By: Ebony Jervonne’ Brown
The holding in Cooksey v. Landry requires all potentially suicidal psychotherapy patients to stop, wait, and waive privilege before committing suicide. Specifically, in Cooksey, the court held only non-privileged communications between a psychiatrist and a patient are discoverable, even if content of the communications is particularly relevant in deciding a wrongful death or medical malpractice claim against a psychiatrist. In doing so, the court held firm to statutory law, as well as Georgia case law, which governs the requirements of psychiatrist-patient privilege.
Although the court in Cooksey based its holding on public policy reasons for psychiatrist-patient privilege˗˗such as encouraging patients to speak freely to their mental health professionals˗˗the court did nothing to weigh the facts of the case against the public policy reasons that should have, arguably, changed the outcome. Cooksey was a case where a patient committed suicide and did not have the active ability to waive privilege, yet his parents could not seek legal action. Here, the stringent boundaries of psychiatrist-patient privilege were tested as the court’s holding brought attention to the absence of exceptions, leniency, and discretion to the statutory case law and rules governing psychiatrist-patient privilege.
- Factual Background
Just a short time after beginning his drug therapy in September 2012, Christopher Landry committed suicide. Following Christopher’s death, his parents, Lisa and Michael Landry, investigated for potential wrongful death, medical malpractice, and survival actions against Dr. Cooksey, his psychiatrist. Before Christopher’s death, in August 2012, Dr. Cooksey prescribed Christopher Seroquel and Cymbalta, both drugs containing a Food and Drug Administration black box warning specifying the positive correlation between young adults taking the drug and suicidal thinking. The warning labels recommended that medical professionals monitor their patients for increased suicidal thoughts and behaviors when prescribing the drug. The Landrys argued Dr. Cooksey did not follow the recommended prescription monitoring.
Because of their suspicions, and because of the pending actions, Michael Landry, as the representative of Christopher’s estate, requested copies of Christopher’s psychiatric records, including all communications between Christopher and Dr. Cooksey, his psychiatrist. However, Dr. Cooksey refused to supply Christopher’s psychiatric records, claiming the records were privileged from disclosure as referenced in section 24-5-501(a) of the Official Code of Georgia Annotated (O.C.G.A), Georgia’s psychiatrist-patient privilege statute.
Soon after, Michael Landry filed a complaint seeking a permanent injunction to require Dr. Cooksey to produce all of Christopher’s psychiatric records. He argued that without such records he would be unable to (1) investigate whether a cause of action could stand against Dr. Cooksey, and (2) gain the relevant and necessary information needed to initiate a medical malpractice claim against Dr. Cooksey. The trial court concluded, without review of Dr. Cooksey’s files, that equity supported his position that he would be, essentially, remedy-less without Christopher’s psychiatric records. The trial court granted the injunction and directed Dr. Cooksey to produce all of Christopher’s psychiatric records pertaining to medical treatment and the history of Christopher Landry. This included the production of all communications between Dr. Cooksey and Christopher during Christopher’s psychotherapy sessions.
Dr. Cooksey appealed the trial court’s injunction and filed an emergency stay motion to stay the proceedings pending ruling on whether he should produce the privileged communications. The appellate court granted his motion to stay the proceedings. After reviewing the record and applicable law, the appellate court held the trial court erred in exercising its equitable powers to order the production of the privileged communications between Dr. Cooksey and Christopher. The court stated that those communications are explicitly protected from disclosure under Georgia law. Accordingly, the appellate court affirmed the trial court’s order that required disclosure of any non-privileged records and information about Christopher’s psychotherapy sessions, and then remanded the case back to the trial court to: (1) review Dr. Cooksey’s files to determine what information, if any, was non-privileged such that it may be disclosed, (2) determine whether such privileged communications were waived by the patient, Christopher Landry, and (3) require timely disclosure of all non-privileged information and also privileged information for which privilege had been waived.
- Legal Background
The idea of protecting confidential communications between mental health professionals and their patients supports two interests: (1) the important private interest, of providing patients with confidence they may attain effective treatment without fear their personal information will be disclosed; and (2) the vital public interest, of encouraging the public to see mental health professionals when needed. Accordingly, the psychiatrist-patient privilege has been recognized by many states as a basic necessity to further the general welfare interests of this nation.
