Family law cases often involve mental health issues. Obtaining mental health records can be a struggle for practitioners who fail to follow the strict requirements of the relevant Illinois law, the Mental Health and Developmental Disabilities Confidentiality Act.1 The Act provides guidance in the representation of mental health professionals who have been served with subpoenas seeking access to their files or their testimony, including the threshold issue of whether they must or can respond to those subpoenas. Often, the answer is “no,” due to deficiencies in the subpoena or consent form, the manner in which the subpoena was served, or the matter sought to be disclosed. The following is an overview of the Act and some of the issues that can arise when practitioners seek access to mental health records in various situations.

The Statute

As its name suggests, the Mental Health and Developmental Disabilities Confidentiality Act (the Act), which was adopted in 1979, is designed to protect the confidentiality of mental health treatment records and communications. The premise behind statutes like the Act is that, as with the attorney-client relationship, confidentiality is necessary to promote the patient-therapist relationship because patients will not feel that they can be open with therapists if they think the information they share may be disclosed. Consistent with this premise, the Act begins with a broad mandate that “[a]ll records and communications shall be confidential and shall not be disclosed except as provided in this Act.”2 The Act then sets out several exceptions to this mandate, and delineates who can consent to the disclosure of records and how to obtain records if there is no consent.

The Act contains key definitions, several of which will be discussed herein. A “recipient” means “a person who is receiving or has received mental health or developmental disabilities services.”3 A “therapist” is a “[p]sychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person not prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes such person is permitted to do so.”4 The term includes any successor of the therapist.5 “Confidential communication” or “communication” is defined as “[a]ny communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient.”6 This includes information indicating that a person is a recipient, but not information de-identified in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as specified in 45 CFR 164.514.7

“A record is “[a]ny record kept by a therapist or agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided.”8 This includes all records maintained by a court and other materials in connection with certain cases under the Mental Health and Developmental Disabilities Code.9 Effective January 1, 2016, the definition of “record” in the Act has been amended to state that the term “does not include a reference to the receipt of mental health or developmental disabilities services noted during a patient history and physical or other summary of care.”10

It is important to note, however, that the term “record” does not include a therapist’s “personal notes,” if the notes are kept in the therapist’s sole possession for personal use and not disclosed to anyone, other than the therapist’s supervisor, consulting therapist, or attorney.11 If a therapist’s notes are disclosed to someone who is not in one of these categories, the notes become part of recipient’s “record” for purposes of the Act.12 “Personal notes” are defined as: “(i) information disclosed to the therapist in confidence by other persons on condition that such information would never be disclosed to the recipient or other persons; (ii) information disclosed to the therapist by the recipient which would be injurious to the recipient’s relationships to other persons, and (iii) the therapist’s speculations, impressions, hunches, and reminders.”13

Inspecting & Copying Records

Under the Act, several people are entitled to inspect and copy a recipient’s mental health treatment records.14 These include a parent or guardian of a recipient who is under 12; the recipient, if he or she is at least 12; a parent or guardian, if the recipient is at least 12, but under 18, and is informed and does not object or the therapist does not find compelling reasons for denying the access; and the guardian of a recipient who is 18 years or older.15

Additionally, the attorney or guardian ad litem for a minor who is 12 years old or older may inspect and copy the minor’s mental health records, if a court or hearing officer has entered an order authorizing the attorney or guardian ad litem to do so.16 The agent under a power of attorney for health care or property may also have such access, if authorized by the power of attorney, as well as the attorney-in-fact under the Mental Health Treatment Preference Declaration Act.17 Finally, access may be obtained by any person in whose care and custody a recipient has been placed pursuant to Section 3-811 of the Mental Health and Developmental Disabilities Code.18

Often, a practitioner seeks access to mental health records of a child or opposing party, but does not represent someone who falls into one of the categories above. In that case, the question is whether there is another way to gain access to inspect and copy the mental health records. As a general rule, this is only possible with written consent from someone entitled to inspect and copy the records. Section 5 of the Act states that, except as provided in Sections 6 through 12.2 of the Act, records and communications may be disclosed to someone other than the people listed in Section 4 only with the written consent of those persons who are entitled to inspect and copy a recipient’s record pursuant to Section 4.19 This sometimes results in an issue as to whether the consent given in a particular case is effective.

