"i Didn't Volunteer for This @%!": the Application of Georgia's Psychologist-patient Privilege to Court-ordered Mental Health Treatment - John Scott Husser, Jr.

• Publication year: 2006

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"I Didn't Volunteer for This @%!": The Application of Georgia's Psychologist-Patient Privilege to Court-Ordered Mental Health Treatment

By holding in State v. Herendeen¹ that a patient could invoke the mental health privilege² ("privilege") when the patient either received mental health treatment ("treatment") or such treatment was contemplated during the course of the psychotherapeutic relationship, the Georgia Supreme Court eliminated any remaining vestige of a "voluntariness" requirement for patients seeking to invoke the privilege.³ In doing so, the court overruled Georgia case law that had required a patient to demonstrate, in addition to a showing that treatment was received or contemplated, that the patient voluntarily sought the treatment.⁴ The court's decision clarified the criteria needed to invoke the privilege in Georgia, allowing for a consistent application of the privilege; however, the decision also raises questions regarding the definition of "treatment . . . given or contemplated"⁵ and the conflict between the interests promoted by the privilege and the probative value of the information protected by the privilege.

I. Factual Background

A.P. and M.P. were the minor children of William and Regina Payne. In December 2000, William was indicted for aggravated child molestation, child molestation, and cruelty to children. Regina was also indicted for cruelty to children based on her alleged failure to stop William from molesting A.P. The State named M.P. as a possible witness to William's and Regina's criminal actions.⁶

In October 2000, the Douglass County Juvenile Court removed A.P. and M.P. from their parents' custody and gave temporary legal custody of M.P. to his maternal grandparents and legal custody of A.P. to the Department of Family and Child Services (DFACS). DFACS placed A.P. in a foster home and devised a case plan for A.P., the goal of which was to reunify A.P. with her mother, Regina.⁷ Part of that case plan required that the DFACS caseworker and A.P.'s foster parents arrange for A.P. to receive individual counseling and therapy sessions. The case plan was filed with the juvenile court, which, in a January 29, 2002 order, noted that A.P. and Regina were undergoing joint therapy sessions with Dr. Dennis Herendeen, a licensed psychologist. In an August 6, 2002 order, the juvenile court stated that Dr. Herendeen could not recommend the reunification of A.P. and Regina until he could obtain information on Regina's progress from her personal counselor and meet with Regina.⁸

In May 2003, Dr. Herendeen, Dr. Sam Haskell, a psychologist practicing with Dr. Herendeen, and The Psychology Center, a professional corporation, received a subpoena from the State requesting that they appear before the Douglass County grand jury and bring "all records and transcripts" on A.P. and M.P.⁹ The State was seeking information pertaining to William's and Regina's criminal actions.¹⁰ Citing the privilege, the doctors and The Psychology Center moved to quash the subpoena.¹¹ The trial court conducted a hearing on the motion to quash.¹²

Because the privilege could be waived if it were found to apply, both A.P. and M.P. were represented at the hearing; A.P. through her grandmother's attorney and M.P. through his mother and custodian, Regina.¹³ The court did not reach the waiver issue, however, because the court "[b]eliev[ed] the privilege could only be invoked when the patient voluntarily sought treatment."¹⁴ The court found that A.P.'s and M.P.'s treatment "was done pursuant to court order with express contemplation of recommendations to the court based upon that therapy."¹⁵ The court reasoned that the privilege could not be invoked because A.P. and M.P. did not voluntarily seek treatment. The trial court then ordered Dr. Herendeen, Dr. Haskell, and The Psychology Center to produce A.P.'s records for in camera inspection so the court could redact those portions of the records that the subpoena did not request.¹⁶

The court of appeals granted the doctors' and The Psychology Center's application for interlocutory review on the issue of the privilege's application.¹⁷ After determining that the existence of the psychologist-patient relationship, the prerequisite for invoking the privilege, did not turn on whether the patient voluntarily sought treatment, but on whether treatment was given or contemplated, the court of appeals reversed the trial court's decision.¹⁸ The court reasoned that A.P. and M.P. received treatment and, as a consequence, both A.P. and M.P. could invoke the privilege. The trial court erred in holding that the privilege required the patient have voluntarily sought treatment, but because portions ofthe records were not privileged, the court of appeals affirmed the trial court's order for an in camera inspection to review A.P.'s and M.P.'s records.¹⁹

