SECOND DIVISION

MILLER, P. J.,

RICKMAN and REESE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

June 17, 2019

In the Court of Appeals of Georgia

A19A0656. ADVANTAGE BEHAVIORAL HEALTH SYSTEMS

v. CLEVELAND, AS ADMINISTRATOR OF THE ESTATE OF

NICHOLAS CLEVELAND et al.

MILLER, Presiding Judge.

Upon being discharged from a mental health care facility operated by

AdvantageBehavioral Health Systems (“Advantage”), Nicholas Cleveland committed

suicide. Cleveland’s parents then filed this negligence and wrongful death action

against Advantage, and Advantage filed a motion for a protective order, seeking to

have portions of its records on Cleveland declared privileged. The trial court issued

an order ruling that only some of the records were privileged and that Advantage

lacked standing to assert the mental health privilege to exclude otherwise relevant

evidence at trial. For the following reasons, we affirm the trial court’s ruling as to
which records were privileged, but we reverse its ruling that Advantage lacked

standing to assert the mental health privilege.

The record shows that on March 29, 2016, Cleveland presented at Athens

Regional Medical Center with complaints and/or a history of suicidal thoughts,

bipolar disorder, severe depression, hallucinations, and alcohol use disorder.

Cleveland was examined byDr.Edward Green, a member of the hospital’s emergency

department, who completed a Form 1013 ordering that Cleveland be involuntarily

committed to Vantage Point, a mental health care facility operated by Advantage.1

Cleveland received treatment at Vantage Point for two days until his discharge on

April 1, 2016, and he committed suicide a few hours later. 

In May 2016, Cleveland’s parentsrequested a copy of his medicalrecordsfrom

Advantage, and Advantage produced all the records without redaction. In October

2016, Cleveland’s parents’ attorneysrequested a certified copy of the medicalrecords

from Advantage, and Advantage again produced the records without redaction. In

1 Advantage is a state community service board which operates programs and

provides treatment and support services regarding mental health, developmental

disabilities, and addictive diseases. See OCGA § 37-2-6 (a). Vantage Point offers

short-term residential services for individuals with psychiatric and substance abuse

disorders, and its staff includes a psychiatrist, a nurse practitioner, nurses, clinicians,

technicians, and operational support staff. 

2
June 2017, Cleveland’s parents filed the instant action against Advantage,2

raising

claims of wrongful death and professional negligence based on the allegation that

Advantage failed to properly evaluate and treat Cleveland’s suicide risk and

improperly discharged him given that risk. 

Advantage filed a motion for a protective order, seeking rulings that certain

disputed portions of the medical records be declared privileged3

under the mental

health privilege provided for in OCGA § 24-5-501 (a) and that further disclosure of

any privileged records be precluded. Advantage argued that, in addition to

communications between Cleveland and mental health care providers and

communications between the providersthemselves, records of assessment, diagnosis,

and treatment were privileged and therefore inadmissible as evidence at trial. 

The plaintiffs opposed the motion, arguing that the disputed portions of the

records, which they described as “diagnoses, medications, prescriptions, goals,

plan[s] of treatment, orders, observations, assessments and non-mental health

2 The plaintiffs also named as a defendant the Georgia Department of

Behavioral Health and Developmental Disabilities, but they subsequently dismissed

this defendant without prejudice. 

3 The parties agreed that certain portions of the records were privileged and

highlighted these portions in orange. Advantage highlighted the disputed portions of

the records and submitted all of the records to the trial court for an in camera review. 

3
records,” were not privileged. The plaintiffs asserted that under OCGA § 24-5-501

(a) only portions of the records reflecting communications between Cleveland and

certain mental health care providers were privileged. The plaintiffs also argued that

it appeared some of the records were not created by providers subject to the mental

health privilege. 

The trial court issued an order ruling that (1) only certain portions of the

disputed records contained privileged information, and (2) Advantage did not have

standing to assert the mental health privilege on behalf of Cleveland to exclude

otherwise relevant evidence at trial.

4

 Regarding which portions of the records were

privileged, the trial court found that the diagnoses, medications, and prescriptions

were not privileged. Noting that OCGA § 24-5-501 (a) applies the mental health

privilege to communications only, the trial court declined to construe the privilege

against disclosure of confidential communications so broadly as to encompass

diagnoses and medications prescribed, because doing so would render meaningless

OCGA § 37-3-166 (a) (8.1), which provides that the non-privileged portions of

4 The trial court also ruled that the prior release of the records by Advantage

did not constitute a waiver of Cleveland’s mental health privilege. This ruling is not

contested on appeal. The trial court did not address whether the records were created

by professionals subject to the mental health privilege. 

