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Full Text of HB4623  97th General Assembly

HB4623 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB4623

 

Introduced 2/1/2012, by Rep. Patricia R. Bellock

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Mental Health and Developmental Disabilities Code. Provides that if the respondent is unable to obtain an examination, in a proceeding to determine whether he or she is subject to involuntary admission, the respondent may request that the court order an examination to be made by a physician, qualified examiner, clinical psychologist, or other expert. Provides that if the respondent is unable to obtain an examination, in a proceeding for the administration of psychotropic medication or electroconvulsive therapy, the respondent may request that the court order an examination to be made by an impartial psychiatrist. Provides that if the respondent is receiving treatment from the Department of Human Services, the examiner shall not be in the employ of the Department of Human Services. Provides that if the respondent is receiving treatment from a hospital that is not affiliated with the Department of Human Services, the examiner shall not be in the employ of such hospital. Provides that if the respondent is in a hospital, the examiner shall be given direct access to the respondent in order to perform the examination. Amends the Mental Health and Developmental Disabilities Confidentiality Act. Provides that the Department of Human Services may disclose records or communications of persons receiving care from the Department or under contract with the Department, without consent, to not-for-profit institutions of higher education engaged in research concerning the safety, effectiveness, or cost-effectiveness of mental health treatments. Effective immediately.


LRB097 16961 RLC 62150 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB4623LRB097 16961 RLC 62150 b

1    AN ACT concerning health.
 
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 Code is amended by changing Sections 3-804 and
63-812 as follows:
 
7    (405 ILCS 5/3-804)  (from Ch. 91 1/2, par. 3-804)
8    Sec. 3-804. The respondent is entitled to secure an
9independent examination by a physician, qualified examiner,
10clinical psychologist or other expert of his choice. If the
11respondent is unable to obtain an examination, in a proceeding
12to determine whether he or she is subject to involuntary
13admission, the respondent may request that the court order an
14examination to be made by a physician, qualified examiner,
15clinical psychologist, or other expert. If the respondent is
16unable to obtain an examination, in a proceeding under Section
172-107.1 of this Code, the respondent may request that the court
18order an examination to be made by an impartial psychiatrist.
19If the respondent is receiving treatment from the Department of
20Human Services, the examiner shall not be in the employ of the
21Department of Human Services. If the respondent is receiving
22treatment from a hospital that is not affiliated with the
23Department of Human Services, the examiner shall not be in the

 

 

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1employ of such hospital. If the respondent is in a hospital,
2the examiner shall be given direct access to the respondent in
3order to perform the examination. he may request that the court
4order an examination to be made by an impartial medical expert
5pursuant to Supreme Court Rules or by a qualified examiner,
6clinical psychologist or other expert. Any such physician or
7other examiner, whether secured by the respondent or appointed
8by the court, may interview by telephone or in person any
9witnesses or other persons listed in the petition for
10involuntary admission. The physician or other examiner shall
11may submit to the court a report in which his findings are
12described in detail and the report shall be made available to
13the attorneys for the parties. Determination of the
14compensation of the physician, qualified examiner, clinical
15psychologist or other expert shall be made by the Court. The
16fee of the examiner shall be paid by the respondent's county of
17residence unless the respondent is not a resident of the State
18of Illinois, in which case the fee shall be paid by the county
19in which the proceeding is pending and its payment shall be
20governed by Supreme Court Rule.
21(Source: P.A. 85-558.)
 
22    (405 ILCS 5/3-812)  (from Ch. 91 1/2, par. 3-812)
23    Sec. 3-812. Court ordered admission on an outpatient basis;
24modification; revocation.
25    (a) If a respondent is found subject to involuntary

 

 

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1admission on an outpatient basis, the court may issue an order:
2(i) placing the respondent in the care and custody of a
3relative or other person willing and able to properly care for
4him or her; or (ii) committing the respondent to alternative
5treatment at a community mental health provider.
6    (b) An order placing the respondent in the care and custody
7of a relative or other person shall specify the powers and
8duties of the custodian. An order of care and custody entered
9pursuant to this Section may grant the custodian the authority
10to admit a respondent to a hospital if the respondent fails to
11comply with the conditions of the order. If necessary in order
12to obtain the hospitalization of the respondent, the custodian
13may apply to the court for an order authorizing an officer of
14the peace to take the respondent into custody and transport the
15respondent to a mental health facility the hospital specified
16in the agreed order. The provisions of Section 3-605 shall
17govern the transportation of the respondent to a mental health
18facility, except to the extent that those provisions are
19inconsistent with this Section. No person admitted to a
20hospital pursuant to this subsection shall be detained for
21longer than 24 hours, excluding Saturdays, Sundays, and
22holidays, unless, within that period, a petition for
23involuntary admission on an inpatient basis and a certificate
24supporting such petition have been filed as provided in Section
253-611.
26    (c) Alternative treatment shall not be ordered unless the

