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Illinois Mental Health Confidentiality Act

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Illinois Mental Health Confidentiality Act

Confidentiality Under the Illinois Mental Health and Developmental Disabilities Confidentiality Act

INTRODUCTION

The Illinois Mental Health and Developmental Disabilities Confidentiality Act (“IMHDDCA” or “Act”), 740 ILCS 110/1, et seq., outlines extensive methods for handling mental health information and records. The IMHDDCA defines confidential communications, provides directions for access to and disclosure of mental health information, creates privileges, and provides for civil and criminal penalties for breach of its provisions. The underlying basis for the provisions of the IMHDDCA is found in the general statement: “All records and communications shall be confidential and shall not be disclosed except as provided in this Act.” 740 ILCS 110/3(a). The following memo highlights important features of the IMHDDCA.

I. Definitions

The Illinois Mental Health and Developmental Disabilities Confidentiality Act is highly specific. “Confidential communication” or “communication” means any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disabilities services to a recipient. “Communication” even includes information which indicates that a person is a recipient. 740 ILCS 110/2. This definition includes the confidentiality and privilege of patient identity information. People v. Doe, 211 Ill.App.3d 962, 570 N.E.2d 733 (1st Dist. 1991).

The IMHDDCA defines “mental health or developmental disabilities services” or “services” as including but is not limited to examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation. 740 ILCS 110/2. According to the Illinois Mental Health and Developmental Disabilities Code, 405 ILCS 5/1‑100, et seq., “Habilitation” means an effort directed toward the alleviation of a developmental disability or toward increasing a person with a developmental disability’s level of physical, mental, social or economic functioning. Habilitation may include, but is not limited to, diagnosis, evaluation, medical services, residential care, day care, special living arrangements, training, education, sheltered employment, protective services, counseling and other services provided to persons with a developmental disability by developmental disabilities facilities. 405 ILCS 5/1‑111. “Treatment” means an effort to accomplish an improvement in the mental condition or related behavior of a patient. Treatment includes, but is not limited to, hospitalization, partial hospitalization, outpatient services, examination, diagnosis, evaluation, care, training, psychotherapy, pharmaceuticals, and other services provided for recipients by mental health facilities. 405 ILCS 5/1‑128. Alcoholism (and drug abuse) treatment is not “mental health service” within the meaning of IMHDDCA. Maxwell v. Hobart Corp., 216 Ill.App.3d 108, 576 N.E. 2d 268 (1st Dist. 1991); People v. Leggans, 253 Ill.App.3d 724, 625 N.E.2d 1133 (5th Dist. 1993).

“Recipient of services” or “recipient” means a person who has received or is receiving treatment or habilitation. 405 ILCS 5/1‑123.

“Therapist” means a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person not prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes that such person is permitted to do so. Therapist includes any successor of the therapist. 740 ILCS 110/2. Health care providers are defined as “therapists” under IMHDDCA only when the information they receive is for the purpose of providing mental health care. For example, nursing notes that describe the bizarre behavior of a mental health recipient being treated for a nonpsychiatric medical condition were not protected by IMHDDCA, which “only applies to situations in which the patient is seeking treatment for a mental health condition. (See [740 ILCS 110/2].)” House v. Swedish American Hospital, 206 Ill.App.3d 437, 564 N.E. 2d 922, 928 (2d Dist. 1990). A pharmacist who dispenses psychotropic medication and advises a purchaser on its use is not a therapist. Suarez v. Pierard, 278 Ill.App.3d 767, 663 N.E.2d 1039 (3d Dist. 1996).

