HB4694 EnrolledLRB098 18133 HEP 53262 b

1    AN ACT concerning civil law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Mental Health and Developmental
5Disabilities Confidentiality Act is amended by changing
6Section 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,
9criminal, administrative, or legislative proceeding, or in any
10proceeding preliminary thereto, a recipient, and a therapist on
11behalf and in the interest of a recipient, has the privilege to
12refuse to disclose and to prevent the disclosure of the
13recipient'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 shall 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    (b) Before a disclosure is made under subsection (a), any
15party to the proceeding or any other interested person may
16request an in camera review of the record or communications to
17be disclosed. The court or agency conducting the proceeding may
18hold an in camera review on its own motion. When, contrary to
19the express wish of the recipient, the therapist asserts a
20privilege on behalf and in the interest of a recipient, the
21court may require that the therapist, in an in camera hearing,
22establish that disclosure is not in the best interest of the
23recipient. The court or agency may prevent disclosure or limit
24disclosure to the extent that other admissible evidence is
25sufficient to establish the facts in issue. The court or agency
26may enter such orders as may be necessary in order to protect



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1the confidentiality, privacy, and safety of the recipient or of
2other persons. Any order to disclose or to not disclose shall
3be considered a final order for purposes of appeal and shall be
4subject to interlocutory appeal.
5    (c) A recipient's records and communications may be
6disclosed to a duly authorized committee, commission or
7subcommittee of the General Assembly which possesses subpoena
8and hearing powers, upon a written request approved by a
9majority vote of the committee, commission or subcommittee
10members. The committee, commission or subcommittee may request
11records only for the purposes of investigating or studying
12possible violations of recipient rights. The request shall
13state the purpose for which disclosure is sought.
14    The facility shall notify the recipient, or his guardian,
15and therapist in writing of any disclosure request under this
16subsection within 5 business days after such request. Such
17notification shall also inform the recipient, or guardian, and
18therapist of their right to object to the disclosure within 10
19business days after receipt of the notification and shall
20include the name, address and telephone number of the
21committee, commission or subcommittee member or staff person
22with whom an objection shall be filed. If no objection has been
23filed within 15 business days after the request for disclosure,
24the facility shall disclose the records and communications to
25the committee, commission or subcommittee. If an objection has
26been filed within 15 business days after the request for



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1disclosure, the facility shall disclose the records and
2communications only after the committee, commission or
3subcommittee has permitted the recipient, guardian or
4therapist to present his objection in person before it and has
5renewed its request for disclosure by a majority vote of its
7    Disclosure under this subsection shall not occur until all
8personally identifiable data of the recipient and provider are
9removed from the records and communications. Disclosure under
10this subsection shall not occur in any public proceeding.
11    (d) No party to any proceeding described under paragraphs
12(1), (2), (3), (4), (7), or (8) of subsection (a) of this
13Section, nor his or her attorney, shall serve a subpoena
14seeking to obtain access to records or communications under
15this Act unless the subpoena is accompanied by a written order
16issued by a judge or by the written consent under Section 5 of
17this Act of the person whose records are being sought,
18authorizing the disclosure of the records or the issuance of
19the subpoena. No such written order shall be issued without
20written notice of the motion to the recipient and the treatment
21provider. Prior to issuance of the order, each party or other
22person entitled to notice shall be permitted an opportunity to
23be heard pursuant to subsection (b) of this Section. In the
24absence of the written consent under Section 5 of this Act of
25the person whose records are being sought, no person shall
26comply with a subpoena for records or communications under this



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1Act, unless the subpoena is accompanied by a written order
2authorizing the issuance of the subpoena or the disclosure of
3the records. Each subpoena issued by a court or administrative
4agency or served on any person pursuant to this subsection (d)
5shall include the following language: "No person shall comply
6with a subpoena for mental health records or communications
7pursuant to Section 10 of the Mental Health and Developmental
8Disabilities Confidentiality Act, 740 ILCS 110/10, unless the
9subpoena is accompanied by a written order that authorizes the
10issuance of the subpoena and the disclosure of records or
11communications or by the written consent under Section 5 of
12that Act of the person whose records are being sought."
13    (e) When a person has been transported by a peace officer
14to a mental health facility, then upon the request of a peace
15officer, if the person is allowed to leave the mental health
16facility within 48 hours of arrival, excluding Saturdays,
17Sundays, and holidays, the facility director shall notify the
18local law enforcement authority prior to the release of the
19person. The local law enforcement authority may re-disclose the
20information as necessary to alert the appropriate enforcement
21or prosecuting authority.
22    (f) A recipient's records and communications shall be
23disclosed to the Inspector General of the Department of Human
24Services within 10 business days of a request by the Inspector
25General (i) in the course of an investigation authorized by the
26Department of Human Services Act and applicable rule or (ii)



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1during the course of an assessment authorized by the Abuse of
2Adults with Disabilities Intervention Act and applicable rule.
3The request shall be in writing and signed by the Inspector
4General or his or her designee. The request shall state the
5purpose for which disclosure is sought. Any person who
6knowingly and willfully refuses to comply with such a request
7is guilty of a Class A misdemeanor. A recipient's records and
8communications shall also be disclosed pursuant to subsection
9(g-5) of Section 1-17 of the Department of Human Services Act
10in testimony at health care worker registry hearings or
11preliminary proceedings when such are relevant to the matter in
12issue, provided that any information so disclosed shall not be
13utilized for any other purpose nor be redisclosed except in
14connection with such action or preliminary proceedings.
15(Source: P.A. 97-566, eff. 1-1-12; 98-221, eff. 1-1-14.)