Full Text of SB2364 98th General Assembly
SB2364 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 SB2364 Introduced 2/15/2013, by Sen. William R. Haine SYNOPSIS AS INTRODUCED: |
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740 ILCS 110/10 | from Ch. 91 1/2, par. 810 |
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Amends the Mental Health and Developmental Disabilities Confidentiality Act.
Provides that the mental health records of a recipient may be disclosed in a civil, criminal or administrative proceeding in response to a subpoena or court order in cases involving sexual assault or sexual abuse when the recipient is the alleged perpetrator of the offense and the disclosure relates directly to the fact or immediate circumstances of the offense, if and only to the extent the court in which the proceedings have been brought, or, in the case of an administrative proceeding, the court to which an appeal may be taken, finds, after an in camera examination, that it is relevant, probative, and otherwise discoverable provided that other satisfactory evidence is not available regarding the facts sought to be established. Provides that a court may enter a protective order to prevent harm from the disclosure of the records. Provides for the redaction of certain information from the records. Provides that if findings are made in accordance with the new provisions, the court shall issue an order authorizing the disclosure of the records of a recipient or the issuance of a subpoena for the records to be delivered to the court for an in camera examination. Provides that the terms "sexual assault" and "sexual abuse" have the meanings given, respectively, to "criminal sexual assault" and "criminal sexual abuse" in the Criminal Code of 2012.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Mental Health and Developmental | 5 | | Disabilities Confidentiality Act is amended by changing | 6 | | Section 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, | 9 | | criminal,
administrative, or legislative proceeding, or in any | 10 | | proceeding preliminary
thereto, a recipient, and a therapist on | 11 | | behalf and in the interest of a
recipient, has the privilege to | 12 | | refuse to disclose and to prevent the
disclosure of the | 13 | | recipient'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 to a | 20 | | court-appointed therapist, psychologist, or psychiatrist | 21 | | for use in determining a person's fitness to stand trial if | 22 | | the records were made within the 180-day period immediately | 23 | | preceding the date of the therapist's, psychologist's or | 24 | | psychiatrist's court appointment. These records and | 25 | | communications shall be admissible only as to the issue of | 26 | | the person's fitness to stand trial. Records and |
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| 1 | | communications may be disclosed when such are made during
| 2 | | treatment which the recipient is ordered to undergo to | 3 | | render him fit to
stand trial on a criminal charge, | 4 | | provided that the disclosure is made only
with respect to | 5 | | the issue of fitness to stand trial.
| 6 | | (7) Records and communications of the recipient may be | 7 | | disclosed in any
civil or administrative proceeding | 8 | | involving the validity of or benefits
under a life, | 9 | | accident, health or disability insurance policy or | 10 | | certificate,
or Health Care Service Plan Contract, | 11 | | insuring the recipient, but only if
and to the extent that | 12 | | the recipient's mental condition, or treatment or
services | 13 | | in connection therewith, is a material element of any claim | 14 | | or
defense of any party, provided that information sought | 15 | | or disclosed shall
not be redisclosed except in connection | 16 | | with the proceeding in which
disclosure is made.
| 17 | | (8) Records or communications may be disclosed when | 18 | | such are relevant
to a matter in issue in any action | 19 | | brought under this Act and proceedings
preliminary | 20 | | thereto, provided that any information so disclosed shall | 21 | | not
be utilized for any other purpose nor be redisclosed | 22 | | except in connection
with such action or preliminary | 23 | | proceedings.
| 24 | | (9) Records and communications of the recipient may be | 25 | | disclosed in
investigations of and trials for homicide when | 26 | | the disclosure relates directly
to the fact or immediate |
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| 1 | | circumstances of the homicide.
| 2 | | (10) Records and communications of a deceased | 3 | | recipient may be
disclosed to a coroner conducting a | 4 | | preliminary investigation into the
recipient's death under | 5 | | Section 3-3013 of the Counties Code. However,
records and | 6 | | communications of the deceased recipient disclosed in an
| 7 | | investigation shall be limited solely to the deceased | 8 | | recipient's records
and communications relating to the | 9 | | factual circumstances of the incident
being investigated | 10 | | in a mental health facility.
| 11 | | (11) Records and communications of a recipient shall be | 12 | | disclosed in a
proceeding
where a petition or motion is | 13 | | filed under the Juvenile Court Act of 1987 and
the | 14 | | recipient is
named as a parent, guardian, or legal | 15 | | custodian of a minor who is the subject
of a petition for | 16 | | wardship as
described in Section
2-3 of that Act or a minor | 17 | | who is the subject of a petition for wardship as
described | 18 | | in Section 2-4 of that
Act alleging the
minor is abused, | 19 | | neglected, or dependent or the recipient is named as a | 20 | | parent
of a child
who is the subject of
a petition, | 21 | | supplemental petition, or motion to appoint a guardian with | 22 | | the
power to consent to
adoption under Section 2-29 of the | 23 | | Juvenile Court Act
of 1987.
| 24 | | (12) Records and communications of a recipient may be
| 25 | | disclosed when disclosure is necessary to collect sums or | 26 | | receive
third party payment representing charges for |
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| 1 | | mental health or
developmental disabilities services | 2 | | provided by a therapist or
agency to a recipient; however, | 3 | | disclosure shall be limited to
information needed to pursue | 4 | | collection, and the information so
disclosed may not be | 5 | | used for any other purposes nor may it be
redisclosed | 6 | | except in connection with collection activities.