II. Who Is Entitled to Inspect /Copy On Request?

A. Under the Act, the most direct approach to obtaining disclosure of a record is to obtain the consent of the patient or other person having a right to access under IMHDDCA, 740 ILCS 110/4. The Act also defines persons entitled to inspect and copy a recipient’s records. Section 4 states:

(a) The following persons shall be entitled, upon request, to inspect and copy a recipient’s record or any part thereof:

1. the parent or guardian of a recipient who is under 12 years of age;

2. the recipient if he is 12 years of age or older;

3. the parent or guardian of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record. Nothing in this paragraph is intended to prohibit the parent or guardian of a recipient who is at least 12 but under 18 years from requesting and receiving the following information: current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any;

4. the guardian of a recipient who is 18 years or older;

5. an attorney or guardian ad litem who represents a minor 12 years of age or older in any judicial or administrative proceeding, provided that the court or administrative hearing officer has entered an order granting the attorney this right; or

6. an agent appointed under a recipient’s power of attorney for health care or for property, when the power of attorney authorizes the access. 740 ILCS 110/4(a). (See sample form, attached at the end of this article)

B. Copying Charges

A reasonable fee may be charged for copying a record, but a mental health provider must provide a copy free of charge when requested in writing by an indigent recipient to the recipient, a pro bono or not‑for‑profit legal advocacy service representing the recipient, or the Illinois Guardianship and Advocacy Commission.

III. What are The Elements of A Valid Consent for Release?

Section 5 of the IMHDDCA states that, except as provided in §§6‑12.2 of the Act, records and communications may be disclosed to someone other than those persons listed in §4 only with the written consent of those persons who are entitled to inspect and copy a recipient’s record pursuant to §4. 740 ILCS 110/5. To be valid, a consent must be in writing and must specify all of the following:

A. Components Required:

1. the person or agency to whom disclosure is to be made;

2. the purpose for which disclosure is to be made;

3. the nature of the information to be disclosed;

4. the right to inspect and copy the information to be disclosed;

5. the consequences of a refusal to consent, if any; and

6. the calendar date on which the consent expires, provided that if no calendar date is stated, information may be released only on the day the consent form is received by the therapist; and the right to revoke the consent at any time. 740 ILCS 110/5(b).

B. Blanket Consents Discouraged

Under Section 5(c), only information relevant to the purpose for which disclosure is sought may be disclosed. “Blanket consents” are not valid unless the nature of the information to be disclosed is specified in detail and the duration of the consent is indicated. 740 ILCS 110/5(c).

C. Death of Patient

Under the Act, records and communications remain confidential even after the death of a recipient and must not be disclosed unless the recipient’s representative, as defined in the Probate Act of 1975 (755 ILCS 5/1‑1, et seq.), and the therapist consent to the disclosure or disclosure is authorized by court order after in camera examination and upon good cause shown. 740 ILCS 110/5(e). In the event of the death of a patient in a mental health facility, 740 ILCS 110/10(a)(10) permits disclosure of the patient’s records and communications relating to the factual circumstances of the death to a coroner conducting a preliminary investigation into the death under § 3‑3013 of the Counties Code (55 ILCS 5/3‑3013). See also 740 ILCS 110/10(a)(2), 110/10(b).

IV. Disclosures to Insurance Companies

Under the Act, the strict consent rules do not apply to information and records sought by insurance companies writing life, accident, or health insurance or to non‑ profit health care service plan corporations writing health care contracts under the former Non‑Profit Health Care Service Plan Act, Ill.Rev.Stat. (1987), c. 32, ¶551, et seq., repealed by P.A. 86‑600, effective Sept. 1, 1989. These insurance companies may use patient information in connection with the underwriting of applications for insurance and evaluation of claims or liability or in coordinating benefits pursuant to policy or contract provisions. 740 ILCS 110/5(f). Mental health records are also discoverable in connection with civil or administrative proceedings involving the validity of or benefits under a life, accident, health, or disability insurance policy or certificate or a health care service plan contract insuring a patient, but only if and to the extent that the patient’s mental condition or treatment or service in connection with his mental condition is a material element of any claim or defense of any party to the proceeding. Any record or information obtained for this purpose may not be redisclosed except in connection with the proceeding. 740 ILCS 110/10(a)(7).

