The Undefeatable Psychiatric Privilege in Georgia

Cooksey v. Landry, — S.E.2d — (Ga. 2014)

Georgia has a statute, in OCGA § 24–5–501(a), that seals a psychiatric patient’s communications with his therapist completely and for good. This lesson was recently learned by the parents of a psychiatric patient who killed himself after taking Seroquel and Cymbalta – drugs accompanied by an FDA warning about an increased risk of suicidal thinking and behavior in young adults. In tune with that warning, the FDA recommends that medical professionals prescribing those drugs monitor patients for suicidal thoughts and behavior.

To see whether their son’s psychiatrist monitored him for suicidal thoughts and behavior, the parents requested him to provide them “all records pertaining to the deceased’s medical treatment and history.” The psychiatrist denied that request, citing OCGA § 24–5–501(a).

The Georgia Supreme Court ruled for the psychiatrist. The Court reasoned that “As a matter of public policy, Georgia law “has long provided for the confidentiality of communications between a [psychiatrist] and patient” (citing Kennestone Hosp., Inc. v. Hopson, 538 S.E.2d 742 (Ga. 2000)) and that the “primary purpose of the 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” (citing State v. Herendeen, 613 S.E.2d 647 (Ga. 2005)). Crucially, “The psychiatrist-patient 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” and “unlike other recognized privileges, the psychiatrist-patient privilege survives the death of the patient” (!!) (citing OCGA § 31–33–4, which provides 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”).

The Court’s reasoning is quite compelling, but I still believe that the dissenters, Justices Benham and Hunstein, got it right. Every psychiatric patient would want her records to stay confidential. Yet, she would virtually always agree in advance to unlock the privileged information in order to prove that she died as a result of her psychiatrist’s malpractice. Documentary evidence to this effect would have allowed the parents to win the case despite the rigidity of the privilege. After all, as the Court had acknowledged, this privilege belongs to the patient, not to the doctor. If so, why not allow judges to use common sense when the patient’s future intent is undocumented?