The Douglass County District Attorney appealed to the Georgia Supreme Court.²⁰ On appeal, the Georgia Supreme Court considered whether the privilege could be invoked on A.P.'s and M.P.'s behalf when A.P. and M.P. did not voluntarily seek treatment, but received treatment during the course of their psychotherapeutic relationships.²¹ The court affirmed the court of appeals decision, unanimously holding that whether treatment had been voluntarily sought was not determinative; instead, the only necessary query in deciding if the privilege could be invoked was whether treatment was given or contemplated.²² Accordingly, because A.P. and M.P. received treatment, the privilege could be invoked on their behalf.²³

II. Legal Background

A. Georgia's Patient-Psychologist Privilege

Enacted by the Georgia General Assembly in 1951, Official Code of Georgia Annotated ("O.C.G.A.") section 43-39-16²⁴ recognizes that certain communications between psychologists and patients are confidential.²⁵ The statute provides that "[t]he 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; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed."²⁶ The privilege is absolute and the patient is the only individual who can waive the privilege.²⁷ In 1995 the General Assembly added communications between psychologists and patients to the list of communications excluded from evidence on grounds of public policy and expanded the privilege's scope to cover other professions.²⁸ Because of this expansion, Georgia courts commonly refer to the privilege as the "mental health privilege."²⁹

The privilege protects both individual and public interests. First, the privilege protects the individual patient's interest by "encourag[ing] the patient to talk freely without fear of disclosure and embarrassment, thus enabling the [psychotherapist] to render effective treatment of the patient's emotional or mental disorders."³⁰ Second, the privilege protects the public interest by promoting overall mental health.³¹ While the privilege protects important private and public interests, the absence of any statutory language identifying when the privilege may be invoked forces Georgia courts to resolve the issue of when a patient may invoke the privilege.

Georgia courts agreed that a patient must show treatment or the contemplation thereof in order to invoke the privilege; however, Georgia courts split on whether a patient had to demonstrate an additional requirement of voluntariness.³² Consequently, two different rules developed in Georgia. First, Georgia courts have held that the privilege applied regardless of whether treatment was voluntary, provided that treatment was either given or contemplated.³³ The Georgia SupremeCourt recently utilized this one-part rule in Lucas v. State.³⁴ Second, Georgia courts developed a two-part rule that required, in addition to a showing of treatment, that the patient have voluntarily sought the treatment.³⁵ Largely limited to cases involving juveniles,³⁶ the two-part rule denied the privilege to patients undergoing court-ordered treatment and implicitly suggested that in certain circumstances the evidence protected by the privilege may provide valuable information that could resolve substantive issues in a case.

B. The One-Part Patient-Psychologist Privilege Rule

Prior to Herendeen,³⁷ the majority of Georgia courts employed the one-part rule and held that the privilege applied whenever treatment was given or contemplated.³⁸ The one-part rule only required that the patient demonstrate that the patient received treatment or that treatment was contemplated during the course of the psychotherapeutic relationship. The Georgia Supreme Court utilized the one-part test in its 1970 decision, Massey v. State.³⁹ After undergoing a court-ordered sanity examination, the defendant sought to prevent statements made during his sanity examination from being admitted into evidence.⁴⁰ The court reasoned that the statements were properly admitted because "[b]efore the psychiatrist-patient communications privilege . . . may be invoked, the requisite relationship of psychiatrist and patient must have existed, to the extent that treatment was given or contemplated."⁴¹ The trial court did not order the defendant to undergo mental health treatment; rather, the court ordered the defendant to undergo a sanity evaluation.⁴² Accordingly, because the defendant's relationship with the court-appointed psychiatrist did not encompass treatment, the defendant could not invoke the privilege.⁴³

In Manning v. State,⁴⁴ the Georgia Court of Appeals addressed the one-part rule as applied to the patient-psychologist privilege.⁴⁵ On appeal, Manning argued that a questionnaire she filled out was a privileged communication.⁴⁶ Addressing her argument, the court of appeals stated that "[b]efore a person can invoke the [privilege], she must show that the requisite psychologist-patient or psychiatrist-patient relationship existed to the...