IN THE SUPREME COURT FOR THE

STATE OF GEORGIA

STATE OF GEORGIA , *

Appellant, *

CASE NUMBER: S04C1788

vs.

DR. DENNIS HERENDEEN,

DR. SAMUEL HASKELL, and

THE PSYCHOLOGY CENTER, LLP

Appellees.

____________________________________

BRIEF OF THE AMICUS CURIAE COMMITTEE

GEORGIA TRIAL LAWYERS ASSOCIATION

In King v. State, 272 Ga. 788 (2000), this Court acknowledged that medical records like those sought here enjoy constitutional protection. The patients in this case are protected additionally by the statutory privilege for mental health therapy. Although the prosecutor here claims compelling necessity for treatment records, they are not records of an alleged criminal perpetrator, but rather those of alleged innocent victims. This brief will urge that those treatment records are privileged; nothing in the circumstances of juvenile court referral makes them unprivileged; and no necessity overrides the children's treatment privilege.

This does not mean that the prosecutor is denied all access to the records. The privilege may be waived. The parents who control waiver for their children may be disabled by a conflict of interest. The superior court should consider a guardian ad litem to determine whether to claim or disclaim the privilege.

INTEREST OF AMICUS CURIAE

Amicus GEORGIA TRIAL LAWYERS ASSOCIATION is a statewide organization of some 3,000 lawyers with a special interest in the conduct of trials, including admissibility of evidence, in particular including evidentiary privileges. GTLA appears in this case at the express invitation of the Court. GTLA wishes to thank the Court for its gracious invitation to appear as amicus curiae.

ARGUMENT

The Court's first task is to determine what this appeal is and is not about. This case arose from a request brought in superior court by a prosecutor, for records of treatment by psychologists, following a juvenile court referral which resulted in recommendations and therapeutic guidance. Notably, the prosecutor is a stranger to the juvenile court proceedings. This case does not involve a request for expansion or clarification of any psychological report to the juvenile court. To this point, there has been no waiver of the psychologist/patient privilege.

Therefore this case is not about any of the following four situations:

(1) This case does not concern the existence or scope of the privilege after a court referral purely for evaluation, as opposed to therapeutic intervention.

(2) This case does not concern any possible limitations on the mental health therapeutic privilege as it may apply in juvenile court deprivation proceedings.

(3) Specifically, this case does not concern any possible limitations on the privilege in the face of a juvenile court's request for data which support or question a professional report to that court.

(4) This case does not concern the scope of the privilege remaining after any voluntary waiver.

Under these circumstances, Amicus urges that the children's mental health privilege should be preserved, subject to further development after remand.

I. THIS STATE OFFERS A STRONG THERAPIST/PATIENT PRIVILEGE.

"As a matter of public policy, this state has long provided for the confidentiality of communications between psychiatrist and patient. In 1995, the legislature expanded the list of mental health providers whose communications with patients during the psychotherapeutic relations are privileged[, to include] ... licensed psychologist[s]." Kennestone Hosp., Inc. v. Hopson,, 273 Ga. 145, 147-48 (2000) (citations omitted). "[T]he privilege serves important private and public interests by facilitating appropriate treatment and thus promoting the mental health of the country's citizenry." Id. at 148 (citations omitted). "Communications between the [therapist] and patient are protected because 'most psychiatric analysis and treatment must come from the mind of the patient.'" Wiles v. Wiles, 264 Ga. 594, 597 (1994) (citation omitted).

"We conclude that Georgia law has an exceedingly strict view as to what are privileged 'communications.'" Mrozinski v. Pogue, 205 Ga.App. 731, 734 (1992).

II. THESE CHILDREN ENJOY THE THERAPIST/PATIENT PRIVILEGE.

The children Michael and Amber Payne were afforded mental health therapy, as necessary to give rise to a privilege in their communications. As this Court has articulated the facts, "treatment occurred." (From grant of certiorari.)

Not only were the children afforded mental health treatment, but that treatment explicitly was a goal and a purpose of their referral during these deprivation proceedings. As the prosecutor freely admits, "both children were sent to the Psychology Center for counseling as part of the DFACS case plan." (Appellant's Brief, at 5)

Given this mental health treatment, the privilege arose unless some magic in the referral qua non or in the circumstances of that referral make it unavailable.

