The Chicago School of Professional          Psychology           Law           and       Mental Health     Dr. James Walsh...
2
Table of Contents1.    Qualities of a Good Clinical Report                          7-102.    Minor Consent Issues        ...
4
Brooke R. WhittedI.     Current Boards       1.     Leslie Shankman School Corporation (President, board member)          ...
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Qualities of agood clinical   report         Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC         3000 Dundee Road     ...
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QUALITIES OF A GOOD CLINICAL REPORT                                    Brooke R. Whitted                               Whi...
•   If the report is written for a specific purpose, such as to convince a school    district to declare a pupil eligible ...
MINOR CONSENT ISSUES           Brooke R. Whitted           WHITTED, CLEARY & TAKIFF           Suite 303           3000 Dun...
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MEDICAL CONSENT PROVISIONS              Enclosed please find an abbreviated summary of certain medicalconsent provisions o...
C.     Dentists may consent to and render emergency dental care to a                     child when a parent is not availa...
B.   EXCEPTIONS     (1.)   Qualified Right: The patients right to refuse is not absolute            but rather qualified, ...
The Code provides in sections 2-100 and 2-101 that questions                   of competency and commitment are separate a...
DEALING WITH  THE ISSUE OFMENTAL HEALTH   SUBPOENAS      Brooke R. Whitted      Whitted, Cleary + Takiff LLC      3000 Dun...
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Subpoenas                The IMHHDDCA has been amended over the years to        restrict service of subpoenas in certain c...
2. disclosure will not be unduly prejudicial or                      inflammatory;                   3. disclosure is othe...
was awarded temporary custody of the child. The Appellant courtreasoned that the lower court did not appoint, subpoena, or...
F. Case Study: Mandziara v. Canulli, 299 Ill.App.3d 593 (Ill. 1998).                   A cause of action exists against at...
sanctions under Illinois Supreme Court Rule 137       which the trial court denied. Canulli appealed the       denial of s...
Before a disclosure is made     under subsection (a), any party     to the proceeding or another     interested person may...
Section 110/15 of the Act also provides, “any person                              aggrieved by a violation of this Act may...
the legislative judgment that mental health recordsshould not be surrendered as a matter of course.”      The court also i...
SUBPOENA POLICY        Brooke R. WhittedWHITTED, CLEARY & TAKIFF, LLC        3000 Dundee Road             Suite 303     No...
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SUBPOENA POLICY       With increasing frequency, we are receiving subpoenas both for recordsand requiring staff testimony ...
If there is a compelling reason, in the sole discretion      of the administration, a subpoena for records may be met by  ...
2.     SUBPOENA OF ANYONE OTHER THAN THE                     EXECUTIVE DIRECTOR OR PRINCIPAL              We will resist a...
and actual testimony time. We reserve the right to request              advance payment for these charges.        We, the ...
ILLINOIS MENTAL HEALTHCONFIDENTIALITY ACT ANDCOMPARISON WITH FERPA AND OTHER PROVISIONS  _________________________________...
(Revised 9/2001)34
The purpose of this memorandum is to summarize the provisions of the DMHDDConfidentiality Act, which is a federal grant ac...
(6)     "Recipient" means a person who is receiving or has received                      mental health or developmental di...
to challenge the content of such students education records, in order              to insure that the records are not inac...
110/3. Records and communications - Personal notes of therapist -                     Psychological test material         ...
(4) the guardian of a recipient who is 18 years or                            older;                            (5) an att...
record which he believes is incorrect or misleading. If the                   request is refused, the person may seek a co...
shall be entered in the recipients record. Any revocation of                     consent shall be in writing, signed by th...
them or their designated representatives of any and all                        confidential communications and records kep...
planning, or discharge of the identified recipient to another setting.                 (Emphasis added.)V.     MANDATED DI...
purpose nor be re-disclosed except in connection                    with the proceedings or investigations; (vii) when,   ...
(4) an attorney or advocate consulted by a therapist or                     agency which provides services concerning the ...
of his claim or defense." Such disclosures are to be made only after the judge or hearingofficer examines the documents in...
B.     Documents Sought After Death of Patient              Where Mental Condition is at Issue       Section 10(a)(2) conc...
VII. NON-DISCLOSURE                 OF          PERSONALLY            IDENTIFIABLEINFORMATION        As can be seen, the m...
BREAKING CONFIDENTIALITY:     DUTY TO WARN             Brooke R. Whitted              Lara A. Cleary      WHITTED, CLEARY ...
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INTRODUCTION       The Illinois Mental Health and Developmental Disabilities Confidentiality Act(“MHDDCA”), 740 ILCS 110/1...
the University, finding that there was no cause of action because the               University owed no duty of care to Tat...
Non-Illinois Cases Following Tarasoff         In Thompson v. County of Alameda, another California case, a juvenile delinq...
The court took care, however, to distinguish the instant case, in which it found noduty, from cases cited by the plaintiff...
Illinois Appears to Codify Tarasoff        Thus, after Eckhardt, Illinois appeared to adopt an implicit duty to warn, alth...
SUMMARY        Under current Illinois law, mental health practitioners may (and very possibly must)break confidentiality a...
CURRENT STANDARDSFOR NEGLECT/ABUSE    REPORTING           Brooke R. Whitted            Lara A. Cleary    WHITTED, CLEARY +...
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Law & mental health
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Law & mental health

  1. 1. The Chicago School of Professional Psychology Law and Mental Health Dr. James Walsh class June 9, 2008 Presented by: Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC 3000 Dundee Road Suite 303 Northbrook, Illinois 60062 (847) 564-8662 www.WCT-LAW.com 1
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  3. 3. Table of Contents1. Qualities of a Good Clinical Report 7-102. Minor Consent Issues 11-163. Dealing With the Issue of Mental Health Subpoenas 17-264. Subpoena Policy 27-325. Illinois Mental Health Confidentiality Act and Comparison 33-48 With FERPA and Other Provisions6. Breaking Confidentiality: Duty to Warn 49-567. Current Standards for Neglect/Abuse Reporting 59-618. Fee Splitting: Implications for Physicians, Psychologists, 63-69 and Social Workers9. Non-Custodial Parents: Legal Issues 71-7810. What Happens When a School District Fails to Respond 79-86 to the Needs of a Suicidal Child?11. The Final Word on School Health Services: 87-91 Cedar Rapids CSD v. Garrett F.12. School Student Records Act 93-100 3
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  5. 5. Brooke R. WhittedI. Current Boards 1. Leslie Shankman School Corporation (President, board member) Operating the University of Chicago Orthogenic School (Residential – ED)and the University of Chicago Hyde Park Day School (Days – gifted LD) 2. Marx Memorial Fund (Chair) – Cook County Juvenile Court (for delinquent wards’ life enrichment) 3. One-to-One Learning Center, Northfield (Board Member – Agency performing tutoring, evaluation and reading instruction services) 4. Community and Residential Services Authority (Gubernatorial Appointee; statutory agency overseeing placement of children) 5. University of Chicago Foundation for Emotionally Disturbed Children (Secretary, Board Member) 6. Glenview/Northbrook Youth Services (Advisory Board) 7. National-Lewis University (School Psychology Advisory Board)II. Former Boards 1. Glenview/Northbrook Youth Services 2. Heartspring/Wichita (Formerly Institute for Logopedics) 3. Glenkirk/Northbrook 4. Shelter, Inc./Arlington Heights (founding board member)III. Association Clients 1. Illinois Child Care Association 2. Illinois Psychological Association 3. I-ASPECIV. Centers of Learning 1. University of Illinois at Chicago, Medical School, Department of Psychiatry (Instructor) 2. University of Chicago, as president of a separate but affiliated unit of the University 3. National-Louis University, member of committee advising the Education Department on Policy issues. 4. Loyola University, School of Social Work (former instructor) 5. Adler Institute – Chicago (guest speaker) 6. Roosevelt University (guest speaker) 5
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  7. 7. Qualities of agood clinical report Brooke R. Whitted WHITTED, CLEARY & TAKIFF, LLC 3000 Dundee Road Suite 303 Northbrook, Illinois 60062 (847) 564-8662 www.WCT-LAW.com 7
