April 2011 • Volume 99 • Number 4 • Page 174
Thank you for viewing this Illinois Bar Journal article. Please join the ISBA to access all of our IBJ articles and archives.
Court-ordered mental health reports not confidential under IMDMA
Unlike those issued by treating caregivers, mental-health reports ordered by the court under the Illinois Marriage and Dissolution of Marriage Act are not confidential, the supreme court rules.
Answering a question certified by the circuit court of Cook County, the Illinois Supreme Court has agreed with the appellate court that an evaluation or report prepared by a psychiatrist or other mental health professional for a court under section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) is not confidential under the Illinois Mental Health and Developmental Disabilities Confidentiality Act. The case is Johnston v Weil, No. 109693, 2011 WL 681684 (Ill Sup Ct).
The question arose after Heather Johnston's second ex-husband, who had moved for temporary custody of their daughter, asked the court's leave to subpoena a psychiatrist who had been appointed to conduct a section 604(b) evaluation by the court considering the petition of her first ex-husband to modify a joint parenting agreement. Johnston objected, asserting that the report was privileged under the Mental Health and Developmental Disabilities Confidentiality Act ("Confidentiality Act"), 740 ILCS 110/1 et seq. The circuit court agreed and held that it was not subject to discovery by her second ex-husband.
The appellate court disagreed, holding that the Confidentiality Act did not render the report confidential. The supreme court likewise held that the Confidentiality Act was inapplicable to section 604(b) reports. It also discussed the interplay of sections 604 and 605 of the IMDMA.
750 ILCS 5/604(b) provides that in the context of a child custody proceeding, "The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court's witness."
The Confidentiality Act classifies as confidential "any 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," including information which indicates that a person is receiving such services. 740 ILCS 110/2. The statute also classifies records kept by therapists or agencies concerning those services as confidential. 740 ILCS 110/3.
Disclosing confidential information in knowing and willful violation of the Confidentiality Act carries significant criminal and civil penalties. On the criminal side, it's a class A misdemeanor. On the civil side, a person aggrieved by such a disclosure may recover not only damages and injunctive relief but also attorney's fees and costs. 740 ILCS 110/15 and 16.
No therapeutic relationship
As the supreme court recognized, the Confidentiality Act is a strong statement from the legislature about the importance of keeping mental health records private. Broad though its protections are, however, the court found that they do not extend to section 604(b) reports.
Citing a 1990 case from the Illinois Appellate Court, the court said that the Confidentiality Act applies only to situations in which a patient is seeking treatment for a mental health condition. Where a court has ordered an evaluation under section 604(b), no therapeutic relationship exists.
The court also rejected the argument that section 10(a)(1) or 10(a)(4) of the Confidentiality Act should apply to section 604(b) reports. The former section permits the disclosure of confidential records and communications in proceedings in which recipients introduce their own mental conditions or services received as an element of their claims or defenses, but qualifies the conditions for disclosure in the case of proceedings under the IMDMA. The latter section addresses disclosure of records and communications made to or by a therapist in the course of a court-ordered examination. The court found that the latter section addresses discretionary disclosures, not mandatory disclosures as in the case of section 604(b).
The plain language of section 604(b) as well as a consideration of its purpose does limit disclosure of the report, the court said, to the parties in the proceeding for which it has been prepared. However, the court said that section 604(b) must be read in conjunction with section 605. That section, the court said, provides a remedy to a party in one postdissolution proceeding who seeks evidence from another postdissolution proceeding.
Notwithstanding the disclosure limitations of section 604, then, Johnston's second ex-husband might yet obtain a copy of the report from the other proceeding under in section 605. That procedure would entail asking the court to appoint an investigator, who might then consult with and obtain information, including the report, from the psychiatrist appointed under section 604(b) in the proceeding brought by Johnston's first ex-husband.
Chief Justice Kilbride dissented. Opining that section 10(a)(4) of the Confidentiality Act addressed the precise issue presented by the certified question, he wrote, "the majority has created a broad and unwarranted exception to the Confidentiality Act."