III. REFERRAL BY A COURT DOES NOT OVERRIDE THE PRIVILEGE.

The prosecutor contends erroneously that regardless of actual treatment, the therapeutic privilege does not apply because the psychiatrists were chosen by court referral, hence the children did not originally and affirmatively seek out their therapists for treatment. Georgia law has long rejected this proposition. "It may be irrelevant whether a patient sought out a psychiatrist 'on [his] own volition'; and a patient who did not originally seek psychiatric treatment for himself may nevertheless end up contemplating or being given assistance by the psychiatrist. The standard established in Massey [v. State, 226 Ga. 703, 704 (4) (1970)], is the test: the relation exists 'to the extent that treatment was given or contemplated.'" Mrozinski v. Pogue, 205 Ga.App. at 733.

This Court squarely expressed its agreement in 2001: "[B]ecause our review of the records indicates that they were prepared in the course of treatment, we conclude that the psychiatrist/patient privilege applied to them, regardless of whether that treatment was voluntary." Lucas v. State, 274 Ga. 640, 645 (2001).

The prosecutor fights a rear-guard action, mischaracterizing this language from Lucas as mere dicta. To the contrary, the language from Lucas is anything but dicta. The prosecutor's argument rests on his observation that this Court did not resolve whether the patient's treatment in that case was voluntary. (Brief at 6) But that is precisely the point. Voluntariness (or lack of it) simply did not matter. The word "regardless" indicates this Court would have come to the same result whether or not the treatment in that case resulted from a voluntary consultation, so that exploration of that issue was unnecessary. Lucas makes communications privileged if they occurred "in the course of treatment," without regard to what brought patient and therapist together in the first instance.

The prosecutor argues nevertheless that "a line of cases" from the Court of Appeals required that the patient seek treatment voluntarily, in order to give rise to a cognizable privilege. But whatever other cases might have held, Lucas resolved beyond question that the origin of a therapeutic relationship is irrelevant to the existence of the privilege. That principle is now universal, and the Court of Appeals did not extend Lucas in any way by applying that universal principle.

The prosecutor contends nonetheless that the privilege never arose in this case because the children's referral was part of juvenile deprivation proceedings. Attempting erroneously to analogize this referral to a simple court request for a psychological evaluation, the prosecutor argues that no treatment privilege ever materialized.

The prosecutor argues in the alternative that either referral by the court, or a related expectation that the consulting professional would report back to the court, inherently is inconsistent with existence of the therapeutic privilege. "Where the psychiatrist or mental health worker is consulted for evaluation and testimony rather than treatment or appointed by the court for such purpose, no privileged relationship arises." Trammel v. Bradberry, 256 Ga.App. 412, 423 (2002). From several perspectives, the prosecutor's extrapolation from this rule is unwarranted.

First, the argument is unsupported by these facts. The privilege attaches except for "consult[ation] for evaluation and testimony rather than treatment." Id. (emphasis supplied). As the prosecutor himself concedes in his brief, the referral in this case was not solely for purposes of evaluation and testimony. Because the referral was also for treatment, the privilege arose to the extent of that treatment.

Second, there is no record evidence that this referral was carried out with the safeguards contemplated in, and necessary to, a referral solely for evaluation. Such a referral should be accompanied by an express warning to the subject that the privilege is unavailable, and that all communications are subject to disclosure. See Christenson v. State, 261 Ga. 80, 83-84(2)(d) (1991).

Third, court referral and reporting back inherently are consistent, rather than inconsistent, with the privilege. The referring court can make explicit B as part of its referral B that the privilege shall be effective and shall remain preserved. "Under the trial court's order communications between the defendant and the physician were protected by the statutory privilege, but the objective result of the examination was not so protected, and the objective result of the examination was admissible." Plummer v. State, 229 Ga. 749, 750 (1972) (citation omitted). Recognizing that a referral may have dual purposes and results (both evaluation and therapeutic communication), a referring court may provide expressly for both. (A comparable approach may be used to limit the scope of waiver of the privilege. McMichen v. State, 265 Ga. 598, 606 (1995) ("The parties and the court agreed that the expert's testimony would not effect a waiver as to Luan's counseling.").

But finally, the absence of explicit protection for the treatment privilege in a referral order does not abrogate the privilege, where treatment results. Evaluation and possible report to the court do not turn communications after a psychological referral into an open book. It is well understood that the privilege may not cover some patient information, yet still covers privileged communications. Kennestone Hosp. v. Hopson, 273 Ga. at 148 ("Although the fact that a patient has undergone psychiatric treatment and the dates of the care are not subject to the psychiatrist-patient privilege, confidential communications between the psychiatrist and patient generally are protected") (citations omitted); see also In re Morris Communs. Co., 258 Ga. 154, 155 (2002) (reporter's privilege) ("the State does not seek substantive, confidential, or unpublished information, nor is the State asking that [the reporter] comment on the content of the articles").