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  9. 9. QUALITIES OF A GOOD CLINICAL REPORT Brooke R. Whitted Whitted Cleary & Takiff, LLC 3000 Dundee Road, Suite 303 Northbrook, Illinois 60062 (847) 564-8662; fax (847) 564-8419 whittedlaw@aol.com* This memo was drafted in response to an inquiry from a clinical psychologist whorequested information about the “essential characteristics of an effective psychologicalevaluation.” I have several requirements for reports, and in fact have been teaching theseprinciples in report writing for the past 20 years to UIC medical school doctors who wantto specialize in child and adolescent psychiatry. The principles apply to ANY clinicalreport, not just psychological reports. I admit to a bias that I have to be able to utilize thereport as a basis for motivating sometimes reluctant agencies (like school districts, stateagencies, etc.) to pay for services that a patient/client might need. Qualities are as follows: • The report must flow logically, be written in excellent prose, and clinical findings must be the basis for all recommendations presented; • Ideally, the report should contain as a first section a comprehensive review of all clinical material that preceded the report; • After a review of prior evaluations, there should be an introduction to tests or evals chosen, in light of prior testing efforts, and a highlighting of any gaps, if any, that the current examiner found in prior materials; • If the examiner uses a testing vehicle not commonly used, it’s a good idea to educate the reader, in simple terms, as to the qualities the test is designed to evaluate, and the reason the examiner is selecting this particular evaluative tool; • The recommendations section must contain recommendations! My pet peeve is a wishy washy “Recommendations will await the team meeting” or some such nonsense. The examiner must come right out and say what the patient needs, with as much specificity as possible, and relate the recommendations to the clinician’s findings. To me, a report is worthless if there is not a concrete, detailed series of recommendations. • It is not required, but usually a good idea, to examine what will likely happen to the patient if the recommendations are NOT followed – this is required where serious harm or death could occur; • The examiner must be willing to leave the office and accompany his or her report to the meeting that will usually be held to consider it. It is much easier to discount the conclusions of a professional who isn’t there; 9
  10. 10. • If the report is written for a specific purpose, such as to convince a school district to declare a pupil eligible for ED special education services, the examiner must be conversant with the definitions used by the particular system appealed to. For example, the special education law has a different definition of “Emotionally Disturbed” than does the DSM. The examiner must know definitions from other systems (if applicable) prior to drafting a report. 10
  11. 11. MINOR CONSENT ISSUES Brooke R. Whitted WHITTED, CLEARY & TAKIFF Suite 303 3000 Dundee Road Northbrook, Illinois 60062 (847) 564-8662 (847) 564-8419 (Facsimile) whittedlaw@aol.com (Email) 11
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  13. 13. MEDICAL CONSENT PROVISIONS Enclosed please find an abbreviated summary of certain medicalconsent provisions of Illinois statute and case law pertaining to children. MEDICAL CONSENT PROVISIONSI. The parent generally has the right and duty to make decisions concerning medical care for his/her child. A. However, the minor may consent: 1. When she is pregnant, she may consent to her own medical care and surgery, 410 ILCS 210/1; 2. When (s)he is married, the minor may consent to his/her own medical care and surgery, 410 ILCS 210/1; 3. When (s)he is a parent, the minor may consent to the medical care, surgery, or dental care for his/her child, 410 ILCS 210/2. 4. When (s)he is 12 years of age or older, the minor may consent to his/her treatment of venereal disease or for abuse of alcohol or narcotic drugs, 410 ILCS 210/4. 5. When (s)he is the victim of a criminal sexual assault or abuse, the minor may consent to his/her medical care and/or counseling. 410 ILCS 210/3. 6. When she is pregnant, she may consent to an abortion if considered mature enough to make that decision or if she can show it is in her best interest. Bellotti v. Baird, 443 U.S. 662, 99 S. Ct. 3035, 61 L. Ed. 2nd 797, (1979). B. Physicians may consent to and render emergency medical care to a child when a parent is not available during the emergency and it is the judgment of the physician that there is not additional time to await the parents involvement. Ill. Rev. Stat., Ch. 111, section 4503. 13
  14. 14. C. Dentists may consent to and render emergency dental care to a child when a parent is not available during the emergency and it is the judgment of the dentist that there is not additional time to wait the parents involvement. Ill. Rev. Stat., Ch. 111, section 4503.II. The courts can and will intervene in a parents decision which places a child in danger or leaves a child in danger of death or permanent harm. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645, (1944) rehearing denied, 321 U.S. 804, 64 S. Ct. 784, (1944) [a case concerning child labor].III. A parents denial of medical treatment necessary to save a childs life is neglect pursuant to the Juvenile Court. Intent to neglect is not a factor Wallace v. Labrenz, 411 Ill. 618, 104 N.E. 2d 769 (1952), cert. denied 344 U.S. 824, 73 S. Ct. 24, 97 L. Ed. 2nd 642 (1952).IV. CONSENT TO TREATMENT/RIGHT TO REFUSE A. GENERAL RULE In Illinois the rights of a recipient of services to refuse generally accepted mental health or developmental disabilities services including, but not limited to, medication are set forth in sections 2-107 and 3-608 of the Illinois Mental Health Code. The right to refuse electro-convulsive therapy and any "unusual, hazardous or experimental services or psychosurgery" is set forth in section 2-110 of the Code and requires written and informed consent. Under section 2-107, a recipients guardian also has the right to refuse. The guardian may only consent with the approval of the court for such services as he or she deems to be in the best interests of the ward. ILL. REV. STAT. Chapter 91 1/2, section 2-110. Informed consent requires the physician to describe the proposed treatment, indicate alternatives, describe risks and possible complications. It also requires knowing and voluntary consent on the part of the patient. Both the notions of informed consent and the right to refuse treatment are based on the constitutionally recognized right to privacy. 14
  15. 15. B. EXCEPTIONS (1.) Qualified Right: The patients right to refuse is not absolute but rather qualified, so that services may be given without consent when it is necessary to prevent that patient from causing serious harm to himself or others. A 1976 report of the Governors Commission for Revision of the Mental Health Code of Illinois indicated that where a mentally disabled person poses a threat to himself or others, the interest of the state becomes more compelling than the patients right to refuse treatment. Thus, medication and other treatment or habilitation which is necessary to arrest behavior may be administered over the recipients objection. (2.) Minors: Under the Illinois law, minors 14 and older may receive outpatient counseling without the consent of their parents, up to five visits of 45 minutes each. In addition, there are a few notable exceptions to the general rule that parents are responsible for consenting to the medical treatment of their minor children. In Illinois, minor girls of any age may obtain abortions, minors 12 or older may consent to treatment for venereal disease or drug abuse, and minors of any age may obtain birth control. (3.) Emergencies: Section 2-111 of the Illinois Mental Health Code provides for the administration of medical procedures without consent where the delay in obtaining consent would endanger the life or adversely and substantially affect the health of a recipient of services. (4.) Incompetency: The right to refuse treatment may be exercised by incompetent persons through their guardians. ILL. REV. STAT. Chapter 91 1/2, sections 2-107 and 2-110. Provisions for overriding the refusal or failure to consent in the case of an incompetent are not specifically spelled out in the statute; the guardianship procedure is an important means for obtaining treatment objected to on a basis reflecting incapacity to make a treatment decision. 15
  16. 16. The Code provides in sections 2-100 and 2-101 that questions of competency and commitment are separate and, following commitment, all rights are unaffected. Accordingly, the commitment procedure reflects only tangentially on a recipients capacity to make treatment decisions, with the strongest correlation being found in section 1-119(2) where admission is based on a persons inability to care for himself.V. ILLINOIS PUBLIC ACT 87-460: CONSENT BY MINORS TO MEDICAL PROCEDURES ACT AMENDMENTS Illinois Public Act 87-460 amends two sections of the Consent by Minors to Medical Procedures Act, 410 ILCS 210 et. seq. (1992) (formerly Ill. Rev. Stat., ch. 111, para. 4500 et. seq. (1991)). The effect of this Act is to remove exceptions to the general provision that notice need not be provided to a parent when a minor who is 12 or older is receiving treatment for drug or alcohol abuse. Section 4 of the amended Act now allows a minor who is 12 years old or older to consent to medical treatment for drug or alcohol abuse for himself or a member of the childs family. But more importantly, the amended Act no longer requires a person who furnishes such treatment to notify the parent or guardian upon the second occasion in which the minor is receiving such treatment. Section 5 of the amended Act now sets forth explicit rules for counselors and physicians who give notice to the parent or guardian of the minor receiving treatment. Under the new Act, a physician or counselor is explicitly barred from providing notice to a parent or guardian without the minors consent, unless the purpose is to protect the safety of the minor, another family member, or another individual. This rule is enhanced by an amendment to the section which removes the requirement that a physician or counselor must notify the parent or guardian upon the second such treatment of the minor. The overall effect of these amendments is to accord greater deference to the minors decision to receive treatment for drug and alcohol abuse. Furthermore, it eliminates the possible interference of a parent or guardian who seeks to bar such treatment. 16
