Full Text of HB4694 98th General Assembly
HB4694enr 98TH GENERAL ASSEMBLY |
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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 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 | 15 | | party to the
proceeding or any other interested person may | 16 | | request an in camera review
of the record or communications to | 17 | | be disclosed. The court or agency
conducting the proceeding may | 18 | | hold an in camera review on its own motion.
When, contrary to | 19 | | the express wish of the recipient, the therapist asserts
a | 20 | | privilege on behalf and in the interest of a recipient, the | 21 | | court may
require that the therapist, in an in camera hearing, | 22 | | establish that
disclosure is not in the best interest of the | 23 | | recipient. The court or
agency may prevent disclosure or limit | 24 | | disclosure to the extent that other
admissible evidence is | 25 | | sufficient to establish the facts in issue. The
court or agency | 26 | | may enter such orders as may be necessary in order to
protect |
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| 1 | | the confidentiality, privacy, and safety of the recipient or of
| 2 | | other persons. Any order to disclose or to not disclose shall | 3 | | be
considered a final order for purposes of appeal and shall be | 4 | | subject to
interlocutory appeal.
| 5 | | (c) A recipient's records and communications may be | 6 | | disclosed to a
duly authorized committee, commission or | 7 | | subcommittee of the General
Assembly which possesses subpoena | 8 | | and hearing powers, upon a written
request approved by a | 9 | | majority vote of the committee, commission or
subcommittee | 10 | | members. The committee, commission or subcommittee may
request | 11 | | records only for the purposes of investigating or studying
| 12 | | possible violations of recipient rights. The request shall | 13 | | state the
purpose for which disclosure is sought.
| 14 | | The facility shall notify the recipient, or his guardian, | 15 | | and therapist in
writing of any disclosure request under this | 16 | | subsection within 5 business
days after such request. Such | 17 | | notification shall also inform the
recipient, or guardian, and | 18 | | therapist of their right to object to the
disclosure within 10 | 19 | | business days after receipt of the notification and
shall | 20 | | include the name, address and telephone number of the
| 21 | | committee, commission or subcommittee member or staff person | 22 | | with whom an
objection shall be filed. If no objection has been | 23 | | filed within 15
business days after the request for disclosure, | 24 | | the facility shall disclose
the records and communications to | 25 | | the committee, commission or
subcommittee. If an objection has | 26 | | been filed within 15 business days after
the request for |
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| 1 | | disclosure, the facility shall disclose the records and
| 2 | | communications only after the committee, commission or | 3 | | subcommittee has
permitted the recipient, guardian or | 4 | | therapist to present his objection in
person before it and has | 5 | | renewed its request for disclosure by a majority
vote of its | 6 | | members.
| 7 | | Disclosure under this subsection shall not occur until all | 8 | | personally
identifiable data of the recipient and provider are | 9 | | removed from the
records and communications. Disclosure under | 10 | | this 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 | 13 | | Section, nor his or
her attorney, shall serve a subpoena | 14 | | seeking to obtain access to records or
communications under | 15 | | this Act unless the subpoena is accompanied by a
written order | 16 | | issued by a judge or by the written consent under Section 5 of | 17 | | this Act of the person whose records are being sought, | 18 | | authorizing the disclosure of the records
or the issuance of | 19 | | the subpoena. No such written order shall be issued without | 20 | | written notice of the motion to the recipient and the treatment | 21 | | provider. Prior to issuance of the order, each party or other | 22 | | person entitled to notice shall be permitted an opportunity to | 23 | | be heard pursuant to subsection (b) of this Section. In the | 24 | | absence of the written consent under Section 5 of this Act of | 25 | | the person whose records are being sought, no person shall | 26 | | comply with a subpoena for
records or communications under this |
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| 1 | | Act, unless the subpoena is
accompanied by a written order | 2 | | authorizing the issuance of the subpoena or
the disclosure of | 3 | | the records. Each subpoena issued by a court or administrative | 4 | | agency or served on any person pursuant to this subsection (d) | 5 | | shall include the following language: "No person shall comply | 6 | | with a subpoena for mental health records or communications | 7 | | pursuant to Section 10 of the Mental Health and Developmental | 8 | | Disabilities Confidentiality Act, 740 ILCS 110/10, unless the | 9 | | subpoena is accompanied by a written order that authorizes the | 10 | | issuance of the subpoena and the disclosure of records or | 11 | | communications or by the written consent under Section 5 of | 12 | | that Act of the person whose records are being sought."
| 13 | | (e) When a person has been transported by a peace officer | 14 | | to a mental
health facility, then upon the request of a peace | 15 | | officer, if the person is
allowed to leave the mental health | 16 | | facility within 48 hours of arrival,
excluding Saturdays, | 17 | | Sundays, and holidays, the facility director shall notify
the | 18 | | local law enforcement authority prior to the release of the | 19 | | person. The
local law enforcement authority may re-disclose the | 20 | | information as necessary to
alert the appropriate enforcement | 21 | | or prosecuting authority.
| 22 | | (f) A recipient's records and communications shall be | 23 | | disclosed to the
Inspector General of the Department of Human | 24 | | Services within 10 business days
of a request by the Inspector | 25 | | General
(i) in the course of an investigation authorized by the | 26 | | Department of Human Services Act and applicable rule or (ii) |
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| 1 | | during the course of an assessment authorized by the Abuse of | 2 | | Adults with Disabilities Intervention Act and applicable rule. | 3 | | The request
shall be
in writing and signed by the Inspector | 4 | | General or his or her designee. The
request shall state the | 5 | | purpose for which disclosure is sought. Any person who
| 6 | | knowingly and willfully refuses to comply with such a request | 7 | | is guilty of a
Class A misdemeanor. A recipient's records and | 8 | | communications shall also be disclosed pursuant to subsection | 9 | | (g-5) of Section 1-17 of the Department of Human Services Act | 10 | | in testimony at health care worker registry hearings or | 11 | | preliminary proceedings when such are relevant to the matter in | 12 | | issue, provided that any information so disclosed shall not be | 13 | | utilized for any other purpose nor be redisclosed except in | 14 | | connection with such action or preliminary proceedings.
| 15 | | (Source: P.A. 97-566, eff. 1-1-12; 98-221, eff. 1-1-14.)
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