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Public Act 92-0708
SB1664 Enrolled LRB9212601WHcs
AN ACT concerning mental health and developmental
disabilities.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Mental Health and Developmental
Disabilities Confidentiality Act is amended by changing
Section 10 as follows:
(740 ILCS 110/10) (from Ch. 91 1/2, par. 810)
Sec. 10. (a) Except as provided herein, 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 record or communications.
(1) Records and communications may be disclosed in
a civil, criminal or administrative proceeding in which
the recipient introduces his mental condition or any
aspect of his services received for such condition as an
element of his claim or defense, 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 or other action for review
of an administrative determination may be taken, finds,
after in camera examination of testimony or other
evidence, that it is relevant, probative, not unduly
prejudicial or inflammatory, and otherwise clearly
admissible; that other satisfactory evidence is
demonstrably unsatisfactory as evidence of the facts
sought to be established by such evidence; and that
disclosure is more important to the interests of
substantial justice than protection from injury to the
therapist-recipient relationship or to the recipient or
other whom disclosure is likely to harm. Except in a
criminal proceeding in which the recipient, who is
accused in that proceeding, raises the defense of
insanity, no record or communication between a therapist
and a recipient shall be deemed relevant for purposes of
this subsection, except the fact of treatment, the cost
of services and the ultimate diagnosis unless the party
seeking disclosure of the communication clearly
establishes in the trial court a compelling need for its
production. However, for purposes of this Act, in any
action brought or defended under the Illinois Marriage
and Dissolution of Marriage Act, or in any action in
which pain and suffering is an element of the 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.
(2) Records or communications may be disclosed in a
civil proceeding after the recipient's death when the
recipient's physical or mental condition has been
introduced as an element of a claim or defense by any
party claiming or defending through or as a beneficiary
of the recipient, provided the court finds, after in
camera examination of the evidence, that it is relevant,
probative, and otherwise clearly admissible; that other
satisfactory evidence is not available regarding the
facts sought to be established by such evidence; and that
disclosure is more important to the interests of
substantial justice than protection from any injury which
disclosure is likely to cause.
(3) In the event of a claim made or an action filed
by a recipient, or, following the recipient's death, by
any party claiming as a beneficiary of the recipient for
injury caused in the course of providing services to such
recipient, the therapist and other persons whose actions
are alleged to have been the cause of injury may disclose
pertinent records and communications to an attorney or
attorneys engaged to render advice about and to provide
representation in connection with such matter and to
persons working under the supervision of such attorney or
attorneys, and may testify as to such records or
communication in any administrative, judicial or
discovery proceeding for the purpose of preparing and
presenting a defense against such claim or action.
(4) Records and communications made to or by a
therapist in the course of examination ordered by a court
for good cause shown may, if otherwise relevant and
admissible, be disclosed in a civil, criminal, or
administrative proceeding in which the recipient is a
party or in appropriate pretrial proceedings, provided
such court has found that the recipient has been as
adequately and as effectively as possible informed before
submitting to such examination that such records and
communications would not be considered confidential or
privileged. Such records and communications shall be
admissible only as to issues involving the recipient's
physical or mental condition and only to the extent that
these are germane to such proceedings.
(5) Records and communications may be disclosed in
a proceeding under the Probate Act of 1975, to determine
a recipient's competency or need for guardianship,
provided that the disclosure is made only with respect to
that issue.
(6) Records and communications may be disclosed
when such are made during treatment which the recipient
is ordered to undergo to render him fit to stand trial on
a criminal charge, provided that the disclosure is made
only with respect to the issue of fitness to stand trial.
(7) Records and communications of the recipient may
be disclosed in any civil or administrative proceeding
involving the validity of or benefits under a life,
accident, health or disability insurance policy or
certificate, or Health Care Service Plan Contract,
insuring the recipient, but only if and to the extent
that the recipient's mental condition, or treatment or
services in connection therewith, is a material element
of any claim or defense of any party, provided that
information sought or disclosed shall not be redisclosed
except in connection with the proceeding in which
disclosure is made.
(8) Records or communications may be disclosed when
such are relevant to a matter in issue in any action
brought under this Act and proceedings preliminary
thereto, provided that any information so disclosed shall
not be utilized for any other purpose nor be redisclosed
except in connection with such action or preliminary
proceedings.
(9) Records and communications of the recipient may
be disclosed in investigations of and trials for homicide
when the disclosure relates directly to the fact or
immediate circumstances of the homicide.
(10) Records and communications of a deceased
recipient may be disclosed to a coroner conducting a
preliminary investigation into the recipient's death
under Section 3-3013 of the Counties Code. However,
records and communications of the deceased recipient
disclosed in an investigation shall be limited solely to
the deceased recipient's records and communications
relating to the factual circumstances of the incident
being investigated in a mental health facility.