  17. 17. DEALING WITH THE ISSUE OFMENTAL HEALTH SUBPOENAS Brooke R. Whitted Whitted, Cleary + Takiff LLC 3000 Dundee Road-Suite # 303 Chicago, Illinois 60062 Phone: (847) 563-8662 Fax: (847) 564-8419 Website: www.wct-law.com 17
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  19. 19. Subpoenas The IMHHDDCA has been amended over the years to restrict service of subpoenas in certain circumstances, without an accompanying court order. The provision, located at ILCS 110/10(d), states: (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. (Source: P.A. 86- 1417). (emphasis added) In order to become acquainted with the operation of this new section, which serves as a statutory command to all "persons" not to comply with an improperly served subpoena, it is necessary to examine the sections referred to. The specific categories applicable to subpoena service have been discarded previously. A. In-Camera Inspection of File: Motion Required Section 810(a)(1) concerns records and communications which are subpoenaed pursuant to 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." Such disclosures are to be made only after the judge or hearing officer examines the documents in camera1 and determines: 1. disclosure is relevant and probative;1 This means a preliminary review of the restricted file, by the judge, in his office and off the record. 19
  20. 20. 2. disclosure will not be unduly prejudicial or inflammatory; 3. disclosure is otherwise clearly admissible; 4. other satisfactory evidence (other than that contained in the confidential record) is "demonstrably unsatisfactory”; 5. 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 the disclosure is likely to harm. B. What is ‘Relevant?’ This section goes on to say that no record or communication between a therapist and patient is deemed "relevant" 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 production of the document, or if the proceeding is a criminal trial in which insanity is claimed as a defense.2 In Renzi v. Morrison, an Appellate Court held that a therapist who voluntarily disclosed a psychiatric patients confidential communications while acting as a witness for a patients spouse in divorce proceeding, could be held liable for damages. Renzi v. Morrison, 249 Ill.App.3d 5 (Ill. 1993). Illinois law stipulates that a witness testimony when relevant is privileged information at judicial proceedings. A therapist offered to testify for a patient’s husband. However, the patient objected that such testimony was privileged information and was confidential. The trial judge overruled the objection and allowed the testimony. The therapist revealed the patient’s conversations, test results and made an opinion on the patient’s emotional health. The testimony was significant enough to have "tipped the balance of the scale," in the case and the patient’s husband2 It is our position that subpoenas received in the course of proceedings pursuant to the Mental Health Code, such as, for example, Involuntary Admission, are included in this section. Thus, if a subpoena is received from a party to these proceedings, it must be accompanied by a court order. 20
  21. 21. was awarded temporary custody of the child. The Appellant courtreasoned that the lower court did not appoint, subpoena, or order thetherapist to testify but instead the therapist appeared voluntarily andoffered testimony. The court held that the therapist’s function was totreat the patient, and not to advise the court.C. Death of Patient Section 810(a)(2) concerns civil proceedings inwhich a document is sought to be introduced after thedeath of the patient. The same procedure regarding an incamera examination by the judge or hearing officer isoutlined. Post-death disclosures under this section mustalso involve the patients physical or mental conditionhaving been introduced in the procedures as an element ofa claim or defense, by any party.D. Actions Against Therapist Section 810(a)(3) describes actions by a patient, orby a representative of a deceased patient, against thetherapist alleging that the therapist or other practitionercaused the injury complained of in the course of providingservices to the patient.E. Court Ordered Examinations Section 810(a)(4) concerns records andcommunications "made to or by a therapist in the courseof examination ordered by a court." Thesecommunications may be disclosed in civil, criminal, oradministrative proceedings or in appropriate pretrialproceedings provided that the court has found that thepatient has been adequately and "as effectively aspossible" informed before submitting to such examinationthat such records would not be considered confidential orprivileged. However, these records are only admissible asto issues involving the patients physical or mentalcondition and only to the extent that they are germane tothe proceedings. 21
  22. 22. F. Case Study: Mandziara v. Canulli, 299 Ill.App.3d 593 (Ill. 1998). A cause of action exists against attorneys who issue subpoenas for mental health records without first obtaining the required court order. This case, decided in September 1998, holds that a mental health patient may sue an attorney for improperly serving a subpoena for mental health records without first obtaining a court order. i. Facts An ex-husband filed an emergency petition seeking modification of a court order awarding child custody to his ex-wife, Mary Mandziara (“Mandziara”). The petition alleged, among other things, that Mandziara attempted suicide and was hospitalized at Northwest Community Hospital. In connection with the petition, the husband’s attorney, Michael Canulli (“Canulli”), served a subpoena on the Hospital’s records custodian, Helen Langer (“Langer”), who appeared in court with the requested records. Langer did not give the records directly to Canulli. Instead, Canulli called Langer as a witness and she gave the records directly to the trial court. The judge immediately and improperly reviewed the records in open court and then questioned Mandziara about her hospitalization and about certain notes in the records. At the end of the hearing the court awarded custody to the ex- husband. Mandziara sued Canulli for serving a subpoena on the Hospital without first obtaining a court order.3 The trial court (a different court than the one that conducted the custody hearing) granted summary judgment to Canulli. Canulli filed a petition for3 Initially Mandziara sued the Hospital for releasing the confidential information without a court order. That case was dismissed on summary judgment after a finding that section 10(b) of the Act, cited supra, protected the Hospital from liability, While we do not condone the trial judge’s action in commenting upon Mandziara’s records in open court, this was beyond the control of [Langer]. We find the Hospital did nothing more than follow section 10(b) of the Act in that it provided the court with Mandziara’s medical records pursuant to a request from an interested party for the sole purpose of an in camera inspection to determine their relevance in a child custody issue. Hospitals must be advised that Mandziara v. Canulli does not absolve them from liability under the Act. 22
  23. 23. sanctions under Illinois Supreme Court Rule 137 which the trial court denied. Canulli appealed the denial of sanctions and Mandziara cross-appealed the summary judgment for Canulli.ii. The Holding of the Court Canulli violated the Mental Health Confidentiality Act by failing to obtain a court order before serving a records subpoena on the hospital.iii. Analysis There are some strong reasons for maintaining confidentiality in mental health records. Presumably, the patient in psychotherapeutic treatment reveals the most private and secret aspects of his mind and soul. To casually allow public disclosure of such would desecrate any notion of an individual’s right to privacy. At the same time, confidentiality is essential to the treatment process itself, which can be truly effective only when there is complete candor and revelation by the patient. Finally, confidentiality provides proper assurances and inducement for persons who need treatment to seek it. Section 110/10 of The Mental Health Confidentiality Act, 740 ILCS 110/1 et seq., in pertinent part, provides as follows: Except as provided herein, in any [court] or administrative ... proceeding, ... a recipient [of mental health services], 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 records or communications. *** 23
  24. 24. Before a disclosure is made under subsection (a), any party to the proceeding or another interested person may request an in camera review of the record of communication to be disclosed. The court ... conducting the proceeding may hold an in camera review on its own motion ... the court ... may prevent disclosure or limit disclosure to the extent that other admissible evidence is sufficient to establish the facts in issue. The court ... may enter such order as may be necessary to protect the confidentiality, privacy, and safety of the recipient ... *** No party to any proceeding described under ... subjection (a) ..., 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.24
