Public Act 093-0751
 
SB3174 Enrolled LRB093 18181 DRJ 43876 b

    AN ACT concerning civil liabilities.
 
    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 (i) in the course of an investigation authorized by the
Abused and Neglected Long Term Care Facility Residents
Reporting 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.
(Source: P.A. 91-726, eff. 6-2-00; 92-358, eff. 8-15-01;
92-708, eff. 7-19-02.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.