The juvenile court referred the children to psychologists for mixed purposes B for recommendation and counseling. The results of treatment after such a mixed-purpose court referral are not monolithic, for purposes of the privilege. The results may contain unprivileged information, but not everything that results is outside the privilege. To the extent the privilege is circumscribed by the needs of the referral, that circumscription itself must be limited so that it serves only the court's needs as contemplated in referral, rather than infringing on the children's needs for protected communication and thus swallowing up the entire privilege. To the extent treatment is received independent of evaluation, the privilege arises.

The legal world of privilege is full of examples of partial override or partial waiver of the privilege. As this Court said in the context of a different privilege, even "publication of part of the information gathered does not waive the privilege as to all of the information gathered on the same subject matter." In re Paul, 270 Ga. 680, 686 (1999) (reporter's privilege); see also Mrozinski v. Pogue, 205 Ga.App. at 736 (waiver for purposes of release of therapeutic treatment records to own counsel not a waiver as to spouse's counsel). Cf. McKesson Corp. v. Green, ___ Ga. ___, 05 FCDR 657, 658 [No. S04G1228, Mar. 7, 2005] (while work product privilege was waived as to third parties on those facts, confidentiality agreement could have been drafted in such a way as to limit waiver).

This case might pose difficult issues if it arose from a clash between the Appellee psychologists' assertion of privilege, and the evaluative needs of the juvenile court, in placing the children in a home or otherwise protecting them, acting in that court's parens patriae role. The issues would be posed especially dramatically if a psychologist should make a naked report or recommendation, and the juvenile court should need further information to understand or evaluate the psychologist's suggestion. Indeed, the Court may one day face just such tensions.

For purposes of this case, however, those issues are not before the Court, and may be put off for another day. For purposes of this appeal, the juvenile court is seeking no additional information. The only issue is an attempt by a stranger to the deprivation proceedings to obtain some of its fruits, acting by subpoena in an entirely different forum. In that context, the privilege does not conflict with the juvenile court's special role.

Even assuming for the sake of argument that the psychologists= treatment records of the children were unprivileged for purposes of the juvenile court, it does not follow that they lose their privilege in an entirely different proceeding. Once again, the partial waiver cases are instructive. Those cases make clear that incursions on the privilege should be related to the reason for the incursion. Specifically, the privilege may be asserted in one proceeding even though it is unavailable in another. "Nor is the privilege waived when the person claiming it has made disclosures in separate, unrelated actions." Bobo v. State, 256 Ga. 357, 358(2) (1986); see also McGraw v. State, 199 Ga.App. 389, 395(15) (1991) (for purposes of McGraw's trial, a "psychologist's testifying at (a state's witness's) sentencing hearing ... [did] not support any waiver of the [witness's] psychologist-client privilege, ... much less the asserted extent of waiver").

Finally, it is significant that the juvenile court has not seen fit to call upon the children's psychiatrists to testify, neither to explain their reports nor for any other purpose. If such a publication had occurred, hypothetically the children's claim of privilege might be weakened. But in the absence of any such disclosure, their claim to the privilege is that much stronger. Bobo v. State, 256 Ga. at 358(2) (where workers' compensation psychiatrist testified at compensation hearing and at criminal trial, police officer had not waived psychiatric privilege as to her other personal psychiatrist, who never testified); see also In re Morris Communs. Co., 258 Ga. at 154 ("the prosecutor stated he was not 'trying to get to the reporter's notes or any information that was not actually published'").

In sum, the juvenile court's referral did not destroy the children's privilege.

IV. NO RELEVANT PUBLIC POLICY OVERRIDES THE PRIVILEGE.

The prosecutor has one last fall-back position. He claims that the children's therapeutic treatment privilege must yield to a public policy of exposing alleged child abusers. Ironically, the prosecutor disclaims (brief at 7) the balancing test which this Court adopted for criminal defense requests in Bobo v. State (the only situation in which this Court has approved balancing the privilege against other concerns), yet still claims the mantle of the Bobo balancing approach.

The first hole in this analysis is that there is no balancing test available on these facts, no opposing scale pan against which this privilege must be weighed. Georgia decisions used to describe the treatment privilege as "absolute." In Bobo, this Court made that word obsolete, but in only one respect. Bobo held that the privilege might be trumped uniquely by the constitutional protection afforded a criminal defendant by the confrontation clause, if but only if he could show "necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him." 256 Ga. at 357.