- Psychiatrist-Patient privilege at the Federal Level
The psychiatrist-patient privilege has not been accorded constitutional status. The United States Supreme Court did, however, recognize that psychiatrist-patient privilege serves both the public and private interests aforementioned, despite knowledge that the Constitution does not explicitly accord these rights. In Jaffee v. Redmond, the Supreme Court found that when weighing the evidentiary benefit of attaining privileged information against the overall benefit of maintaining and encouraging mental health across the United States, the benefits from the former are just modest in comparison to the benefits derived from the latter. In permitting Georgia and other states to use psychiatrist-patient privilege as a defense to discovery, the Supreme Court has enabled psychiatrists to render effective and holistic treatment for their patients, and has encouraged patients to disclose personal information, which they may not have otherwise disclosed absent establishment of psychiatrist-patient privilege. Consequently, the psychiatrist-patient privilege has been enacted by statute in all states, and as a result, has been incorporated into the federal common law of privileges.
- The Psychiatrist: Defined Under Georgia Law
Georgia law has codified the term psychiatrist with regard to its application to psychiatrist-patient privilege under O.C.G.A. § 25-5-501(a)(5). Section 25-5-501(a)(5) states that a psychiatrist is a person who is licensed to practice medicine or reasonably believed by the patient to do so, and one who devotes a substantial portion of his or her time in the diagnosis and treatment of the mental or emotional conditions of the patient.
Georgia courts have evolved in their definition of a psychiatrist, and have held that a psychiatrist does not have to be specially trained to practice psychiatry. For instance, in Wiles v. Wiles, the Supreme Court of Georgia expanded the narrow definition of psychiatrist, finding the former definition placed a disproportionate emphasis on the training of medical doctors (in medical school), but ignored the time medical doctors spent in practice. In lieu of this finding, States, like Georgia, have re-defined a psychiatrist as any licensed medical doctor who spends a substantial portion of time practicing psychiatry; or rather, one who is engaged in the diagnoses or treatment of mental or emotional conditions of patients.
- Psychiatrist-Patient Privilege Under Georgia Law
Georgia has established psychiatrist-patient privilege through case law and O.C.G.A. § 24-5-501(a)(5), which states that the confidential communications between a licensed psychologist and his or her client have the same basis for privilege as the privilege provided between an attorney and client. Simply, the communications must not be disclosed. Consequently, although parties may obtain discovery of any matter that is relevant to a pending action, discovery of matters concerning a specific case is limited to information that is not considered privileged. Moreover, the psychiatrist-patient privilege is absolute with regard to the communications between a psychiatrist and patient. The patient is the only individual who can waive the privilege because the privilege does not cease with death.
In order to establish psychiatrist patient-privilege at trial, and in order for the patient to claim a privileged relationship existed or currently exists, there must exist a requisite professional relationship. That is, the patient must have intentionally sought or contemplated a professional, mental health relationship with the psychiatrist, and the psychiatrist must have knowledge of the relationship. Currently, Georgia courts refer to this privilege as the mental health privilege.
- Waiver As the Only Exception to Psychiatrist-Patient Privilege
The communications between a psychiatrist and patient are only admissible in the discovery process if the patient waives the privilege. Otherwise, such privilege survives even the death of the patient. Regardless, not all psychiatric records are absolutely privileged˗˗only the communications between the psychiatrist and the patient are absolutely privileged
For example, Georgia courts have held that records of treatment and diagnoses may be disclosed, and that only the direct communications between a psychiatrist and patient are absolutely privileged. In such cases, the trial court could conduct an in camerareview of the records to insure the protection of communications from disclosure. In Dynin v. Hall, the decedent patient overdosed and was later stabilized at the hospital. The hospital kept the patient for a few days, at which time the patient died for an unknown reason. The defendant-hospital sought discovery of all communications and records relating to the decedent’s psychiatric treatment, attempting to establish the decedent died from an overdose of prescriptions prescribed by her psychiatrist and not from the hospital’s alleged medical malpractice. The trial court held that all information relating to the decedent’s psychiatric treatment, including all communications between the decedent and her psychiatrist, were discoverable, even though the decedent was dead and had not waived privileged. However, the appellate court reversed the trial court’s order that granted discovery of all information, and noted only non-privileged communications or information, such as the psychiatric records, were relevant to the decedent’s mental state and were discoverable.
