TITLE 37 MENTAL HEALTH

Section 3. Examination, Treatment, etc., for Mental Illness, 37-3-1 through 37-3-168.

ARTICLE 6 RIGHTS AND PRIVILEGES OF PATIENTS, THEIR REPRESENTATIVES, ETC., GENERALLY

37-3-166. Treatment of clinical records; when release permitted; scope of privileged communications; liability for disclosure; notice to sheriff of discharge.

A clinical record for each patient shall be maintained. Authorized release of the record shall include but not be limited to examination of the original record, copies of all or any portion of the record, or disclosure of information from the record, except for matters privileged under the laws of this state.Such examination shall be conducted on hospital premises at reasonable times determined by the facility.The clinical record shall not be a public record and no part of it shall be released except:
1. When the chief medical officer of the facility where the record is kept deems it essential for continued treatment, a copy of the record or parts thereof may be released to physicians or psychologists when and as necessary for the treatment of the patient;
2. A copy of the record may be released to any person or entity designated in writing by the patient or, if appropriate, the parent of a minor, the legal guardian of an adult or minor, or a person to whom legal custody of a minor patient has been given by order of a court;
  (2.1) A copy of the record of a deceased patient or deceased former patient may be released to or in response to a valid subpoena of a coroner or medical examiner under Chapter 16 of Title 45, except for matters privileged under the laws of this state;
3. When a patient is admitted to a facility, a copy of the record or information contained in the record from another facility, community mental health center, or private practitioner may be released to the admitting facility. When the service plan of a patient involves transfer of that patient to another facility, community mental health center, or private practitioner, a copy of the record or information contained in the record may be released to that facility, community mental health center, or private practitioner;
4. A copy of the record or any part thereof may be disclosed to any employee or staff member of the facility when it is necessary for the proper treatment of the patient;
5. A copy of the record shall be released to the patient's attorney if the attorney so requests and the patient, or the patient's legal guardian, consents to the release;
6. In a bona fide medical emergency, as determined by a physician treating the patient, the chief medical officer may release a copy of the record to the treating physician or to the patient's psychologist;
7. At the request of the patient, the patient's legal guardian, or the patient's attorney, the record shall be produced by the entity having custody thereof at any hearing held under this chapter;
8. A copy of the record shall be produced in response to a valid subpoena or order of any court of competent jurisdiction, except for matters privileged under the laws of this state;
  (8.1) A copy of the record may be released to the legal representative of a deceased patient's estate, except for matters privileged under the laws of this state;
9. Notwithstanding any other provision of law to the contrary, a law enforcement officer in the course of a criminal investigation may be informed as to whether a person is or has been a patient in a state facility, as well as the patient's current address, if known; and
10. Notwithstanding any other provision of law to the contrary, a law enforcement officer in the course of investigating the commission of a crime on the premises of a facility covered by this chapter or against facility personnel or a threat to commit such a crime may be informed as to the circumstances of the incident, including whether the individual allegedly committing or threatening to commit a crime is or has been a patient in the facility, and the name, address, and last known whereabouts of any alleged patient perpetrator.
In connection with any hearing held under this chapter, any physician, including any psychiatrist, or any psychologist who is treating or who has treated the patient shall be authorized to give evidence as to any matter concerning the patient, including evidence as to communications otherwise privileged under Code Section 24-5-501, 24-12-1, or 43-39-16.
Any disclosure authorized by this Code section or any unauthorized disclosure of confidential or privileged patient information or communications shall not in any way abridge or destroy the confidential or privileged character thereof, except for the purpose for which such authorized disclosure is made. Any person making a disclosure authorized by this Code section shall not be liable to the patient or any other person, notwithstanding any contrary provision of Code Section 24-5-501, 24-12-1, or 43-39-16.
When a sheriff transports an adult involuntary patient to a facility, that sheriff may request in writing that a notice of such patient's discharge be given to the sheriff; and such notice shall be provided if such patient or the patient's guardian consents in writing to the disclosure or if, in its discretion, the court ordering the involuntary treatment provides for such notice in the order issued pursuant to Code Section 37-3-81.1.

(Ga. L. 1958, p. 697, § 19; Ga. L. 1960, p. 837, § 18; Code 1933, § 88-518, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-502.10, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.12, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1979, p. 723, §§ 4, 5; Ga. L. 1981, p. 985, § 1; Ga. L. 1987, p. 3, § 37; Ga. L. 1991, p. 1059, §§ 21, 22; Ga. L. 1994, p. 1072, § 2; Ga. L. 2011, p. 99, § 53/HB 24.)