The prosecutor obviously is not a criminal defendant, does not enjoy the protection of the confrontation clause, and may not invoke the special freedom to override the privilege granted by Bobo v. State. Critically, this Court has not opened up any other balancing test, in any other situation, for any other reason, for any other party, which would allow the treatment privilege to be disregarded.

Even if hypothetically a balancing test were available to the prosecutor, it is not satisfied here. First, Appellant has not shown a compelling competing interest to be weighed against the treatment privilege. Seeking a public policy justification comparable to the confrontation clause requirements in Bobo, Appellant invokes an alleged but amorphous "legislative mandate to help children." (Brief at 9)

The prosecutor cites only one narrowly-tailored statute, O.C.G.A. ' 19-7-5(c)(1), to support his claim of mandate. That statute only requires psychologists to report suspected child abuse. That section says nothing about prosecution subpoenas for treatment records, nor does it afford the prosecutor any other tool to obtain privileged information which the psychologist does not volunteer. Its only effect is to place a statutory responsibility on counselors to come forward on their own to report suspected abuse.

The remainder of the prosecutor's alleged "mandate" has nothing to do with the prosecutorial function. Appellant invokes the special protective function of the juvenile court, which is separate from any possible adult criminal prosecution.

Tellingly (because Appellant asks for balancing), the so-called "mandate to help children" does not necessarily cut in favor of the power the prosecutor seeks. Dredging up children's psychological counseling records may disclose all kinds of disturbing information unrelated to any charges of child abuse. Even if it should disclose information helpful to the prosecutor, a child may wish to keep precisely such communications with the therapist private, for his or her own reasons. Regardless of the content of the psychological records, the mere fact of disclosure may so disturb a child as to disrupt the entire course of treatment.

Finally, the prosecutor has not shown an attempt to get the information he desires by means which do not encroach on the privilege, whether by interviewing the children or by other methods.

There is no available balancing test which the prosecutor may invoke to override the privilege. Even if balancing were available, Appellant cannot satisfy it factually to override these children's privilege.

IV. THE COURTS SHOULD CONSIDER A GUARDIAN AD LITEM.

This Court need not be indifferent to the concerns which motivated the prosecutor to subpoena privileged records. The mere fact that the children enjoy the privilege does not mark the end of this issue. Privilege may be waived.

As the children's natural guardians, their parents presently control the children's waiver. This Court should remand to the superior court, however, so that that court may consider whether to substitute a guardian or guardians ad litem to exercise this judgment regarding waiver. Unlike a neutral guardian, one or both of the children's parents may be disabled to exercise the waiver option, because of a conflict of interest. The deprivation proceedings in the trial court by definition charge the parents with some neglect, and the prosecutor's subpoena brings to the fore possible charges of child abuse. In case of any abuse, both parents might be involved, or one parent might seek to protect the other against criminal charges. In either case, there would be no disinterested parent who could exercise or deny waiver of the children's privilege without self-interest.

A self-interested parent cannot serve as neutral guardian of the waiver right. Guardians and other fiduciaries are not entitled to take advantage of any conflict of interest for their own benefit. By happenstance, this principle usually is applied to property interests. See, e.g., O.C.G.A. ' 24-4-26 (trustees may not set up title to property adverse to the trust). "The law will not permit a guardian to act in such a way that his own personal interest may come in conflict with the interest of his ward with respect to the estate of the latter in his charge." Allen v. Wade, 203 Ga. 753(1) (1948).

These principles are not limited to conflicts of interest over choate property. In Carringer v. Rodgers, 276 Ga. 359 (2003), this Court recently passed over a spouse, the designated statutory representative for purposes of bringing a wrongful death action, because the spouse suffered from a conflict of interest. She was charged as the decedent's alleged murderer. Instead, this Court allowed the decedent's parent to substitute for the spouse, as a non-conflicted representative.

Nor are these principles limited to pressing affirmative claims in litigation. They extend also to requiring neutral representation to protect minors embroiled in litigation, including those entangled in deprivation proceedings.

The United States District Court for the Northern District of Georgia recently considered a comparable conflict of interest in the juvenile court context, and reached a similar solution, requiring separate representation of the child's interests in deprivation cases. Kenny A., b/n/f Linda Winn v. Perdue, ___ F.Supp.2d ___, 2005 WL 332417 (C.A. 1:02-CV-1686, N.D.Ga., Feb. 8, 2005) (Shoob, J.). Because the conflict of interest issues in Kenny A. are strikingly similar to the issues posed here, an extended discussion from the federal decision is instructive:

"Georgia Code section 15-11-6(b) provides in pertinent part as follows:

'Right to Legal Representation. ... Counsel must be provided for a child not represented by the child's parent, guardian, or custodian. If the interests of two or more parties conflict, separate counsel shall be provided for each of them.'