Georgia courts have reiterated that psychiatrist-patient privilege must be explicitly waived, and may not be implied by actions of the patient. Furthermore, there must be an affirmative act that is decisive and unequivocal. Prior to Cooksey v. Landry, Georgia courts had not decided a case where a patient had not waived privilege prior to death but the patient’s representatives would like to do so on the deceased patient’s behalf.
- Courts Rationale
The Court in Cooksey v. Landry was divided in its decision in finding that psychiatrist-patient privilege is not waived even when the plaintiffs, parents of the decedent, have brought a medical malpractice, wrongful death, and survival claim against the psychiatrist on behalf of their child.
- The Majority
Justice Thompson, writing for the majority, considered the issue of whether psychiatric records sought by parents of the deceased constituted privileged matters protected from disclosure under Georgia law. In reviewing the trial court’s legal determinations de novo, the court affirmed the trial court’s order that required disclosure of any non-privileged records and information, but remanded the case back to the trial court to: (1) review Dr. Cooksey’s files to determine what information, if any, was non-privileged such that it may be disclosed, considering the trial court prematurely granted an injunction without analyzing the record; (2) determine whether such privileged communications were waived by the patient, Christopher Landry; and (3) require timely disclosure of all non-privileged information and also privileged information for which privilege had been waived.
The court agreed that a civil action arising from the Christopher Landry’s death could be authorized under Georgia law. However, the Court also cautioned the trial court against certifying discovery of privileged communications between Christopher and his psychiatrist without reviewing the record and making a distinction between privileged and non-privileged information. The court, although sympathetic to the Landry’s position, reasoned that the Landrys may have the right to file an action against Dr. Cooksey, but must not require the law to change or establish new legal principles just because the legal processes available to them provide an inadequate remedy. The court pointed out that although Georgia law gives authority to trial courts to exercise equitable powers to assist plaintiffs who are remedy-less elsewhere, such use of discretion should never override the positive enactments of the law. Accordingly, and as a matter of public policy, such discretion should never trump the explicit privilege between a psychiatrist and patient that is considered absolutely confidential under Georgia law.
For those reasons, the court grounded its argument in the public policy reasons for not permitting discovery of the privileged communications between a psychiatrist and his or her patient. It stated that the law has long provided that the primary purpose of the privilege is to encourage patients to speak freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient’s emotional and mental disorders. Further, the court reiterated that the privilege remains inviolate even though the patient’s care and proceeding.
In concluding its overall rationale, the court noted that O.C.G.A. § 24-5-501(a) is the exact positive statutory enactment that establishes a trial court should not be permitted to use its discretion to employ an equity argument for production of otherwise privileged matter. The court pointed out that although proving wrongful death and medical malpractice claims against Dr. Cooksey may have been dependent on the privileged communications between Christopher and Dr. Cooksey, the Landrys still had enough requisite legal rights to maintain their actions for Christopher’s death, and also had the ability to obtain the actual records and files from Dr. Cooksey through normal discovery procedures provided under Georgia law. The Court emphasized that the only repercussions the Landrys faced were the fact that they had no rights to the actual communications between Dr. Cooksey and Christopher. The court reasoned that the “inability to discover potential evidence within a legal proceeding following proper application of Georgia rules of evidence is not the same as having no legal remedy at all, especially since the [Landrys] argued to the trial court. Finally, the court reiterated that it must not allow the trial court to exercise its equitable powers and its own notion of what is right, accordingly, it must not require disclosure of privileged communications. The court explained to do so would bring uncertainty to Georgia’s well-defined psychiatrist-patient privilege and would eviscerate the effectiveness of the privilege.
