 51-page
explanation and, accordingly, the Board erred in finding that she violated
Section 5.02 with respect to this report.   
	[¶23]  By creating the 51-page explanation, in which she divulged
detailed evaluations of the daughter, made clinical diagnoses regarding the
mother and the son, and offered extensive recommendations regarding how
DHS should proceed with its investigation, Seider went over and beyond
what was asked for in the DHS subpoena.  Contrary to her assertions,
therefore, there is competent and substantial evidence in the record to
support the result reached by the Board.   The Board did not err in finding
that Seider violated Principle 5.02 of the APA Code.

F.  The record contains competent and substantial evidence that Seider
violated Principles 1.14, 1.15, 5.03, 2.01(b) and 2.04(b)

	[¶24]  Seider contends that the Board exceeded its authority in
finding that she violated APA Code Principles 1.14, 1.15, 5.03, 2.01(b), and
5.03.   She charges that, insofar as they are based on the Board's evaluation
of her 51-page explanation, the Board's findings on these Principles are
overinclusive and lack factual support.   Contrary to Seider's assertions,  the
bases for the Board's findings are not solely restricted to Seider's 51-page
explanation; rather, the findings will be upheld if, on the basis of the entire
record, the board could have fairly and reasonably found the facts as it did. 
See CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ¶ 6, 703 A.2d
1258, 1261 (stating that administrative decision will be sustained if, on
basis of the entire record before it, the agency could have fairly and
reasonably found the facts as it did).  There is competent and substantial
evidence in the record taken as a whole to support the Board's findings with
respect to these violations.
   
	i.  Principle 1.14

	[¶25] The Board found that Seider violated Section 1.14{11} because
she made conclusions about the mother on minimal data, disclosed to others
such conclusions, and continued to maintain her position without adequate
reservation.   There is competent evidence to support the Board's findings. 
In her affidavit, her 51-page explanation, and her testimony at the custody
hearing, Seider asserted opinions without limitations as to the certainty of
her conclusions.   She also rendered diagnoses of the mother based on only
three meetings and without formal assessments.

	ii.  Principle 1.15

	[¶26]  The Board found that Seider violated Section 1.15{12} because
she failed to guard against the misuse of her work by the litigants in the
custody action, took sides in the custody action without sufficient data, and
failed to obtain releases.  Seider prepared an affidavit that contained
substantial confidential information about one client (the mother) and gave it
to another client (the father) to be used in a contentious custody suit. There
is, therefore, competent record evidence to support the Board's finding of a
violation of Section 1.15.

	iii.  Principle 5.03

	[¶27]  The Board found that Seider twice violated Principle 5.03
(see supra note 6).   First, she failed, in her affidavit and in her 51-page
explanation, to minimize intrusions on the mother's privacy and provided
information not germane to the purpose for which the communication was
made.  Second, the Board found that Seider violated Section 5.03 because
she discussed confidential information with persons who were not persons
clearly concerned with the limited relationship between Seider and the
mother.   
	[¶28]  The record evidence demonstrates that Seider prepared an
affidavit divulging confidential information pertaining to the mother and the
son without obtaining the mother's release or consent.   It also shows that
she gave the affidavit to the father and his attorney, persons who were
unconcerned with the relationship between Seider and the mother.   The
record evidence further shows that Seider's 51-page explanation contained
information that was not germane to the purpose for which it was created. 
The record, therefore, contains substantial, competent evidence to support
the Board's finding that Seider violated Principle 5.03.
 
	iv.  Principle 2.01(b)

	[¶29]  The Board also found that Seider violated Principle 2.01(b){13}
because she made assessments and diagnostic or evaluative statements based
on insufficient data and evaluation in her 51-page explanation.   Contrary to
Seider's assertions, there is substantial, competent evidence in the record
to support the Board's conclusions that Seider, by creating her 51-page
explanation, violated Section 2.01(b).
  
	v.  Principle 2.04(b)

	[¶30]  Finally, Seider was found to have violated Principle 2.04(b){14}
because she failed to limit, or appreciate the uncertainty of, her diagnoses. 
Principle 2.04(b) instructs the psychologist to "recognize limits to the
certainty with which diagnoses, judgments, or predictions can be made
about individuals."  Seider did not recognize the limits to the certainty of
her diagnoses in her affidavit, her testimony, in her 51-page explanation. 
Rather, Seider stated her propositions in absolutes, without reservation. 
DHS's finding that the claims of sexual abuse of the daughter was
unsubstantiated highlights the problems associated with Seider's failure to
appreciate the uncertainty of her diagnoses.   There is substantial and
competent record evidence to support the Board's finding that Seider
violated Section 2.04(b).
G.  The Board's Interpretation of Principle 1.17(c) is Sound

	[¶31]  Seider argues that the Board's finding that she violated
Principle 1.17(c){15} was erroneous because the record does not contain
evidence of "multiple relationships" within the meaning of Principle
1.17(c).  Seider contends that "Principle 1.17(c) does not address situations
where psychologists have professional relationships with 'multiple' persons
who happen to be related in some way." Rather, she argues that the
provision "addresses situations where a psychologist simultaneously has (1) 
a therapeutic or consultive relationship with a patient or client, and (2) a
collateral relationship-'personal, scientific, professional [or] financial,'
among others-with the same person."  
	[¶32]  Seider's interpretation of the regulation is overly restrictive. 
The Board found that Seider violated Principle 1.17(c) because of her
multiple conflicting relationships with the mother, the son, the daughter,
and the father.  We give "considerable deference to an agency's
interpretation of its own internal rules, regulations, and procedures and will
not set it aside, unless the rule or regulation plainly compels a contrary
result." Downeast Energy Corp. v. Fund Ins. Review Bd., 2000 ME 151, ¶ 13,
756 A.2d 948, 951.  The Board's interpretation of Principle 1.17(c) is
sound.

