Basinger v. Basinger

Defendant Basinger’s Statement regarding his refusal to take a psych eval as order by the Court based on the undue burden

of expense and the statutory right to not have to release privileged mental health information [work product] to non-

professionals

Below is the relevant part of the Order of the Cobb County Superior Court concerning what I (the Defendent) am supposed to

submit to and agree to:

First - the cost of paying for a full psych eval ($1600 -$2000) is an undue fine/burden – it represents almost 1/3 of defendants

take home pay per month. The home and transportation of the Defendant which is needed for the care of his handicapped

son is already in jeopardy because of the order made by the Court in November to pay the plaintiff’s lawyer $5,000 starting

the month of Christmas.

Second – the Court based the order on hearsay put forth by the plaintiff as to mental instability which was only meant to

embarrass the defendant and harm the defendant’s ability to gain custody of the defendant’s minor child when it was put in

the plaintiffs filing along with abuse and mental instability.

Third – the defendant provided records pertaining to all mental and medical treatments in his history to the ad litem – this

includes defensive drug tests taking by the defendant at the time of the plaintiff’s filing and within the last several months.

Basinger v. Basinger

Forth - in the interest of fairness, and because the order includes the word "treatment", I (Defendant) reserve the right for all

communications and reports, which are priviledged by law upon the inclusion of the word "treatment" in the order, to not be

released to the ad litem without my review and approval as granted to me by the following GA laws - O.C.G.A. § 24-9-21,

O.C.G.A. § 24-9-21(7), O.C.G.A. § 43-39-16 and the Supreme Court of Georgia binding case law: Herendeen v. State, 268 Ga.

App. 113, 601 S.E.2d 372 (2004), aff’d, 279 Ga. 323, 613 S.E.2d 647 (2005) and Gottschalk, 311 Ga. App. 304, 715 S.E.2d 715

(2011). *

Fifth – The Defendant has missed excessive amounts of time away from his job and to miss further time will in all likelihood

cause the Defendant to lose his job.

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The straight facts in this case (rebuttible presumptions) :

1) I (the Defendant) raised "my" youngest daughter Anna and "my" son Haston (handicapped cancer/leukemia survivor) for

the past seven years up until the date that the Plaintiff filed for divorce (right after the Defendant caught her cheating) - my

daughter awarded to the plaintiff (primary custody, 85% of time to be spent with mom) without merit during mediation based

upon the direct instruction of Judge Grubbs forbidding joint custody during the temporary period (pendency) and

permanently,

2) Judge Grubbs made a reversible error: the Court refused to allow the Defendants two adult children to testify as witnesses

of the abuse of Anna by their mom during the Nov., 2012 TPO hearing and further refused to allow the adult children to

testify in his defense at the joint contempt hearing – it was necessary because the Plaintiff destroy evidence needed to refute

her claims) took place in the defendants case, that has yet to remedied, an error which caused the plaintiff to gain an

extraordinary advantage and for me to be punished with a severe restricted in visitation. All other issues since that time are a

direct result of that reversible error. To be upset because you lose the child you raised in error, and are continually slammed

with false allegations without a speck substantial proof, is not so unusual. Being upset does not make one mentally unstable

or a drug addict - regardless of the hearsay.

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Basinger v. Basinger

Notes

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The first part of the order basically reads "the Defendant shall submit himself to a full psychological evaluation/examination

by a licensed psychologist (Ph.D.) covered by the Defendent's medical insurance carrier." The Court, in what I consider a

fairly extraordinary statement for an Order intentioned to be used for an examination for fitness, that indicates, or

contemplates, a priori, that the Defendant will be given treatement regardless of the outcomes of the examination with the

inclusion of the statement: "for the Defendent to submit himself for evaluation and treatment." The inclusion of the word

treatment (or were I to receive it) in the Order alone makes the order itself extraordinary in that now treatment is implied -

which means that the court cannot obtain even the summary results of the report from the psychologist using a supoena

because the report and the results are priviledged.* If the Court's statement were to omit the word treatment and hold the

Defendant harmless that would not be the case. In the much the same manner that “treatment” is presumed a priori - the

Order seeks to compel the Defendant to sign away, wholesale, his State and HIPAA rights to privacy so that the GAL may

communicate freely with the psychologist without informing, or including the Defendant, in the preceived future

conversations. What strikes the Defendant as rather odd and disturbing is that the information that the Defendent is

being ordered to be signed away for direct access by the ad litem is not the typically summary regarding the state of the

Defendants mental health and/or the Defendants test results, which are, in general, quite sufficient for the purposes of most

courts, however, in addition, the Defendent is ordered to give the Ad Litem uncontrolled carte blanc access to the

psychologist’s "work product" - of which can include the more intimate "psychotheraphy notes" , "personal observations and

conclusions", "conversation", and "proposed treatments" (if necessary) - all priviledged records based on the inclusion of

"treatment in the Order". One has to seriously question the State’s interest in the raw elements that a psychologist uses to

generate their work product - conceptually it is unnerving considering that neither the ad litem, nor the Court, are trained

mental health experts and the interpretation (or misinterpretation) of raw data by untrained personal could result in serious

harm to the Defendants.

