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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

Case No. 2023-0210

Citation: State v. Doyle, 2024 N.H. 25

THE STATE OF NEW HAMPSHIRE

v.

JOHN DOYLE

Argued: October 12, 2023

Opinion Issued: May 14, 2024

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor 

general (Michael R. Grandy, assistant attorney general, on the brief and orally), 

for the State.

Thomas Barnard, deputy chief appellate defender, of Concord, on the 

brief and orally, for the defendant.

MACDONALD, C.J. 

[¶1] The defendant, John Doyle, appeals an order of the Superior Court 

(Tucker, J.) granting the State’s motion to allow the Office of the Forensic 

Examiner (OFE) to release his medical and mental health records to a 
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physician designated by the State for the purpose of assessing the 

appropriateness of involuntary commitment under RSA 135:17-a, V (2021). 

The defendant argues that the court erred by ruling that his records are 

exempt from the physician-patient and psychotherapist-patient privileges. See

RSA 329:26 (2017); RSA 330-A:32 (Supp. 2022). We vacate and remand.

I. Background

[¶2] The following facts were found by the trial court or are otherwise 

supported by the record. In March 2019, the defendant was charged with 

crimes arising out of a domestic dispute. See RSA 631:4 (2016); RSA 631:2-b, 

I(a) (2016 & Supp. 2023). In August 2019, the trial court ordered the 

defendant to undergo a competency evaluation, prompted by a motion from 

defense counsel. In doing so, the court also ordered that defendant’s counsel

provide the OFE with certain mental health and medical records. The order 

specified that “[t]he contents of the records produced shall be used only to 

determine competency and may not be used in any other proceeding, or further 

disclosed, without order of the Court.” 

[¶3] In its competency report, the OFE indicated that it had requested

the defendant’s mental health records but they had not been received as of the 

time the report was written and, therefore, formed no basis for the conclusions 

reached in the report. Nevertheless, the OFE evaluator concluded that the 

defendant was not competent to stand trial but “can be restored to competence 

in the next 12 months, with appropriate treatment.” (Emphasis omitted.) In 

September 2019, the trial court found that the defendant was not competent to 

stand trial. Defendant’s counsel requested an independent examiner to 

conduct an evaluation related to his competence to stand trial and capacity for 

restoration. That expert concluded that the defendant was unlikely to be 

restored to competency. In making this determination, the defendant’s expert, 

in addition to interviewing and evaluating the defendant, reviewed medical and 

mental health records provided by the defendant. Following a hearing, the trial 

court ordered that the defendant undergo treatment to be restored to 

competency.

[¶4] In August 2021, the OFE re-evaluated the defendant and concluded 

that he had not been restored to competency and that he was dangerous to 

himself or others. The OFE’s report indicates that this evaluation included

reviewing certain of the defendant’s mental health records. Following a hearing 

on restorability, the trial court found that the defendant had not regained 

competency. Following a further hearing, the court found in February 2022 

that the defendant was dangerous to others and ordered that he “shall be 

evaluated for the appropriateness of involuntary treatment as described in RSA 

135:17-a, V.” 
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[¶5] Thereafter, the State sought an order from the trial court to allow the 

release of the defendant’s records — which had been “relied upon” by the OFE 

“to form their opinion” as to his competency to stand trial and dangerousness

— to the doctor designated by the State to evaluate the defendant for purposes 

of involuntary commitment. The trial court granted the State’s request. The 

defendant moved for reconsideration, asserting that the records ordered to be 

released are confidential and privileged and should therefore not be disclosed 

“to a third party without his consent.” See RSA 329:26; RSA 330-A:32.

[¶6] The trial court denied the defendant’s motion, determining that “the 

medical and mental health records provided to the forensic examiner are 

exempt from the statutory privileges.” The trial court reasoned that, “[w]hether 

it leads to a petition or not, RSA 135:17-a, V provides a mechanism for 

initiating the civil commitment process.” Therefore, the court concluded, the 

examination falls within the privilege statutes’ exceptions for proceedings 

under RSA 135-C:24-:54. The court further observed that, “[i]n the context of 

this case, it would make little sense for the mental health professional 

conducting the evaluation to be without evidence of the medical records that 

were available to the court in the criminal case and prompted the order for a 

further evaluation.”

[¶7] This appeal followed. The trial court subsequently granted the 

defendant’s motion to stay the order authorizing the disclosure of his records 

pending this appeal.

II. Analysis

[¶8] On appeal, the defendant challenges the trial court’s determination 

that RSA 329:26 and RSA 330-A:32 allow for the transfer of his medical and 

mental health records relied upon by the OFE to the State’s designated 

evaluator under RSA 135:17-a, V. The State counters that: (1) RSA 135:17-a, 

V authorizes the trial court to order the transfer of those records; (2) the 

defendant waived the privileges with respect to those records; and (3) the State 

established essential need for those records before the trial court.

[¶9] Resolving this appeal requires us to engage in statutory 

interpretation. St. Onge v. Oberten, LLC, 174 N.H. 393, 395 (2021). We review 

the trial court’s statutory interpretation de novo. Id. We first look to the 

language of the statute itself, and, if possible, construe that language according 

to its plain and ordinary meaning. Id. We give effect to every word of a statute 

whenever possible and will not consider what the legislature might have said or 

add language that the legislature did not see fit to include. Id. We also 

construe all parts of a statute together to effectuate its overall purpose. Id. 

