Many people believe that their private mental health records become an open book when they file a claim for personal injury. But the truth is that Georgia law strongly provides strong protections for an injured person’s mental health records even when they have filed a lawsuit claiming mental pain and suffering. This is because of a strong public policy which encourages those seeking mental health treatment to be open and honest with their providers.
You probably know about the U.S. Constitution’s 5th Amendment privilege against self-incrimination in criminal cases. You may not know that Georgia law also affords several other privileges that apply in civil cases. For example, the following are privileged from disclosure in most cases:
- Communications between husband and wife.
- Communications between attorney and client.
- Communications between therapist (psychiatrist, psychologist, social worker, etc.) and patient.
- Communications between clergy (minister, priest, rabbi, etc.) and worshiper.
Almost all of our clients experience some degree of mental anguish following the injury that brought them to seek legal representation. We always encourage those we represent to seek treatment from a therapist. Many times, people are rightly concerned that their mental health records will be an open book, leaving the insurance company or even a jury free to dig through the most private parts of their life.
Thankfully, our state legislature and appellate courts have addressed this concern:
Mincey v. Georgia Dep’t. of Comm. Affairs, 308 Ga. App. 740 (2011).
As a matter of public policy, this state has long provided for the confidentiality of communications between a mental health professional and patient. Thus in order to encourage a patient to speak freely to his mental health professional, we declare such communications “absolutely privileged” and protect them from discovery in the absence of an affirmative waiver by the patient. This is true regardless of whether the patient’s care and treatment or the nature and extent of his or her injuries have been put at issue in any civil proceeding. Moreover, in the absence of an expressed statement of waiver, one seeking disclosure of privilege of mental health records must establish a waiver by the patient’s decisive unequivocal conduct reasonably inferring the intent to waive.
You many not be able to protect all your records. You cannot hide the fact that you have gone to a counselor. Nor can you protect diagnoses, test results or dates of visits. What is protected is the communication between you and your provider. Unless you choose to waive that privilege as well. Under some circumstances you may do just that.
Strategically, sometimes personal injury cases are stronger when the privilege is waived. That is because the records themselves may provide some insight into our clients’ trauma. When our clients are considering whether to waive the mental health privilege, we encourage them to think hard about it. If you have sustained a traumatic injury that has harmed you mentally, you may be tempted to say, sure, let them see it. That way the insurance company can properly evaluate the claim. And if that does not work, a jury will now know how badly this incident affected me.
But you can’t generally open the door just a bit – it may end up being wide open. As human beings, we tend to be complicated. When you see a therapist, you don’t typically just talk about the negligent event that caused you so much angst and trauma.
For example, if you have been a victim of sexual assault, you did not start living your life or experiencing psychic pain on the day of the assault. You lived and experienced life and were battered and bruised just like the rest of us, prior to that date. And if you open up the communications between yourself and your psychiatrist, psychologist or counselor, they get to see all of it. None of us are otherwise a blank slate.
So, you may have to make a hard decision. Do I let them see that my parents did not treat me well? That my spouse and I have had our troubles? That I was anxious before being crashed into by a tractor-trailer? That is ultimately up to you. All your attorney can do is to help you evaluate the issues and try to come up with a decision that will work the best not only for your case, but for your long term mental health. Remember, you have protections, but in some cases you may consider waiving them in exchange for a slice of justice.