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92nd General Assembly

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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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