GA Code § 43-39-16 (2021)
2021 Georgia Code|Title 43 - Professions and Businesses|Chapter 39 - Psychologists|Article 1 - General Provisions|§ 43-39-16. Privileged Communications

 The 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 article shall be construed to require any such privileged communication to be disclosed.   (Ga. L. 1951, p. 408, § 18; Ga. L. 1986, p. 473, § 1; Ga. L. 2019, p. 101, § 4/HB 26.)    The 2019 amendment,  effective April 23, 2019, substituted "this article" for "this chapter" near the middle of this Code section.   Cross references.   - Confidential communications, § 24-5-501.   Law reviews.   - For annual survey of the law of evidence, see 38 Mercer L. Rev. 215 (1986). For annual survey on law of evidence, see 43 Mercer L. Rev. 257 (1991). For note discussing confidential communication privileges in Georgia, see 2 Ga. St. B. J. 356 (1966). For comment, "Privileged Communications Between Psychiatrist and Patient in Georgia-Termination of the Privilege Upon Death of the Patient," see 9 Ga. St. B. J. 550 (1973). For comment, "The Psychotherapist-Client Testimonial Privilege: Defining the Professional Involved," see 34 Emory L. J. 777 (1985).   JUDICIAL DECISIONS    Since defendant's counselors were not psychiatrists or clinical psychologists, defendant's communications with the counselors were not privileged. Lipsey v. State, 170 Ga. App. 770, 318 S.E.2d 184 (1984).    When the defendant's counselors were not psychiatrists or clinical psychologists and the defendant was not a client, communications were not privileged. Gore v. State, 251 Ga. App. 461, 554 S.E.2d 598 (2001).    Ga. L. 1951, p. 408, § 20 (see now O.C.G.A. § 43-39-19) has no relation to Ga. L. 1951, p. 408, § 18 (see now O.C.G.A. § 43-39-16) which deals only with confidential relations and communications between applied psychologist and client. That section (see now § 43-39-19) has reference only to Ga. L. 1951, p. 408, §§ 6, 7, and 19 (see now O.C.G.A. §§ 43-39-7,43-39-8, and43-39-17), which deal with the practice of applied psychology without a license. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969).   Psychologists are not criminally chargeable for divulging confidences.    - By this statute, the confidential relations and communications between licensed applied psychologist and client are placed upon the same basis as those provided by law between attorney and client. There are no statutory criminal penalties visited upon an attorney who, in violation of the attorney's ethical relation to the client, divulges a confidential communication. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969).   Deletion of privileged information from document sought to be produced.    - When any document sought to be produced contains a mixture of privileged and nonprivileged communication or information, ample remedy is provided to delete privileged matter, and this remedy is within the inherent power of the court. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969).    When the mental health records of an incompetent, deaf, and speechless criminal defendant contain both privileged communications under former O.C.G.A. § 24-9-21(5) (see now O.C.G.A. § 24-5-501) and O.C.G.A. § 43-39-16 and nonprivileged communications, records which contain privileged material were not to be produced in response to a request for production, but the remaining documents must be produced. Annandale at Suwanee, Inc. v. Weatherly, 194 Ga. App. 803, 392 S.E.2d 27 (1990).   Allowing psychologist to decline to answer questions about victim.    - Trial court did not err in allowing a psychologist who treated the victim for emotional disturbances to decline to answer questions about the victim on the ground that the psychologist's conversations with the victim were confidential and privileged since the victim's emotional problems must be considered irrelevant to the charge for the victim's murder. Hanlon v. State, 162 Ga. App. 46, 290 S.E.2d 285 (1982).   Prosecution witness's communications during hypnosis conducted for prosecution purposes are not privileged.   - Communications made during hypnotic "age regression" treatment of a prosecution witness are not privileged under this section and are subject to disclosure if the psychologist conducting the treatment sessions is acting at the behest of, and as a member of, the prosecution, and the treatment is conducted not for any therapeutic reasons, but in order to bolster the prosecution's case. Emmett v. Ricketts, 397 F. Supp. 1025 (N.D. Ga. 1975).    O.C.G.A. § 43-39-16 does not exempt communications made by a witness for the prosecution during hypnosis conducted for prosecution purposes. Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987).    Fact of employment is neither within physician-patient privilege nor within the attorney-client privilege. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969).   Privilege waived.    - Trial court did not abuse the court's discretion in admitting a 1980 report during the defendant's murder trial, which admitted a psychologist's testimony and materials, performed for evaluation purposes, specifically to explore the possibility of an insanity plea, rather than for professional treatment, as under Georgia law, there can be no expectation of confidentiality based on the psychologist/patient privilege when the sole purpose of the relationship is evaluation. Even if such a privilege existed as to the 1980 report, when the defendant raised the claim of mental retardation, putting the defendant's mental capacity at issue, such affirmative defense waived any privilege. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, reh'g denied, 554 U.S. 930, 128 S. Ct. 2988, 171 L. Ed. 2d 907 (2008), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).   Communications held not privileged.    - Patient-psychologist privilege does not apply when the defense is insanity and the statement in question is made during an evaluation by a court-appointed psychologist. The same is true if the examining psychologist is the state's psychologist. Harris v. State, 256 Ga. 350, 349 S.E.2d 374 (1986).    