However, we do not construe statutes in isolation; instead, we attempt to 

construe them in harmony with the overall statutory scheme. Id.
4

[¶10] At issue in this case are the physician-patient privilege, see RSA 

329:26, and the psychotherapist-patient privilege, see RSA 330-A:32. Under 

these privilege statutes, “[t]he confidential relations and communications 

between” physicians and psychotherapists and their patients “are placed on 

the same basis as those provided by law between attorney and client.” RSA 

329:26; RSA 330-A:32. RSA 329:26 specifies that “except as otherwise 

provided by law, no such physician or surgeon shall be required to disclose 

such privileged communications.” RSA 329:26. RSA 330-A:32 states, in 

pertinent part, that “nothing in this chapter shall be construed to require any 

such privileged communications to be disclosed, unless such disclosure is 

required by a court order.” RSA 330-A:32.

[¶11] The purpose behind these privileges is to encourage full disclosure 

by the patient for the purpose of receiving complete medical and psychiatric 

treatment. Petition of State of N.H. (State v. MacDonald), 162 N.H. 64, 67 

(2011). The privileges recognize that much of what physicians learn from their 

patients may be both embarrassing and of little real consequence to society. 

Id. With respect to the psychotherapist-patient privilege, we have found the 

public policy behind this privilege might be even more compelling than that 

behind the usual physician-patient privilege. Id. at 68. Many physical 

ailments may be treated with some degree of effectiveness by a doctor whom 

the patient does not trust, but a psychiatrist must have the patient’s 

confidence or the psychiatrist cannot help the patient. Id. For these reasons, 

we have continually sought to safeguard the statutory protections afforded the 

confidential relationship between physicians and patients and therapists and 

patients. Id.; see Nelson v. Lewis, 130 N.H. 106, 109 (1987) (explaining that 

the physician-patient privilege belongs to the patient, “who may prevent the 

physician from revealing statements whose confidentiality the patient wishes to 

preserve”).

[¶12] RSA 135:17-a sets forth procedures for a trial court to follow after 

making an initial determination that a defendant is not competent to stand 

trial. State v. Salimullah, 172 N.H. 739, 743 (2020). RSA 135:17-a, V provides 

that when a defendant is found not competent, not restored, and “dangerous to 

himself or herself or others, the court shall order the person to remain in 

custody for a reasonable period of time, not to exceed 90 days, to be evaluated 

for the appropriateness of involuntary treatment pursuant to RSA 135-C:34 or 

RSA 171-B:2.” RSA 135:17-a, V. “The court may order the person to submit to 

examinations by a physician, psychiatrist, or psychologist designated by the 

state for the purpose of evaluating appropriateness and completing the 

certificate for involuntary admission into the state mental health services 

system, the state developmental services delivery system, or the secure 

psychiatric unit, as the case may be.” Id.

[¶13] It is well settled that statutory privileges should be strictly 

construed. State v. Willis, 165 N.H. 206, 212 (2013). Both RSA 329:26 and 
5

RSA 330-A:32 provide that they “shall not apply” to “hearings conducted 

pursuant to RSA 135-C:27-54.” (Emphasis added.) However, neither the plain 

language of RSA 329:26 nor of RSA 330-A:32 exempts an evaluation conducted 

pursuant to RSA 135:17-a, V from the protections afforded to the privileged 

communications at issue in this case. Nor does the plain language of RSA 

135:17-a authorize the disclosure of such communications for the purpose of 

the court-ordered evaluation under section V. We conclude, therefore, that in 

accordance with RSA 329:26 and RSA 330-A:32, the defendant’s medical and 

mental health records are privileged. Therefore, the trial court erred as a 

matter of law in determining that, pursuant to RSA 135:17-a, V, “the 

[defendant’s] medical and mental health records provided to the forensic 

examiner are exempt from the statutory privileges.” See St. Onge, 174 N.H. at 

395 (we will not consider what the legislature might have said or add language 

that the legislature did not see fit to include). Although we are bound to apply 

the statute as written, the legislature is, of course, free to amend the statutory 

scheme should it disagree with the conclusion that we reach today. See Brady 

v. Sumski, Chapter 13 Tr., 176 N.H. 165, 175 (2023).

[¶14] Likewise, we reject the State’s assertion that “[a]n order to produce 

medical records under RSA 135:17-a, V . . . meets the exception contained in

RSA 330-A:32 permitting disclosure” if “required by court order.” (Quotation 

omitted.) See RSA 330-A:32. There are generally two grounds upon which 

privileged information may be disclosed: (1) the court finds a waiver of the 

privilege; or (2) the court orders a piercing of the privilege because disclosure of 

the information concerned is considered “essential.” See Petition of State of 

N.H., 162 N.H. at 69-70. Because the trial court erroneously concluded that 

RSA 135:17-a, V exempts the records at issue from the statutory privileges, it 

did not address whether either of the grounds for disclosing privileged 

information could be met here. Accordingly, we remand to the trial court for 

further proceedings and, in doing so, we express no view on the merits. We 

have reviewed the parties’ remaining arguments and determine that they lack 

merit and do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 

322 (1993). 

Vacated and remanded. 

BASSETT and DONOVAN, JJ., concurred; HANTZ MARCONI, J., sat for 

oral argument but subsequently disqualified herself and did not participate in 

further review of the case.