V. Subpoenas

The IMHHDDCA has been amended over the years to restrict service of subpoenas in certain circumstances, without an accompa­nying court order. The provision, located at ILCS 110/10(d), states:

(d) No party to any proceeding described under paragraphs (1), (2), (3), (4), (7), or (8) of subsec­tion (a) of this Section, nor his or her attorney, shall serve a subpoena seeking to obtain access to records or communications under this Act, unless the subpoena is accom­panied by a written order issued by a judge, authorizing the disclosure of the records or the issuance of the subpoena. No person shall comply with a subpoena for records or communi­ca­tions under this Act, unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or the disclosure of the records. (Source: P.A. 86-1417). (em­phasis added)

In order to become acquainted with the operation of this new section, which serves as a statutory command to all “persons” not to comply with an improperly served subpoena, it is necessary to examine the sections referred to. The specific categories applicable to subpoena service have been discarded previously.

A. In-Camera Inspection of File: Motion Required

Section 810(a)(1) concerns records and communications which are subpoenaed pursuant to a “civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense.” Such disclosures are to be made only after the judge or hearing officer examines the documents in camera[1]and determines:

1. disclosure is relevant and probative;

2. disclosure will not be unduly prejudicial or inflammatory;

3. disclosure is otherwise clearly admissible;

4. other satisfactory evidence (other than that contained in the confidential record) is “demonstrably unsatisfactory”;

5. disclosure is more important to the “interests of substantial justice” than protection from injury to the therapist-recipient relationship or to the recipient ‘or other’ whom the disclosure is likely to harm.

B. What is ‘Relevant?’

This section goes on to say that no record or communication between a therapist and patient is deemed “relevant” except the fact of treatment, the cost of services, and the ultimate diagnosis unless the party seeking disclosure of the communication clearly establishes in the trial court a “compelling need” for production of the document, or if the proceeding is a criminal trial in which insanity is claimed as a defense.[2]

In Renzi v. Morrison, an Appellate Court held that a therapist who voluntarily disclosed a psychiatric patient’s confidential communications while acting as a witness for a patient’s spouse in divorce proceeding, could be held liable for damages. Renzi v. Morrison, 249 Ill.App.3d 5 (Ill. 1993). Illinois law stipulates that a witness’ testimony when relevant is privileged information at judicial proceedings.

A therapist offered to testify for a patient’s husband. However, the patient objected that such testimony was privileged information and was confidential. The trial judge overruled the objection and allowed the testimony. The therapist revealed the patient’s conversations, test results and made an opinion on the patient’s emotional health. The testimony was significant enough to have “tipped the balance of the scale,” in the case and the patient’s husband was awarded temporary custody of the child. The Appellant court reasoned that the lower court did not appoint, subpoena, or order the therapist to testify but instead the therapist appeared voluntarily and offered testimony. The court held that the therapist’s function was to treat the patient, and not to advise the court.

C. Death of Patient

Section 810(a)(2) concerns civil proceedings in which a document is sought to be introduced after the death of the patient. The same procedure regarding an in camera examination by the judge or hearing officer is outlined. Post-death disclosures under this section must also involve the patient’s physical or mental condition having been introduced in the procedures as an element of a claim or defense, by any party.

D. Actions Against Therapist

Section 810(a)(3) describes actions by a patient, or by a representa­tive of a deceased patient, against the therapist alleging that the therapist or other practitioner caused the injury complained of in the course of providing services to the patient.

E. Court Ordered Examinations

Section 810(a)(4) concerns records and communications “made to or by a therapist in the course of examination ordered by a court.” These communications may be disclosed in civil, criminal, or adminis­trative proceedings or in appropriate pretrial proceedings provided that the court has found that the patient has been adequately and “as effectively as possible” informed before submitting to such examination that such records would not be considered confidential or privileged. However, these records are only admissible as to issues involving the patient’s physical or mental condition and only to the extent that they are germane to the proceedings.

