Navigating the Mental Health Privilege, a Nearly Absolute Privilege
07/09/2021By: Colleen Callaghan
Most trial lawyers can confirm that the psychiatrist-patient privilege is perhaps the most “iron clad” privilege when it comes to personal injury litigation. As explored below, however, there are some subtle nuances to keep in mind when a Plaintiff’s mental health treatment is relevant to a particular civil action.
This privilege, often referred to as the “mental health privilege,” is codified in O.C.G.A. § 24-5-501(5)-(8) and protects communications between mental health specialists and their patients as privileged. These communications remain privileged regardless of whether the patient has placed that care or treatment (or the nature or extent of their mental injuries) at issue in a civil proceeding. See Cooksey v. Landry, 295 Ga. 430, 432-433 (2014). Generally, the only way to bypass this privilege is with an express waiver by the patient or when the patient’s conduct indicates an unambiguous intent to waive the privilege. Id. Thus, without a waiver by the patient, it can be difficult, if not impossible, for defense attorneys and claims professionals to collect relevant treatment records containing this protected information.
While Georgia’s mental health privilege is quite strong, not all information included in psychiatric or mental health records are absolutely privileged. Over the years, Georgia Appellate Courts have held that the privilege is specifically limited to “admissions and communications” between a patient and his or her mental health provider (or communications between mental health providers), as specifically listed in O.C.G.A. § 24-5-501. The privilege also applies to any information that a mental health provider listed in O.C.G.A. § 24-5-501 holds which “has its origins in” communications between the patient and that professional. Advantage Behavior Health Sys, v Cleveland, 350 Ga. App. 511, 524, 829 S.E.2d 763, 773 (2019).
Note that this limiting language leaves the door open to the production of information that does not have its “origins” in the communications protected by the psychiatric privilege. For example, the Georgia Court of Appeals has held that “communications between a patient and nurses or attendants…, mental health provider communications with someone other than the patient or another mental health provider, situations where no mental health treatment is given or contemplated, and the mere existence of treatment or its dates” are not covered by the privilege. Gwinnett Hosp. Sys. v. Hoover, 337 Ga. App. 87 (2016). Additionally, any nonprivileged portion of mental health treatment records are subject to discovery and should be produced even if redactions are necessary. Aetna Casualty & Surety Co. v. Ridgeview Institute, Inc. 194 Ga.App. 805, 392 S.E. 2d 286 (1990). As such, at a minimum, mental health providers with otherwise protected records must produce redacted versions of those records.
Overall, the mental health privilege can be a frustrating impediment to obtaining important and relevant records. In a situation in which the parties are at odds on whether the records are to be produced, or if a non-party provider does not wish to produce the records based on this privilege, we recommend that the party seeking the records request an in-camera review of the records by the trial court to determine the sections that are privileged and those that are not. Following this in-camera review, the court can provide a copy of the records with the privileged portions of the record redacted. This in-camera review process allows for defense counsel to review the non-privileged portions of the records without violating O.C.G.A. § 24-5-501, and it may be an important tool for obtaining relevant information for defending a case.