 

 

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1program being considered is capable of providing adequate and
2humane treatment in the least restrictive setting which is
3appropriate to the respondent's condition. The court shall have
4continuing authority to modify an order for alternative
5treatment if the recipient fails to comply with the order or is
6otherwise found unsuitable for alternative treatment. Prior to
7modifying such an order, the court shall receive a report from
8the facility director of the program specifying why the
9alternative treatment is unsuitable. The recipient shall be
10notified and given an opportunity to respond when modification
11of the order for alternative treatment is considered. If the
12court determines that the respondent has violated the order for
13alternative treatment in the community or that alternative
14treatment in the community will no longer provide adequate
15assurances for the safety of the respondent or others, the
16court may revoke the order for alternative treatment in the
17community and may order a peace officer to take the recipient
18into custody and transport him to an inpatient mental health
19facility. The provisions of Section 3-605 shall govern the
20transportation of the respondent to a mental health facility,
21except to the extent that those provisions are inconsistent
22with this Section. No person admitted to a hospital pursuant to
23this subsection shall be detained for longer than 24 hours,
24excluding Saturdays, Sundays, and holidays, unless, within
25that period, a petition for involuntary admission on an
26inpatient basis and a certificate supporting such petition have

 

 

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1been filed as provided in Section 3-611.
2(Source: P.A. 96-1399, eff. 7-29-10; 96-1453, eff. 8-20-10.)
 
3    Section 10. The Mental Health and Developmental
4Disabilities Confidentiality Act is amended by changing
5Sections 9.1 and 10 as follows:
 
6    (740 ILCS 110/9.1)  (from Ch. 91 1/2, par. 809.1)
7    Sec. 9.1. (a) The Department of Human Services, and other
8agencies and institutions which provide services, may disclose
9a recipient's record or communications, without consent, to the
10Institute for Juvenile Research and the Institute for the Study
11of Developmental Disabilities for purposes of research,
12education and treatment. The Institutes shall not redisclose
13any personally identifiable information, unless necessary for
14treatment of the identified recipient.
15    (b) The Department of Human Services may disclose records
16or communications of persons receiving care from the Department
17or under contract with the Department, without consent, to
18not-for-profit institutions of higher education engaged in
19research concerning the safety, effectiveness, or
20cost-effectiveness of mental health treatments, provided that
21the Department has entered into a written agreement with the
22persons or institutions to whom the records and communications
23are disclosed, which agreement shall provide that records and
24communications are used solely for the purpose of the research

 

 

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1and that the records and communications are protected from
2further disclosure. The Department may refuse to disclose
3records or communications under this Section if, in its sole
4discretion, it determines that the identity of recipients or
5any of the records and communications will not be adequately
6protected. The Department shall promulgate rules concerning
7the use of any records or communications disclosed under this
8Section, including but not limited to rules prohibiting further
9disclosure and compliance with all federal and State laws and
10regulations concerning the conduct of research.
11(Source: P.A. 89-507, eff. 7-1-97.)
 
12    (740 ILCS 110/10)  (from Ch. 91 1/2, par. 810)
13    Sec. 10. (a) Except as provided herein, in any civil,
14criminal, administrative, or legislative proceeding, or in any
15proceeding preliminary thereto, a recipient, and a therapist on
16behalf and in the interest of a recipient, has the privilege to
17refuse to disclose and to prevent the disclosure of the
18recipient's record or communications.
19        (1) Records and communications may be disclosed in a
20    civil, criminal or administrative proceeding in which the
21    recipient introduces his mental condition or any aspect of
22    his services received for such condition as an element of
23    his claim or defense, if and only to the extent the court
24    in which the proceedings have been brought, or, in the case
25    of an administrative proceeding, the court to which an

 

 

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

 

 

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

 

 

