97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB1145

 

Introduced 02/07/11, 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 are 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,
3represented in the General Assembly:
 
4    Section 5. The Mental Health and Developmental
5Disabilities Confidentiality Act is amended by changing
6Section 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,
9criminal, administrative, or legislative proceeding, or in any
10proceeding preliminary thereto, a recipient, and a therapist on
11behalf and in the interest of a recipient, has the privilege to
12refuse to disclose and to prevent the disclosure of the
13recipient'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 are admissible.
13    (b) Before a disclosure is made under subsection (a), any
14party to the proceeding or any other interested person may
15request an in camera review of the record or communications to
16be disclosed. The court or agency conducting the proceeding may
17hold an in camera review on its own motion. When, contrary to
18the express wish of the recipient, the therapist asserts a
19privilege on behalf and in the interest of a recipient, the
20court may require that the therapist, in an in camera hearing,
21establish that disclosure is not in the best interest of the
22recipient. The court or agency may prevent disclosure or limit
23disclosure to the extent that other admissible evidence is
24sufficient to establish the facts in issue. The court or agency
25may enter such orders as may be necessary in order to protect
26the confidentiality, privacy, and safety of the recipient or of

 

 

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

 

 

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1communications only after the committee, commission or
2subcommittee has permitted the recipient, guardian or
3therapist to present his objection in person before it and has
4renewed its request for disclosure by a majority vote of its
5members.
6    Disclosure under this subsection shall not occur until all
7personally identifiable data of the recipient and provider are
8removed from the records and communications. Disclosure under
9this 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
12Section, nor his or her attorney, shall serve a subpoena
13seeking to obtain access to records or communications under
14this Act unless the subpoena is accompanied by a written order
15issued by a judge, authorizing the disclosure of the records or
16the issuance of the subpoena. No such written order shall be
17issued without written notice of the motion to the recipient
18and the treatment provider. Prior to issuance of the order,
19each party or other person entitled to notice shall be
20permitted an opportunity to be heard pursuant to subsection (b)
21of this Section. No person shall comply with a subpoena for
22records or communications under this Act, unless the subpoena
23is accompanied by a written order authorizing the issuance of
24the subpoena or the disclosure of the records. Each subpoena
25duces tecum issued by a court or administrative agency or
26served on any person pursuant to this subsection (d) shall

 

 

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1include the following language: "No person shall comply with a
2subpoena for mental health records or communications pursuant
3to Section 10 of the Mental Health and Developmental
4Disabilities Confidentiality Act, 740 ILCS 110/10, unless the
5subpoena is accompanied by a written order that authorizes the
6issuance of the subpoena and the disclosure of records or
7communications."
8    (e) When a person has been transported by a peace officer
9to a mental health facility, then upon the request of a peace
10officer, if the person is allowed to leave the mental health
11facility within 48 hours of arrival, excluding Saturdays,
12Sundays, and holidays, the facility director shall notify the
13local law enforcement authority prior to the release of the
14person. The local law enforcement authority may re-disclose the
15information as necessary to alert the appropriate enforcement
16or prosecuting authority.
17    (f) A recipient's records and communications shall be
18disclosed to the Inspector General of the Department of Human
19Services within 10 business days of a request by the Inspector
20General (i) in the course of an investigation authorized by the
21Department of Human Services Act and applicable rule or (ii)
22during the course of an assessment authorized by the Abuse of
23Adults with Disabilities Intervention Act and applicable rule.
24The request shall be in writing and signed by the Inspector
25General or his or her designee. The request shall state the
26purpose for which disclosure is sought. Any person who

 

 

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1knowingly and willfully refuses to comply with such a request
2is guilty of a Class A misdemeanor. A recipient's records and
3communications shall also be disclosed pursuant to subsection
4(g-5) of Section 1-17 of the Department of Human Services Act
5in testimony at health care worker registry hearings or
6preliminary proceedings when such are relevant to the matter in
7issue, provided that any information so disclosed shall not be
8utilized for any other purpose nor be redisclosed except in
9connection with such action or preliminary proceedings.
10(Source: P.A. 96-406, eff. 8-13-09; 96-1399, eff. 7-29-10;
1196-1453, eff. 8-20-10.)