To be effective, a consent must be in writing and specify: (1) the person or agency to whom disclosure is to be made; (2) the purpose for which disclosure is to be made; (3) the nature of the information to be disclosed; (4) the right to inspect and copy the information to be disclosed; (5) the consequences of a refusal to consent, if any; (6) the date on which the consent expires; and (7) the right to revoke the consent at any time.20

Additionally, the consent must be signed by the person entitled to give consent and witnessed by a person who can attest to the identity of the person consenting to the disclosure.21 If the consent does not contain a date, the information may be released only on the day that the therapist receives the consent form.22 It is also important to note that the Act does not allow for “blanket” consents; only information relevant to the purpose for which disclosure is sought may be disclosed.23 Finally, the person or agency to whom the information is disclosed cannot re-disclose the information to someone else unless the person entitled to consent also consents to the re-disclosure.24

A person can revoke his or her consent if the revocation is in writing, signed by the person who gave the consent, and witnessed by a person who can attest to the person’s identity.25 The written revocation is not considered effective to prevent disclosure of records and communications until the person otherwise authorized to disclose records and communications receives it.26

Therapist’s Privilege

Even with a proper consent or subpoena, a practitioner may still encounter obstacles if he or she tries to obtain a therapist’s “entire file.” A therapist’s “personal notes” are generally protected as the therapist’s work product. Further, a therapist has a privilege on behalf of a recipient not to disclose the recipient’s records, if the therapist believes disclosure is not in the recipient’s best interest. As with other sections of the Act, there are exceptions.

If a therapist makes notes in the course of therapy that fall under the definition of “personal notes,” the notes are considered “the work product and personal property of the therapist and shall not be subject to discovery in any judicial, administrative or legislative proceeding or any proceeding preliminary thereto. . . .” 27 “Personal notes” include: (1) information disclosed to the therapist in confidence by other persons on condition that such information would never be disclosed to recipient or other persons; (2) information disclosed to the therapist by the recipient which would be injurious to the recipient’s relationships to other persons; and (3) the therapist’s speculations, impressions, hunches, and reminders.28

Further, with regard to a recipient’s “records,” Section 10(a) states that, with several exceptions, “in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s records or communications.”29

In other words, even if a recipient, or someone else authorized by the Act, consents to the disclosure, a therapist can refuse to disclose his or her personal notes, and can also refuse to disclose the recipient’s records in a court case, if an exception does not apply and the therapist does so on behalf of the recipient and in the recipient’s interest.

Exceptions to this rule include the following. Records and communications may be disclosed in a proceeding when a recipient places his mental state and/or treatment at issue if, and only to the extent, the court finds after in camera review, that the information is: (1) relevant; (2) probative; (3) not unduly prejudicial or inflammatory; (4) otherwise clearly admissible; (5) other satisfactory evidence is demonstrably unsatisfactory; and (6) disclosure is more important to the interests of substantial justice than protection from injury to the patient/therapist relationship, or to the recipient or other to whom disclosure is likely to harm.30 The Act defines “relevant” narrowly in cases other than criminal cases involving an insanity defense.31

Notably, in cases under the Illinois Marriage and Dissolution of Marriage Act,32 or in any action in which pain and suffering is an element of a claim, “mental condition shall not be deemed to be introduced merely by making such claim and shall be deemed to be introduced only if the recipient or a witness on his behalf first testifies concerning the record or communication.”33 The Act contains other exceptions for situations involving the death of the recipient, homicide investigations, court-ordered examinations, guardianship cases, insurance cases, cases brought under the Act, and other areas; therefore, it is important to carefully review the Act before seeking mental health records to see if one of the exceptions applies.34

It should also be noted that before a disclosure under subsection (a) occurs, any party or other interested person may request an in camera review of the record or communications to be disclosed or the court may hold an in camera review on its own motion.35 If a therapist asserts a privilege against the recipient’s wishes, the court may require that the therapist, in an in camera hearing, establish that disclosure is not in the recipient’s best interest. The court may prevent or limit disclosure to the extent other admissible evidence is sufficient to establish the facts in issue, and may enter such orders as necessary to protect confidentiality, privacy, and safety of the recipient or others.36

With respect to children, in addition to the points mentioned above, practitioners should note that a child’s therapist can assert the privilege on the child’s behalf, even if both parents consent to disclosure, if the therapist finds that there are compelling reasons for doing so.37 Any parent or guardian denied access to records by the recipient or the therapist may petition the court for access.38 Also, parents or guardians of children who are at least 12 but under 18 can request and receive information about the child’s current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication.39

Subpoenas

Often, a practitioner must resort to subpoenaing mental health records. In doing so, he or she must follow the strict requirements of the Act or face the prospect that the subpoena may be quashed and the practitioner may be subject to penalties. Pursuant to Section 10(d), no party to any proceeding under paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a) shall serve a subpoena unless the subpoena has attached: (1) the written consent of a person authorized under Section 5 to consent; or (2) a written order issued by a judge.40 Although it can be frustrating when a therapist refuses to comply with a subpoena, practitioners should be aware that the Act specifically prohibits therapists from complying with subpoenas that do not contain either a proper consent form or a court order.41 Also, before a court can issue an order, the recipient and the therapist must have been given written notice of the motion and the opportunity to be heard.42