4
mental health records may be released to the legal representative of a deceased

person’s estate. 

Regarding what it characterized as goals, observation orders/levels, objectives,

and plans of treatment, the trial court found that many of these records were not

privileged because they could not be characterized as confidential communications.

Instead, the trial court found that they were expectations of staff and were not

particularized toCleveland as a result of any communicationsfromhim. Among these

records were those indicating (1) that the facility had goals that Cleveland not be a

danger to himself, take medications as prescribed, and decrease alcohol withdrawal

symptoms; (2) that he would be encouraged to attend group therapy; and (3) how

often staff members were checking on him. The trial court found that records

indicating Cleveland’s stress level and his own comments on his stress level were

privileged, reasoning that the records came from patient communication. 

Regarding what it characterized as observations, the trial court stated that it

determined whether the observations were the result of communication with

Cleveland. The trial court found that several observations were privileged because

they came from communications by Cleveland, arose immediately out of his

communications, or were communicative in nature.Such records included indications

5
of whether Cleveland had suicidal thoughts, how he slept, how much alcohol he

drank, and his living and employment situation. The trial court found that other

observations were not privileged because they were treatment-directed, were by the

treatment providers, or reflected goals of treatment and conclusions of the providers.

Such records indicated that Cleveland met with a social worker, had an appropriate

appearance, was interacting well with others, watched television, was cooperative,

and was in a detoxification program. The trial court found that a record summarizing

a discussion between Cleveland and a treatment provider was privileged, and records

indicating Cleveland’s description of his mood and whether he accepted or declined

rehab were also privileged, but a record indicating he attended group therapy was not

privileged. 

The trial court found without discussion or explanation that the Form 1013

from Dr. Green was not privileged. The trial court found that a record showing that

Cleveland had a “service class” of “psychiatric treatment” was not privileged because

it simply concerned the fact of treatment. The trial court found that certain

assessments reflected Cleveland’s answers to questions, and certain treatment goals

were clearly developed as a result of communications with him, rendering both

privileged. The trial court found that certain plans of care, including records

6
indicating the future discussions a treatment provider planned to have withCleveland

and records consisting of general treatment goals and diagnostic information, were

not privileged. 

Next, however, the trial court ruled that Advantage did not have standing to

assert the mental health privilege on behalf of Cleveland at trial, reasoning that

Advantage was a stranger to the privileged communications between Cleveland and

his individual mental health care professionals. The trial court stated that it “ma[de]

no determination as to the testimony of any individual mental health care

professional.”5 We granted Advantage’s application for interlocutory appeal, and this

appeal followed. 

1. First, we addressthe plaintiffs’ argument that Advantage’s appealshould be

dismissed due to its failure to file an enumeration of errors. We conclude that

although Advantage has not filed or included in its appellant’s brief an enumeration

of errors, it is apparent from the notice of appeal, the record, and the brief what errors

Advantage asserts, and we decline to dismiss this appeal.

OCGA § 5-6-48 (f) provides:

5 Because Advantage is a state entity, the plaintiffs could not name the

individual mental health care professionals as defendants in this action. See OCGA

§ 50-21-25.

7
Where it is apparent from the notice of appeal, the record, the

enumeration of errors, or any combination of the foregoing, what

judgment or judgments were appealed from or what errors are sought to

be asserted upon appeal, the appeal shall be considered in accordance

therewith notwithstanding that the notice of appeal fails to specify

definitely the judgment appealed from or that the enumeration of errors

fails to enumerate clearly the errors sought to be reviewed. . . . 

“The legislature, in enacting OCGA § 5-6-48 (f), hasimposed on the appellate courts

a statutory duty to discern what errors an appellant is attempting to articulate.”

(Punctuation omitted.) Felix v. State, 271 Ga. 534, 538 (523 SE2d 1) (1999). Also,

we are mindful of our Supreme Court’s cautioning that the APA is to be liberally

construed so as to bring about a decision on the merits of every case appealed and to

avoid refusal to consider any points raised therein. See id.; OCGA § 5-6-30. See also

Holy Fellowship Church of God in Christ v. First Community Bank of Henry County,

242 Ga. App. 400, 402 (530 SE2d 24) (2000) (“As a general rule, this state’s

appellate courts should reach the merits of appeals whenever possible. The policy is

to avoid the dismissal of an appeal and to reach the merits of a case whenever it is

reasonable to do so.”) (citations omitted). Moreover, OCGA § 5-6-48 (b) provides:

No appeal shall be dismissed or its validity affected for any cause nor

shall consideration of any enumerated error be refused, except:

8
(1) For failure to file notice of appeal within the time required as

provided in this article or within any extension of time granted

hereunder;

(2) Where the decision or judgment is not then appealable; or

(3) Where the questions presented have become moot. 

