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Communications between psychotherapist and patient are privileged; they are not admissible
There is no physician-patient confidentiality. There is a psychiatrist-patient privilege |
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Sherrer was not his physician; he was referred by the company. Sherrer works for Columbus Packing Company, not Payne. Sherrer didn’t owe him a duty of privacy.
The requirements for establishing a physician-patient relationship:
The patient has to seek diagnosis from physician and physician has to agree to provide it; contractually kind of idea. They decide together that there will be diagnosis and treatment |
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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. |
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| Describe the difference between a psychiatrist’s and a non-psychiatrist physician’s duty regarding patient information. |
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| There is no physician-patient confidentiality or privileged (refer to legal status), there is a duty of privacy (only way to get it is with court order). |
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Can psychotherapists be forced to provide evidence about their patients in federal court cases?
No. In a 7-2 decision, announced by Justice John Paul Stevens, the Court ruled that Federal Rule of Evidence 501 protects the conversations between Redmond and her therapist from compelled disclosure. The Rule recognizes a "psychotherapist-patient privilege." Every state recognizes psychiatrist- patient privilege, all but two recognize psychologist-patient privilege, and half states recognize clinical social worker- patient privilege. |
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It is clear from the defendant's testimony that she and the victim were jointly seeking psychiatric counseling for marital problems.
The presence of the victim's spouse, also a necessary participant in the treatment, does not destroy the privilege.
It is true that sometimes the presence of a third party will destroy therapist-patient privilege, there is a strong public policy in favor of preserving psychiatric-patient priv. where a third party is present as a necessary or customary participant in the consultation and treatment. |
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1- a minor cannot waive his or her privilege 2- you can’t waive your privilege retro actively
Only the custodial parent can waive a minor’s privilege |
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Supreme court reviewed records, and there was relationship between felon and therapist evolved into therapeutic relationship
Question is- was there treatment. IF there was treatment the privilege applies. Doesn’t matter when it began, all communications are then privileged
In Lucas the state doesn’t want the defendant to get co-defendant records because they want to prosecute him. State took an opposite stance in Herendeen v. State |
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Children were sent by family services to the two psychologists for treatment, assistance, and counseling.
The state in its prosecution of the parents wanted to see the therapy records.
Herendeen and Haskall refused to produce them. Unusual case- it’s the therapist refusing to produce the records. The patient has the privilege, but the children are minors. The parents are unable to waive the privilege because the children have been taken away from the parents.
The question here is- do those children have a privilege? The children certainly did not seek out diagnosis and treatment, they were sent there by family services.
The court says a therapeutic relationship developed, clearly these children have privilege. The state can’t have the records. |
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| Guardian ad litem -Guardian for the purpose of ensuring the child’s best interesting during the litigation where the child has some interest. In light of the determination by this Court and the Court of Appeals regarding the question of privilege, the issue of the appointment of a guardian ad litem for M. P. for the purpose of determining whether M. P. wishes to invoke the mental health privilege should be revisited by the trial court. |
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| What are the requirements for establishing a psychotherapist-patient privilege? |
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| There must be diagnosis, treatment, and a reasonable expectation of confidentiality |
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The majority opinion removes the absolute protection of privileges, which our law has recognized for many decades, and casts them upon the doubtful scales of another "balancing" test. By thus weakening the patient-psychiatrist privilege, we also diminish other established privileges, notably as to communications between husband and wife, between attorney and client, and among grand jurors.
Bobo has the right to confront witnesses against has to be balanced against the privilege and Weltner is saying there is no balance the privilege is absolute. |
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We see this general rule that an expert witness can neither testify regarding the ultimate issue in question: the guilt or innocence
The general rule concerning the admissibility of expert testimony as to the ultimate issue is this: An expert may not testify as to his opinion as to the existence vel non [latin: or not] of a fact (in this case, whether the child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors.
