The Absolute Privilege Between Patient and Psychiatrist in Civil Cases
| Publication year | 2001 |
| Pages | 0002 |
GSB Vol. 6, No. 5, Pg. 2. The Absolute Privilege Between Patient and Psychiatrist in Civil Cases
Georgia State Bar Journal
Vol. 6, No. 5, April 2001
Vol. 6, No. 5, April 2001
"The Absolute Privilege Between Patient and
Psychiatrist in Civil Cases"
By Michael L. Goldberg
In today's world of stress and high pressure, people
often turn to a psychiatrist to discuss their problems
Patients feel that they can talk openly with a psychiatrist
about their fears and concerns without risking exposure or a
reprisal that may come from speaking with a friend or
relative. The key to the psychiatrist- patient relationship
is confidentiality. Patients tell a psychiatrist their
innermost secrets because they trust that the psychiatrist
will never disclose this information to anyone else. They
expect that their conversations with a psychiatrist will
always remain confidential, regardless of the situation or
circumstances. From this expectation of confidentiality has
arisen the psychiatrist-patient privilege
Scope of the Privilege
By statute, admissions and communications between a
psychiatrist and a patient are privileged and excluded from
discovery on the grounds of public policy.1 Confidential
relations and communications between a licensed psychologist
and client are placed upon the same basis as those provided
by law between attorney and client.2 The privilege also
extends to communications between a patient and a licensed
clinical social worker, clinical nurse specialist in
psychiatric/mental health, licensed marriage and family
therapist, or a licensed professional counselor.3 The term
"psychiatrist" is not defined by statute, and
consequently, courts have defined a psychiatrist as "a
person licensed to practice medicine, or reasonably believed
by the patient so to be, who devotes a substantial portion of
his or her time engaged in the diagnosis and treatment of a
mental or emotional condition, including alcohol or drug
addiction."4 Under this definition, communications
between a patient and a medical doctor are protected by the
psychiatrist-patient privilege if the patient seeks treatment
for mental disorders and the doctor treats mental illnesses
on a regular basis.5 The privilege does not extend to nurses
and attendants at a hospital or facility unless they are
acting as agents of the attending psychiatrist. 6 Because of
the expectation of confidentiality, a patient's clinical
records are protected by a constitutional right to privacy.7
By statute, Georgia prohibits disclosure of clinical records
that are privileged under the laws of this state.8 The
psychiatrist-patient privilege protects both oral and written
communications, as well as any other types of disclosures
made in confidence.9 The privilege cannot be abrogated by
allowing a psychiatrist to reveal a confidential
communication by couching it as an inference, evaluation
observation or conclusion.10 A psychiatrist's general
opinion that a patient is suffering from a mental disorder
falls within the scope of the privilege since he could not
have arrived at his opinion without taking into account
confidential information disclosed by the patient.11 The
privilege can usually be raised only by the person who has
sought or undergone treatment.12 The exception to this rule
is that a parent has standing to claim the privilege on
behalf of a minor child.13 The privilege is not waived by the
presence of a third party where the additional person is a
necessary or customary participant in the consultation or
treatment of the patient.14 The privilege is not diminished
by the fact that the patient sought or contemplated treatment
jointly with other persons or in family therapy, or primarily
for the benefit of another person who is in treatment by the
same psychiatrist.15 The privilege continues even after the
death of the patient.16 The privilege does not apply to
situations where treatment is not sought or contemplated by
the individual, such as when a person is evaluated pursuant
to a court order,17 at the insistence of the Department of
Family & Children Services,18 only for the purpose of
providing a psychiatrist with information to testify at
trial,19 or pursuant to an independent psychiatric
evaluation.20 Records which do not reference or contain
confidential information disclosed by the patient are not
privileged and should be disclosed upon a proper request
after being separated from privileged matter.21 The fact that
the patient underwent treatment with a psychiatrist, as well
as the dates of treatment, do not come within the scope of
the privilege.22 The Georgia Supreme Court in Bobo v
State23 held that in a criminal case the
psychiatrist-patient privilege must give way to a
defendant's constitutional right of confrontation if the
defendant's need for disclosure outweighs the
patient's expectations of confidentiality.24 In
Bobo, the Court upheld the claim of privilege upon
finding that the defendant had not demonstrated the requisite
need.25 Since that decision, courts have repeatedly refused
to hold a defendant's need outweighed the patient's
privilege despite the existence of this balancing test.26
Because the rationale behind the test is the criminal
defendant's constitutional right to confrontation, the
holding in Bobo has no application in a civil
matter.27
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