96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB5680

 

Introduced 2/9/2010, by Rep. Dan Brady

 

SYNOPSIS AS INTRODUCED:
 
740 ILCS 110/10   from Ch. 91 1/2, par. 810

    Amends the Mental Health and Developmental Disabilities Confidentiality Act. Provides that records and communications may be disclosed in a proceeding concerning child custody or child visitation, if and only to the extent the court finds, after in camera examination, that the records and communications are relevant to the safety or health of the child, and admissible.


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A BILL FOR

 

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1     AN ACT concerning civil law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Mental Health and Developmental
5 Disabilities Confidentiality Act is amended by changing
6 Section 10 as follows:
 
7     (740 ILCS 110/10)  (from Ch. 91 1/2, par. 810)
8     Sec. 10. (a) Except as provided herein, in any civil,
9 criminal, administrative, or legislative proceeding, or in any
10 proceeding preliminary thereto, a recipient, and a therapist on
11 behalf and in the interest of a recipient, has the privilege to
12 refuse to disclose and to prevent the disclosure of the
13 recipient's record or communications.
14         (1) Records and communications may be disclosed in a
15     civil, criminal or administrative proceeding in which the
16     recipient introduces his mental condition or any aspect of
17     his services received for such condition as an element of
18     his claim or defense, if and only to the extent the court
19     in which the proceedings have been brought, or, in the case
20     of an administrative proceeding, the court to which an
21     appeal or other action for review of an administrative
22     determination may be taken, finds, after in camera
23     examination of testimony or other evidence, that it is

 

 

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1     relevant, probative, not unduly prejudicial or
2     inflammatory, and otherwise clearly admissible; that other
3     satisfactory evidence is demonstrably unsatisfactory as
4     evidence of the facts sought to be established by such
5     evidence; and that disclosure is more important to the
6     interests of substantial justice than protection from
7     injury to the therapist-recipient relationship or to the
8     recipient or other whom disclosure is likely to harm.
9     Except in a criminal proceeding in which the recipient, who
10     is accused in that proceeding, raises the defense of
11     insanity, no record or communication between a therapist
12     and a recipient shall be deemed relevant for purposes of
13     this subsection, except the fact of treatment, the cost of
14     services and the ultimate diagnosis unless the party
15     seeking disclosure of the communication clearly
16     establishes in the trial court a compelling need for its
17     production. However, for purposes of this Act, in any
18     action brought or defended under the Illinois Marriage and
19     Dissolution of Marriage Act, or in any action in which pain
20     and suffering is an element of the claim, mental condition
21     shall not be deemed to be introduced merely by making such
22     claim and shall be deemed to be introduced only if the
23     recipient or a witness on his behalf first testifies
24     concerning the record or communication.
25         (2) Records or communications may be disclosed in a
26     civil proceeding after the recipient's death when the

 

 

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1     recipient's physical or mental condition has been
2     introduced as an element of a claim or defense by any party
3     claiming or defending through or as a beneficiary of the
4     recipient, provided the court finds, after in camera
5     examination of the evidence, that it is relevant,
6     probative, and otherwise clearly admissible; that other
7     satisfactory evidence is not available regarding the facts
8     sought to be established by such evidence; and that
9     disclosure is more important to the interests of
10     substantial justice than protection from any injury which
11     disclosure is likely to cause.
12         (3) In the event of a claim made or an action filed by
13     a recipient, or, following the recipient's death, by any
14     party claiming as a beneficiary of the recipient for injury
15     caused in the course of providing services to such
16     recipient, the therapist and other persons whose actions
17     are alleged to have been the cause of injury may disclose
18     pertinent records and communications to an attorney or
19     attorneys engaged to render advice about and to provide
20     representation in connection with such matter and to
21     persons working under the supervision of such attorney or
22     attorneys, and may testify as to such records or
23     communication in any administrative, judicial or discovery
24     proceeding for the purpose of preparing and presenting a
25     defense against such claim or action.
26         (4) Records and communications made to or by a

 

 

