|
the peace to take the respondent into custody and transport the |
respondent to a mental health facility the
hospital specified |
in the agreed order. The provisions of Section 3-605 shall |
govern
the transportation of the respondent to a mental health |
facility, except to the extent that those
provisions are |
inconsistent with this Section. No person admitted to a |
hospital pursuant to this
subsection shall be detained for |
longer than 24 hours, excluding Saturdays, Sundays, and |
holidays,
unless, within that period, a petition for |
involuntary admission on an inpatient basis and a
certificate |
supporting such petition have been filed as provided in Section |
3-611. |
(c) Alternative treatment shall not be ordered unless the |
program being
considered is capable of providing adequate and |
humane treatment in the least
restrictive setting which is |
appropriate to the respondent's condition. The court shall have |
continuing authority to modify an order for
alternative |
treatment if the recipient fails to comply with the order or is
|
otherwise found unsuitable for alternative treatment. Prior to |
modifying
such an order, the court shall receive a report from |
the facility director
of the program specifying why the |
alternative treatment is unsuitable. The
recipient shall be |
notified and given an opportunity to respond when
modification |
of the order for alternative treatment is considered. If the |
court determines that the
respondent has violated the order for |
alternative treatment in the community or that alternative
|
|
treatment in the community will no longer provide adequate |
assurances for the safety of the
respondent or others, the |
court may revoke the order for alternative treatment in the |
community
and
may order a peace officer to take the recipient |
into custody and transport him to an inpatient
mental health |
facility. The provisions of
Section 3-605 shall govern the |
transportation of the respondent to a mental health
facility, |
except to the extent that those provisions are inconsistent |
with this Section. No person
admitted to a hospital pursuant to |
this subsection shall be detained for longer than 24 hours,
|
excluding Saturdays, Sundays, and holidays, unless, within |
that period, a petition for involuntary
admission on an |
inpatient basis and a certificate supporting such petition have |
been filed as
provided in Section 3-611. |
(Source: P.A. 96-1399, eff. 7-29-10; 96-1453, eff. 8-20-10.)
|
Section 10. 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 to a |
court-appointed therapist, psychologist, or psychiatrist |
for use in determining a person's fitness to stand trial if |
the records were made within the 180-day period immediately |
preceding the date of the therapist's, psychologist's or |
psychiatrist's court appointment. These records and |
communications shall be admissible only as to the issue of |
the person's fitness to stand trial. 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 or by the written consent under Section 5 of |
this Act of the person whose records are being sought, |
authorizing the disclosure of the records
or the issuance of |
the subpoena. No such written order shall be issued without |
written notice of the motion to the recipient and the treatment |
provider. Prior to issuance of the order, each party or other |
person entitled to notice shall be permitted an opportunity to |
be heard pursuant to subsection (b) of this Section. In the |
absence of the written consent under Section 5 of this Act of |
the person whose records are being sought, no 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. Each subpoena duces tecum issued by a court or |
administrative agency or served on any person pursuant to this |
subsection (d) shall include the following 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."
|
(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
(i) in the course of an investigation authorized by the |
Department of Human Services Act and applicable rule or (ii) |
during the course of an assessment authorized by the Abuse of |
Adults with Disabilities Intervention 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. A recipient's records and |
communications shall also be disclosed pursuant to subsection |
(g-5) of Section 1-17 of the Department of Human Services Act |
in testimony at health care worker registry hearings or |
preliminary proceedings when such are relevant to the matter in |
issue, 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.
|