In several recent cases, this Court has considered appeals despite the

appellant’s failure to file an enumeration of errors where we could discern the errors

asserted on appeal. See State v. Martinez-Palomino, 329 Ga. App. 304, 305 n. 2 (764

SE2d 886) (2014); State v. Crapp, 317 Ga. App. 744, 744-745 (1) (732 SE2d 806)

(2012); Jackson v. State, 314 Ga. App. 272, 272 n. 1 (724 SE2d 9) (2012); State v.

Madison, 311 Ga. App. 31, 32 (1) (714 SE2d 714) (2011), overruled on other grounds

by State v. Cohen, 302 Ga. 616 (807 SE2d 861) (2017); Blockum v. Fieldale Farms

Corp., 271 Ga. App. 591, 592 (1) (610 SE2d 82) (2005); Leslie v. Williams, 235 Ga.

App. 657, 658-659 (1) (510 SE2d 130) (1998), disapproved of on other grounds by

Herr v. Withers, 237 Ga. App. 420 (515 SE2d 174) (1999). This Court’s conclusion

in Martinez-Palomino, supra, 329 Ga. App. at 305 n. 2, is illustrative of these cases:

“Notwithstanding the State’s failure to include an enumeration of errors in its brief,

this Court is required to consider the appeal because we can discern from the State’s

9
brief and the record the errors that the State is asserting on appeal. Consequently, we

deny [the appellee’s] motion to dismiss the appeal.” (citations omitted). Compare

Baker v. State, 328 Ga. App. 53, 53-54 (761 SE2d 477) (2014) (dismissing appeal for

failure to include enumeration of errors where “[n]othing in [the appellant’s] brief can

be construed as an enumeration of error as to a specific ruling made by the trial

court.”).

However, in Complete Wiring Sols., LLC v. Astra Group, Inc., 335 Ga. App.

723, 726 (781 SE2d 597) (2016), this Court dismissed an appeal that contained no

enumeration of errors, declaring that “in the absence of an enumeration of errorsfiled

in compliance with OCGA § 5-6-40, this Court will not comb through the appellate

brief to attempt to discern what errors the appellant seeks to assert on appeal.”

(citations omitted). There, the appellants’ brief contained (1) a section titled

“Standard of Review” which stated the standard of appellate review and included a

generalstatement that the judgment was notsupported by the evidence and was based

on erroneous findings of fact, and (2) a section titled “Statement of Facts” which

mixed together asserted facts, claims of error, supporting arguments, and citations to

authority. Id. at 724. This Court remarked that nothing in the brief was “sufficient to

10
constitute an ‘enumeration of errors’ required to be filed pursuant to OCGA § 5-6-

40.” Id.

In other cases, this Court and the Supreme Court of Georgia have dismissed

appeals based on the absence of an enumeration of errors, but those cases (1) did not

address whether the errors asserted on appeal could be discerned from other

documents, and/or (2) were decided at a time when appellate court rules required the

enumeration to be filed separately from the appellant’s brief. See Lowery v. Smith,

225 Ga. 814 (171 SE2d 500) (1969); Riley v. Ga. Dept. of Revenue, 295 Ga. App. 656

(673 SE2d 49) (2009); Strom v. London, 257 Ga. App. 889 (572 SE2d 409) (2002);

Miles v. Emmons, 234 Ga. App. 487 (507 SE2d 762) (1998). 

In a case decided this year, State v. Freeman, Ga. App. (825 SE2d 538) (2019),

the appellant failed to file or include in its brief an enumeration of errors. While

recognizing the “apparent tension” between the cases in which this Court has

considered an appeal despite such a failure and the holding in Complete Wiring Sols.,

LLC, this Court concluded it could consider that appeal because “in our examination

of the State’s notice of appeal and the record, we can clearly ascertain the single

allegedly erroneous ruling asserted.” Id. 

