In Gwinnett Hosp. Sys., Inc. et al. v. Hoover, — S.E.2d —, 2016 WL 2748269 (Ga. Ct. App. May 12, 2016), the Georgia Court of Appeals made clear that the Georgia mental health privilege covers communications not only between a patient and a licensed professional counselor, but also between a patient and the agent of a licensed professional counselor. The Plaintiff filed a wrongful death action against Gwinnett Hospital System, Inc. d/b/a Gwinnett Medical Center, and two registered nurses. In discovery, Gwinnett Medical Center learned that Plaintiff maintained a “grief journal” that she started after it was recommended during a counseling session. Plaintiff refused to produce the journal, arguing it was privileged under O.C.G.A. § 24-5-501(a)(7) as a confidential communication between a licensed professional counselor (“LPC”) and a patient. Gwinnett Medical Center responded that the privilege did not apply because the journal was made pursuant to the direction of an associate professional counselor (“LAPC”) who was studying to become a licensed professional counselor. The trial court denied the motion to compel, finding the journal was privileged under § 24-5-501(a)(7). Gwinnett Medical Center appealed.

On appeal, the Court of Appeals found that the trial court did not abuse its discretion in finding the journal privileged. The parties did not dispute that Plaintiff attended sessions with an LAPC. However, Plaintiff was referred to the LAPC at the suggestion of the LPC. Plaintiff remained the LPC’s patient, and the recommendation for a grief journal was part of a treatment plan jointly developed by the LPC and LAPC. In addition, Plaintiff communicated the contents of her journal to the LAPC as part of her therapy, and the LPC would suggest treatment for Plaintiff in conjunction with the LAPC. For all of these reasons, the Court concluded that the LAPC was the agent of the LPC. The Court acknowledged its dicta from several cases in which it stated that the mental health privilege does not cover patient communications with individuals such as nurses or attendants supporting the qualified professional unless they were acting as the agents of the professional. The Court also noted that the mental health privilege arose from the same statute as the attorney-client privilege, which protects communications between an attorney and client and between the attorney’s agent and client. Accordingly, the Court explicitly affirmed the scope of the mental health privilege to cover communications between a patient and the agent of a licensed professional counselor. In this case, the grief journal was privileged, and the trial court did not abuse its discretion in denying the motion to compel.

The Court also clarified that the journal was a communication between the patient and the LAPC, and was not a mental health record. Thus, the general rule that mental health records are not absolutely privileged did not apply. Because communications are absolutely privileged, the trial court did not abuse its discretion in declining an in camera review of the journal.

For more information, please contact Mike Davis at 678-608-1709, or mdavis@nallmiller.com