  25. 25. Section 110/15 of the Act also provides, “any person aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate relief.” The appellate court found that Canulli’s actions constituted a violation of the Act. The court rejected Canulli’s argument that he complied with the legislative intent of ensuring confidentiality by requesting that Langer produce the records to the court for an in camera review. Even assuming Canulli only intended the documents be reviewed in camera;4 the Act does not allow such disclosure without a court order. The Act is carefully drawn to maintain the confidentiality of mental health records except in specific circumstances ... The General Assembly has made a strong statement about the importance of keeping mental health records confidential. If we were to hold Canulli did not violate the Act merely because he did not look at Mandziara’s records, we would be rewriting the statute, effectively eroding unmistakable legislative intent under the weight of judicial fiat ... Nothing in section 10(d) excuses a court order when the records are first examined by the trial judge. In reaching these conclusions, the court noted that Canulli supposedly had honorable intentions in wanting to protect his client’s children, but that these intentions had no bearing on the determination of whether Canulli violated the Act. “[M]otives have nothing to do with4 The court also held that this argument was contradicted by testimony in the record of the trial court hearing in which Canulli requested to be present when the judge reviewed the records. 25
  26. 26. the legislative judgment that mental health recordsshould not be surrendered as a matter of course.” The court also indicated in some cases strictcompliance with the statute can be excused, such as incases where a patient placed her own mental health atissue. In the present case, however, “Mandziara did notbring this action. She did not ask to be brought into acourtroom to face a challenge to the custody of herchildren.” Lastly, the court concluded that an award of damagescould be appropriate pursuant to section 110/15 of theAct, and remanded the case to the trial court to determinecausation and damages. Some legal analysts note that Section 10(d) containsno requirement of notice to the third person from whomthe records are being sought of intent to seek an orderauthorizing disclosure or the issuance of the subpoena.The order merely “authorizes” -- it does not compel --issuance of the subpoena or disclosure of the record.Obviously, a party must receive a notice of the motion forissuance of the order and should at that point interposeany objection by answer to the motion, citing theappropriate privilege or other protective statute. Theauthorization order does not preclude a motion to quashby the person subpoenaed. 26
  27. 27. SUBPOENA POLICY Brooke R. WhittedWHITTED, CLEARY & TAKIFF, LLC 3000 Dundee Road Suite 303 Northbrook, Illinois 60062 (847) 564-8662 www.WCT-LAW.com 27
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  29. 29. SUBPOENA POLICY With increasing frequency, we are receiving subpoenas both for recordsand requiring staff testimony in legal proceedings. This has most often occurredin domestic relations proceedings in which one or both parties seek to compeltestimony by staff, taking them away from their duties with children. As thefrequency of these subpoenas has increased, their effect has become evermoredisruptive to the education of all of our students. Our board of directors hastherefore decided to implement the following procedures whenever a subpoenais received in any civil matter not involving a dispute with the school itself. Thepurpose of this policy is to ensure a stable and safe environment for our childrenwhile at the same time attempting to reasonably accommodate individuals whofor one reason or another feel a need to request or compel testimony of staff orcopies confidential records. I. SUBPOENAS FOR RECORDS ONLY Whenever a subpoena for records only is received, we will first determine if mental health records are included in our files. If they are, as to those records only, Illinois law requires that any properly served subpoena must be accompanied by a court order. The court order must give permission to the subpoenaing party to serve the subpoena and it must also grant access to “personally identifiable” mental health records. Service of a subpoena for mental health records, without an accompanying court order as above described, is a defectively served subpoena and will be ignored. In addition, under Illinois decisional case law, an attorney who defectively serves a subpoena for mental health records is subject to a disciplinary complaint and possible malpractice action. 29
  30. 30. If there is a compelling reason, in the sole discretion of the administration, a subpoena for records may be met by a “motion to quash.” This means that we will challenge the subpoena. We will challenge a subpoena if we think there is information in the file that might cause harm to the child or children in question, or if the subpoena is served for any improper purpose. In such an event, we will retain legal counsel, challenge the subpoena, and bill the subpoenaing party accordingly, pursuant to III below.II. SUBPOENA OF A WITNESS FOR TESTIMONY OR DEPOSITION 1. SUBPOENA OF THE PRINCIPAL OR EXECUTIVE DIRECTOR If we receive a subpoena for the in-court testimony of the Principal or Executive Director about our program, we will usually accommodate the request but will try to restrict testimony to a description of our programs. We will generally resist multiple depositions, court dates, and the like and will retain legal counsel for this purpose should testimony become too disruptive for the Executive Director or our program. In addition, we will resist any subpoena if we think that it was served for an improper purpose, such as to harass or intimidate. 30
  31. 31. 2. SUBPOENA OF ANYONE OTHER THAN THE EXECUTIVE DIRECTOR OR PRINCIPAL We will resist all subpoenas for in-court testimony served upon anyone other than our Principal or Executive Director. The purpose of this policy is to ensure a stable and continuous service environment for the children we serve. To permit lawyers or parents in a domestic relations or other dispute to act out their own conflicts by disrupting staff through subpoenas that take our staff away from serving children will not be tolerated. We expect families who insist on doing this to pay for any and all costs, including our attorney fees, if they cause a subpoena to be served that in our sole discretion requires the involvement of our attorney.III. PAYMENT FOR SERVICES We extend the availability of our Executive Director for testimony as a courtesy to our families. However, at times in legal cases the records registrar is required to “authenticate” a record. With respect to any testimony for the narrow purpose of records authentication, we will allow our records custodian to testify for a flat fee of $500.00. The time of the Executive Director is billed to the subpoenaing party for any other case at a rate of $250.00 per hour. Should a subpoenaing party wish the Executive Director to be qualified in the case as an “expert,” in other words, to offer opinions rather than just testimony as to things observed or heard, or testimony about our services, the hourly rate is $500.00. Hourly charges apply to preparation, travel, waiting, 31
  32. 32. and actual testimony time. We reserve the right to request advance payment for these charges. We, the parents of ______________(name)_________________, achild served by ____(school or facility)_______, have read the abovepolicy on subpoenas. We certify that should we enter into a civil disputeas with any party other than the school or faculty itself, we will notsubpoena anyone for testimony for any purpose in such proceedings; and,we agree as part of our contract with this facility to pay for any and allattorney fees that might be incurred as a result of a subpoena served byus upon this facility which would in the sole discretion of managementrequire retention of legal counsel. We also understand, and agree inadvance, that our family may be dismissed from the facility if respondingto subpoenas and other legal procedures would, in the sole discretion ofthe administration, be too burdensome and/or disruptive. We intend thatthis document shall be incorporated into our current contract with thisfacility.X_________________________ X_________________________(Parent) (Parent) PrincipalAccepted: X___________________________Title: Executive Director (School or Facility) 32
  33. 33. ILLINOIS MENTAL HEALTHCONFIDENTIALITY ACT ANDCOMPARISON WITH FERPA AND OTHER PROVISIONS _________________________________________ BROOKE R. WHITTED LARA A. CLEARY Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, Illinois 60062 (847) 564-8662 (847) 564-8419 (Facsimile) Whittedlaw@aol.com (Email) 33
  34. 34. (Revised 9/2001)34