11
In light of the statutory mandates favoring consideration of this appeal, our

duty to construe the APA forgivingly, and the apparent tension in the case law, we

are not persuaded that the failure to title a section of an appellant’s brief as an

“Enumeration of Errors” necessarily requires dismissal of the appeal. Here, in the

“Argument” section of its brief, Advantage argues that (1) “[t]he trial court erred in

concluding that the mental health privilege does not apply to the diagnoses,

medications, prescriptions, goals, observations, and treatment plans in Cleveland’s

mental health records,” and (2) “[t]he trial court incorrectly held that Advantage lacks

standing to assert the mental health privilege.” Thus, we can clearly ascertain the two

rulings Advantage asserts were erroneous, and we decline to dismiss this appeal. See

Felix, supra, 271 Ga. at 539 (“An error of law has as its basis a specific ruling made

by the trial court.”). However, we emphasize for Advantage and other appellants the

importance of following appellate practice rules, including the filing of an

enumeration of errors. Such rules foster judicial efficiency and aid appellate courts

in reaching the right result, and failure to follow them may result in dismissal of an

appeal. 

2. Next, we mustresolve the parties’ dispute over the proper standard of review

to apply to the trial court’s order. Advantage asserts that the order is subject to de

12
novo review, while the plaintiffs assert that we should review it for an abuse of

discretion. As shown in Division 3 below, whether Advantage has standing to assert

the mental health privilege in the circumstances presented does not involve any

factual determinations and only presents a question of law. As “the standard of review

for a question of law on appeal is de novo,” Ga. Transmission Corp. v. Worley, 312

Ga. App. 855, 856 (720 SE2d 305) (2011) (citation and punctuation omitted), we will

review the trial court’s standing ruling de novo. 

We will, however, review the trial court’s ultimate rulings regarding whether

certain records were privileged for an abuse of discretion, while reviewing any factual

determinations underlying those rulingsfor clear error. InCooksey v. Landry, 295 Ga.

430 (761 SE2d 61) (2014), upon a mental health patient’s death, his parents sought

an injunction directing his psychiatrist to turn over all of the patient’s records.

Without reviewing the records and withoutmaking any distinction between privileged

and non-privileged information, the trial court concluded that equity supported the

parents’ position and issued the injunction. Id. at 430-431. On appeal, the Supreme

Court of Georgia stated that “[t]he issue to be decided by the trial court in this appeal

was a legal one, whether the psychiatric records sought by appellees constitute

privileged matters protected from disclosure under Georgia law. Accordingly, we

13
review the trial court’s legal determinations de novo.” (Citation omitted.) Id. at 431

(1). 

This Court and the Supreme Court of Georgia generally review the grant or

denial of a motion for protective order using the abuse of discretion standard of

review. Alexander Properties Group Inc. v. Doe, 280 Ga. 306, 307 (1) (626 SE2d

497) (2006); Mincey v. Ga. Dept. of Comm. Affairs, 308 Ga. App. 740, 744 (1) (708

SE2d 644) (2011). The appellate courts also generally review for an abuse of

discretion a “decision as to discovery matters, including the application of a

privilege.” Gwinnett Hosp. Sys., Inc. v. Hoover, 337 Ga. App. 87, 88 (785 SE2d 918)

(2016); Brown v. Howard, 334 Ga. App. 182, 183 (778 SE2d 810) (2015). See Wiles

v. Wiles, 264 Ga. 594, 598 (2) (448 SE2d 681) (1994) (applying abuse of discretion

standard to review trial court’s ruling that patient was entitled to the benefit of the

mental health privilege). 

Here, in contrast to Cooksey, the trial court carefully reviewed the disputed

records and based most of its privilege rulings on specific factual determinations

regarding whether the records arose from patient communications. Accordingly, we

determine that the trial court’s ultimate privilege rulings should be reviewed for an

abuse of discretion, and we will accept the trial court’s specific factual findings

14
underlying those rulings unlessthey are clearly erroneous. “[I]n various contexts, we

accept factual findings unless they are clearly erroneous and review a trial court’s

ultimate decision on the particular issue for abuse of discretion.” (Citation omitted.)

Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012). See Graves v. State, 298 Ga.

551, 554 (2) (783 SE2d 891) (2016) (in reviewing the trial court’s admission of

similar transaction evidence, this Court accepts the trial court’s factual findings

unless clearly erroneous and reviews for abuse of discretion its ultimate decision to

admit the evidence); Brown, supra, 334 Ga. App. at 183 (“Further, we also may

review the documents at issue to determine whether the trial court correctly applied

the [mental health] privilege.”) (citation omitted).

3. Turning to the merits, we agree with Advantage that the trial court erred in

ruling it lacks standing to assert the mental health privilege. 