Whenever | 7 | | records are disclosed pursuant to this subdivision (12), | 8 | | the
recipient of the records shall be advised in writing | 9 | | that any person who
discloses mental health records and | 10 | | communications in violation of this Act may
be subject to | 11 | | civil liability pursuant to Section 15 of this Act or to | 12 | | criminal
penalties pursuant to Section 16 of this Act or | 13 | | both.
| 14 | | (13) Records of the recipient may be disclosed in a | 15 | | civil, criminal, or administrative proceeding in response | 16 | | to a subpoena or court order in cases involving sexual | 17 | | assault or sexual abuse when the recipient is the alleged | 18 | | perpetrator of the sexual assault or sexual abuse, the | 19 | | recipient was an in-patient or resident of a public or | 20 | | private hospital or mental health facility when an alleged | 21 | | sexual assault or sexual abuse occurred, and the disclosure | 22 | | relates directly to the fact or immediate circumstances of | 23 | | the sexual assault or sexual abuse, if and only to the | 24 | | extent the court in which the proceedings have been | 25 | | brought, or, in the case of an administrative proceeding, | 26 | | the court to which an appeal or other action for review of |
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| 1 | | an administrative determination may be taken, finds, after | 2 | | in camera examination of testimony or other evidence, that | 3 | | it is relevant, probative, and otherwise discoverable; | 4 | | that other satisfactory evidence is not available | 5 | | regarding the facts sought to be established by such | 6 | | evidence; and that disclosure is more important to the | 7 | | interests of substantial justice than protection from any | 8 | | injury which disclosure is likely to cause. Information | 9 | | concerning medical treatment and diagnosis shall be | 10 | | redacted from any records produced unless the court has | 11 | | found that the recipient has been informed as adequately | 12 | | and as effectively as possible of the request for the | 13 | | records. Information which does not concern medical | 14 | | treatment and diagnosis, such as physical characteristics, | 15 | | is not required to be redacted. A court may enter a | 16 | | protective order to prevent harm from the disclosure of the | 17 | | records. The court shall either issue an order authorizing | 18 | | the disclosure of the records or an order authorizing the | 19 | | issuance of a subpoena for the records to be delivered to | 20 | | the court for an in camera examination. For purposes of | 21 | | this paragraph (13), the term "sexual assault" shall have | 22 | | the same meaning that the term "criminal sexual assault" is | 23 | | given in Section 11-1.20 in the Criminal Code of 2012 and | 24 | | the term "sexual abuse" shall have the same meaning that | 25 | | the term "criminal sexual abuse" is given in Section | 26 | | 11-1.50 in the Criminal Code of 2012. |
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| 1 | | (b) Before a disclosure is made under subsection (a), any | 2 | | party to the
proceeding or any other interested person may | 3 | | request an in camera review
of the record or communications to | 4 | | be disclosed. The court or agency
conducting the proceeding may | 5 | | hold an in camera review on its own motion.
When, contrary to | 6 | | the express wish of the recipient, the therapist asserts
a | 7 | | privilege on behalf and in the interest of a recipient, the | 8 | | court may
require that the therapist, in an in camera hearing, | 9 | | establish that
disclosure is not in the best interest of the | 10 | | recipient. The court or
agency may prevent disclosure or limit | 11 | | disclosure to the extent that other
admissible evidence is | 12 | | sufficient to establish the facts in issue. The
court or agency | 13 | | may enter such orders as may be necessary in order to
protect | 14 | | the confidentiality, privacy, and safety of the recipient or of
| 15 | | other persons. Any order to disclose or to not disclose shall | 16 | | be
considered a final order for purposes of appeal and shall be | 17 | | subject to
interlocutory appeal.
| 18 | | (c) A recipient's records and communications may be | 19 | | disclosed to a
duly authorized committee, commission or | 20 | | subcommittee of the General
Assembly which possesses subpoena | 21 | | and hearing powers, upon a written
request approved by a | 22 | | majority vote of the committee, commission or
subcommittee | 23 | | members. The committee, commission or subcommittee may
request | 24 | | records only for the purposes of investigating or studying
| 25 | | possible violations of recipient rights. The request shall | 26 | | state the
purpose for which disclosure is sought.