The 2011 amendment, effective January 1, 2013, substituted "Code Section 24-5-501, 24-12-1," for "Code Section 24-9-21, 24-9-40," at the end of subsection (b) and at the end of the last sentence of subsection (c). See editor's note for applicability.

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For note, "Tort Liability in Georgia for the Criminal Acts of Another," see 18 Ga. L. Rev. 361 (1984).

JUDICIAL DECISIONS

Protected communications.

- Georgia law has an exceedingly strict view as to what are privileged communications; not only "communications" but "admissions" are privileged; what is protected is not merely words, but "disclosures made in confidence." Mrozinski v. Pogue, 205 Ga. App. 731, 423 S.E.2d 405, cert. denied, 205 Ga. App. 901, 423 S.E.2d 405 (1992).

Records producible in child custody proceedings.

- When ex-husband, in a child custody proceeding, duly subpoenaed ex-wife's clinical record from the psychiatric hospital where she had voluntarily admitted herself, that record was producible, except for the portions containing any privileged communications. Weksler v. Weksler, 173 Ga. App. 250, 325 S.E.2d 874 (1985).

Mental health records of deaf and speechless defendant.

- When the mental health records of an incompetent, deaf, and speechless defendant contain both privileged communications under O.C.G.A. §§ 24-9-21(5) and43-39-16, and nonprivileged communications, records which contain privileged material are not to be produced in response to a request for production, but the remaining documents must be produced. Annandale at Suwanee, Inc. v. Weatherly, 194 Ga. App. 803, 392 S.E.2d 27 (1990).

Psychiatric medical records are not absolutely privileged. Donalson v. State, 192 Ga. App. 37, 383 S.E.2d 588, cert. denied, 192 Ga. App. 901, 383 S.E.2d 588 (1989), 493 U.S. 1030, 110 S. Ct. 742, 107 L. Ed. 2d 760 (1990).

In an action arising from the unauthorized release of plaintiff's psychiatric records by a hospital authority, under the facts of the case, and because of the strong public policy of maintaining strict compliance with the requirements governing release of psychiatric records, the trial court erred in granting summary judgment to defendants. Sletto v. Hospital Auth., 239 Ga. App. 203, 521 S.E.2d 199 (1999).

Records held not subject to inspection.

- Mental health records of a person who allegedly shot a number of people in a shopping mall were "clinical records" within the meaning of O.C.G.A. § 37-3-1(2), and therefore not subject to inspection under the Open Records Act, O.C.G.A. § 50-14-1 et seq. Southeastern Legal Found., Inc. v. Ledbetter, 260 Ga. 803, 400 S.E.2d 630 (1991).

Parent's standing to sue for unauthorized disclosure of child's records.

- Father had standing to file suit for unauthorized disclosure of his minor daughter's clinical records and for unauthorized release of privileged material regarding his minor daughter. Mrozinski v. Pogue, 205 Ga. App. 731, 423 S.E.2d 405, cert. denied, 205 Ga. App. 901, 423 S.E.2d 405 (1992).

Criminal defense attorney who subpoenaed records from a psychiatric hospital was entitled to rely on the presumption that the records the attorney received from the hospital were either non-privileged or that the hospital first obtained a waiver from the patient. Karpowicz v. Hyles, 247 Ga. App. 292, 543 S.E.2d 51 (2000).

Cited in Tingle v. Harvill, 125 Ga. App. 312, 187 S.E.2d 536 (1972); Lipsey v. State, 170 Ga. App. 770, 318 S.E.2d 184 (1984).

OPINIONS OF THE ATTORNEY GENERAL

Hospital is not authorized to release clinical records of any patient, whether alive or deceased, unless the request for such release falls within the enumerated exceptions of this statute; since a request by a relative does not fall within any of the enumerated exceptions, the law will not permit the hospital to release clinical records to such a person. 1974 Op. Att'y Gen. No. U74-86 (see O.C.G.A. § 37-3-166).

State Board of Pardons and Paroles should be given access to "Discharge Summaries" from Central State Hospital on inmates being considered for parole; such disclosure would not be a breach of confidentiality. 1973 Op. Att'y Gen. No. 73-54.

RESEARCH REFERENCES

ALR.

- Testamentary capacity as affected by use of intoxicating liquor or drugs, 9 A.L.R.3d 15.

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