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1    proceeding for the purpose of preparing and presenting a
2    defense against such claim or action.
3        (4) Records and communications made to or by a
4    therapist in the course of examination ordered by a court
5    for good cause shown may, if otherwise relevant and
6    admissible, be disclosed in a civil, criminal, or
7    administrative proceeding in which the recipient is a party
8    or in appropriate pretrial proceedings, provided such
9    court has found that the recipient has been as adequately
10    and as effectively as possible informed before submitting
11    to such examination that such records and communications
12    would not be considered confidential or privileged. Such
13    records and communications shall be admissible only as to
14    issues involving the recipient's physical or mental
15    condition and only to the extent that these are germane to
16    such proceedings. Nothing in this subsection shall be
17    interpreted to permit the disclosure of records or
18    communications made pursuant to Section 3-803 or 3-804 of
19    the Mental Health and Developmental Disabilities Code,
20    except as provided in clause (vi) of Section 11 of this
21    Act.
22        (5) Records and communications may be disclosed in a
23    proceeding under the Probate Act of 1975, to determine a
24    recipient's competency or need for guardianship, provided
25    that the disclosure is made only with respect to that
26    issue.

 

 

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1        (6) Records and communications may be disclosed to a
2    court-appointed therapist, psychologist, or psychiatrist
3    for use in determining a person's fitness to stand trial if
4    the records were made within the 180-day period immediately
5    preceding the date of the therapist's, psychologist's or
6    psychiatrist's court appointment. These records and
7    communications shall be admissible only as to the issue of
8    the person's fitness to stand trial. Records and
9    communications may be disclosed when such are made during
10    treatment which the recipient is ordered to undergo to
11    render him fit to stand trial on a criminal charge,
12    provided that the disclosure is made only with respect to
13    the issue of fitness to stand trial.
14        (7) Records and communications of the recipient may be
15    disclosed in any civil or administrative proceeding
16    involving the validity of or benefits under a life,
17    accident, health or disability insurance policy or
18    certificate, or Health Care Service Plan Contract,
19    insuring the recipient, but only if and to the extent that
20    the recipient's mental condition, or treatment or services
21    in connection therewith, is a material element of any claim
22    or defense of any party, provided that information sought
23    or disclosed shall not be redisclosed except in connection
24    with the proceeding in which disclosure is made.
25        (8) Records or communications may be disclosed when
26    such are relevant to a matter in issue in any action

 

 

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1    brought under this Act and proceedings preliminary
2    thereto, provided that any information so disclosed shall
3    not be utilized for any other purpose nor be redisclosed
4    except in connection with such action or preliminary
5    proceedings.
6        (9) Records and communications of the recipient may be
7    disclosed in investigations of and trials for homicide when
8    the disclosure relates directly to the fact or immediate
9    circumstances of the homicide.
10        (10) Records and communications of a deceased
11    recipient may be disclosed to a coroner conducting a
12    preliminary investigation into the recipient's death under
13    Section 3-3013 of the Counties Code. However, records and
14    communications of the deceased recipient disclosed in an
15    investigation shall be limited solely to the deceased
16    recipient's records and communications relating to the
17    factual circumstances of the incident being investigated
18    in a mental health facility.
19        (11) Records and communications of a recipient shall be
20    disclosed in a proceeding where a petition or motion is
21    filed under the Juvenile Court Act of 1987 and the
22    recipient is named as a parent, guardian, or legal
23    custodian of a minor who is the subject of a petition for
24    wardship as described in Section 2-3 of that Act or a minor
25    who is the subject of a petition for wardship as described
26    in Section 2-4 of that Act alleging the minor is abused,

 

 

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1    neglected, or dependent or the recipient is named as a
2    parent of a child who is the subject of a petition,
3    supplemental petition, or motion to appoint a guardian with
4    the power to consent to adoption under Section 2-29 of the
5    Juvenile Court Act of 1987.
6        (12) Records and communications of a recipient may be
7    disclosed when disclosure is necessary to collect sums or
8    receive third party payment representing charges for
9    mental health or developmental disabilities services
10    provided by a therapist or agency to a recipient; however,
11    disclosure shall be limited to information needed to pursue
12    collection, and the information so disclosed may not be
13    used for any other purposes nor may it be redisclosed
14    except in connection with collection activities. Whenever
15    records are disclosed pursuant to this subdivision (12),
16    the recipient of the records shall be advised in writing
17    that any person who discloses mental health records and
18    communications in violation of this Act may be subject to
19    civil liability pursuant to Section 15 of this Act or to
20    criminal penalties pursuant to Section 16 of this Act or
21    both.
22    (b) Before a disclosure is made under subsection (a), any
23party to the proceeding or any other interested person may
24request an in camera review of the record or communications to
25be disclosed. The court or agency conducting the proceeding may
26hold an in camera review on its own motion. When, contrary to

