State of Illinois
92nd General Assembly

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[ Introduced ][ Engrossed ][ Senate Amendment 001 ]


SB1664 Enrolled                                LRB9212601WHcs

 1        AN   ACT   concerning  mental  health  and  developmental
 2    disabilities.

 3        Be it enacted by the People of  the  State  of  Illinois,
 4    represented in the General Assembly:

 5        Section   5.    The   Mental   Health  and  Developmental
 6    Disabilities  Confidentiality  Act  is  amended  by  changing
 7    Section 10 as follows:

 8        (740 ILCS 110/10) (from Ch. 91 1/2, par. 810)
 9        Sec. 10.  (a) Except as provided herein,  in  any  civil,
10    criminal,  administrative,  or  legislative proceeding, or in
11    any  proceeding  preliminary  thereto,  a  recipient,  and  a
12    therapist on behalf and in the interest of a  recipient,  has
13    the  privilege  to  refuse  to  disclose  and  to prevent the
14    disclosure of the recipient's record or communications.
15             (1)  Records and communications may be disclosed  in
16        a  civil,  criminal or administrative proceeding in which
17        the recipient introduces  his  mental  condition  or  any
18        aspect  of his services received for such condition as an
19        element of his claim or  defense,  if  and  only  to  the
20        extent  the  court  in  which  the  proceedings have been
21        brought, or, in the case of an administrative proceeding,
22        the court to which an appeal or other action  for  review
23        of  an  administrative determination may be taken, finds,
24        after  in  camera  examination  of  testimony  or   other
25        evidence,  that  it  is  relevant,  probative, not unduly
26        prejudicial  or  inflammatory,  and   otherwise   clearly
27        admissible;   that   other   satisfactory   evidence   is
28        demonstrably  unsatisfactory  as  evidence  of  the facts
29        sought to be  established  by  such  evidence;  and  that
30        disclosure   is   more  important  to  the  interests  of
31        substantial justice than protection from  injury  to  the
SB1664 Enrolled             -2-                LRB9212601WHcs
 1        therapist-recipient  relationship  or to the recipient or
 2        other whom disclosure is likely to  harm.   Except  in  a
 3        criminal  proceeding  in  which  the  recipient,  who  is
 4        accused   in  that  proceeding,  raises  the  defense  of
 5        insanity, no record or communication between a  therapist
 6        and  a recipient shall be deemed relevant for purposes of
 7        this subsection, except the fact of treatment,  the  cost
 8        of  services  and the ultimate diagnosis unless the party
 9        seeking   disclosure   of   the   communication   clearly
10        establishes in the trial court a compelling need for  its
11        production.  However,  for  purposes  of this Act, in any
12        action brought or defended under  the  Illinois  Marriage
13        and  Dissolution  of  Marriage  Act,  or in any action in
14        which pain and suffering is  an  element  of  the  claim,
15        mental  condition  shall  not  be deemed to be introduced
16        merely by making such claim and shall  be  deemed  to  be
17        introduced  only  if  the  recipient  or a witness on his
18        behalf  first  testifies   concerning   the   record   or
19        communication.
20             (2)  Records or communications may be disclosed in a
21        civil  proceeding  after  the  recipient's death when the
22        recipient's  physical  or  mental  condition   has   been
23        introduced  as  an  element  of a claim or defense by any
24        party claiming or defending through or as  a  beneficiary
25        of  the  recipient,  provided  the  court finds, after in
26        camera examination of the evidence, that it is  relevant,
27        probative,  and  otherwise clearly admissible; that other
28        satisfactory evidence  is  not  available  regarding  the
29        facts sought to be established by such evidence; and that
30        disclosure   is   more  important  to  the  interests  of
31        substantial justice than protection from any injury which
32        disclosure is likely to cause.
33             (3)  In the event of a claim made or an action filed
34        by a recipient, or, following the recipient's  death,  by
SB1664 Enrolled             -3-                LRB9212601WHcs
 1        any  party claiming as a beneficiary of the recipient for
 2        injury caused in the course of providing services to such
 3        recipient, the therapist and other persons whose  actions
 4        are alleged to have been the cause of injury may disclose
 5        pertinent  records  and  communications to an attorney or
 6        attorneys engaged to render advice about and  to  provide
 7        representation  in  connection  with  such  matter and to
 8        persons working under the supervision of such attorney or
 9        attorneys,  and  may  testify  as  to  such  records   or
10        communication   in   any   administrative,   judicial  or
11        discovery proceeding for the  purpose  of  preparing  and
12        presenting a defense against such claim or action.
13             (4)  Records  and  communications  made  to  or by a
14        therapist in the course of examination ordered by a court
15        for good cause  shown  may,  if  otherwise  relevant  and
16        admissible,   be  disclosed  in  a  civil,  criminal,  or