  35. 35. The purpose of this memorandum is to summarize the provisions of the DMHDDConfidentiality Act, which is a federal grant act, and to highlight certain similarities to theFamily Education and Right to Privacy Act (FERPA). The central themes are the right toinspect and review records and the restriction of personally identifiable information.FERPA is selected for certain comparisons because it contains many of the provisions foundin state confidentiality statutes, including those found in Illinois.I. DEFINITIONS The MHDDCA contains the following relevant definitions: 110/2. Definitions §2. The terms used in this Act, unless the context requires otherwise, have the meanings ascribed to them in this Section. (1) "Confidential communication" or "communication" means any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient. Communication includes information which indicates that a person is a recipient. (2) "Guardian" means a legally appointed guardian or conservator of the person. (3) "Mental health or developmental disabilities services" or "services" includes but is not limited to examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation. (4) "Personal notes" means: (i) information disclosed to the therapist in confidence by other persons on condition that such information would never be disclosed to the recipient or other persons; (ii) information disclosed to the therapist by the recipient which would be injurious to the recipients relationships to other persons, and (iii) the therapists speculations, impressions, hunches, and reminders. (5) "Parent" means a parent or, in the absence of a parent or guardian, a person in loco parentis. 35
  36. 36. (6) "Recipient" means a person who is receiving or has received mental health or developmental disabilities services. (7) "Record" means any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided. Record does not include the therapists personal notes, if such notes are kept in the therapists sole possession for his own personal use and are not disclosed to any other person, except the therapists supervisor, consulting therapist or attorney. If at any time such notes are disclosed, they shall be considered part of the recipients record for purpose of this Act. (8) "Record custodian" means a person responsible for maintaining a recipients record. (9) "Therapist" means a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person not prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes that such person is permitted to do so. Therapist includes any successor of the therapist. FERPA defines Sole Possession Records at 20 U.S.C. §1232(g)(a)(4)(B) as follows: (B) The term "education records" does not include - (i) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute. (Emphasis added.) FERPA applies to educational institutional recipients of federal financial assistance.The fundamental consequence for non-compliance with FERPA is that the agency inquestion (such as a state university) will not receive federal money if the provisions of the actare not obeyed. For example, if due process is not provided, the following FERPA provisionapplies: (2) No funds shall be made available under any applicable program to any educational agency or institution unless the parents of students who are or have been in attendance at a school of such agency or at such institution are provided an opportunity for a hearing by such agency or institution, in accordance with regulations of the Secretary, 36
  37. 37. to challenge the content of such students education records, in order to insure that the records are not inaccurate, misleading, or otherwise in violation of the privacy rights of students, and to provide an opportunity for the correction or deletion of any such inaccurate, misleading or otherwise inappropriate data contained therein and to insert into such records a written explanation of the parents respecting the content of such records.II. WHAT RECORDS ARE PROTECTED? Under both laws, all records are "protected" except those specifically mentioned inthe Act. Such exceptions might include separate law enforcement files, records of personsemployed but not in attendance, physician/psychologist records if generated by them in thatcapacity and if the subject is 18 years of age or older, so-called "directory" information, and"sole possession" records. None of these kinds of records are subject to disclosure under anycircumstances, for the simple reason that they are not defined as "records" under FERPA. Acloser examination of "sole possession" records may be helpful. Sole possession records are not subject to disclosure if they fit within the abovedefinitions contained in either law, the MHDDCA being far more specific. One who isseeking disclosure of the file cannot under any circumstances inspect, copy or challenge thecontents of sole possession records. However, the courts interpretations have been strict inthis regard. Such records must be private notes, intended as personal memory aids, andinaccessible by others. A similar definition of so-called "personal notes" holds generally inmost states. In Illinois, there are even more specific provisions relating to personal notes andprotocols: 37
  38. 38. 110/3. Records and communications - Personal notes of therapist - Psychological test material §3. (a) All records and communications shall be confidential and shall not be disclosed except as provided in this Act. (b) A therapist is not required to but may, to the extent he determines it necessary and appropriate, keep personal notes regarding a recipient. Such personal notes are the work product and personal property of the therapist and shall not be subject to discovery in any judicial, administraive or legislative proceeding or any proceeding preliminary thereto. (c) Psychological test material whose disclosure would compromise the objectivity or fairness of the testing process may not be disclosed to anyone including the subject of the test and is not subject to disclosure in any administrative, judicial or legislative proceeding. However, any recipient who has been the subject of the psychological test shall have the right to have all records relating to that test disclosed to any psychologist designated by the recipient. Requests for such disclosure shall be in writing and shall comply with the requirements of subjection (b) of Section 5 of this Act. The MHDDCAs list of persons entitled to inspect and copy a mental health file uponrequest, without consent, is very specific: 110/4. Persons entitled to inspect and copy recipients record §4. (a) The following persons shall be entitled, upon request, to inspect and copy a recipients record or any part thereof: (1) the parent or guardian of a recipient who is under 12 years of age; (2) the recipient if he is 12 years of age or older; (3) the parent or guardian of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access. The parent or guardian who is denied access by either the recipient or the therapist may petition a court for access to the record;Note here that there is no therapist "waiver" where 38
  39. 39. (4) the guardian of a recipient who is 18 years or older; (5) an attorney or guardian ad litem who represents a minor 12 years of age or older in any judicial or administrative proceeding, provided that the court or administrative hearing officer has entered an order granting the attorney this right; or (6) an agent appointed under a recipients power of attorney for health care or for property, when the power of attorney authorizes the access. (Emphasis added.) Further, agency attempts to restrict access by requiring that someone "assist" therecipient in interpreting the file are improper if imposed over a recipients refusal: 110/4(b). §4. (b) Assistance in interpreting the record may be provided without charge and shall be provided if the person inspecting the record is under 18 years of age. However, access may in no way be denied or limited if the person inspecting the record refuses the assistance. A reasonable fee may be charged for duplication of a record. (Emphasis added.)III. RIGHT TO CHALLENGE Under FERPA, there is a due process right to a hearing, as outlined on page 3, for thepurpose of challenging the accuracy of the contents of a particular file. There is also aprivilege for the subject of the record to insert his or her own version of an incident oroccurrence, and should that record ever be disclosed, the subjects explanation must also bedisclosed. There is a similar right in the DMHDDCA at 740 ILCS 110/4(c): 110/4(c): §4. (c) Any person entitled to access to a record under this Section may submit a written statement concerning any disputed or new information, which statement shall be entered into the record. Whenever any disputed part of a record is disclosed, any submitted statement relating thereto shall accompany the disclosed part. Additionally, any person entitled to access may request modification of any part of the 39
  40. 40. record which he believes is incorrect or misleading. If the request is refused, the person may seek a court order to compel modification. (d) Whenever access or modification is requested, the request and any action taken thereon shall be noted in the recipients record.IV. CONSENTS FOR RELEASE OF INFORMATION The MHDDCA is one of the countrys most complicated in this area: 110/5. Written consent for disclosure of records and communications §5. (a) Except as provided in Sections 6 through 12.2 of this Act, records and communications may be disclosed to someone other than those persons listed in Section 4 of this Act only with the written consent of those persons who are entitled to inspect and copy a recipients record pursuant to Section 4 of this Act. (b) Every consent form shall be in writing and shall specify the following: (1) the person or agency to whom disclosure is to be made; (2) the purpose of which disclosure is to be made; (3) the nature of the information to be disclosed; (4) the right to inspect and copy the information to be disclosed; (5) the consequences of a refusal to consent, if any; and (6) the calendar date on which the consent expires, provided that if no calendar date is stated, information may be released only on the day the consent form is received by the therapist; and (7) the right to revoke the consent at any time. The consent form shall be signed by the person entitled to give consent and the signature shall be witnessed by a person who can attest to the identity of the person so entitled. A copy of the consent and a notation as to any action taken thereon 40