(11) Records and communications of a recipient
shall be disclosed in a proceeding where a petition or
motion is filed under the Juvenile Court Act of 1987 and
the recipient is named as a parent, guardian, or legal
custodian of a minor who is the subject of a petition for
wardship as described in Section 2-3 of that Act or a
minor who is the subject of a petition for wardship as
described in Section 2-4 of that Act alleging the minor
is abused, neglected, or dependent or the recipient is
named as a parent of a child who is the subject of a
petition, supplemental petition, or motion to appoint a
guardian with the power to consent to adoption under
Section 2-29 of the Juvenile Court Act of 1987.
(12) Records and communications of a recipient may
be disclosed when disclosure is necessary to collect sums
or receive third party payment representing charges for
mental health or developmental disabilities services
provided by a therapist or agency to a recipient;
however, disclosure shall be limited to information
needed to pursue collection, and the information so
disclosed may not be used for any other purposes nor may
it be redisclosed except in connection with collection
activities. Whenever records are disclosed pursuant to
this subdivision (12), the recipient of the records shall
be advised in writing that any person who discloses
mental health records and communications in violation of
this Act may be subject to civil liability pursuant to
Section 15 of this Act or to criminal penalties pursuant
to Section 16 of this Act or both.
(b) Before a disclosure is made under subsection (a),
any party to the proceeding or any other interested person
may request an in camera review of the record or
communications to be disclosed. The court or agency
conducting the proceeding may hold an in camera review on its
own motion. When, contrary to the express wish of the
recipient, the therapist asserts a privilege on behalf and in
the interest of a recipient, the court may require that the
therapist, in an in camera hearing, establish that disclosure
is not in the best interest of the recipient. The court or
agency may prevent disclosure or limit disclosure to the
extent that other admissible evidence is sufficient to
establish the facts in issue. The court or agency may enter
such orders as may be necessary in order to protect the
confidentiality, privacy, and safety of the recipient or of
other persons. Any order to disclose or to not disclose
shall be considered a final order for purposes of appeal and
shall be subject to interlocutory appeal.
(c) A recipient's records and communications may be
disclosed to a duly authorized committee, commission or
subcommittee of the General Assembly which possesses subpoena
and hearing powers, upon a written request approved by a
majority vote of the committee, commission or subcommittee
members. The committee, commission or subcommittee may
request records only for the purposes of investigating or
studying possible violations of recipient rights. The
request shall state the purpose for which disclosure is
sought.
The facility shall notify the recipient, or his guardian,
and therapist in writing of any disclosure request under this
subsection within 5 business days after such request. Such
notification shall also inform the recipient, or guardian,
and therapist of their right to object to the disclosure
within 10 business days after receipt of the notification and
shall include the name, address and telephone number of the
committee, commission or subcommittee member or staff person
with whom an objection shall be filed. If no objection has
been filed within 15 business days after the request for
disclosure, the facility shall disclose the records and
communications to the committee, commission or subcommittee.
If an objection has been filed within 15 business days after
the request for disclosure, the facility shall disclose the
records and communications only after the committee,
commission or subcommittee has permitted the recipient,
guardian or therapist to present his objection in person
before it and has renewed its request for disclosure by a
majority vote of its members.
Disclosure under this subsection shall not occur until
all personally identifiable data of the recipient and
provider are removed from the records and communications.
Disclosure under this subsection shall not occur in any
public proceeding.
(d) No party to any proceeding described under
paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a)
of this Section, nor his or her attorney, shall serve a
subpoena seeking to obtain access to records or
communications under this Act unless the subpoena is
accompanied by a written order issued by a judge, authorizing
the disclosure of the records or the issuance of the
subpoena. No person shall comply with a subpoena for records
or communications under this Act, unless the subpoena is
accompanied by a written order authorizing the issuance of
the subpoena or the disclosure of the records.
(e) When a person has been transported by a peace
officer to a mental health facility, then upon the request of
a peace officer, if the person is allowed to leave the mental
health facility within 48 hours of arrival, excluding
Saturdays, Sundays, and holidays, the facility director shall
notify the local law enforcement authority prior to the
release of the person. The local law enforcement authority
may re-disclose the information as necessary to alert the
appropriate enforcement or prosecuting authority.
(f) A recipient's records and communications shall be
disclosed to the Inspector General of the Department of Human
Services within 10 business days of a request by the
Inspector General in the course of an investigation
authorized by the Abused and Neglected Long Term Care
Facility Residents Reporting Act and applicable rule. The
request shall be in writing and signed by the Inspector
General or his or her designee. The request shall state the
purpose for which disclosure is sought. Any person who
knowingly and willfully refuses to comply with such a request
is guilty of a Class A misdemeanor.
(Source: P.A. 91-726, eff. 6-2-00; 92-358, eff. 8-15-01.)
Section 99. Effective date. This Act takes effect upon
becoming law.
Passed in the General Assembly April 24, 2002.
Approved July 19, 2002.
Effective July 19, 2002.
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