 

 

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1the express wish of the recipient, the therapist asserts a
2privilege on behalf and in the interest of a recipient, the
3court may require that the therapist, in an in camera hearing,
4establish that disclosure is not in the best interest of the
5recipient. The court or agency may prevent disclosure or limit
6disclosure to the extent that other admissible evidence is
7sufficient to establish the facts in issue. The court or agency
8may enter such orders as may be necessary in order to protect
9the confidentiality, privacy, and safety of the recipient or of
10other persons. Any order to disclose or to not disclose shall
11be considered a final order for purposes of appeal and shall be
12subject to interlocutory appeal.
13    (c) A recipient's records and communications may be
14disclosed to a duly authorized committee, commission or
15subcommittee of the General Assembly which possesses subpoena
16and hearing powers, upon a written request approved by a
17majority vote of the committee, commission or subcommittee
18members. The committee, commission or subcommittee may request
19records only for the purposes of investigating or studying
20possible violations of recipient rights. The request shall
21state the purpose for which disclosure is sought.
22    The facility shall notify the recipient, or his guardian,
23and therapist in writing of any disclosure request under this
24subsection within 5 business days after such request. Such
25notification shall also inform the recipient, or guardian, and
26therapist of their right to object to the disclosure within 10

 

 

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

 

 

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1and the treatment provider. Prior to issuance of the order,
2each party or other person entitled to notice shall be
3permitted an opportunity to be heard pursuant to subsection (b)
4of this Section. No person shall comply with a subpoena for
5records or communications under this Act, unless the subpoena
6is accompanied by a written order authorizing the issuance of
7the subpoena or the disclosure of the records. Each subpoena
8duces tecum issued by a court or administrative agency or
9served on any person pursuant to this subsection (d) shall
10include the following language: "No person shall comply with a
11subpoena for mental health records or communications pursuant
12to Section 10 of the Mental Health and Developmental
13Disabilities Confidentiality Act, 740 ILCS 110/10, unless the
14subpoena is accompanied by a written order that authorizes the
15issuance of the subpoena and the disclosure of records or
16communications."
17    (e) When a person has been transported by a peace officer
18to a mental health facility, then upon the request of a peace
19officer, if the person is allowed to leave the mental health
20facility within 48 hours of arrival, excluding Saturdays,
21Sundays, and holidays, the facility director shall notify the
22local law enforcement authority prior to the release of the
23person. The local law enforcement authority may re-disclose the
24information as necessary to alert the appropriate enforcement
25or prosecuting authority.
26    (f) A recipient's records and communications shall be

 

 

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1disclosed to the Inspector General of the Department of Human
2Services within 10 business days of a request by the Inspector
3General (i) in the course of an investigation authorized by the
4Department of Human Services Act and applicable rule or (ii)
5during the course of an assessment authorized by the Abuse of
6Adults with Disabilities Intervention Act and applicable rule.
7The request shall be in writing and signed by the Inspector
8General or his or her designee. The request shall state the
9purpose for which disclosure is sought. Any person who
10knowingly and willfully refuses to comply with such a request
11is guilty of a Class A misdemeanor. A recipient's records and
12communications shall also be disclosed pursuant to subsection
13(g-5) of Section 1-17 of the Department of Human Services Act
14in testimony at health care worker registry hearings or
15preliminary proceedings when such are relevant to the matter in
16issue, provided that any information so disclosed shall not be
17utilized for any other purpose nor be redisclosed except in
18connection with such action or preliminary proceedings.
19(Source: P.A. 96-406, eff. 8-13-09; 96-1399, eff. 7-29-10;
2096-1453, eff. 8-20-10; 97-566, eff. 1-1-12.)
 
21    Section 99. Effective date. This Act takes effect upon
22becoming law.

 

 

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1 INDEX
2 Statutes amended in order of appearance
3    405 ILCS 5/3-804from Ch. 91 1/2, par. 3-804
4    405 ILCS 5/3-812from Ch. 91 1/2, par. 3-812
5    740 ILCS 110/9.1from Ch. 91 1/2, par. 809.1
6    740 ILCS 110/10from Ch. 91 1/2, par. 810