Another potential area for challenge is the form of the subpoena itself. Practitioners cannot simply use a regular subpoena to obtain mental health records because the Act requires that the subpoena contain certain language to be valid. Specifically, subpoenas served pursuant to Section 10 (d) must include this language:

“No person shall comply with a subpoena for mental health records or communications pursuant to Section 10 of the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/10, unless the subpoena is accompanied by a written order that authorizes the issuance of the subpoena and the disclosure of records or communications or by the written consent under Section 5 of that Act of the person whose records are being sought.”43

Compliance with the Act is important not just to ensure that the practitioner obtains the desired information, but because the Act provides for civil and criminal penalties for improper disclosure of confidential information. “Any person aggrieved by a violation of [the] Act may sue for damages, an injunction, or other appropriate relief.”44 A successful plaintiff may be awarded attorney’s fees and costs.45 Also, any person who knowingly and willfully violates any provision of the Act is guilty of a Class A misdemeanor.46 In short, it is improper to serve a subpoena for mental health records without proper written consent or a court order and it is improper for a therapist to respond to such a subpoena.

Interaction with HIPAA

Practitioners and therapists often believe that if a consent form meets the requirements of HIPAA, they are in the clear. However, the Act is stricter than HIPAA in terms of the requirements for disclosure of mental health records and the information required in consent forms. Pursuant to HIPAA, where there is a conflict and a state law is stricter, the state law controls.47

One example of this applies where a recipient has died. Under HIPAA, a decedent’s personal representative, such as an executor, can consent to disclosure of the recipient’s mental health records.48 However, under the Act, such records cannot be disclosed unless the representative and the therapist consent to disclosure; or disclosure is authorized by court order after in camera examination and upon good cause shown.49

Conclusion

If a practitioner believes mental health records or testimony may be needed in a particular case, the practitioner should review the Act in order to avoid wasting time and risking a motion to quash, or worse, the imposition of penalties, based on an improper subpoena. It may also be beneficial to discuss the situation in advance with the therapist or his or her attorney in order to craft a consent or subpoena that is limited in scope in order to obtain needed information without requesting material that may trigger an objection. Further, practitioners should note that other federal or state statutes may apply in certain situations. For example, if a case involves domestic violence issues, practitioners should review the Illinois Domestic Violence Act, which addresses the confidentiality of the records and testimony of domestic violence advocates and counselors.50

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Sarah J. Taylor is an associate with Barrett Twomey Broom Hughes & Hoke, LLP, in Carbondale, Illinois. This article was previously published in the Family Law Section Council newsletter, February 2016.

 

1. 740 ILCS 110/1 et seq.

2. 740 ILCS 110/3(a).

3. 740 ILCS 110/2.

4. Id.

5. Id.

6. Id.

7. Id.

8. Id.

9. Id.

10. Id.

11. Id.

12.Id.

13. Id.

14. 740 ILCS 110/4.

15. 740 ILCS 110/4(a) (1-4).

16. 740 ILCS 110/4(a) (5).

17. 740 ILCS 110/4(b)(6-7).

18. 740 ILCS 110/4(b)(8).

19. 740 ILCS 110/5(a).

20. 740 ILCS 110/5(b)(1-7).

21. 740 ILCS 110/5(b).

22. 740 ILCS 110/5(b)(6).

23. 740 ILCS 110/5(c).

24. 740 ILCS 110/5(d).

25. 740 ILCS 110/5(b).

26. Id.

27. 740 ILCS 110/3(b).

28. 740 ILCS 110/2.

29. 740 ILCS 110/10(a).

30. 740 ILCS 110/10(a)(1).

31. Id.

32. 750 ILCS 5/1 et seq.

33. 740 ILCS 110/10(a)(1).

34. 740 ILCS 110/10.

35. 740 ILCS 110/10(b).

36. Id.

37. 740 ILCS 110/4(a)(3).

38. Id.

39. Id.

40. 740 ILCS 110/10(d).

41. Id.

42. Id.

43. Id.

44. 740 ILCS 110/15.

45. Id.

46. 740 ILCS 110/16.

47. 45 CFR 160, subpart B.

48. 45 CFR 160.103(2)(iv); 45 CFR 164.502.

49. 740 ILCS 110/5(e).

50. 750 ILCS 60/227(b).