- The Dissent
Writing the dissent with Justice Hunstein joining, Justice Benham began with the proposition that although psychiatrist-patient privilege was derived to protect both private and public interests, not permitting Christopher’s representatives an ability to use the communications in their action against Dr. Cooksey protects and shields Dr. Cooksey from liability. Justice Benham suggested the majority could have held firm to the public policy reasons behind psychiatrist-patient privilege simply by permitting disclosure of the communications between Christopher and Dr. Cooksey. According to Justice Benham, those principles would have protected the patient, and protected the public interest for promoting mental health care, just as the privilege intended.
To reiterate his point, Justice Benham cited instances where, in California, the personal representative of a patient, if the patient is dead, is defined as the “holder of the privilege” such that the representative may bring claims on behalf of the decedent patient as if he or she is the decedent patient. The patient’s representative may also waive the psychiatrist-patient privilege and other statutory privileges on behalf of the decedent-patient. He noted that disclosure of the communications between the psychiatrist and Christopher was much more important to the overall interests of substantial justice than protection from any public interest injuries that disclosure is likely to cause.
In addition, Justice Benham noted the irony of the majority’s reasoning to reverse discovery of Christopher’s psychiatric records. He explained that the majority opinion served only to shield a psychiatrist from potential liability for providing unsuccessful, and allegedly deadly treatment to his patient. The dissent analogized this shielding to Cooksey, explaining that in deciding against production of the privileged communications, the majority shielded Dr. Cooksey from potential liability in Christopher Landry’s death. Justice Benham expounded: (1) the main purpose of the statute is to protect the patient, yet the majority does not do so; and (2) disclosure of the communications would have been permitted in the event that the patient would have been alive to file his own medical malpractice claim against Dr. Cooksey, yet the decedent is not alive so his representative should be permitted to do so on his behalf.
Furthermore, Justice Benham analyzed the statutory language as it appears in two O.C.G.A. sections 31-33-4 and 37-3-166(a)(8.1), to which the majority cited in its explanation that communications between a psychiatrist and patient are absolutely privileged. He explained that the literal reading of both statutes did not support the majority’s holding: O.C.G.A. § 31-33-4 states that “[t]he provisions of this chapter . . . shall not apply to psychiatric, psychological, or other mental health records of a patient.” If read and applied literally, this section merely prohibits the release of mental health records to the patient himself, not to the representative of the patient’s estate; Section 37-3-166(a)(8.1) states that “[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[,]” but this does not include the “release of otherwise privileged material by a psychiatrist engaged in private practice in response to the waiver of privilege by the deceased patient’s legal representative.”
In addition, Justice Benham pointed out that other states, such as Massachusetts, have allowed for waiver of privilege by a patient’s guardian when that patient is incompetent to waive privilege himself. For example, in District Attorney for the Norfolk District v. Magraw, the court reviewed a Massachusetts statute, providing that a guardian may be appointed to a patient to determine whether to invoke or waive psychiatrist-patient privilege. Justice Benham analyzed the reasoning in Magraw, and asked the following question: If there is a reason to allow waiver of privilege while the patient is alive, why is such waiver disallowed when the patient is dead? Justice Benham then provided a hypothetical: Consider the fact that the guardian, or representative of the decedent’s estate, both have the same goal, which is to look out for the patient’s best interest: in one instance the patient is alive, yet another party is permitted to decide on the patient’s behalf because he is incompetent, while in another instance the patient is dead, yet the representative of patient’s estate may not decide what is best for the patient, even though the patient cannot do so himself. In pointing out these discrepancies in public policy anlayses and the law behind psychiatrist-patient privilege, Justice Benham reiterated that permitting the parents’ discovery of communications between Christopher and his psychiatrist, does not positively disturb the legislative policy behind psychiatrist patient privilege, as the majority stated. Rather, it promotes the legislative policy. In essence, Justice Benham pointed out the inconsistencies, and patent absurdities in the majority’s argument against permitting discovery of communications between Christopher Landry and Dr. Cooksey.
Justice Benham concluded the dissent by rejecting the majority’s conclusion that permitting disclosure of the communications between Christopher and Dr. Cooksey would eviscerate the effectiveness of psychiatrist-patient privilege. Instead, he believed it would permit the estate representative to pursue the patient’s interest in obtaining effective and appropriate treatment.