17        administrative proceeding in which  the  recipient  is  a
18        party  or  in  appropriate pretrial proceedings, provided
19        such court has found  that  the  recipient  has  been  as
20        adequately and as effectively as possible informed before
21        submitting  to  such  examination  that  such records and
22        communications would not be  considered  confidential  or
23        privileged.   Such  records  and  communications shall be
24        admissible only as to issues  involving  the  recipient's
25        physical  or mental condition and only to the extent that
26        these are germane to such proceedings.
27             (5)  Records and communications may be disclosed  in
28        a  proceeding under the Probate Act of 1975, to determine
29        a  recipient's  competency  or  need  for   guardianship,
30        provided that the disclosure is made only with respect to
31        that issue.
32             (6)  Records  and  communications  may  be disclosed
33        when such are made during treatment which  the  recipient
34        is ordered to undergo to render him fit to stand trial on
SB1664 Enrolled             -4-                LRB9212601WHcs
 1        a  criminal  charge, provided that the disclosure is made
 2        only with respect to the issue of fitness to stand trial.
 3             (7)  Records and communications of the recipient may
 4        be disclosed in any civil  or  administrative  proceeding
 5        involving  the  validity  of  or  benefits  under a life,
 6        accident,  health  or  disability  insurance  policy   or
 7        certificate,   or  Health  Care  Service  Plan  Contract,
 8        insuring the recipient, but only if  and  to  the  extent
 9        that  the  recipient's  mental condition, or treatment or
10        services in connection therewith, is a  material  element
11        of  any  claim  or  defense  of  any party, provided that
12        information sought or disclosed shall not be  redisclosed
13        except   in  connection  with  the  proceeding  in  which
14        disclosure is made.
15             (8)  Records or communications may be disclosed when
16        such are relevant to a matter  in  issue  in  any  action
17        brought   under  this  Act  and  proceedings  preliminary
18        thereto, provided that any information so disclosed shall
19        not be utilized for any other purpose nor be  redisclosed
20        except  in  connection  with  such  action or preliminary
21        proceedings.
22             (9)  Records and communications of the recipient may
23        be disclosed in investigations of and trials for homicide
24        when the disclosure  relates  directly  to  the  fact  or
25        immediate circumstances of the homicide.
26             (10)  Records   and  communications  of  a  deceased
27        recipient may be disclosed  to  a  coroner  conducting  a
28        preliminary  investigation  into  the  recipient's  death
29        under  Section  3-3013  of  the  Counties Code.  However,
30        records and  communications  of  the  deceased  recipient
31        disclosed  in an investigation shall be limited solely to
32        the  deceased  recipient's  records  and   communications
33        relating  to  the  factual  circumstances of the incident
34        being investigated in a mental health facility.
SB1664 Enrolled             -5-                LRB9212601WHcs
 1             (11)  Records  and  communications  of  a  recipient
 2        shall be disclosed in a proceeding where  a  petition  or
 3        motion  is filed under the Juvenile Court Act of 1987 and
 4        the recipient is named as a parent,  guardian,  or  legal
 5        custodian of a minor who is the subject of a petition for
 6        wardship  as  described  in  Section 2-3 of that Act or a
 7        minor who is the subject of a petition  for  wardship  as
 8        described  in  Section 2-4 of that Act alleging the minor
 9        is abused, neglected, or dependent or  the  recipient  is
10        named  as  a  parent  of  a child who is the subject of a
11        petition, supplemental petition, or motion to  appoint  a
12        guardian  with  the  power  to  consent to adoption under
13        Section 2-29 of the Juvenile Court Act of 1987.
14             (12) Records and communications of a  recipient  may
15        be disclosed when disclosure is necessary to collect sums
16        or  receive  third party payment representing charges for
17        mental  health  or  developmental  disabilities  services
18        provided  by  a  therapist  or  agency  to  a  recipient;
19        however,  disclosure  shall  be  limited  to  information
20        needed to  pursue  collection,  and  the  information  so
21        disclosed  may not be used for any other purposes nor may
22        it be redisclosed except in  connection  with  collection
23        activities.  Whenever  records  are disclosed pursuant to
24        this subdivision (12), the recipient of the records shall
25        be advised in  writing  that  any  person  who  discloses
26        mental  health records and communications in violation of
27        this Act may be subject to civil  liability  pursuant  to
28        Section  15 of this Act or to criminal penalties pursuant
29        to Section 16 of this Act or both.
30        (b)  Before a disclosure is made  under  subsection  (a),
31    any  party  to  the proceeding or any other interested person
32    may  request  an  in  camera  review   of   the   record   or