F. Case Study: Mandziara v. Canulli, 299 Ill.App.3d 593 (Ill. 1998).

A cause of action exists against attorneys who issue subpoenas for mental health records without first obtaining the required court order. This case, decided in September 1998, holds that a mental health patient may sue an attorney for improperly serving a subpoena for mental health records without first obtaining a court order.

i. Facts

An ex-husband filed an emergency petition seeking modification of a court order awarding child custody to his ex-wife, Mary Mandziara (“Mandziara”). The petition alleged, among other things, that Mandziara attempted suicide and was hospitalized at Northwest Community Hospital. In connection with the petition, the husband’s attorney, Michael Canulli (“Canulli”), served a subpoena on the Hospital’s records custodian, Helen Langer (“Langer”), who appeared in court with the requested records. Langer did not give the records directly to Canulli. Instead, Canulli called Langer as a witness and she gave the records directly to the trial court. The judge immediately and improperly reviewed the records in open court and then questioned Mandziara about her hospitalization and about certain notes in the records. At the end of the hearing the court awarded custody to the ex-husband.

Mandziara sued Canulli for serving a subpoena on the Hospital without first obtaining a court order.[3] The trial court (a different court than the one that conducted the custody hearing) granted summary judgment to Canulli. Canulli filed a petition for sanctions under Illinois Supreme Court Rule 137 which the trial court denied. Canulli appealed the denial of sanctions and Mandziara cross-appealed the summary judgment for Canulli.

ii. The Holding of the Court

Canulli violated the Mental Health Confidentiality Act by failing to obtain a court order before serving a records subpoena on the hospital.

iii. Analysis

There are some strong reasons for maintaining confidentiality in mental health records. Presumably, the patient in psychotherapeutic treatment reveals the most private and secret aspects of his mind and soul. To casually allow public disclosure of such would desecrate any notion of an individual’s right to privacy. At the same time, confidentiality is essential to the treatment process itself, which can be truly effective only when there is complete candor and revelation by the patient. Finally, confidentiality provides proper assurances and inducement for persons who need treatment to seek it.

Section 110/10 of The Mental Health Confidentiality Act, 740 ILCS 110/1 et seq., in pertinent part, provides as follows:

Except as provided herein, in any [court] or administrative … proceeding, … a recipient [of mental health services], and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s records or communications.

***

Before a disclosure is made under subsection (a), any party to the proceeding or another interested person may request an in camera review of the record of communication to be disclosed. The court … conducting the proceeding may hold an in camera review on its own motion … the court … may prevent disclosure or limit disclosure to the extent that other admissible evidence is sufficient to establish the facts in issue. The court … may enter such order as may be necessary to protect the confidentiality, privacy, and safety of the recipient …

***

No party to any proceeding described under … subjection (a) …, nor his or her attorney, shall serve a subpoena seeking to obtain access to records or communications under this Act unless the subpoena is accompanied by a written order issued by a judge, authorizing the disclosure of the records or the issuance of the subpoena. No person shall comply with a subpoena for records or communications under this Act, unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or the disclosure of the records.

Section 110/15 of the Act also provides, “any person aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate relief.”

The appellate court found that Canulli’s actions constituted a violation of the Act. The court rejected Canulli’s argument that he complied with the legislative intent of ensuring confidentiality by requesting that Langer produce the records to the court for an in camera review. Even assuming Canulli only intended the documents be reviewed in camera;[4]the Act does not allow such disclosure without a court order.

The Act is carefully drawn to maintain the confidentiality of mental health records except in specific circumstances … The General Assembly has made a strong statement about the importance of keeping mental health records confidential. If we were to hold Canulli did not violate the Act merely because he did not look at Mandziara’s records, we would be rewriting the statute, effectively eroding unmistakable legislative intent under the weight of judicial fiat … Nothing in section 10(d) excuses a court order when the records are first examined by the trial judge.

In reaching these conclusions, the court noted that Canulli supposedly had honorable intentions in wanting to protect his client’s children, but that these intentions had no bearing on the determination of whether Canulli violated the Act. “[M]otives have nothing to do with the legislative judgment that mental health records should not be surrendered as a matter of course.”

The court also indicated in some cases strict compliance with the statute can be excused, such as in cases where a patient placed her own mental health at issue. In the present case, however, “Mandziara did not bring this action. She did not ask to be brought into a courtroom to face a challenge to the custody of her children.”