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1     therapist in the course of examination ordered by a court
2     for good cause shown may, if otherwise relevant and
3     admissible, be disclosed in a civil, criminal, or
4     administrative proceeding in which the recipient is a party
5     or in appropriate pretrial proceedings, provided such
6     court has found that the recipient has been as adequately
7     and as effectively as possible informed before submitting
8     to such examination that such records and communications
9     would not be considered confidential or privileged. Such
10     records and communications shall be admissible only as to
11     issues involving the recipient's physical or mental
12     condition and only to the extent that these are germane to
13     such proceedings.
14         (5) Records and communications may be disclosed in a
15     proceeding under the Probate Act of 1975, to determine a
16     recipient's competency or need for guardianship, provided
17     that the disclosure is made only with respect to that
18     issue.
19         (6) Records and communications may be disclosed when
20     such are made during treatment which the recipient is
21     ordered to undergo to render him fit to stand trial on a
22     criminal charge, provided that the disclosure is made only
23     with respect to the issue of fitness to stand trial.
24         (7) Records and communications of the recipient may be
25     disclosed in any civil or administrative proceeding
26     involving the validity of or benefits under a life,

 

 

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1     accident, health or disability insurance policy or
2     certificate, or Health Care Service Plan Contract,
3     insuring the recipient, but only if and to the extent that
4     the recipient's mental condition, or treatment or services
5     in connection therewith, is a material element of any claim
6     or defense of any party, provided that information sought
7     or disclosed shall not be redisclosed except in connection
8     with the proceeding in which disclosure is made.
9         (8) Records or communications may be disclosed when
10     such are relevant to a matter in issue in any action
11     brought under this Act and proceedings preliminary
12     thereto, provided that any information so disclosed shall
13     not be utilized for any other purpose nor be redisclosed
14     except in connection with such action or preliminary
15     proceedings.
16         (9) Records and communications of the recipient may be
17     disclosed in investigations of and trials for homicide when
18     the disclosure relates directly to the fact or immediate
19     circumstances of the homicide.
20         (10) Records and communications of a deceased
21     recipient may be disclosed to a coroner conducting a
22     preliminary investigation into the recipient's death under
23     Section 3-3013 of the Counties Code. However, records and
24     communications of the deceased recipient disclosed in an
25     investigation shall be limited solely to the deceased
26     recipient's records and communications relating to the

 

 

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1     factual circumstances of the incident being investigated
2     in a mental health facility.
3         (11) Records and communications of a recipient shall be
4     disclosed in a proceeding where a petition or motion is
5     filed under the Juvenile Court Act of 1987 and the
6     recipient is named as a parent, guardian, or legal
7     custodian of a minor who is the subject of a petition for
8     wardship as described in Section 2-3 of that Act or a minor
9     who is the subject of a petition for wardship as described
10     in Section 2-4 of that Act alleging the minor is abused,
11     neglected, or dependent or the recipient is named as a
12     parent of a child who is the subject of a petition,
13     supplemental petition, or motion to appoint a guardian with
14     the power to consent to adoption under Section 2-29 of the
15     Juvenile Court Act of 1987.
16         (12) Records and communications of a recipient may be
17     disclosed when disclosure is necessary to collect sums or
18     receive third party payment representing charges for
19     mental health or developmental disabilities services
20     provided by a therapist or agency to a recipient; however,
21     disclosure shall be limited to information needed to pursue
22     collection, and the information so disclosed may not be
23     used for any other purposes nor may it be redisclosed
24     except in connection with collection activities. Whenever
25     records are disclosed pursuant to this subdivision (12),
26     the recipient of the records shall be advised in writing

 

 

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1     that any person who discloses mental health records and
2     communications in violation of this Act may be subject to
3     civil liability pursuant to Section 15 of this Act or to
4     criminal penalties pursuant to Section 16 of this Act or
5     both.
6         (13) Records and communications of a recipient may be
7     disclosed in a proceeding concerning the custody of a child
8     or visitation with a child, if and only to the extent that
9     the court in which the proceedings have been brought finds,
10     after in camera examination of testimony or other evidence,
11     that the records and communications are relevant to the
12     safety or health of the child and admissible.
13     (b) Before a disclosure is made under subsection (a), any
14 party to the proceeding or any other interested person may
15 request an in camera review of the record or communications to
16 be disclosed. The court or agency conducting the proceeding may
17 hold an in camera review on its own motion. When, contrary to
18 the express wish of the recipient, the therapist asserts a
19 privilege on behalf and in the interest of a recipient, the
20 court may require that the therapist, in an in camera hearing,
21 establish that disclosure is not in the best interest of the
22 recipient. The court or agency may prevent disclosure or limit
23 disclosure to the extent that other admissible evidence is
24 sufficient to establish the facts in issue. The court or agency
25 may enter such orders as may be necessary in order to protect
26 the confidentiality, privacy, and safety of the recipient or of