H.  The Record Evidence Supports Findings of Violations of Principle 7.03
and Section III(E)(3)

	[¶33]  The Board found that Seider violated Principle 7.03{16} because
(1) she failed to clarify her roles at the commencement of the relationships
or thereafter and (2) she failed to obtain releases from the mother and the
son.   Seider's failure to clarify her roles was also the basis of the Board's
finding that she violated Section III(E)(3) of the 1991 AASPB Code.  
	[¶34]  Seider argues that the Board exceeded its authority by
retroactively applying Principle 7.03 and Section III(E)(3){17} because neither
rule was in effect when the alleged conduct occurred.  Seider further asserts
that a violation of Section 7.03 could not have been found unless the Board
determined that Seider "had 'multiple and potentially conflicting roles' in a
forensic matter."   She contends that there is no evidence to show that any
such conflict existed.   
	[¶35]  Contrary to Seider's contentions, there is substantial,
competent evidence that she failed to clarify her roles with the various
parties subsequent to December 1, 1992, when the APA Code took effect. 
She aligned herself, for example, with the father in his parental rights
dispute, preparing an affidavit-dated December 9, 1992-that disclosed
confidential information about the mother and the son without obtaining
appropriate releases.   Seider also failed to clarify for the mother what
Seider's role was in this multiple relationship with the mother and the
father.  In addition, she never clarified to the mother what the mother's
confidentiality rights were.
	[¶36]  From December 1992 to early 1993, Seider also performed
evaluations on the daughter for sexual abuse and provided those evaluations
to the District Court and to DHS for use in the determination of parental
rights.  In so doing, Seider was acting as the daughter's advocate while also
serving as the child's therapist.  Seider never clarified this role to the
father, nor did she reveal to the father that his interests and those of the
daughter may conflict.  In addition, Seider continued to see the daughter
without informing the mother of such contacts. Contrary to Seider's
assertions, therefore, there is competent evidence in the record to support
the Board's finding that she violated Principle 7.03 and Section III(E)(3).

I.  Failure to Report "Immediately"

	[¶37]  The Board also concluded that Seider twice violated Sections
III(E)(8) and III(I)(1) of the AASPB Code.{18}  The Board first found that
Seider violated these provisions by failing to report to DHS her suspicions of
the sexual abuse of the children "immediately," as prescribed by 22 M.R.S.A.
§ 4012.{19}  It also found that she violated the provisions by neither having a
sufficient knowledge of the reporting requirements, nor of the DHS
reporting procedures.  Seider does not challenge these findings on appeal. 
A failure to brief these claims constitutes an abandonment of the appeal on
those claims.  Kezer v. Mark Stimson Assoc., 1999 ME 184, ¶ 9, 742 A.2d
898, 901 (citing Aseptic Packaging Council v. State, 637 A.2d 457, 462-63
(Me. 1994)).  The Board's conclusion that she violated sections III(E)(8) and
III(I)(1) must, therefore, stand.  	Id.

J.  Failure To Preserve Claims For Appeal

	[¶38]  The remainder of Seider's contentions are brought for the
first time on appeal.  She argues, for instance, that the Board lacked the
authority to discipline her for the contents of her 51-page explanation
because 22 M.R.S.A. §§ 4014{20} and 4021{21}-read in tandem with sections
4011{22} and 4012(2)(H) (see supra note 19)-immunize her from liability for
the content, or substance, of her report.   Seider also asserts that Principle
1.17(c) was not in force at the time of the conduct in question, and,
consequently, she could not be deemed to have violated that provision.  
	[¶39]  Parties seeking a review of a final agency action are expected
to raise any objections they have before the agency in order to preserve
these issues for appeal.  New England Whitewater Ctr. v. Dep't of Inland
Fisheries and Wildlife, 550 A.2d 56, 58 (Me. 1988).  This rule, requiring
that an issue be raised before the administrative agency in order for it to be
preserved on appeal, is not specifically based on a need for factfinding.  Id.
at 60.  Instead, it is based on "[s]imple fairness to those who are engaged in
the tasks of administration, and to litigants, . . . and ensures that the agency
and not the courts has the first opportunity to pass on the claims of the
litigants." Id.   Consequently, "[i]ssues not raised at the administrative level
are deemed unpreserved for appellate review."  Id. (citations omitted). 
Having failed to raise these issues before the Administrative Board, Seider is
barred from doing so now. 
	The entry is:

Judgment affirmed.



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