If there was ever any doubt in Georgia about who holds the Patient Mental Health Privilege, when it attaches, and who has a right to mental health records, the Supreme Court of Georgia just made it crystal clear. It’s the patient; not their family, representatives, and not their doctor. In a decision dated June 30, 2014, the Court decided Cooksey v. Landry, S14A0926. Dr. Crit Cooksey, a psychiatrist, had been treating Christopher Landry for several years with Cymbalta and Seroquel, two drugs that contain “black box warning” from the Food and Drug Administration because they may increase suicidal ideations and behaviors in young adults. The FDA recommended any doctor monitor patients who had been prescribed these drugs for warning signs of those side effects.
Christopher Landry committed suicide at 22 years old while under Dr. Cooksey’s care. His parents wanted to sue Dr. Cooksey for potential malpractice, wrongful death, and a survival action. Pre-suit, they made multiple requests for Christopher’s psychiatric mental health records. Dr. Cooksey refused based on Georgia’s psychiatric-patient privilege, O.C.G.A. sec. 24-5-501(a). His parents filed a complaint for permanent injunction arguing that they could not investigate whether malpractice had indeed occurred without the mental health records, and they would not be able to provide the required expert affidavit for a malpractice action without the records. See O.C.G.A. sec. 9-11-9.1. The trial court, without reviewing Dr. Cooksey’s files, ordered them to be produced to the parents concluding that equity supported their position. Dr. Cooksey appealed.
Christopher’s parents acknowledged they had no authority to break the privilege but argued that they had a right to bring the civil claim and that the statute left them with an inadequate remedy. The trial court agreed stating their hands were tied behind their back without the records as they could not investigate their claims. While the Supreme Court of Georgia agreed that the psychiatrist-patient privilege may post a hardship on Christopher’s parents in the investigation of certain claims against Dr. Cooksey, they found that equity could not override the privilege statute. They reasoned that as a matter of public law Georgia has long provided for the psychiatrist-patient privilege. (Citing Kennestone Hosp., Inc. v. Hopson, 273 GA 145, 148, 548 S.E. 2d 742 (2000)). The purpose of the privilege is to allow patients to speak freely without fear of disclosure and embarrassment. (Citing State v. Herendeen, 279 Ga. 323, 325-26, 613 S.E. 2d 647 (2005). This privilege remains inviolate even through a civil proceeding. See O.C.G.A. § 24-12-1(a). The strength of the privilege is further evident in that it is held only by the patient and waiver of the privilege can only be made by the patient. In absence of an express waiver by the patient, “one seeking disclosure of the mental health records must establish a waiver by the patient’s ‘decisive unequivocal conduct reasonably inferring the intent to waive.’” Heredeen, 279 Ga. at 327.
Moreover, unlike other privileges and of primary importance in the Cooksey case, the privilege survives the death of the patient. (See Sims v. State, 251 Ga. 877, 881, 311 S.E. 2d 161 (1984)). So, representatives of the patient cannot waive it for them. O.C.G.A sec. 31-33-4; 37-3-166(a)(8.1). Accordingly, the Court ruled that the records be returned to the trial court, that the trial court review Dr. Cooksey’s files, that the trial court determine if there had been any waiver of the privilege, and that trial court disclose any non-privileged records and any records where the privilege had been waived.