“Georgia law provides several privileges related to mental health, which,

collectively, are referred to as the mental health privilege.” Brown, supra, 334 Ga.

App. at 185 (1); see State v. Herendeen, 279 Ga. 323, 325 (613 SE2d 647) (2005).

Specifically, OCGA § 24-5-501 (a) provides:

15
There are certain admissions and communications excluded from

evidence on grounds of public policy, including, but not limited to, the

following: 

. . . 

(5) Communications between psychiatrist and patient;

(6) Communications between licensed psychologist and patient as

provided in Code Section 43-39-16;

(7) Communications between a licensed clinical social worker, clinical

nurse specialist in psychiatric/mental health, licensed marriage and

family therapist, or licensed professional counselor and patient; [and]

(8) Communications between or among any psychiatrist, psychologist,

licensed clinical social worker, clinical nurse specialist in

psychiatric/mental health, licensed marriage and family therapist, and

licensed professional counselor who are rendering psychotherapy or

have rendered psychotherapy to a patient, regarding that patient’s

communications which are otherwise privileged by paragraph (5), (6),

or (7) of this subsection . . . .

OCGA § 43-39-16 provides that “[t]he confidential relations and communications

between a licensed psychologist and client are placed upon the same basis as those

16
provided by law between attorney and client; and nothing in this chapter shall be

construed to require any such privileged communication to be disclosed.” 

“The primary purpose of the [mental health] privilege is to encourage the

patient to talk freely without fear of disclosure and embarrassment, thus enabling the

psychiatrist to render effective treatment of the patient’s emotional or mental

disorders.” (Citation and punctuation omitted.) Cooksey, supra, 295 Ga. at 432 (2).

The privilege “remains inviolate even though the patient’s care and treatment or the

nature or extent of the patient’s injuries are put in issue in a civil proceeding.” Id. at

432-433 (2). See also Mincey, supra, 308 Ga. App. at 745 (1); OCGA § 24-12-1 (a).

“Moreover, and of primary importance in this case, is the fact that unlike other

recognized privileges, the [mental health] privilege survivesthe death of the patient.”

(Citation and footnote omitted.) Cooksey, supra, 295 Ga. at 433 (2).

Here, we conclude that the trial court erred in ruling that Advantage does not

have standing to seek to exclude otherwise relevant evidence by asserting the mental

health privilege on behalf of Cleveland at trial. In the absence of a waiver by the

patient,

6

privileged material is neither discoverable nor admissible at trial, and

nothing precludes Advantage from asserting the privilege. 

6

 There is no contention that Cleveland waived the privilege. 

17
In Cooksey,supra, 295 Ga. at 434-435 (2), the Supreme Court of Georgia held

that the trial court erred in directing the psychiatrist to turn over all of the patient’s

records. The Supreme Court reasoned that the privilege survives the death of the

patient, noting that “it is the promise of confidentiality that encourages patients to

openly discuss their emotional and mental health issues. If psychiatrist-patient

communications were protected only until the patient’s death, patients might not feel

as free to make the disclosures necessary for effective treatment, thereby impeding

the primary goal of the privilege.” (Citation omitted.) Id. at 433 n. 6 (2). Significantly,

the Supreme Court explained that “the privilege is held only by the patient and waiver

of the privilege must be expressly made by the patient, or, in the absence of an

express waiver by the patient, one seeking the disclosure of privileged mental-health

records must establish a waiver by the patient’s decisive unequivocal conduct

reasonably inferring the intent to waive.” (Citation, punctuation, and footnote

omitted; emphasis supplied.) Id. at 433 (2). See also Willett v. State, 223 Ga. App.

866, 868 (1) (479 SE2d 132) (1996) (“The right to assert the privilege belongs to the

patient.”) (citation omitted).

The Supreme Court further explained in Cooksey, supra, 295 Ga. at 433 (2),

that

18
[c]onsistent with the protections afforded psychiatrist-patient

communications even after a patient’s death, our legislature has

determined that a deceased patient’s representative cannot waive the

psychiatrist-patient privilege. See OCGA § 31-33-4 (providing that

statutes authorizing the release of health records to a deceased patient’s

representative “shall not apply to psychiatric, psychological, or other

mental health records of a patient”); OCGA § 37-3-166 (a) (8.1)

(authorizing mental health facilities to release a deceased patient’s

mental health records “to the legal representative of [the] deceased

patient’s estate, except for matters privileged under the laws of this

state.”). 