Expert witness cannot testify to the ultimate issue of the case nor to the credibility of other witness’s
Both of those are within the province of the jury. |
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| O.C.G.A., §§ 9-11-26 and 9-11-34 |
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| You can ask other side who their witnesses are going to be Unless court says otherwise, by the court the scope of discovery is as follows: Any matter not privileged, can get information that is inadmissible (during deposition) in court but that could lead to admissible evidence Georgia courts screw up by confusing code section that says you have to produce medical records with the question of whether or not there is a psychotherapist privilege |
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Failure to object constitutes an implicit waiver
Court then makes a dreadful error by applying section c-2, section of the discovery code, that deals with discovery with discoveries from members of the healing arts. They find for Abel, the psychiatrist saying that he is required to produce within 10 days if there is no objection by the other side.
Dissent:
Birdsong said that there is no such thing as an implicit waiver, the only way to waive a privilege is an explicit waiver.
The discovery process says that all matters not privileged are discoverable, therefor privileged matters are not discoverable unless EXPLICITLY waived. |
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1998 and we’re still going with Jones and Abel
Doesn’t produce and court says you have to produce
Not like jones v abel, you’re not permitted, you’re COMPELLED, REQUIRED to produce
In price v state farm the therapist is trying to assert his patient’s privilege. Court says no, the party (patient) has to assert his privilege or else it’s an implicit waiver. |
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| Hopson v. Kennestone Hospital |
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We hold that HN3 it does not amount [***2] to a waiver because privileged matter is not discoverable under a nonparty document production request, so the patient has no obligation to object to the request on the basis of her privilege.
States the the privilege is absolute
Contrary to Price and they say that citing the healing arts provider section was incorrect and it is not discoverable
Who are the “members of the healing arts”? – Turns out there really is no definition in GA law, either in case law or statutes. If you read between lines it appears member of the healing arts are those that have the legal right to write prescriptions. (physicians, dentists, nurse pratitioners) not all that clear that psychiatrists or social psych workers are members of the healing arts. –No actual case that says that |
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| GA constitution gives you a right of privacy and the state cannot without due process invade your privacy in order to obtain criminal evidence. They used civil subpeona to obtain evidence in a criminal trial, stated 1905 case as precedent that GA citizens have the right to private liberty and that cannot be taken away without due process |
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Karp has no relationship whatsoever with Hyles, Hyles duty of care is to Carson. Hyles doesn’t have the records, it’s not his fault he has the records. Wanna sue somebody? Sue the hospital, they’re the ones who wrongfully released them
What really was damming in all of this, Karp is going to this hospital, psychiatric hospital, her mother brings her there and her mother tells the person at reception desk, you can’t believe anything Karp says, she’s a liar
The communication was not from the patient, it was from her mother
Attorney for carson (the guy who allegedly raped her) has no duty of care to her with respect to her confidential communication |
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Even though mother and father were seing Hutto jointly, and father has privilege, the court says Hutto never reveals his communications, just said he’d make a lousy father.
Affadavit never reveal communications
Court treats affadavit just as a conversation with the mother and of course she wants to waive her rights. |
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Expert witness cannot testify regarding another witness, or the ultimate issue in the case
The credibility of the witness is within the province of the jury
It is the jury who decides the credibility of each witness, whether the defendant is guilty or not and the expert witness CANNOT so testify
Expert witness can say waddles like a duck sounds like a duck but can’t say it’s a duck |
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What made her reasonable believe he was functioning as a psychotherapist?
“"he would assist her in analyzing and assessing her assets and ascertaining job and career direction by concentrating on her psychological make-up”
He said he would use her psychological make up to help her find a job, also licensed clinical psychologist so it was reasonable to assume he was acting as a psychotherapist |
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| Alpharetta 1st United Meth. Ch. v. Stewart |
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For transference to apply we’d have to know that Bowen was acting as a counselor rather than a clergy men.