 

 

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1 other persons. Any order to disclose or to not disclose shall
2 be considered a final order for purposes of appeal and shall be
3 subject to interlocutory appeal.
4     (c) A recipient's records and communications may be
5 disclosed to a duly authorized committee, commission or
6 subcommittee of the General Assembly which possesses subpoena
7 and hearing powers, upon a written request approved by a
8 majority vote of the committee, commission or subcommittee
9 members. The committee, commission or subcommittee may request
10 records only for the purposes of investigating or studying
11 possible violations of recipient rights. The request shall
12 state the purpose for which disclosure is sought.
13     The facility shall notify the recipient, or his guardian,
14 and therapist in writing of any disclosure request under this
15 subsection within 5 business days after such request. Such
16 notification shall also inform the recipient, or guardian, and
17 therapist of their right to object to the disclosure within 10
18 business days after receipt of the notification and shall
19 include the name, address and telephone number of the
20 committee, commission or subcommittee member or staff person
21 with whom an objection shall be filed. If no objection has been
22 filed within 15 business days after the request for disclosure,
23 the facility shall disclose the records and communications to
24 the committee, commission or subcommittee. If an objection has
25 been filed within 15 business days after the request for
26 disclosure, the facility shall disclose the records and

 

 

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1 communications only after the committee, commission or
2 subcommittee has permitted the recipient, guardian or
3 therapist to present his objection in person before it and has
4 renewed its request for disclosure by a majority vote of its
5 members.
6     Disclosure under this subsection shall not occur until all
7 personally identifiable data of the recipient and provider are
8 removed from the records and communications. Disclosure under
9 this subsection shall not occur in any public proceeding.
10     (d) No party to any proceeding described under paragraphs
11 (1), (2), (3), (4), (7), or (8) of subsection (a) of this
12 Section, nor his or her attorney, shall serve a subpoena
13 seeking to obtain access to records or communications under
14 this Act unless the subpoena is accompanied by a written order
15 issued by a judge, authorizing the disclosure of the records or
16 the issuance of the subpoena. No person shall comply with a
17 subpoena for records or communications under this Act, unless
18 the subpoena is accompanied by a written order authorizing the
19 issuance of the subpoena or the disclosure of the records.
20     (e) When a person has been transported by a peace officer
21 to a mental health facility, then upon the request of a peace
22 officer, if the person is allowed to leave the mental health
23 facility within 48 hours of arrival, excluding Saturdays,
24 Sundays, and holidays, the facility director shall notify the
25 local law enforcement authority prior to the release of the
26 person. The local law enforcement authority may re-disclose the

 

 

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1 information as necessary to alert the appropriate enforcement
2 or prosecuting authority.
3     (f) A recipient's records and communications shall be
4 disclosed to the Inspector General of the Department of Human
5 Services within 10 business days of a request by the Inspector
6 General (i) in the course of an investigation authorized by the
7 Department of Human Services Act and applicable rule or (ii)
8 during the course of an assessment authorized by the Abuse of
9 Adults with Disabilities Intervention Act and applicable rule.
10 The request shall be in writing and signed by the Inspector
11 General or his or her designee. The request shall state the
12 purpose for which disclosure is sought. Any person who
13 knowingly and willfully refuses to comply with such a request
14 is guilty of a Class A misdemeanor. A recipient's records and
15 communications shall also be disclosed pursuant to subsection
16 (g-5) of Section 1-17 of the Department of Human Services Act
17 in testimony at health care worker registry hearings or
18 preliminary proceedings when such are relevant to the matter in
19 issue, provided that any information so disclosed shall not be
20 utilized for any other purpose nor be redisclosed except in
21 connection with such action or preliminary proceedings.
22 (Source: P.A. 96-406, eff. 8-13-09.)