The decision of The Georgia Supreme Court to prevent parents from access to their children’s psychiatric records after their children commit suicide exposes the stringent parameters under the psychiatrist-patient privilege. As applied in this case, the psychiatrist-patient privilege protects the psychiatrist instead of the patient.
This issue may appear narrow, but its effects are far reaching for the psychiatrist-patient privilege. The legal precedent it creates marks the unyielding evisceration of the very public policy reasons that support the privilege in the first place. When application of the privilege creates absurd results, such as shielding the psychiatrist from all forms of liability, two questions are raised, and must be answered: (1) whether psychiatrist-patient privilege should be applied without exception; and (2) whether application of psychiatrist-patient privilege should be applied differently in cases where medical malpractice claims are filed against a psychiatrist?
- Application of an Exception, or Not
Although the Georgia legislature established strict parameters for the psychiatrist-patient privilege, Georgia courts have also recognized limited exceptions to other privileges. For example, Georgia courts have recognized exceptions to attorney-client privilege when the application of the privilege operates only as an impediment to the pursuit of justice on behalf of the actual individual it was intended to safeguard. Moreover, the court in Cooksey v. Landry already acknowledged that the privilege is not absolute when the proper case appears that demonstrates the “statutory privilege must give way where countervailing interest in the truth-seeking process demands such a result.” If any case exists, this is the proper case where the privilege must give way because of countervailing interests because if this privilege stands without exception, many parents, like Christopher’s parents, will be unable to determine whether doctors, like Dr. Cooksey, are guilty of malpractice, unless of course the patients stop, wait, and waive privilege prior to committing suicide.
- Application of Privilege Based on the Facts: Comparisons Between Attorney-Client Privilege and Psychiatrist-Patient Privilege
This case is not consistent with the analyses and findings of cases in other jurisdictions, which have recognized exceptions to the attorney-client privilege and have given the deceased’s representative permission to waive privilege on behalf of the deceased. Such exceptions occur when, for example, the communications between the deceased and his or her’s attorney are subject matter of a legal malpractice claim. Permitting these limited circumstances, where attorney-client privilege may be waived by a representative, furthers the pursuit of justice for the wronged client. In essence, the other jurisdictions have weighed the public policy reasons behind the privilege and have determined the deceased patient’s interest must stand even after death. Accordingly, establishing limited exceptions to the psychiatrist-patient privilege, which follows the form and subject matter established for attorney-client privilege, would further the pursuit of justice in Georgia for psychotherapy patients caught with the dilemma of wanting to bring a malpractice claim against a psychiatrist on behalf of a deceased patient when that patient had not waived privilege prior to committing suicide.
There is also an irony in permitting a decedent’s representative to stand firmly in the shoes of the deceased to file a lawful action, but then barring the decedent from complete relief based on technicalities in the law. Such a practice provides no effective recourse for a psychiatrist’s failure to provide treatment to the decedent. Moreover, although it is arguable that the Georgia Code, on its face, does not grant exceptions to psychiatrist-patient privilege, it is also arguable that the Georgia Code does not permit exceptions to the attorney-client privilege. In fact, where attorney-client privilege is concerned, Georgia courts have been willing to abrogate the privilege in circumstances where adhering to the privilege would be a disservice to the interest of justice for a potentially wronged client. 
Furthermore, other jurisdictions have recognized a guardian’s right to assert waiver for an incompetent patient to protect the patient’s best interest. Given this precedent, it makes little sense to disallow access to psychiatrist-patient communications after the child’s death. After all, such permission would be in the best interest of the patient in order for his or her’s representative to bring a successful medical malpractice claim on his or her behalf. This is true especially when the psychiatrist should have known that his actions would result in malpractice. These are the points that the majority fails to consider. Instead, the majority relies on the already-established purpose for psychiatrist-patient privilege without thinking of the absurdities the privilege causes in situations like those surrounding Christopher Landry’s death.