O.C.G.A. ' 15-11-6(b). [B]ecause a child in a deprivation proceeding is a 'party' to the proceeding, the final sentence of the statute means that, ... if there is a conflict between the child and the parent, guardian, or custodian, then the child is entitled to separate counsel.

"Applying this principle, the Attorney General of Georgia has found that there is an 'inherent conflict of interests' between a child and his parent or caretaker in a deprivation proceeding. 1976 Op. Att'y Gen. No. 76-131 at 237. Given the fact that it is the parent or caretaker who is alleged to have abused or neglected the child, the Court finds the Attorney General's opinion persuasive. See Campbell v. Poythress, 216 Ga.App. 834, 836, 456 S.E.2d 110 (1995) (recognizing Georgia Attorney General opinion as persuasive authority). Accordingly, the Court concludes that in a deprivation proceeding there is an inherent conflict of interests between the child and his or her parent, guardian, or custodian, which requires appointment of separate counsel for the child pursuant to O.C.G.A. ' 15-11-6(b)."

This case does not involve the need for separate counsel, but rather for a separate representative to exercise or disclaim waiver of the privilege. For the same reasons Judge Shoob found separate representation important in the face of conflict in the deprivation proceedings, the same principle should apply to waiver of the treatment privilege as well.

The traditional remedies for a fiduciary's conflict of interest are outright removal from office, Dowdy v. Jordan, 128 Ga.App. 200 (1973); or estoppel to assert the fiduciary's own interest, O.C.G.A. ' 24-4-26; Scoggins v. Strickland, 265 Ga. 417 (1995). Both lines of authority are relevant here. If the parents are conflicted out by reason of self-interest, they should be removed from authority to exercise the children's waiver. If they should stay in control although conflicted, they would be estopped to act, so appointment of a substitute would be necessary.

Thus this Court should remand so that the superior court can determine whether the parents suffer from a conflict of interest; and should direct that if the parents suffer such a conflict, the superior court should appoint a guardian or guardians ad litem for the children, for the limited purpose of exercising or not exercising a waiver of their therapeutic privilege. These children may be old

enough to express effective choice, and may wish to disclose their records in order to see justice done. Or a guardian may determine after consultation that the children are not mature enough to make their own decisions, but that it is in the best interest of the child to permit disclosure, even taking into account the potential psychological consequences.

CONCLUSION

This Court should affirm the Court of Appeals, and remand with directions to the superior court to consider appointment of a guardian or guardians ad litem.

This 25^th day of March, 2005.

Respectfully submitted,

Dennis T. Cathey

President

Georgia Trial Lawyers Association

Mathew G. Nasrallah

R. Hutton Brown

Co>Chairs, Amicus Curiae Committee

Georgia Trial Lawyers Association

This Brief Prepared By: ______________________________

David A. Webster

Ga. Bar No. 744975

127 Peachtree St., Suite 415

Atlanta, Georgia 30303-1810

(404) 681-3070

CERTIFICATE OF SERVICE

This is to certify that I have this day served the following with a copy of the

within and foregoing BRIEF of Amicus Curiae Georgia Trial Lawyers Association

by U.S. mail, with sufficient postage thereon to assure delivery, addressed to:

Eddie Barker

Dee Brophy

Chris Johnson

Douglas County District Attorney's Office

8700 Hospital Drive

Douglasville, GA 30134

Jenny McLeod

Edwards, McLeod & Money

8701 Hospital Drive Suite B

Douglasville, GA 30134

John Sherrod

PO Box 1154

Douglasville, Ga 30133

Wallace Clayton

1657 Veteran's Memorial Highway

Austell, GA 30168

This 25^th day of March, 2005.

_____________________________

David A. Webster

IN THE SUPREME COURT FOR THE

STATE OF GEORGIA

STATE OF GEORGIA , *

*

Appellant, *

* CASE NUMBER: S04C1788

vs. *

*

DR. DENNIS HERENDEEN, *

DR. SAMUEL HASKELL, and *

THE PSYCHOLOGY CENTER, LLP *

*

Appellees. *

____________________________________

BRIEF OF THE AMICUS CURIAE COMMITTEE

GEORGIA TRIAL LAWYERS ASSOCIATION