Lastly, the court concluded that an award of damages could be appropriate pursuant to section 110/15 of the Act, and remanded the case to the trial court to determine causation and damages.

Some legal analysts note that Section 10(d) contains no requirement of notice to the third person from whom the records are being sought of intent to seek an order authorizing disclosure or the issuance of the subpoena. The order merely “authorizes” ‑‑ it does not compel ‑‑ issuance of the subpoena or disclosure of the record. Obviously, a party must receive a notice of the motion for issuance of the order and should at that point interpose any objection by answer to the motion, citing the appropriate privilege or other protective statute. The authorization order does not preclude a motion to quash by the person subpoenaed.

VI. NON-DISCLOSURE OF PERSONALLY IDENTIFIABLE INFORMATION

The most fundamental rule of any confidentiality code is that personally identifiable information is prohibited from being disclosed except with the consent of the subject of the record in question. There are other exceptions, which might include the various school administrative officials, officials in an institution where a student seeks to enroll, disclosures in connection with an application for financial aid, natural parents of an under 12 child, disclosures necessary to protect the health and safety of the subject of the record, or in response to judicial order or lawful subpoena. Any disclosures made must be documented. Under most acts, when a student or other subject of a file reaches the age of 18, only he or she may consent to the disclosure, not the parents.

VII. ATTORNEY REQUESTS

The Mental Health Code was also amended at IL ST CH 740 § 110/4 paragraph § 4(a)(5), which lists as one of the persons entitled upon request to inspect and copy a recipient’s record or any part thereof (in the absence of a proper consent form):

An attorney or Guardian ad Litem who represents a minor twelve years of age or older in any judicial or administrative proceeding, provided that the court or administrative hearing officer has entered an order granting the attorney this right. (emphasis added)

Don Paull, who was involved in the drafting of this provision, states that it was the intent of the amendments that any orders merely appointing an attorney to represent a child are insufficient for access to records. In fact, the order must specifically say that the attorney shall have the right to access mental health records. Thus, any attorneys requesting medical records must also supply a copy of a bona fide court order which authorizes access accordingly.

APPENDIX: FORMS TO USE WHEN A SUBPOENA FOR A

MENTAL HEALTH FILE

IS RECEIVED

Date: ____________________

Dear Counsel:

Our client has received a request for information in the form of a subpoena for records and/or for deposition (copy attached). The subject matter of the subpoena falls within the Department of Mental Health and Developmental Disabilities Confidenti­ality Act, which unequivocally mandates that we not comply with the subpoena or request as served, unless it is also accompa­nied by a court order which authorizes you to have access to the confidential information and/or to serve the subpoena.

We have asked that our client forward a full and complete copy of the entire requested file to our office. Once we receive an appropriate order authorizing your access to the materials, we will be happy to forward them directly to you. I enclose a sample petition and order which you might want to use as a template for obtaining your order on this issue.

Sincerely,

BROOKE R. WHITTED

Enclosures

Attorney #

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

________________ DEPARTMENT – _____________ DIVI­SION
IN RE: )
)
____________________, )
)
Petitioner, )
)
and ) No. ____________
)
_____________________, )
)
Respondent. )

EMERGENCY MOTION FOR ORDER TO ISSUE SUBPOENA

NOW COMES the Petitioner, _________________________, by and through his/her attorneys, _________________, P.C., and pursuant to Section 10 of the Illinois Mental Health and Developmental Disabili­ties Confidentiality Act (740 ILCS 110/10 (1992)), moves this Court for the entry of an Order authorizing the issuance of a Subpoena for the Records and/or for the Deposition of ______________, the Practitioner (hereafter “Practitioner”) who has evaluated and/or counseled ________________, in this cause. In support of said Motion, Petitioner, Respondent herein states as follows:

1. The records, communications, notes and testi­mony of practitioner are relevant and material to this matter, and should be discoverable.

2. The Petitioner is also seeking a deposition of Practitio­ner in this matter in preparation and advance of any hearing, and desire the issu­ance of a Subpoena for same.