  41. 41. shall be entered in the recipients record. Any revocation of consent shall be in writing, signed by the person who gave the consent and the signature shall be witnessed by a person who can attest to the identity of the person so entitled. No written revocation of consent shall be effective to prevent disclosure of records and communications until it is received by the person otherwise authorized to disclose records and communications. (c) Only information relevant to the purpose for which disclosure is sought may be disclosed. Blanket consent to the disclosure of unspecified information shall not be valid. Advance consent may be valid only if the nature of the information to be disclosed is specified in detail and the duration of the consent is indicated. Consent may be revoked in writing at any time; any such revocation shall have no effect on disclosures made prior thereto. (Emphasis added.)And note that although redisclosures are not permitted, the patient may waive this right andauthorize redisclosures in advance: (d) No person or agency to whom any information is disclosed under this Section may redisclose such information unless the person who consented to the disclosure specifically consents to such redisclosure. (Emphasis added.)Confidentiality of mental health records in Illinois survives death, as opposed to ordinarymedical records: (e) Except as otherwise provided in this Act, records and communications shall remain confidential after the death of a recipient and shall not be disclosed unless the recipients representative, as defined in the Probate Act of 19751 and the therapist consent to such disclosure or unless disclosure is authorized by court order after in camera examination and upon good cause shown. (Emphasis added.)But ordinary consents are permitted in insurance coverage matters: (f) Paragraphs (a) through (e) of this Section shall not apply to and shall not be construed to limit insurance companies writing Life, Accident or Health insurance as defined in Section 4 of the Illinois Insurance Code,2 and Non-Profit Health Care Service Plan Corporations, writing Health Care Service contracts, under The Non-Profit Health Care Service Plan Act,3 in obtaining general consents for the release to 41
  42. 42. them or their designated representatives of any and all confidential communications and records kept by agencies, hospitals, therapists or record custodians, and utilizing such information in connection with the underwriting of applications for coverage for such policies or contracts, or in connection with evaluating claims or liability under such policies or contracts, or coordinating benefits pursuant to policy or contract provisions.And in certain applications for benefits, no consent is required: 110/6. Information used in application for benefits - Disclosure without consent. §6. Such information from a recipients record as is necessary to enable him to apply for or receive benefits may be disclosed with consent obtained pursuant to Section 5 of this Act. Disclosure may be made without consent when despite every reasonable effort it is not possible to obtain consent because the person entitled to give consent is not capable of consenting or is not available to do so. The recipient shall be informed of any disclosure made without consent. The information disclosed without consent under this Section may include only the identity of the receipient and therapist and a description of the nature, purpose, quantity, and date of the services provided. Any request for additional information shall state with particularity what further information is needed and the reasons therefor. Refusal to consent to the disclosure of more information than is necessary to apply for or receive direct benefits shall not be grounds for in any way denying, limiting, or cancelling such benefits or refusing to accept an application or renew such benefits. Such information shall not be redisclosed except with the consent of the person entitled to give consent. (Emphasis added.)Section 110/7.1 of the MHDDCA also allows certain interagency disclosures withoutconsent. Section 110/9.2 also states: 110/9.2 Interagency disclosure of recipient information. §9.2. Interagency disclosure of recipient information. For the purposes of continuity of care, the Department of Menthal Health and Developmental Disabilities and community agencies funded by the Department of Mental Health and Developmental Disabilities may disclose a receipients record or communications, without consent, to each other, but only for the purposes of admission, treatment, planning, or discharge. Entities shall not redisclose any personally identifiable information, unless necessary for admission, treatment, 42
  43. 43. planning, or discharge of the identified recipient to another setting. (Emphasis added.)V. MANDATED DISCLOSURES In certain instances, disclosures are required: 110/11. Disclosure of records and communications.(Child Abuse) §11. Disclosure of records and communications. Records and communications may be disclosed, (i) in accordance with the provisions of the Abused and Neglected Child Reporting Act;1 (ii) when, and to the extent, a therapist, in his or her sole discretion, determines that disclosure is necessary to initiate or continue civil commitment proceedings under the laws of this State or to otherwise protect the recipient or other person(Risk of Harm) against a clear, imminent risk of serious physical or mental injury or disease or death being inflicted upon the recipient or by the recipient on himself or another; (iii) when, and to the extent disclosure is, in the sole discretion of the therapist, necessary to the provision of emergency medical care to a recipient who is unable to assert or waive his or her rights hereunder; (iv) 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 under Chapter V of the Mental Health and Developmental Disabilities Code2 or to transfer debts under the Uncollected StatesClaims Act ...; (v) when requested by a family member, the Department of Mental Health and Developmental Disabilities may assist in the location of the interment site of a deceased recipient ...; (vi) in commitment proceedings under the Mental Health and Developmental Disabilities Code and proceedings and investigations preliminary thereto, to the States Attorney for the county or residence of a person for whom involuntary or judicial admission is sought, or in which the person is found, or in which the facility is provided that the information so disclosed shall not be utilized for any other 43
  44. 44. purpose nor be re-disclosed except in connection with the proceedings or investigations; (vii) when, and to the extent disclosure is necessary to comply with the requirements of the Census Bureau in taking the federal Decennial Census; and (viii) when, and to the extent, in the therapists sole discretion, disclosure is necessary to warn or protect a specific individual against whom a recipient has made a specific threat of a specific threat of violence where there exists a therapist- recipient relationship or a special recipient- individual relationship. Any person, institution, or agency, under this Act, participating in good faith in the making of a report under the Abused and Neglected Child Reporting Act or in the disclosure of records and communications under this Section, shall have immunity from any liability, civil, criminal or otherwise, that might result ... (Emphasis added.)The most important mandated releases above cover abused children and the codified Tarasoffduty. There is also a more specific provision at §110/9: 110/9. Disclosure by therapist without consent. §9. In the course of providing services and after the conclusion of the provision of services, a therapist may disclose a record or communications without consent to: (1) the therapists supervisor, a consulting therapist, members of a staff team participating in the provision of services, a record custodian, or a person acting under the supervision and control of the therapist; (2) persons conducting a peer review of the services being provided; (3) the Institute for Juvenile Research and the Institute for the Study of Developmental Disabilities; and 44
  45. 45. (4) an attorney or advocate consulted by a therapist or agency which provides services concerning the therapists or agencys legal rights or duties in relation to the recipient and the services being provided. In the course of providing services, a therapist may disclose a record or communications without consent to any department, agency, institution or facility which has custody of the recipient pursuant to State statute or any court order of commitment. Information may be disclosed under this Section only to the extent that knowledge of the record or communications is essential to the purpose for which disclosure is made and only after the recipient is informed that such disclosure may be made. A person to whom disclosure is made under this Section shall not redisclose any information except as provided in this Act. (Emphasis added.)VI. SUBPOENA SERVICE The DMHDD Confidentiality Act has been amended to restrict service of subpoenasin certain circumstances, without an accompanying court order. The new provision, which iscontained at 740 ILCS 110/10(d) states: (d) No party to any proceeding described under paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a) of this Section, no rhis 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. (Source: P.A. 86-1417.) (Emphasis added.)In order to become acquainted with the operation of this new section, which serves as astatutory command to all "persons" not to comply with an improperly served subpoena, it isnecessary to examine the sections referred to. That is the purpose of this memorandum. A. Civil, Criminal, or Administrative Proceedings Where Patients Mental Conditional is Introduced Section 10(a)(1) concerns records and communications which are subpoenaedpursuant to a "civil, criminal or administrative proceeding in which the recipient introduceshis mental condition or any aspect of his services received for such condition as an element 45
