dissenting.
I respectfully dissent from Division 1 of the majority opinion and the judgment. I cannot concur with the decision that no psychiatrist-patient relationship was created between Dr. Turner and Ms. Rachals. Neither can I agree with the conclusion that “no real treat*425ment was given or contemplated.” The record is devoid of any evidence on this question, and the majority concludes from a silent record, not only that no treatment was given, but surmises that none was “contemplated.” Dr. Turner was never asked whether he prescribed any medication for Ms. Rachals and the subject of whether he “contemplated” further treatment or medication in the event she did not show improvement was never raised. If it is acceptable appellate procedure to assume the critical facts from a silent record, then an appellate court need never reverse another judgment, even if the State offers no evidence. We can assume what the evidence would show if it were admissible, and if it were admitted.
Our Code establishes as privileged, “[communications between psychiatrist and patient. . . .” OCGA § 24-9-21 (5). Therefore, the testimony of a psychiatrist is inadmissible against his patient because of its privileged status. Kimble v. Kimble, 240 Ga. 100, 101 (239 SE2d 676); Wilson v. Bonner, 166 Ga. App. 9, 16 (303 SE2d 134). In the instant appeal, the District Attorney on March 17, 1986, filed a petition with the trial court requesting psychiatric examination of Rachals after he concluded “defendant may be suffering from mental illness. . . .” On April 29, 1986, defendant’s counsel filed his notice of intent to raise the issues of insanity and mental incompetence. Hence, the sanity of Rachals was a viable issue and the State chose to attack the question head-on and called Rachals’ psychiatrist to establish her sanity. The State called Dr. Allen Turner and questioned him as to whether Rachals “knew the difference between right and wrong at the time you were talking to her.” The trial court permitted Turner to answer, over objection on the basis of privileged communication between a psychiatrist-patient, and that Dr. Turner’s conclusions were “based on those communications.”
During Rachals’ interrogation by the GBI agents, she “asked . . . or made [the] statement she might need some help. ...” She asked that the head nurse, Diane Hall, be present. Following the interview Rachals asked Hall “to call Dr. Calhoun; she wanted to talk to him; she had been trying to talk with him for a couple of weeks and had not been able to reach him.” Dr. Calhoun spoke with Rachals and after Rachals told him something about “killing herself,” said: “Well, we’ll get you some help.” Shortly thereafter, Dr. Turner arrived and spoke to Rachals for approximately 15-30 minutes on the ninth floor and diagnosed her as “suicidal and very, very depressed.” He asked her to accept voluntary admission to the psychiatric unit of the hospital because “he feared for her safety[,] that she might well try to harm herself. . . .” That evening, Dr. Turner again spoke to Rachals on the seventh floor. He released Rachals about mid-morning of the following day after he concluded she was no longer “a threat to herself ... to the extent that . . . she couldn’t be released to the sher*426iff’s office.”
Dr. Turner was asked: “[D]id you consider Terri Rachals to be your patient at this time? A. At that time as I talked with her.” “I admitted her to the hospital under my care on the seventh floor.” Rachals had been seeking medical help for her mental health for more than two weeks. These facts are contrary to the majority’s conclusion that Rachals was not “seeking out psychiatric care in the usual sense of the term.” Dr. Turner considered Rachals to be his patient, he had consulted with her on the ninth floor for 15-30 minutes. He diagnosed her as “suicidal and very, very depressed.” His prescribed treatment was admission to the hospital’s psychiatric unit, because “he feared for her safety. ...” This latter testimony of Rachals’ psychiatrist is contrary to the majority’s assertion that “appellant’s real concern was more to avoid the immediate reality of spending the night in jail. . . .’’It was the psychiatrist’s medical treatment for his patient by prescribing a night in the psychiatric ward that was responsible for the decision of where Rachals spent the night. A second consultation took place between Dr. Turner and his patient on the seventh floor, presumably in the psychiatric ward, because that is where Rachals spent the night. The record is silent as to what treatment or medication Dr. Turner prescribed for his patient that evening or upon her admission to the psychiatric ward. The majority has concluded from the blank record that “no real treatment was given or contemplated.” To the contrary, if it is acceptable appellate practice to make assumptions from a silent record, it is far more plausible, likely, and realistic, that a psychiatrist who had diagnosed his patient as being “suicidal and very, very depressed,” who was threatening to take her life, was facing multiple murder charges, and it was necessary to confine her to a psychiatric ward, that the doctor would prescribe some medication to calm his mental patient and assist her through this crisis.