Defendant claimed that a social worker's testimony about counseling sessions with the defendant should not have been admitted into evidence in the defendant's trial for child molestation because the conversations were privileged communications under former O.C.G.A. § 24-9-24 (see now O.C.G.A. § 24-5-501) and O.C.G.A. § 43-39-16. However, the witness stated that individual psychotherapy was performed while employed at a community mental health center, and that the witness never held out as a psychologist or psychiatrist and that the witness did not have a medical degree but held a BA in social work; thus, the witness was not a licensed applied psychologist and the communications were not privileged. White v. State, 180 Ga. App. 185, 348 S.E.2d 728 (1986).    Psychologist-patient privilege set forth in O.C.G.A. § 43-39-16 arises only when a patient voluntarily seeks treatment from the psychologist, not when a defendant saw the psychologist at the instigation of a state agency and received no treatment. In re R.M., 194 Ga. App. 888, 392 S.E.2d 13 (1990); In re M.N.H., 237 Ga. App. 471, 517 S.E.2d 344 (1999), overruled in part by State v. Herendeen, 279 Ga. 323, 613 S.E.2d 647 (2005).    When a psychiatrist or psychologist is appointed by the court to conduct a preliminary examination of a criminal defendant, the psychiatrist or psychologist is a witness for the court, and the privilege concerning communications with a client does not apply. Christenson v. State, 261 Ga. 80, 402 S.E.2d 41, cert. denied, 502 U.S. 855, 112 S. Ct. 166, 116 L. Ed. 2d 130 (1991).    Since the psychologist-patient privilege set forth in O.C.G.A. § 43-39-16 arises only when the patient voluntarily seeks treatment, the communications between a mother and a psychologist in the course of a court-ordered mental evaluation were not privileged, and there was no error in admitting evidence of that evaluation. In re L.H., 236 Ga. App. 132, 511 S.E.2d 253 (1999), overruled in part by State v. Herendeen, 279 Ga. 323, 613 S.E.2d 647 (2005).    Psychologist-patient privilege applied to treatment records, regardless of whether that treatment was voluntary; when treatment of children had been directed by a case plan and a juvenile court, an in camera inspection of records sought in a criminal prosecution arising out of facts developed in the dependency investigation was proper, but the case was remanded for the trial court to consider in the court's examination the established parameters of the psychother- apist patient privilege. Herendeen v. State, 268 Ga. App. 113, 601 S.E.2d 372 (2004), aff'd, 279 Ga. 323, 613 S.E.2d 647 (2005).   Communications between psychiatrist and patient are privileged.    - Trial court did not err in directing a passenger to release the passenger's mental-health records to an employer because the employer was entitled to the discovery of information disclosing whether the passenger was treated for mental-health-related issues prior to the accident involving its employee and/or the dates of the employee's pre-accident treatment for mental health issues; the mental-health professional and patient privilege covers communications and admissions between the patient and the mental-health professional, and any information that the professional holds which has its origins in those communications, but 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. Mincey v. Ga. Dep't of Cmty. Affairs, 308 Ga. App. 740, 708 S.E.2d 644 (2011).   Psychiatrist testified when defendant placed mental capacity in issue.    - Trial court did not err when the court denied the motion in limine and allowed a psychiatrist who examined the defendant in jail to testify because the defendant placed the defendant's mental capacity in issue when the defendant filed a notice of intent to pursue a defense of not guilty by reason of insanity, which constituted a waiver of any state constitutional right of privacy or statutory privilege in the defendant's mental health records. Armstead v. State, 293 Ga. 243, 744 S.E.2d 774 (2013).   Privilege not waived.    - Trial court erred in requiring a passenger to produce any confidential communications made between the passenger and the passenger's mental-health-care providers because the passenger's handling of discovery, albeit troublesome, did not amount to a decisive and unequivocal waiver of the passenger's mental-health privilege as the law required; the passenger's arguably misleading responses to opposing counsel's questions regarding a previous diagnosis of depression did not amount to a "decisive" and "unequivocal" waiver of the mental-health privilege, and the passenger's decision to answer the deposition question posed to the passenger (whether the passenger suffered from a history of depression), rather than object to it at the time the issue of depression was raised, did not constitute an explicit waiver of the privilege. Mincey v. Ga. Dep't of Cmty. Affairs, 308 Ga. App. 740, 708 S.E.2d 644 (2011).   Counsel's strategy in admitting psychological evidence or testimony.    - Defendant failed to show that trial counsel's failure to object to the admission of a court-appointed psychologist's statements was indicative of ineffectiveness and was not a conscious and deliberate trial strategy. Johnson v. State, 255 Ga. App. 544, 566 S.E.2d 353 (2002), overruled in part by State v. Herendeen, 279 Ga. 323, 613 S.E.2d 647 (2005).    Cited in Emmett v. State, 232 Ga. 110, 205 S.E.2d 231 (1974); McGraw v. State, 199 Ga. App. 389, 405 S.E.2d 53 (1991); In the Interest of M.E., 265 Ga. App. 412, 593 S.E.2d 924 (2004).   RESEARCH REFERENCES   ALR.   - Privilege in judicial or quasi-judicial proceedings, arising from relationship between psychiatrist or psychologist and patient, 44 A.L.R.3d 24.   Statute of limitations applicable to third person's action against psychiatrist, psychologist, or other mental health practitioner, based on failure to warn persons against whom patient expressed threats, 41 A.L.R.4th 1078.