  46. 46. of his claim or defense." Such disclosures are to be made only after the judge or hearingofficer examines the documents in camera5 and determines: 1. disclosure is relevant and probative; 2. disclosure will not be unduly prejudicial or inflammatory; 3. disclosure is otherwise clearly admissible; 4. other satisfactory evidence (other than that contained in the confidential record) is "demonstrably unsatisfactory"; 5. 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 the disclosure is likely to harm.This section goes on to say that no record or communication between a therapist and patientis deemed "relevant" except the fact of treatment, the cost of services, and the ultimatediagnosis unless the party seeking disclosure of the communication clearly establishes in thetrial court a "compelling need" for production of the document, or if the proceeding is acriminal trial in which insanity is claimed as a defense.6 5 This means a preliminary review of the restricted file, by the judge, in his office and off therecord. 6 It is our position that subpoenas received in the course of proceedings pursuant to theMental Health Code, such as, for example, Involuntary Admission, are included in thissection. Thus, if a subpoena is received from a party to these proceedings, it must beaccompanied by a court order, unless the therapist has determined a disclosure is necessary to"initiate or continue civil commitment proceedings" per 740 ILCS 110/11 (outlined at SectionV). 46
  47. 47. B. Documents Sought After Death of Patient Where Mental Condition is at Issue Section 10(a)(2) concerns civil proceedings in which a document is sought tobe introduced after the death of the patient. The same procedure regarding an incamera examination by the judge or hearing officer is outlined. Post-deathdisclosures under this section must also involve the patients physical or mentalcondition having been introduced in the procedures as an element of a claim ordefense, by any party. C. Actions by Patient or, if Deceased, Patients Representative, Against Therapist Section 10(a)(3) describes actions by a patient, or by a representative of adeceased patient, against the therapist alleging that the therapist or other practitionercaused the injury complained of in the course of providing services to the patient. D. Records Generated in the Course of a Court Ordered Evaluation Section 10(a)(4) concerns records and communications "made to or by atherapist in the course of examination ordered by a court." These communicationsmay be disclosed in civil, criminal, or administrative proceedings or in appropriatepretrial proceedings provided that the court has found that the patient has beenadequately and "as effectively as possible" informed before submitting to suchexamination that such records would not be considered confidential or privileged.However, these records are only admissible as to issues involving the patientsphysical or mental condition and only to the extent that they are germane to theproceedings. E. Proceedings Involving Validity of Insurance Coverage When Mental Condition of Patient is at Issue Section 10(a)(7) concerns records and communications of the recipient beingdisclosed in any civil or administrative proceeding involving the validity of benefitsunder a life, accident, health, or disability insurance policy or certificate, or healthcare service plan contract. However, disclosure is only allowed to the extent that thepatients mental condition or treatment or services is a material element of any claimor defense. F. In Any Proceedings Under the DMHDD Confidentiality Act Section 10(a)(8) concerns records or communications being disclosed pursuantto any action brought under the DMHDD Confidentiality Act, provided that theinformation disclosed shall not be utilized for "any other purpose." 47
  48. 48. VII. NON-DISCLOSURE OF PERSONALLY IDENTIFIABLEINFORMATION As can be seen, the most fundamental rule of any confidentiality code is thatpersonally identifiable information is prohibited from being disclosed except with theconsent of the subject of the record in question. There are other exceptions, whichmight include the various school administrative officials, officials in an institutionwhere a student seeks to enroll, disclosures in connection with an application forfinancial aid, natural parents, disclosures necessary to protect the health and safety ofthe subject of the record, or in response to judicial order or lawful subpoena. Anydisclosures made by the institution must be documented. Under both acts, when astudent or other subject of a file reaches the age of 18, only he or she may consent tothe disclosure, not the parents.VIII. CONFIDENTIALITY RULES UNDER THE EDUCATION OF THE HANDICAPPED ACT The Education of the Handicapped Act (EHA) also has its own confidentialityprovision. This act is broader than FERPA and encompasses children age 3 to 21 onwhom files are generated. The act applies to all agencies involved in receivingmoney under the Education of the Handicapped Act. The right to access by parents ismore extensive, and the parental consent requirements are slightly different. Thereare more detailed procedures for safekeeping and destruction of files. Unlike FERPA,when the student reaches 18, the severity of his or her disability must be consideredbefore the rights transfer to the pupil. Each state is required to have enforcementsanctions in the event of non-compliance with the EHA confidentiality provision.IX. MISCELLANEOUS A note on substance abuse: a physician may disclose to parents the fact thattheir minor child has sought substance abuse counseling or treatment from him, butthe physician must tell the parents of an age-12-or-older minor after the secondtreatment. The only exception to mandatory disclosure after the second treatment forsubstance abuse problems is certification by the physician that doing so wouldjeopardize treatment. In that instance, the physician may wait up to three monthsbefore disclosing. However, if a member of the family is abusing drugs or alcohol,no disclosure need be made (see more detailed memo on this subject). A note on abuse reporting: In all states, confidentiality is waived when amandated reporter has reasonable cause to believe an abuse or neglect situation ispresent. Moreover, any reports pursuant to abuse reporting acts are immune fromcivil suit. Depending on the state, sanctions may be present, for the failure of amandated reporter to submit a report of abuse or neglect. Such sanctions mightinclude loss of a professional license. 48
  49. 49. BREAKING CONFIDENTIALITY: DUTY TO WARN Brooke R. Whitted Lara A. Cleary WHITTED, CLEARY + TAKIFF, LLC 3000 Dundee Road, Suite 303 Northbrook, Illinois 60062 (847) 564-8662 (847) 564-8419 (fax) WhittedLaw@aol.com 49
  50. 50. 50
  51. 51. INTRODUCTION The Illinois Mental Health and Developmental Disabilities Confidentiality Act(“MHDDCA”), 740 ILCS 110/1 et seq., provides protection for communications betweenmental health practitioners and their patients. Pursuant to the MHDDCA, no disclosuresof confidential information may be made to anyone without the express writtenpermission of the patient except in a few, very specific, exceptions. One of thoseexceptions is the duty to warn. As a general rule, a person owes no duty to warn a third party concerning thepotentially dangerous conduct of another. In many jurisdictions, however, case law hascarved out exceptions to that rule, where a "special relationship" is involved. In Tarasoff v.Regents of the University of California, the landmark case on this subject, the CaliforniaSupreme Court7 held that a psychologist who had knowledge of a patients intention to harma specific individual had a duty to exercise reasonable care to warn the intended victim.Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551P.2d 334 (1976). TARASOFFFacts: Prosenjit Poddar was a Bengali of the Harijan (untouchable) caste who had worked his way through the Indian educational system and eventually traveled to California to study naval architecture at the University of California-Berkley in 1967. One year later he met Tatiana Tarasoff. Despite Prosenjit’s attempts at romance with Tatiana, she was uninterested and rebuffed his advances. After Tatiana’s final rejection of him, Prosenjit began to exhibit symptoms of clinical depression; eating and sleeping irregularly, failing to keep up with his classes or his job, and listening endlessly to tape recordings he had secretly made of his conversations with Tatiana. Upon the urging of a friend, Prosenjit agreed to seek mental health counseling at the University of California-Berkeley Hospital. In August 1969, Prosenjit confided to the clinical psychologist he was seeing at the hospital of his intention to kill Tatiana. After consulting with two psychiatrists, the psychologist decided to commit Prosenjit for observation and reported the threat to campus police. Although the police briefly detained Prosenjit and searched his apartment, he was eventually released because he appeared rational and stated that he would stay away from Tatiana. Prosenjit never returned to therapy and his psychologist’s supervisor directed that no further action be taken to commit Poddar or warn Tatiana or her parents of the threats. On October 27, 1969, Prosenjt Poddar killed Tatiana Tarasoff. After Tatiana’s death, her parents filed suit against the University. The lower courts dismissed the civil action against7 Although the seminal case in this area, Tarasoff was not a U.S. Supreme Court case but rather just aSupreme Court of California case. Because it was not a U.S. Supreme Court decision, no other states werebound by Tarasoff, however many states such as Illinois embraced and eventually appear to have implicitlycodified the duty to warn requirement. 51