In summary, the majority compares psychiatrist-patient privilege to attorney-client privilege, but refuses to apply the known exceptions to the former. The majority mentions that the public policy reasons that support psychiatrist-patient privilege would be completely disregarded if we permit exceptions to the privilege when a party requests communications, even if the communications play a central role in a pending action, yet Georgia courts have never used this same line of reasoning when deciding cases on attorney-client privilege. In fact, they have permitted exceptions to the privileges in such cases.
Despite the need to balance the public policy reasons behind psychiatrist patient privilege, the court in Cooksey, disregarded the purpose of the privilege by applying it to all patients, giving no remedy for deceased patients and their representatives that fall victim to a psychiatrist’s malpractice. This across-the-board application is not reflective of the plight for justice for which the privilege was established, but rather permits psychiatrists to stand in the shadows of their privilege at times when their malpractice must be exposed. In effect, the holding in in Cooksey v. Landry requires all potentially suicidal psychotherapy patients to stop, wait, and waive privilege before committing suicide.
 The Author would like to thank the best Professors and Advisors in the world, Teri McMurtry-Chubb and Kamina Pinder, for their help in guiding and organizing the Author’s thoughts throughout the writing of this Note. The Author truly appreciates their patience, kind words, and encouragement.
 295 Ga. 430, 430, 761 S.E.2d 61, 61 (2014).
 Cooksey, 295 Ga. at 430, 761 S.E.2d at 63.
 See Cooksey, 295 Ga. at 430 n.1, 761 S.E.2d. at 63 n.1. Both Michael and Lisa Landry brought the claims against Dr. Cooksey, but placed the claims under Michael Landry’s name.
 O.C.G.A. § 24-5-501(a)(5) (2014).
 Cooksey, 295 Ga. at 430, 761 S.E.2d at 63.
 Id. at 431, 761 S.E.2d at 64.
 Id. at 431, 761 S.E.2d at 63.
 Id. at 435, 761 S.E.2d at 65.
 Jaffee v. Redmond, 518 U.S. 1, 2, 116 S. Ct. 1923, 1924-25 (1996).
 Willet v. State, 223 Ga. App. 866, 869, 479 S.E.2d 132, 137 (1996) (comparing the right to self-incrimination, which is accorded constitutional protection under the fifth amendment of the Constitution, and the right to psychiatrist-patient privilege, which is not accorded constitutional status).
 Jaffee, 518 U.S. at 2, 116 S. Ct. at 1924-25 (1996).
 Id. at 2, 116 S. Ct. at 1924-25.
 Id. at 1, 116 S. Ct. at 1924.
 O.C.G.A. § 25-5-501(a)(5).
 Wiles v. Wiles, 264 Ga. 594, 596, 448 S.E.2d 681, 683 (1994).
 Wiles, 264 Ga. at 596, 448 S.E.2d at 683; see also Jaffee, 518 U.S. at 15, 116 S. Ct. at 1931 (stating that the privilege also extends to confidential communications made to licensed social workers in the course of psychotherapy).
 Wiles, 264 Ga. at 596, 448 S.E. 2d at 683.
 Id. at 597, 448 S.E.2d at 683.
 O.C.G.A. § 24-5-501(a)(5) (2014).
 O.C.G.A. § 43-39-16. Attorney-client privilege and psychiatrist-patient privilege have parallel requirements. Id. For example, information that comes to the knowledge of an attorney, during or in anticipation of an attorney-client relationship is privileged. O.C.G.A. § 24-5-501(a)(2)..This privilege belongs to the client, not to the attorney. O.C.G.A. §§ 24-9-24. Moreover, the psychiatrist-patient privilege generally conforms in shape and substance to the attorney-client privilege. Paul S. Milich, Ga. Rules of Evidence, § 23:1 (2013); see also O.C.G.A. § 43–39–16 (stating that the “[c]onfidential relations and communications between [a mental health professional] and [a] client are placed upon the same basis as those provided by law between attorney and client”). Both privileges are codified in the Georgia Evidence Code, O.C.G.A. § 24-5-501(a)(2), and both survive the death of the client. Cooksey, 295 Ga. at 440, 761 S.E.2d at 69 (Benham and Hunstein, JJ., dissenting).
 O.C.G.A. § 43-39-16 (2004).
Fed. R. Civ. P. 26(b)(1).