The majority finds it relevant and convincing that Rachals did not see Dr. Turner after her release to the sheriff. Four psychiatrists and one psychologist who saw Ms. Rachals on a continuing basis following her arrest, for the ensuing year during her stays at Central State Hospital and the Georgia Regional Hospital at Augusta, testified at the trial to their consultations, and the Superintendent of the Georgia Regional Hospital at Augusta stated that Rachals had been examined by so many psychiatrists she wrote on the wall: “Leave me alone, damn it.” It is safe to conclude that the most distasteful situation to which Ms. Rachals could have been subjected was to another consultation with another psychiatrist.
The majority also holds that even if the psychiatrist-patient relationship existed any error in the admission of Dr. Turner’s testimony was harmless because it was cumulative of other properly-admitted evidence. I agree that two psychiatrists appearing as state’s witnesses *427testified that Rachals could distinguish between right and wrong, but Dr. Craig was asked “whether or not during the months of October and November of 1985 and February of ’86, that the Defendant in this case knew the difference between right and wrong,” and Dr. Hall was asked: “on the dates of the alleged crimes, which were in October and November of 1985 and February of 1986, whether or not she knew the difference between right and wrong on those times?” The question posed by the State to Dr. Turner, the appellant’s psychiatrist, was: “Now, based on your conversation with her on the seventh and ninth floors [on March 13, 1986], do you have an opinion as to whether or not she knew the difference between right and wrong at the time you were talking to herV’ (Emphasis supplied.) Drs. Craig and Hall testified to the ability of Rachals to distinguish between right and wrong in October and November 1985 and February 1986. Dr. Turner testified only as to the period on March 13, 1986. Because different time periods are involved they are not “cumulative.”
We should note that the same Code section that establishes privileged communications between psychiatrist-patient, establishes privileged communications between attorney-client. In Almond v. State, 180 Ga. App. 475 (349 SE2d 482), this Court condemned using a defendant’s counsel to establish his client’s competency, when such opinion was based on conversation between the attorney and his client. In the instant appeal, the State is using the patient’s psychiatrist to establish her sanity, when such opinion is based on conversation between the doctor and his patient during such relationship. The. rule established in Almond is applicable here, the same code section that establishes the confidential relationship between an attorney and his client, establishes the same relationship between a psychiatrist and his patient. In the case at bar, the psychiatrist consulted with his patient on three occasions, first diagnosed her as suicidal and depressed, placed his patient in the psychiatric ward under his care, and on the following day again diagnosed his patient as sufficiently improved that she could be released from the hospital. Dr. Turner was never asked whether he used any particular form of psychiatric therapy during his consultations with Rachals, nor was he asked if he prescribed any medication to treat a depressed and suicidal patient facing a crisis involving multiple murder charges, who was threatening to kill herself. If those questions had been asked, Dr. Turner was under the Codal proscription that “[n]o physician . . . shall be required to release any medical information concerning a patient except on written authorization or other waiver by the patient ... or on appropriate court order or subpoena. . . .” OCGA § 24-9-40. However, we need not concern ourselves with this statute, since under the majority view, no amount of consultation between a psychiatrist and patient can establish such a relationship. Thus, if a psychiatrist only consults *428with a patient he is now free to publish any information given him by this person who is not his patient.
Decided September 10, 1987 Rehearing denied October 2, 1987 George P. Donaldson III, Reginald J. R. Bell, Jr., for appellant. Hobart M. Hind, District Attorney, John W. Hogg, Melodie B. Swartzbaugh, L. Earl Jones, Assistant District Attorneys, for appellee.The majority’s holding is also cause for concern on another matter. Since the same Code section that establishes the confidentiality of communications between the psychiatrist and his patient, also establishes the same relationship between an attorney and his client, and no amount of consultation between a psychiatrist and his patient establishes the privilege — can an attorney who has consulted with a criminal defendant be required to divulge the information given him by this person who is not a client because all that occurred was a consultation? The rule espoused by the majority may resolve this appeal, but it creates more problems for doctors and lawyers than it solves.
I, therefore, respectfully dissent.
I am authorized to state that Judge Carley, Judge Sognier, and Judge Pope join in this dissent.