The Supreme Court framed the privilege as a nearly absolute one, emphasizing that

“the patient isthe holder of the psychiatrist-patient privilege and absent waiver by the

patient, privileged communicationsmay not be disclosed.” (Emphasisin original.) Id.

at 434 n. 7 (2). See also id. at 434 (2) (“[U]nder Georgia law confidential

communications between a psychiatrist and patient may not be disclosed absent

waiver by the patient . . . .”). Therefore, Cooksey certainly suggests that if a patient

does not waive the mental health privilege, upon the patient’s death his or her

privileged mental health records are absolutely privileged and are therefore neither

19
discoverable nor admissible at trial, regardless of who raises the issue of the

privilege.7

Other cases support the concept that the mental health privilege applies in the

absence of a waiver by the patient and regardless of who raises the issue, whether it

be an individual mental health professional, a mental health care facility, or another

entity. In Annandale at Suwanee, Inc. v. Weatherly, 194 Ga. App. 803 (392 SE2d 27)

(1990), the plaintiff filed suit against a mental health facility on behalf of the estate

of a patient who died in a fire set by another patient. Citing the mental health

privilege, the facility objected to the plaintiff’s request that the facility produce all

reports referring to the other patient, but the trial court ordered the facility to produce

7 Prior to Cooksey, in Sims v. State, 251 Ga. 877, 880 (5) (311 SE2d 161)

(1984), the defendant in a murder case sought to have a psychiatrist testify to

statements made by the victim during joint counseling sessions with the defendant

and the victim. The Supreme Court of Georgia held that the trial court did not err in

refusing to allow the testimony, as the victim’s communications to the psychiatrist

were entitled to protection and the privilege survived the victim’s death. Id. at 881

(5). The Supreme Court noted that the issue of the State’s standing to assert the

privilege was not raised, but there were competing lines of authority on the

issue: some holding that only the personal representative of the communicant or the

psychiatrist may assert the privilege after the communicant’s death, and others

holding that the trial court has discretion to invoke the privilege on its own motion

in the communicant’s absence. Id. at 881 n. 7 (5). Cooksey appears to have largely

resolved this issue, such that in the absence of a waiver by the patient, material

covered by the mental health privilege remains nearly absolutely privileged after a

patient’s death. 

20
the records. Id. This Court held that to the extent the records involved

communications between the patient and a psychiatrist or psychologist, the records

were privileged and “not to be produced.” Id. at 804. See also Herendeen, supra, 279

Ga. at 327 (in the absence of a waiver of the mental health privilege by the patients,

any information in the possession of a mental health facility which had its origins in

communicationsfrom the patientsto covered mental health providers was privileged

and not subject to disclosure pursuant to a subpoena). 

In Freeman v. State, 196 Ga. App. 343, 343-344 (1) (396 SE2d 69) (1990), the

defendant called a psychiatrist to testify regarding his conclusion that the victim, his

patient, had psychiatric disorders. The State objected on the basis of the mental health

privilege, and it was established that the victim had not waived the privilege. This

Court concluded: “This privilege is absolute. The requisite confidential relationship

existed. Without a waiver, there was no basis for the admission of testimony about

communications between psychiatrist and patient.” (Citations omitted.) Id. at 343-344

(1). See also Trammel v. Bradberry, 256 Ga. App. 412, 423 (6) (568 SE2d 715)

(2002) (physical precedent only) (“As to civil commitment or treatment by

psychiatrist, psychologist, or counselor, the absolute privilege of [former OCGA

§ 24-9-21, current OCGA § 24-5-501] applies except when waived by the patient

21
alone.”) (citation omitted); Scroggins v. State, 237 Ga. App. 122, 124 (4) (514 SE2d

252) (1999) (“The [mental health] privilege is absolute, and unless it is waived, the

information sought is not discoverable.”) (citation omitted); Milich, Ga. Rules of

Evidence 2018-2019, § 23:4 (“The client is the holder of the privilege and thus only

the client may assert or waive it.”). 

By way of contrast, in Johnson v. State, 254 Ga. 591, 595 (2) (331 SE2d 578)

(1985), the Supreme Court of Georgia held that the defendant lacked standing to

object to the testimony of his co-defendant’s cellmate regarding psychiatric reports

on the cellmate’s mental condition. The Supreme Court explained that the mental

health privilege belonged to the cellmate, who gave the testimony without claiming

protection of the privilege. Id. at 595 n. 2 (2). Therefore, the cellmate in Johnson may

have implicitly waived his privilege by testifying, while in this case Cleveland is

deceased and there is no contention he waived his privilege. 