 Wiles, 264 Ga. at 595-96, 448 S.E.2d at 683; Kimble v. Kimble, 240 Ga. 100, 101, 239 S.E. 2d 676, 676 (1977); Wilson v. Bonner, 166 Ga. App. 9, 16-17, 303 S.E. 2d 134, 142 (1983).
 Collins v. Howard, 156 F. Supp. 322, 324 (D. Ga. 1957); see e.g., Rachals v. State, 184 Ga. App. 420, 421, 361 S.E.2d 671, 673 (1987) (outlining a two part test in determining whether psychiatrist-patient privilege may be used as a defense: “(1) the [patient must be] seeking out psychiatric care in the usual sense of the term; and (2) [treatment must be] given or contemplated”).
 Kennestone Hosp. v. Hopson, 273 Ga. 145, 147, 538 S.E. 2d 742, 747 (2000).
 O.C.G.A. § 43-39-16 (2004).
 Dynin v. Hall, 207 Ga. App. 337, 338, 428 S.E.2d 89, 90 (1993).
 See Mincy v. Georgia Dept. of Community Affairs, 308 Ga. App. 740, 708 S.E.2d 644 (2011).
 See Mincy, 308 Ga. App. at 740, 708 S.E.2d at 644.
 Dynin, 207 Ga. App. at 337, 428 S.E.2d at 90.
 Id. at 338, 428 S.E.2d at 91.
 Trammel v. Bradberry, 256 Ga. App. 412, 412 568 S.E.2d 715, 715 (2002).
 See e.g., Fields v. State, 221 Ga. 307, 308-09, 144 S.E. 2d 339, 342 (1965) (stating that “[t]o call a physician to the stand, and examine him as a witness to [the defendnat’s] physical condition . . . is a waiver of the privilege in regard to all of [the physician’s] knowledge of [the defendant’s] the physical condition”); see also Trammel, 256 Ga. App. at 424, 568 S.E.2d 725 (2002) (citing Wiles, 264 Ga. 594, 448 S.E.2d 681, 683); see generally Sims v. State, 251 Ga. 877, 881-882, 311 S.E. 2d 161, 165 (1984) (finding that “[c]ommunications between husband and wife and between psychiatrist and patient are protected”, even in the presence of third-parties, and despite the fact that in some jurisdictions presence of a third-party could vitiate the psychiatrist-patient privilege altogether);
 295 Ga. at 430, 761 S.E.2d at 63.
 Id. at 430, 761 S.E.2d at 63.
 Id. at 435, 761 S.E.2d at 66.
 Id. at 431-32, 761 S.E.2d at 63-64.
 Cooksey, 295 Ga. at 432, 761 S.E.2d at 64.
 Cooksey, 295 Ga. at 432, 761 S.E.2d at 64 (quoting O.C.G.A. § 24-4-20; 23-1-3).
 Id. at 432, 761 S.E.2d at 64.
 Cooksey, 295 Ga. at 432, 761 S.E.2d at 64; see also State v. Herendeen, 279 Ga. 323, 325-26, 613 S.E.2d 647, 649 (2005). For a more in depth analysis of Herendeen, see John Scott Husser, Jr., “I DIDN’T VOLUNTEER FOR THIS @&#%!”: THE APPLICATION OF GEORGIA’S PSYCHOLOGIST-PATIENT PRIVILEGE TO COURT-ORDERED MENTAL HEALTH TREATMENT, 57 Mercer L. Rev. 1327 (Summer 2006).
 Id. at 433, 761 S.E.2d at 65.
 Id. at 434, 761 S.E.2d at 65.
 Cooksey, 295 Ga. at 435, 761 S.E.2d at 66; see generally Dynin, 207 Ga. App. at 338, 428 S.E.2d at 90 (explaining that only privileged communications between a psychiatrist and patient are privileged, but, the records and other non-privileged documents related to a patient’s psychiatric treatments are still discoverable).
 Id. at 435, 761 S.E.2d at 66.
 Id. at 436, 761 S.E.2d at 67.
 Id. at 442, 761 S.E.2d at 70.
 Cooksey, 295 Ga. at 436, 761 S.E.2d at 67.