3. Section 10 of the Illinois Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/10(d) (1992)) provides that

[n]o party to any proceeding… nor his or her attorneys, shall serve a subpoena seeking to obtain access to records or communications under this Act unless the subpoena is accompa­nied by a written order issued by a judge, autho­rizing the disclosure of the records or the issu­ance of the subpoena. No person shall comply with a subpoena for records or commu­nications under this Act, un­less the subpoena is accompa­nied by a written order autho­rizing the issuance of the sub­poena or the disclosure of the records.

4. Practitioner and his/her records are covered by the Illinois Mental Health and Developmen­tal Disabilities Confidentiality Act; accord­ingly, an order authorizing the issuance of a subpoena for deposition and records is re­quired before Petitioner may further adequate­ly prepare.

WHEREFORE, Petitioner respectfully requests that this Court enter its Order authorizing the issuance of a subpoena for the deposition and/or records of Practitio­ner pursuant to Section 10 of the Illinois Mental Health and Developmental Disabilities Confidentiality Act, and granting Practitioner such further relief as this Court deems just and fair.

Respectfully submitted,

________________________
Attorney

(Sample petition prepared by Brooke R. Whitted)

IN THE CIRCUIT COURT OF __________________________ COUNTY, ILLINOIS
)
v. ) NO. ____________
)
)
)

ORDER

THIS CAUSE coming on to be heard on the Emergency Petition for Order to Issue Subpoena and for Access to Records, the parties being in Court and represented by counsel and the Court having jurisdiction, and the Court being fully advised in the premises, having duly consid­ered all arguments of counsel,

IT IS HEREBY ORDERED:

1. Petitioner’s motion pursuant to Section 10 of the Illinois Mental Health and Developmental Disabili­ties Confidentiality Act at 740 ILCS 110/10 is granted, and a subpoena for confi­dential records shall be issued by the moving party according­ly.

2. The moving party shall have full access to written files of the practitioner, _____________________________, (other than personal notes) and said practitioner is hereby ordered to cooperate, either directly or through counsel, in the disclosure of said confi­dential files.

3. The moving party shall also have this Court’s authority to conduct a deposition of the practitio­ner, provided that the said deposition shall be conducted at a time of convenience to the practi­tioner in light of the practitioner’s schedule.

_____________________________, 20____

ENTER:

_____________________________
Judge, Judge No.

Atty No.
Name
Attorney for
Address
City
Telephone

[1] This means a preliminary review of the restricted file, by the judge, in his office and off the record.

[2] It is our position that subpoenas received in the course of proceedings pursu­ant to the Mental Health Code, such as, for example, Involuntary Admission, are included in this section. Thus, if a subpoena is received from a party to these proceedings, it must be accompanied by a court order.

[3] Initially Mandziara sued the Hospital for releasing the confidential information without a court order. That case was dismissed on summary judgment after a finding that section 10(b) of the Act, cited supra, protected the Hospital from liability,

While we do not condone the trial judge’s action in commenting upon Mandziara’s records in open court, this was beyond the control of [Langer]. We find the Hospital did nothing more than follow section 10(b) of the Act in that it provided the court with Mandziara’s medical records pursuant to a request from an interested party for the sole purpose of an in camera inspection to determine their relevance in a child custody issue.

Hospitals must be advised that Mandziara v. Canulli does not absolve them from liability under the Act..

[4] The court also held that this argument was contradicted by testimony in the record of the trial court hearing in which Canulli requested to be present when the judge reviewed the records.

The law firm of Whitted, Cleary + Takiff serves clients in Northbrook and throughout northern Illinois, in communities such as Chicago, Arlington Heights, Schaumburg, Waukegan, Woodstock, Belvidere, Geneva, Wheaton, Yorkville, Joliet, Skokie, Glenview, Highland Park, Buffalo Grove, and Evanston. Whitted Cleary & Takiff also has served clients from out of state, including Florida, Indiana, Missouri, Minnesota, North Carolina, Tennessee, West Virginia and Wisconsin.

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