Were it fact that the court has the full power of the law behind their actions it would follow that the court has the usual and

ordinary legal instruments by which it could obtain the information that it needs from the psychologist through ordinary

channels without requiring me to relinquish my rights under the law. In this case the instruments are feckless because the

Basinger v. Basinger

documents are prividledged by the wording of the order, or should I be given treatment. The GA state laws, O.C.G.A. § 24-9-

21, O.C.G.A. § 24-9-21(7) and O.C.G.A. § 43-39-16 were put in place to protect the rights of citizens from an invasion of privacy

beyond what is necessary for due diligence by any body. If the court is unable to obtain the documents they so desire through

ordinary channels then I will review the documents on a case by case basis to judge for myself whether the information

requested is within the scope of the court's need -to-know and release them accordingly. .

*Priviledged Records of Mental Health Professionals and their Clients: the Supreme Court of Georgia has rejected the

argument that the privilege exists only when the patient voluntarily seeks treatment. Rather, the defining test for whether

the privilege exists is whether or not treatment (as opposed to evaluation or assessment) was provided, indicated or

contemplated. Privilege applied in cases where treatment may not be sought but that it is implied treatment and

evaluation is exemplified by the Supreme Court’s decision in Herendeen v. State, 268 Ga. App. 113, 601 S.E.2d 372 (2004),

aff’d, 279 Ga. 323, 613 S.E.2d 647 (2005). Herendeen involved a subpoena served on two licensed psychologists who were

treating two children pursuant to a Juvenile Court Order that the children receive therapy. The State sought the treatment

records for use in a criminal prosecution against the childrens’ parents. The State argued that since the treatment was not

voluntarily sought, the privilege did not apply. The Court of Appeals, citing Lucas v. State, 274 Ga. 640, 645, 555 S.E.2d 440,

446 (2001), concluded that because treatment was given, the privilege applied regardless of whether the treatment was

voluntarily sought. Herendeen, 268 Ga. App. at 115, 601 S.E.2d at 374. The Georgia Supreme Court affirmed. State v.

Herendeen, 279 Ga. 323, 613 S.E.2d 647 (2005). The trial court had held that the children's records were not subject to the

privilege because the counseling "was done pursuant to court order with express contemplation of recommendations to the

court based upon that therapy." Id. at 324, 613 S.E.2d at 649. Noting that Georgia, along with the other 49 States, the District

of Columbia and all federal courts protect psychotherapist-patient communications, the Court held that where "the requisite

relationship of [mental health provider] and patient” exists, the privilege applies. Id. at 326, 613 S.E.2d at 650. The Court

noted that in contrast “[t]he requisite professional relationship does not exist when the mental health provider is appointed

by the court to conduct a preliminary examination to evaluate a person's mental state because, in such a situation, mental

health treatment is not given or contemplated. [this is usually the case but not with my order]” Id. In addition, “no

professional relationship is formed because no mental health treatment is given or contemplated when a court . . . orders a

plaintiff in a tort action to undergo a psychiatric examination . . . or . . . orders persons involved in a parental rights'

Basinger v. Basinger

termination action to undergo a mental evaluation.” Id. However, the Court rejected the argument that the privilege exists

only when the patient voluntarily seeks treatment. Rather, the defining test for whether the privilege exists is whether or not

treatment (as opposed to evaluation or assessment) was provided, indicated or contemplated. Because treatment was

provided in Herendeen, the privilege applied and the communications between the children and the mental health

professional were privileged. The Court remanded to the trial court for a determination of whether there was any material

contained in the records that did not originate in communications between the children and their mental health providers and

to determine whether a guardian ad litem should be appointed to decide whether the children should invoke the privilege.

The Herendeen decision was applied by the Court of Appeals in a recent contentious child custody dispute case. Gottschalk

v. Gottschalk, 311 Ga. App. 304, 715 S.E.2d 715 (2011). The trial court ordered Mr. Gottschalk to enter therapy with a

specified psychologist. After six sessions the psychologist was directed to issue a report to the children’s guardian ad litem

with respect to continuation of supervised visitation. In issuing its order the trial court stated: There is to be no privilege

with regard to this therapy as it is court-ordered and is ordered for the benefit of the minor children in this matter as well

as the [appellant]. [The therapist] may share the results of this therapy with the guardian ad litem and the court, and the

[appellant] is specifically required to follow the recommendations of [the therapist] as a condition of his visitation. Id. at 315,

715 S.E.2d at 724. The Court agreed with Mr. Gottschalk that the trial court erred when it concluded that the privilege did

not apply because the treatment was court ordered. Because the court-ordered relationship with the therapist involved or

contemplated treatment, Mr. Gottschalk’s communications with the therapist were privileged. However, the Court

concluded that the error was harmless because the therapist was directed to only report her conclusions regarding

visitation to the guardian ad litem and the court and not the communications themselves. The Court in failed to address

the fact that the therapist’s conclusions were necessarily the product of the privileged communications.