Moreover, a rule that a facility in possession of privileged information may not

assert the mental health privilege — whether to prevent disclosure of such

information during discovery or to prevent admission of such information at trial —

would contravene the privilege’s purpose of encouraging free communications

between patients and mental health providers. See Herendeen, supra, 279 Ga. at 325

22
(“As far as the individual patient’s private interest is concerned, confidentiality is a

sine qua non for successful psychotherapeutic treatment since a psychotherapist’s

ability to help a patient is completely dependent upon the patient’s willingness and

ability to talk freely, and assurances of confidentiality and privilege foster the

psychotherapist’s ability to function.”) (citation omitted); Mincey, supra, 308 Ga.

App. at 745 (1) (“[I]n order to encourage a patient to speak freely to his or her mentalhealth professional, we declare such communications ‘absolutely privileged,’ and

protect them from discovery in the absence of an affirmative waiver by the patient.”)

(citations omitted).

We recognize that the mental health privilege and the attorney-client privilege

are largely coextensive, see OCGA § 43-39-16, and that the rule providing that

communications between attorney and client are privileged cannot be invoked for the

benefit of persons who are strangers to the attorney-client relationship. See White v.

Regions Bank, 275 Ga. 38, 41 (2) (c) (561 SE2d 806) (2002); Schaffer v. Fox, 303 Ga.

App. 584, 587 (2) (693 SE2d 852) (2010). However, this does not alter our

conclusion here for two reasons. First, we are bound byCooksey and other prior cases

describing the mental health privilege as nearly absolute and applicable in the

absence of waiver by the patient. Second, we reject the concept that a mental health

23
facility, which employsindividual mental health providers and isthe custodian of the

patient’s records, is a “stranger” to the provider-patient relationship. Indeed, a

hospital or mental health facility can be held liable for the improper disclosure of

privileged mental health records. See Kennestone Hosp. v. Hopson, 273 Ga. 145 (538

SE2d 742) (2000); Sletto v. Hosp. Auth., 239 Ga. App. 203, 206 (1) (521 SE2d 199)

(1999). 

We also acknowledge that “it is no small matter for a court, given its focus on

the pursuit of truth and justice, to hold that potentially relevant evidence is shielded

from [admission at trial],” Cooksey, supra, 295 Ga. at 435 (3), especially in light of

the fact that Advantage has previously disclosed the records. “Our legislature,

however, has determined that the public policies supporting the creation of a mental

health privilege necessitated enactment of a nearly absolute privilege, one without

exception if the patient is deceased or the nature of the patient’s mental condition is

put at issue.” Id. at 435-436 (3). Accordingly, we conclude that the trial court erred

in ruling that Advantage does not have standing to exclude otherwise relevant

evidence by asserting the mental health privilege on behalf of Cleveland at trial.

4. In arguing that “[t]he trial court erred in concluding that the mental health

privilege does not apply to the diagnoses, medications, prescriptions, goals,

24
observations, and treatment plans in Cleveland’s mental health records,” Advantage

challenges the trial court’s privilege rulings in toto without analyzing or challenging

any specific rulings. Advantage broadly asserts that the mental health privilege

applies not just to actual communications between patients and mental health

professionals, but also to information with origins in such communications. It argues

that diagnoses, medications, prescriptions, goals, observations, and treatment plans

necessarily originate from communications, as the only way mental health

professionals can diagnose patients, determine what medications to prescribe, collect

observations, or devise treatment plans is by communicating with them, and the

mental health privilege must be applied here in order to advance the privilege’s

purpose. 

Because Advantage only provides argument challenging the trial court’s

privilege rulings as a whole and at leastsome of these rulings were not erroneous, this

enumeration of error fails. The trial court did not rule that the “diagnoses,

medications, prescriptions, goals, observations, and treatment plans” in the records

were categorically not privileged. Instead, at least as to the goals, observations, and

treatment plans, the trial court analyzed the records and ruled that some records were

25
privileged and some were not, depending on whether they arose from patient

communications. 

It is well-settled that the mental health privilege applies to “communications”

and “admissions” between patients and covered mental health providers, as well as

communications between such providers regarding patient communications. See

OCGA § 24-5-501 (a); Cooksey, supra, 295 Ga. at 433 n. 5 (2); Dynin v. Hall, 207

Ga. App. 337, 338 (1) (428 SE2d 89) (1993); Mrozinski v. Pogue, 205 Ga. App. 731,

734 (2) (423 SE2d 405) (1992). The privilege also applies to “any information that

the [mental health] professional holds which has its origins in” communications

between the patient and the professional. See Mincey, supra, 308 Ga. App. at 746 (1).