 Jaffee, 518 U.S. at 2, 116 S. Ct. at 1924-25.
 Cooksey, 295 Ga. at 436, 761 S.E.2d at 67 (Behnam and Hunstein, JJ., dissenting).
 Id. at 436, 761 S.E.2d at 67.
 Cooksey, 295 Ga. at 436, 761 S.E.2d at 67.
 Id. at 436, 761 S.E.2d at 67.
 Id. at 436 n.8, 761 S.E.2d at 67 n.8.
 Id. at 438, 761 S.E.2d at 68.
 Id. at 439, 761 S.E.2d at 68.
 See Id. at 433, 761 S.E.2d at 65 (majority opinion).
O.C.G.A. § 31-33-4 (2010).
 O.C.G.A. § 37-3-166(a)(8.1) (2010).
 Cooksey, 295 Ga. at 439, 761 S.E.2d at 68 (Benham and Hunstein, JJ., dissenting).
 Id. at 439, 761 S.E.2d at 69; see e.g.,M.G.L.A. 233 § 20B (2001) (explaining that “[i]f a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in his behalf under this section”).
 417 Mass. 169, 169, 628 N.E.2d 24, 24 (1994).
 Cooksey, 295 Ga. at 439-40, 761 S.E.2d at 69; e.g. District Attorney for Norfolk District v. Magraw, 417 Mass. 169, 174, 678 N.E.2d 24, 27 (1994); M.G.L.A. 233 § 20B (2001).
 Cooksey, 295 Ga. at 440, 761 S.E.2d at 69.
 Id. at 440, 761 S.E.2d at 69.
 Id. at 440, 761 S.E.2d at 69. Justice Benham still recognized that Georgia has not provided for the appointment of a guardian in cases where the patient is incompetent to make decisions, such as waiving privilege. Id. Justice Benham only provided the particular analysis from Mcgraw to shed light on the fact that other jurisdictions have provided a guardian and they had not found that it disregards the public policy reasons behind the psychiatrist-patient privilege. 417 Mass. at 169, 628 N.E.2d at 24. Thus, Justice Benham cited to McGraw as a basis for analysis in broadening the scope and outlook on the true intentions of establishing psychiatrist-patient privilege, and furthermore, urged the majority to view the big picture, rather than apply such an across-the-board standard to each case without weighing the facts first. Id.
 Id. at 442, 761 S.E.2d at 70.
 Cooksey, 295 Ga. at 441, 761 S.E.2d at 69-70.
 See Jaffee, 518 U.S. at 2, 116 S. Ct. at 1924-25 (1996) (noting the public and private interests for establishing state-codified psychiatrist-patient privilege).
 Cooksey, 295 Ga. at 441, 761 S.E.2d at 69-70.
 295 Ga. 430, 430, 761 S.E.2d 61, 61 (2014)
 Cooksey, 295 Ga. at 441-42, 761 S.E.2d at 70.
 See Mayorga v. Tate, 302 A.D.2d 11, 11, 752 N.Y.S.2d 353, 353 (2002).
 Cooksey, 295 Ga. at 440, 761 S.E.2d at 69.
 Id.; see e.g., Yarbrough v. Yarbrough, 202 Ga. 391, 391, 43 S.E.2d 329,329 (2006) ( applying an exception when disclosure of communications between an attorney and client regarding the execution of a will is permitted when complete justice is served by the knowledge contained in such communications); Both v. Frantz, 278 Ga. App. 556, 556, 629 S.E.2d 427, 427 (2006) (finding a crime-fraud exception to attorney-client privilege applied to communications between a client and an attorney that relate to the client’s and the attorney’s fraudulent conduct in transferring property allegedly owned by the client’s wife).
 Cooksey, 295 Ga. at 339-440, 761 S.E.2d at 69.
 Id. at 432, 436 761 S.E.2d at 65, 66.
 Id. at 436, 761 S.E.2d at 66-67.
 See e.g., Yarbrough, 202 Ga. at 391, 43 S.E.2d at 329; Both, 278 Ga. App. at 556, 629 S.E.2d at 427.
 295 Ga. at 430, 761 S.E.2d at 61.