33    communications   to   be  disclosed.   The  court  or  agency
34    conducting the proceeding may hold an in camera review on its
SB1664 Enrolled             -6-                LRB9212601WHcs
 1    own motion.  When,  contrary  to  the  express  wish  of  the
 2    recipient, the therapist asserts a privilege on behalf and in
 3    the  interest  of a recipient, the court may require that the
 4    therapist, in an in camera hearing, establish that disclosure
 5    is not in the best interest of the recipient.  The  court  or
 6    agency  may  prevent  disclosure  or  limit disclosure to the
 7    extent  that  other  admissible  evidence  is  sufficient  to
 8    establish the facts in issue.  The court or agency may  enter
 9    such  orders  as  may  be  necessary  in order to protect the
10    confidentiality, privacy, and safety of the recipient  or  of
11    other  persons.   Any  order  to  disclose or to not disclose
12    shall be considered a final order for purposes of appeal  and
13    shall be subject to interlocutory appeal.
14        (c)  A  recipient's  records  and  communications  may be
15    disclosed to  a  duly  authorized  committee,  commission  or
16    subcommittee of the General Assembly which possesses subpoena
17    and  hearing  powers,  upon  a  written request approved by a
18    majority vote of the committee,  commission  or  subcommittee
19    members.   The  committee,  commission  or  subcommittee  may
20    request  records  only  for  the purposes of investigating or
21    studying  possible  violations  of  recipient  rights.    The
22    request  shall  state  the  purpose  for  which disclosure is
23    sought.
24        The facility shall notify the recipient, or his guardian,
25    and therapist in writing of any disclosure request under this
26    subsection within 5 business days after such  request.   Such
27    notification  shall  also  inform the recipient, or guardian,
28    and therapist of their right  to  object  to  the  disclosure
29    within 10 business days after receipt of the notification and
30    shall  include  the name, address and telephone number of the
31    committee, commission or subcommittee member or staff  person
32    with  whom  an objection shall be filed.  If no objection has
33    been filed within 15 business  days  after  the  request  for
34    disclosure,  the  facility  shall  disclose  the  records and
SB1664 Enrolled             -7-                LRB9212601WHcs
 1    communications to the committee, commission or  subcommittee.
 2    If  an objection has been filed within 15 business days after
 3    the request for disclosure, the facility shall  disclose  the
 4    records   and   communications   only  after  the  committee,
 5    commission  or  subcommittee  has  permitted  the  recipient,
 6    guardian or therapist to  present  his  objection  in  person
 7    before  it  and  has  renewed its request for disclosure by a
 8    majority vote of its members.
 9        Disclosure under this subsection shall  not  occur  until
10    all   personally  identifiable  data  of  the  recipient  and
11    provider are removed from  the  records  and  communications.
12    Disclosure  under  this  subsection  shall  not  occur in any
13    public proceeding.
14        (d)  No  party  to   any   proceeding   described   under
15    paragraphs  (1), (2), (3), (4), (7), or (8) of subsection (a)
16    of this Section, nor his  or  her  attorney,  shall  serve  a
17    subpoena   seeking   to   obtain   access   to   records   or
18    communications   under   this  Act  unless  the  subpoena  is
19    accompanied by a written order issued by a judge, authorizing
20    the  disclosure  of  the  records  or  the  issuance  of  the
21    subpoena. No person shall comply with a subpoena for  records
22    or  communications  under  this  Act,  unless the subpoena is
23    accompanied by a written order authorizing  the  issuance  of
24    the subpoena or the disclosure of the records.
25        (e)  When  a  person  has  been  transported  by  a peace
26    officer to a mental health facility, then upon the request of
27    a peace officer, if the person is allowed to leave the mental
28    health  facility  within  48  hours  of  arrival,   excluding
29    Saturdays, Sundays, and holidays, the facility director shall
30    notify  the  local  law  enforcement  authority  prior to the
31    release of the person.  The local law  enforcement  authority
32    may  re-disclose  the  information  as necessary to alert the
33    appropriate enforcement or prosecuting authority.
34        (f)  A recipient's records and  communications  shall  be
SB1664 Enrolled             -8-                LRB9212601WHcs
 1    disclosed to the Inspector General of the Department of Human
 2    Services  within  10  business  days  of  a  request  by  the
 3    Inspector   General   in   the  course  of  an  investigation
 4    authorized  by  the  Abused  and  Neglected  Long  Term  Care
 5    Facility Residents Reporting Act and  applicable  rule.   The
 6    request  shall  be  in  writing  and  signed by the Inspector
 7    General or his or her designee.  The request shall state  the
 8    purpose  for  which  disclosure  is  sought.   Any person who
 9    knowingly and willfully refuses to comply with such a request
10    is guilty of a Class A misdemeanor.
11    (Source: P.A. 91-726, eff. 6-2-00; 92-358, eff. 8-15-01.)

12        Section 99.  Effective date.  This Act takes effect  upon
13    becoming law.

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