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In some contested divorces where both sides are collecting evidence and conducting discovery, people worry about the confidentiality of their psychiatric records and how those records may impact litigation. This article will help clarify what is protected and what is not. Georgia law affords an absolute privilege to communications between a psychiatrist or psychologist and his or her patient. See O.C.G.A. § 24-5-501(5); O.C.G.A. § 43-39-16. Included in this privilege are confidential communications, and also any admissions. See O.C.G.A. § 24-5-501(5). In order to use the privilege to protect your records, “the requisite relationship of (mental health provider) and patient must have existed, to the extent that treatment was given or contemplated.” In the Interest of I.M.G., 624 S.E.2d 236, 241 (Ga. Ct. App. 2005). Once the privilege has been established, one must voluntarily relinquish a known right in order to waive the privilege. Id. at 242. In order to waive privilege, a party must either expressly or implicitly by “decisive, unequivocal conduct reasonably inferring the intent to waive.” Kennestone Hosp. v. Hopson, 538 S.E.2d 742, 745 (Ga. 2000). For example, the Georgia Supreme Court has held that a criminal defendant implicitly waived the privilege by calling his psychiatrist as a witness to testify on his mental condition. Id. at 744. The privilege is not generally waived even though the patient’s treatment is at issue in a civil or criminal proceeding, including divorce litigation. Mincey v. Ga. Dept. of Comm. Affairs, 708 S.E.2d 644, 649 (Ga. Ct. App. 2011). Many guardians ad litem in contested custody actions seek release of patient mental health treatment records.
Although communications between the patient and psychiatrist are absolutely privileged, “the fact of employment of or treatment by a mental health provider and the dates thereof do not fall within the mental health privilege” and may be disclosed without waiving the privilege. State v. Herendeen, 613 S.E.2d 647, 651 (Ga. 2005). Diagnoses, on the other hand, are privileged. Mrozinski v. Pogue, 423 S.E.2d 405, 409 (Ga. Ct. App. 1992). The Court in Mrozinski upheld the trial court’s conclusion that “the patient had a privilege even in the doctor’s conclusion that the patient had psychiatric disorders,” relying on the view that “information which originated as communications may be privileged.” Id. See also 613 S.E.2d at 651. In Weksler v. Weksler, a custody action, the Court held that the records from the wife’s stay at a psychiatric hospital were discoverable except for any communications with her psychiatrist. 325 S.E.2d 874, 875 (Ga. Ct. App. 1985). See also Johnson v. State, 331 S.E.2d 578, 585 (Ga. 1985). Even so, communications made to nurses or attendants at the psychiatric hospital were discoverable unless they were agents of the attending psychiatrist. 325 S.E.2d at 874. If the party opposing the discovery can show that the information originated as communications, then it is privileged. 331 S.E.2d at 585. Even if privileged information is accidentally provided in discovery, the Georgia Court of Appeals held that where disclosures “were made only in the course of cooperating in discovery,” there was no waiver. Associated Grocers Co-op, Inc. v. Trust Co. of Columbus, 279 S.E.2d 248, 249-280 (Ga. Ct. App. 1981). Therefore, the psychological records of divorcing spouses probably will not be discoverable.
In terms of the physician-patient relationship, Georgia law does not recognize a physician-patient privilege, but it does recognize a substantive right to medical privacy. Baker v. Wellstar Health Sys., 703 S.E.2d 601, 604 (Ga. 2010); Veasley v. State, 570 S.E.2d 298, 301 (Ga. 2002). Personal medical records cannot be disclosed without the patient’s consent unless required by a court order or other applicable Georgia law. Ussery v. Children’s Healthcare of Atlanta, Inc., 656 S.E.2d 882, 895 (Ga. Ct. App. 2008). Confidentiality as to relevant medical information is waived only when a litigant places his medical condition at issue in the legal proceeding. 703 S.E.2d at 604.
