The mental and physical health of parents are relevant factors in Georgia child custody disputes.(1) For that reason, litigating parents frequently seek to obtain discovery of each other’s medical and/or psychiatric records. Procedural vehicles, such as subpoenas and requests for production of documents to non-parties, theoretically enable such discovery directly from a parent’s treating physicians and mental health professionals.(2) Yet, competing principles of privilege and a right to privacy, as well as federal HIPAA protections, can prevent a parent from procuring relevant health records of the other parent. This article explores the circumstances under which a parent’s physical and mental health records may be obtained for use in Georgia child custody actions.

An unauthorized release of a patient’s medical or psychiatric records may constitute an invasion of privacy under Georgia law.(3) Likewise, an unauthorized release of that information may run afoul of federal HIPAA (Health Insurance Portability and Accountability Act of 1996) rules.(4) A provider generally will not violate HIPAA rules by producing a patient’s health records pursuant to a duly-served subpoena or court order.(5) Nor will a provider’s production of a patient’s medical records pursuant to court order or subpoena be actionable, where the patient has placed his or her care and treatment or the nature and extent of his or her injuries at issue in any judicial proceeding.(6)

No privilege limits the discovery or admissibility of a parent’s medical records in custody cases; but a statutorily-recognized privilege does apply to a parent’s psychiatric records.(7) Specifically, the psychiatrist-patient privilege prevents the disclosure or use of a patient’s confidential psychiatric records, to the extent that mental health treatment was given to the patient or contemplated.(8) The privilege, however, does not apply to records relating to court-ordered mental health evaluations, presumably including examinations performed as part of psychological custody evaluations.(9) Although the privilege can be waived, waiver requires either an express statement of waiver executed by the patient or “decisive unequivocal conduct reasonably inferring the intent to waive.”(10) As to the latter, a party’s affirmative act of calling a treating mental health professional to testify at trial, when the party’s mental health is at issue, will result in a waiver of the privilege.(11) In contrast, no waiver will result from a party’s failure to timely object to the discovery of privileged mental health information.(12)

(1) O.C.G.A. § 19-9-3(a)(3)(I).

(2) See O.C.G.A. §§ 9-11-34(c)(2) and 9-11-45.

(3) McConnell v. Dep’t of Labor, 814 S.E.2d 790, 801(4) (2018); Haughton v. Canning, 287 Ga.App. 28, 32(4)(b), 650 S.E.2d 718 (2007).

(4) 45 C.F.R. § 164.501 et seq.

(5) 45 C.F.R. § 164.512(e).

(6) O.C.G.A. § 24-12-1.

(7) See O.C.G.A. § 24-5-501(a)(5)-(8); O.C.G.A. § 43-39-16.

(8) State v. Herendeen, 279 Ga. 323, 613 S.E.2d 647, 650 (2005).

(9) Id.

(10) Id, 613 S.E.2d at 651.

(11) Mincey v. Ga. Dep’t of Community Affairs, 308 Ga.App. 740, 745(1), 708 S.E.2d 644 (2011).

(12) Id., 308 Ga.App. at 745-746(1).

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