See also Cooksey, supra, 295 Ga. at 432 n. 4 (2) (“The protections afforded these

communications extend to communications between or among a psychiatrist and

other mental health professionals listed in OCGA § 24-5-501 (a) (8) and include a

psychiatrist’s conclusionsthat originated in communications between the patient and

the psychiatrist.”) (citation omitted); Herendeen, supra, 279 Ga. at 327 (“Any

information in the possession of [the professionals or facility] which had its origins

in communications from the patients to the medical health providers is privileged.”)

(citation omitted); Mrozinski, supra, 205 Ga. App. at 734 (2) (“Information which

26
originated as communications from the patient may be privileged.”) (citation and

punctuation omitted; emphasis in original). The privilege does not apply to the fact

of treatment or the dates on which treatment was rendered. Cooksey, supra, 295 Ga.

at 433 n. 5 (2); Johnson, supra, 254 Ga. at 597 (7); Mincey, supra, 308 Ga. App. at

746 (1). 

Here, the trial court did not abuse its discretion in ruling that at least some of

the disputed records were not privileged, based on its factual findings that these

records did not have their origins in patient-mental health professional

communications. One disputed record indicates that Cleveland was receiving

psychiatric treatment, and the mental health privilege does not apply to the fact of

treatment. Other disputed records simply show that Cleveland participated in certain

activities, such as meeting with a social worker, attending group therapy, and

watching television, or show that his appearance was appropriate. The trial court did

not clearly err in finding that these records did not have their origins in patient

communications.

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While it is arguable that some portions of the records which the trial court

deemed non-privileged actually had their origins in patient communications,

8 we do

not resolve that issue in this appeal because it is not presented to us. Advantage

broadly challenges the trial court’s privilege rulings as a whole, and at least some of

these rulings were not erroneous. Advantage, as the appellant, bears the burden to

show error affirmatively by argument and by citation to the record. See Court of

Appeals Rule 25 (c) (2). As Advantage’s challenge to the entirety of the trial court’s

privilege rulingsfails,we will notmanufacture or analyze more specific enumerations

of error or arguments not asserted by Advantage.9 See Hess Oil & Chemical Corp. v.

8 For instance, while the trial court ruled that the diagnoses were not privileged,

in Freeman, supra, 196 Ga. App. at 343-344 (1), this Court determined that the

mental health privilege applied to a psychiatrist’s testimony that as a result of his

evaluations of the victim, his former patient, he found the victim to be suffering from

major psychiatric disorders. We note that where actual communications are not at

issue and a trial court must determine whether disputed material had its origins in

patient communications, application of the privilege can be a fact-intensive inquiry,

although such inquiry should be guided by precedent such as Freeman. 

9 We also note that, asthe plaintiffs point out, it is not apparent from the record

on appeal whether some of the disputed records involve communications between

Cleveland and covered mental health providers or agents thereof under OCGA § 24-

5-501 (a). “In order to invoke the statutory mental health privilege in Georgia, the

requisite relationship of mental health provider and patient must have existed.”

(Punctuation omitted.) Herendeen, supra, 279 Ga. at 326. Under the clear terms of

OCGA § 24-5-501 (a), the privilege only applies to communications involving

psychiatrists, psychologists, licensed clinical social workers, clinical nurse specialists

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Nash, 226 Ga. 706, 708 (177 SE2d 70) (1970) (“The duty of the appellate court is to

correct errors alleged to have been made in the trial court and not to manufacture

them.”). 

In conclusion, we reverse the trial court’sruling that Advantage lacksstanding

to exclude privileged material at trial by asserting the mental health privilege.

However, we affirm the trial court’s rulings regarding whether disputed portions of

Advantage’s records were privileged.

Judgment affirmed in part and reversed in part. Rickman and Reese, JJ.,

concur.

in psychiatric/mental health, licensed marriage and family therapists, and licensed

professional counselors. See OCGA § 24-5-501 (a) (5) - (8). The privilege also

applies to agents of covered mental health providers. See Hoover, supra, 337 Ga.

App. at 88-89 (1); Plunkett v. Ginsburg, 217 Ga. App. 20, 21 (456 SE2d 595) (1995).

See also Myers v. State, 251 Ga. 883, 884 (2) (310 SE2d 504) (1984) (“Where the

nurse is an agent of the hospital rather than the communicant’s doctor, however, the

doctor’s privilege will not protect communications made to the nurse.”) (citation

omitted). 

29