HB2362 EngrossedLRB097 08788 AJO 48918 b

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    Records and communications made to or by a therapist in the
25    course of an assessment, diagnosis, screening, or
26    treatment at an outpatient facility, a residential

 

 

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1    treatment facility, or a local jail or detention center may
2    be disclosed to a court-appointed therapist, psychologist,
3    or psychiatrist for use in determining a person's fitness
4    to stand trial. Such records and communications shall be
5    admissible only as to issues involving the recipient's
6    physical or mental condition and only to the extent that
7    these are germane to such proceedings.
8        (7) Records and communications of the recipient may be
9    disclosed in any civil or administrative proceeding
10    involving the validity of or benefits under a life,
11    accident, health or disability insurance policy or
12    certificate, or Health Care Service Plan Contract,
13    insuring the recipient, but only if and to the extent that
14    the recipient's mental condition, or treatment or services
15    in connection therewith, is a material element of any claim
16    or defense of any party, provided that information sought
17    or disclosed shall not be redisclosed except in connection
18    with the proceeding in which disclosure is made.
19        (8) Records or communications may be disclosed when
20    such are relevant to a matter in issue in any action
21    brought under this Act and proceedings preliminary
22    thereto, provided that any information so disclosed shall
23    not be utilized for any other purpose nor be redisclosed
24    except in connection with such action or preliminary
25    proceedings.
26        (9) Records and communications of the recipient may be

 

 

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1    disclosed in investigations of and trials for homicide when
2    the disclosure relates directly to the fact or immediate
3    circumstances of the homicide.
4        (10) Records and communications of a deceased
5    recipient may be disclosed to a coroner conducting a
6    preliminary investigation into the recipient's death under
7    Section 3-3013 of the Counties Code. However, records and
8    communications of the deceased recipient disclosed in an
9    investigation shall be limited solely to the deceased
10    recipient's records and communications relating to the
11    factual circumstances of the incident being investigated
12    in a mental health facility.
13        (11) Records and communications of a recipient shall be
14    disclosed in a proceeding where a petition or motion is
15    filed under the Juvenile Court Act of 1987 and the
16    recipient is named as a parent, guardian, or legal
17    custodian of a minor who is the subject of a petition for
18    wardship as described in Section 2-3 of that Act or a minor
19    who is the subject of a petition for wardship as described
20    in Section 2-4 of that Act alleging the minor is abused,
21    neglected, or dependent or the recipient is named as a
22    parent of a child who is the subject of a petition,
23    supplemental petition, or motion to appoint a guardian with
24    the power to consent to adoption under Section 2-29 of the
25    Juvenile Court Act of 1987.
26        (12) Records and communications of a recipient may be

 

 

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1    disclosed when disclosure is necessary to collect sums or
2    receive third party payment representing charges for
3    mental health or developmental disabilities services
4    provided by a therapist or agency to a recipient; however,
5    disclosure shall be limited to information needed to pursue
6    collection, and the information so disclosed may not be
7    used for any other purposes nor may it be redisclosed
8    except in connection with collection activities. Whenever
9    records are disclosed pursuant to this subdivision (12),
10    the recipient of the records shall be advised in writing
11    that any person who discloses mental health records and
12    communications in violation of this Act may be subject to
13    civil liability pursuant to Section 15 of this Act or to
14    criminal penalties pursuant to Section 16 of this Act or
15    both.
16    (b) Before a disclosure is made under subsection (a), any
17party to the proceeding or any other interested person may
18request an in camera review of the record or communications to
19be disclosed. The court or agency conducting the proceeding may
20hold an in camera review on its own motion. When, contrary to
21the express wish of the recipient, the therapist asserts a
22privilege on behalf and in the interest of a recipient, the
23court may require that the therapist, in an in camera hearing,
24establish that disclosure is not in the best interest of the
25recipient. The court or agency may prevent disclosure or limit
26disclosure to the extent that other admissible evidence is

 

 

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

 

 

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1the committee, commission or subcommittee. If an objection has
2been filed within 15 business days after the request for
3disclosure, the facility shall disclose the records and
4communications only after the committee, commission or
5subcommittee has permitted the recipient, guardian or
6therapist to present his objection in person before it and has
7renewed its request for disclosure by a majority vote of its
8members.
9    Disclosure under this subsection shall not occur until all
10personally identifiable data of the recipient and provider are
11removed from the records and communications. Disclosure under
12this subsection shall not occur in any public proceeding.
13    (d) No party to any proceeding described under paragraphs
14(1), (2), (3), (4), (7), or (8) of subsection (a) of this
15Section, nor his or her attorney, shall serve a subpoena
16seeking to obtain access to records or communications under
17this Act unless the subpoena is accompanied by a written order
18issued by a judge, authorizing the disclosure of the records or
19the issuance of the subpoena. No such written order shall be
20issued without written notice of the motion to the recipient
21and the treatment provider. Prior to issuance of the order,
22each party or other person entitled to notice shall be
23permitted an opportunity to be heard pursuant to subsection (b)
24of this Section. No person shall comply with a subpoena for
25records or communications under this Act, unless the subpoena
26is accompanied by a written order authorizing the issuance of

 

 

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

 

 

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1The request shall be in writing and signed by the Inspector
2General or his or her designee. The request shall state the
3purpose for which disclosure is sought. Any person who
4knowingly and willfully refuses to comply with such a request
5is guilty of a Class A misdemeanor. A recipient's records and
6communications shall also be disclosed pursuant to subsection
7(g-5) of Section 1-17 of the Department of Human Services Act
8in testimony at health care worker registry hearings or
9preliminary proceedings when such are relevant to the matter in
10issue, provided that any information so disclosed shall not be
11utilized for any other purpose nor be redisclosed except in
12connection with such action or preliminary proceedings.
13(Source: P.A. 96-406, eff. 8-13-09; 96-1399, eff. 7-29-10;
1496-1453, eff. 8-20-10.)