Case goes on and on as to what is the problem, finally gets decided on the fact that it is outside the statute of limitations, they took too long to bring the case
WE NEVER KNOW WHAT THE LEGAL SOLUTION TO THIS PARADOX IS |
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Court decides that anyone who spends a substantial portion of their time dealing with emotional and mental disorders, those person’s patients have a privilege. Consistent with this purpose.
Consistent with this purpose, we interpret HN4 "psychiatrist" in O.C.G.A. § 24-9-21 to mean "a person licensed to practice medicine, or reasonably believed by the patient so to be, who devotes a substantial portion of [***9] his or her time engaged in the diagnosis and treatment of a mental or emotional condition, including alcohol or drug addiction."
ON TEST DON’T TELL HIM, MAJORITY, OR SIGNIFICANT SAY SUBSTANTIAL
Substantial is deliberately vague
Deemed a physician if: • The physician has to be a psychiatrist OR the physician spends a SUBTANTIAL portion of his/her time treating emotional or mental conditions. |
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| Nally v. Grace Comm. Ch. of the Valley |
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There is no defined relationship between church and Nally
CA supreme court says case should be thrown out there is no cognizable claim against the church, no need to address the constitutional issues of freedom of religion because the court is going to fine for the church. Why? The church was simply acting as a church and the church has no duty of care.
You have no duty of care to protect 3rd person party, unless you stand in a special relationship or if you assumed such a relationship (not parent but babysitter, you assume the duty of care for that child, failure to exercise that duty of care leaves you liable for a claim in tort) |
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| Sanders v. Casa View Bapt. Ch. |
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The one where the guy had sex with the two congregants/employees
Issue here is : does the person who breaches the code of professional conduct, the fiduciary duty of a psychologist, have to actually BE a psychologist. Or can it be someone who represented themselves as someone who is a psychologist and whom you reasonably believed their representation. Going to vary with the state somewhat with what all of that means
If you reasonably believe somebody’s representation that they were acting as a physician, you can sue them for a breach of a duty of care for a physician (in most states- a special relationship is established and they have a duty of care) |
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| A person who is an actual or purported practitioner of psychotherapy commits sexual assault (misdemeanor) when he or she engages in sexual contact with another individual who the actor knew or should have known is the subject of the actor's actual or purported treatment or counseling or the actor uses the treatment or counseling relationship to facilitate sexual contact between the actor and such individual. |
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Tante had sex with Mrs Herring, so Mr herring is suing Tante:
Tante violated certain rules and standards of the State Bar of Georgia, that he breached the standard of care owed clients by attorneys, that he violated his fiduciary duties to the Herrings, that he breached his contract with them, and that the Herrings [***3] were damaged thereby.
Herring’s win the case, in spite of the fact that Tante won their case against the Soc Sec Admin.
Trial court/ court of appeals- Tante has engaged in legal malpractice and breach of fiduciary claim |
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How could he have committed legal malpractice when he won their case? Important because- very difficult to prove malpractice on the part of a psychotherapist, (didn’t give you right treatment for disease, what is right treatment?), but breach of fiduciary duty may be much easier.
GA supreme court- yes breach of fiduciary duty but is NOT legal malpractice, agrees with Tante, there is nothing in the duty of care from a lawyer to his client regarding sex- it’s irrelevant.
GA supreme ct- reverse in part, affirm in part. Affirm breach of fiduciary duty, reverse legal malpractice. |
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GA supreme court said you could not introduce code of conduct
Ga rule is different than other states, ga is only state that had such a rule
Ga says there are 4 different approaches:
o That professional ethical standards conclusively establish the duty of care and that any violation constitutes negligence per se.
o A minority of courts finds that a professional ethical violation establishes a rebuttable presumption of legal malpractice
o Third, a large majority of courts treats professional ethical standards as evidence of the common law duty of care.- just another piece of evidence
o One court has found professional ethical standards inadmissible as evidence of an attorney's duty of care – they’re going to go from being the lone court saying it’s not admissible o the majority saying that it can be a piece of evidence
One additional caveat- violation of professional code in order to be introduced as evidence must be relevant to the claim |
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