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| 1 | | The facility shall notify the recipient, or his guardian, | 2 | | and therapist in
writing of any disclosure request under this | 3 | | subsection within 5 business
days after such request. Such | 4 | | notification shall also inform the
recipient, or guardian, and | 5 | | therapist of their right to object to the
disclosure within 10 | 6 | | business days after receipt of the notification and
shall | 7 | | include the name, address and telephone number of the
| 8 | | committee, commission or subcommittee member or staff person | 9 | | with whom an
objection shall be filed. If no objection has been | 10 | | filed within 15
business days after the request for disclosure, | 11 | | the facility shall disclose
the records and communications to | 12 | | the committee, commission or
subcommittee. If an objection has | 13 | | been filed within 15 business days after
the request for | 14 | | disclosure, the facility shall disclose the records and
| 15 | | communications only after the committee, commission or | 16 | | subcommittee has
permitted the recipient, guardian or | 17 | | therapist to present his objection in
person before it and has | 18 | | renewed its request for disclosure by a majority
vote of its | 19 | | members.
| 20 | | Disclosure under this subsection shall not occur until all | 21 | | personally
identifiable data of the recipient and provider are | 22 | | removed from the
records and communications. Disclosure under | 23 | | this subsection shall not
occur in any public proceeding.
| 24 | | (d) No party to any proceeding described under paragraphs | 25 | | (1), (2),
(3), (4), (7), or (8) , or (13) of subsection (a) of | 26 | | this Section, nor his or
her attorney, shall serve a subpoena |
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| 1 | | seeking to obtain access to records or
communications under | 2 | | this Act unless the subpoena is accompanied by a
written order | 3 | | issued by a judge, authorizing the disclosure of the records
or | 4 | | the issuance of the subpoena. No such written order shall be | 5 | | issued without written notice of the motion to the recipient | 6 | | and the treatment provider. Prior to issuance of the order, | 7 | | each party or other person entitled to notice shall be | 8 | | permitted an opportunity to be heard pursuant to subsection (b) | 9 | | of this Section. No person shall comply with a subpoena for
| 10 | | records or communications under this Act, unless the subpoena | 11 | | is
accompanied by a written order authorizing the issuance of | 12 | | the subpoena or
the disclosure of the records. Each subpoena | 13 | | duces tecum issued by a court or administrative agency or | 14 | | served on any person pursuant to this subsection (d) shall | 15 | | include the following language: "No person shall comply with a | 16 | | subpoena for mental health records or communications pursuant | 17 | | to Section 10 of the Mental Health and Developmental | 18 | | Disabilities Confidentiality Act, 740 ILCS 110/10, unless the | 19 | | subpoena is accompanied by a written order that authorizes the | 20 | | issuance of the subpoena and the disclosure of records or | 21 | | communications."
| 22 | | (e) When a person has been transported by a peace officer | 23 | | to a mental
health facility, then upon the request of a peace | 24 | | officer, if the person is
allowed to leave the mental health | 25 | | facility within 48 hours of arrival,
excluding Saturdays, | 26 | | Sundays, and holidays, the facility director shall notify
the |
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| 1 | | local law enforcement authority prior to the release of the | 2 | | person. The
local law enforcement authority may re-disclose the | 3 | | information as necessary to
alert the appropriate enforcement | 4 | | or prosecuting authority.
| 5 | | (f) A recipient's records and communications shall be | 6 | | disclosed to the
Inspector General of the Department of Human | 7 | | Services within 10 business days
of a request by the Inspector | 8 | | General
(i) in the course of an investigation authorized by the | 9 | | Department of Human Services Act and applicable rule or (ii) | 10 | | during the course of an assessment authorized by the Abuse of | 11 | | Adults with Disabilities Intervention Act and applicable rule. | 12 | | The request
shall be
in writing and signed by the Inspector | 13 | | General or his or her designee. The
request shall state the | 14 | | purpose for which disclosure is sought. Any person who
| 15 | | knowingly and willfully refuses to comply with such a request | 16 | | is guilty of a
Class A misdemeanor. A recipient's records and | 17 | | communications shall also be disclosed pursuant to subsection | 18 | | (g-5) of Section 1-17 of the Department of Human Services Act | 19 | | in testimony at health care worker registry hearings or | 20 | | preliminary proceedings when such are relevant to the matter in | 21 | | issue, provided that any information so disclosed shall not be | 22 | | utilized for any other purpose nor be redisclosed except in | 23 | | connection with such action or preliminary proceedings.
| 24 | | (Source: P.A. 96-406, eff. 8-13-09; 96-1399, eff. 7-29-10; | 25 | | 96-1453, eff. 8-20-10; 97-566, eff. 1-1-12.)
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