  52. 52. the University, finding that there was no cause of action because the University owed no duty of care to Tatiana, as she was not their patient, but rather just a third party.Holding: The California Supreme Court reversed the decision of the lower courts and allowed Tatiana’s parents to maintain their cause of action against the University of California for the failure to warn. The case was remanded back to the district court for a retrial.Reasoning: The Court carefully considered the impact of the confidential nature of mental health communications and the necessity of obtaining mental health services, but determined that the public policy interest in protecting the public from a known threat of harm prevailed. The Court stated: We realize the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened. Tothe contrary, the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. The Tarasoff opinion does not decide whether the University was negligent. Thecase merely holds that the Plaintiff has stated a cause of action that, if proved at trial,would entitle Tatiana’s parents to relief. On remand to the lower court, the trier of factwould have had to decide whether the University’s failure to notify the victim or herfamily did in fact constitute a breach of the duty to the third-party victim. The trial courtcould have found that by notifying the police, the University had exercised due care andwas not negligent. Interestingly, the case was settled by the parties out of court prior toretrial.IMPACT OF TARASOFF Following the issuance of the Tarasoff opinion, an increasing number ofjurisdictions held that personnel involved in the psychiatric treatment of a patient have notonly a right, but a duty to warn of a patients potential dangerousness. 52
  53. 53. Non-Illinois Cases Following Tarasoff In Thompson v. County of Alameda, another California case, a juvenile delinquentstated that if released from custody, he would kill a young child residing in hisneighborhood, but he named no specific victim. Upon his release from the countyinstitution, the delinquent made good on his threat by killing a young neighbor. In a lawsuitagainst the county institution, however, the California Supreme Court held that in theabsence of a readily identifiable foreseeable victim,there was no duty to warn. The existence of an identifiable group of potential victims wasinsufficient to create a duty to warn, in light of the infrequency with which threats ofviolence by a patient are carried out, and in light of societys interest in encouraging freecommunication between therapist and patient. Thompson v. County of Alameda, 27 Cal. 3d741, 167 Cal. Rptr. 70, 614 P.2d 728 (1980). In Brady v. Hopper, individuals shot by John Hinckley during his attemptedassassination of Ronald Reagan sued Hinckleys psychiatrist. Again, however, the federaldistrict court in that case held that even in a situation involving a special relationship, suchas the one between a therapist and patient, the therapist does not owe a duty to the world atlarge, and cannot be held liable for injuries inflicted on third persons, absent specific threatsto a readily identifiable victim. Brady v. Hopper, 570 F. Supp. 1333, 1338 ( D. Colo. 1983). Several courts have discussed the foreseeability component of the duty to warn, andhave imposed upon therapists an affirmative duty to investigate the possibility ofdangerousness. In Bradley Center Inc. v. Wessner, a private hospital was held liable forfailing to pursue "further attempts to evaluate in a more intensive fashion the insidedeterioration" of a patient who, while released on a one-day pass, murdered his ex-wife.Bradley Center Inc. v. Wessner, 161 Ga. App. 576, 287 S.E. 2d 716, 723 (1982). InHedlund v. Superior Court of Orange County, a California court recognized that the duty towarn is "inextricably interwoven with the diagnostic function," and that "the duty imposedon the therapist... is first to diagnose or recognize the danger posed by the patient..."Hedlund v. Superior Court of Orange County, 34 Cal. 3d 695, 669 P.2d 41, 45 (1983).Under these cases, then, the therapist has a duty to take some initiative in determining apatients dangerousness.Illinois Cases Following Tarasoff The first Illinois case to recognize that a duty to warn might exist was Kirk v.Michael Reese Hospital and Medical Center. In that case the Illinois Supreme Court foundthat a hospital had no duty toward an individual injured while riding in theautomobile driven by a recently released patient who allegedly had not been warned not tomix alcohol with his prescribed medication. Stressing the unreasonable burden that wouldbe placed upon a hospital if it were held liable for all of the harmful acts of released patients,the court held that no duty arose, since the third party who was injured had no "special"relationship with either the hospital or the patient. 53
  54. 54. The court took care, however, to distinguish the instant case, in which it found noduty, from cases cited by the plaintiff, in which there were allegations that treatmentpersonnel negligently released a patient, or were aware of a patients dangerous propensities,and in which courts imposed a duty to take reasonable measures to protect third parties.Kirk v. Michael Reese Hospital and Medical Center, 117 Ill. 2d 507, 513 N.E. 2d 387(1987). Going a step further, in Novak v. Rathnam, the Illinois Appellate Court stated that itbelieved "that Illinois would adopt Tarasoffs affirmative duty on therapists to warnforeseeable third parties." Novak v. Rathnam, 153 Ill. App. 3d 408, 505 N.E. 2d 773 (3rdDist. 1987). Not long thereafter, in the case of Eckhardt v. Kirts, Novaks prediction was provencorrect when the Appellate Court, citing Tarasoff, Brady, Thompson and Kirk, held thatunder certain circumstances, a psychiatrist would have a duty to warn threatened individualsabout a potentially dangerous patient. Joyce Eckhardt, who suffered from mental disabilitiesand who had been under the treatment of Dr. Thomas Kirts, a psychiatrist, shot and killedher husband Harold. In a suit filed by Harold Eckhardts mother against Dr. Kirts, theAppellate Court, while ultimately finding that Dr. Kirts owed no duty to the plaintiff, didestablish three criteria for determining the existence of a duty to warn: "First, the patientmust make specific threat(s) of violence; second, the threat(s) must be directed at aspecific and identified victim, and third, a direct physician-patient relationshipbetween the doctor and the plaintiff or a special relationship between the patient andthe plaintiff." The court concluded that Dr. Kirts had no duty to warn Harold Eckhardt about JoyceEckhardt, since Mrs. Eckhardt had never made any specific threats against her husband.The court refused to consider whether the required "special relationship" existed in this case,leaving open the question of whether such a relationship exists in a situation involving apatient, a psychiatrist and the patients spouse. Eckhardt v. Kirts, 179 Ill. App. 3d 863, 534N.E. 2d 1339 (2nd Dist. 1989). In Charleston v. Larson, 297 Ill.App.3d 540, 606 N.E.2d 793 (1st Dist. 1998), a nurseat a psychiatric facility brought an action against one of the facilities psychiatrists after shewas attacked by a patient at the facility. Prior to the attack, the patient-attacker hadvoluntarily admitted himself on an emergency basis and had been seen by the defendant.The plaintiff nurse claimed that pursuant to Eckhardt, the defendant psychiatrist had anaffirmative obligation to warn plaintiff or other facility employees of the attacker-patient’sviolent propensities. The defendant claimed he had no duty because the attacker-patient hadnever made a specific threat against the nurse. He also argued that no physician-plaintiffrelationship existed between the doctor and plaintiff nor did a special relationship existbetween the plaintiff and the attacker-patient. The court accepted defendant’s arguments andupheld the lower court’s dismissal of plaintiff’s cause of action. 54
  55. 55. Illinois Appears to Codify Tarasoff Thus, after Eckhardt, Illinois appeared to adopt an implicit duty to warn, althoughthis has yet to be tested in Illinois courts. Illinois statutory law has addressed the duty in twostatutes, the Mental Health Code and the Mental Health and Developmental DisabilitiesConfidentiality Act. At 740 ILCS 110/11, The Illinois Mental Health and DevelopmentalDisabilities Confidentiality Act provides that records and communications may bedisclosed: (viii) when, and to the extent, in the therapists sole discretion, disclosure is necessary to warn or protect a specific individual against whom a recipient has made a specific threat of violence where there exists a therapist- recipient relationship or a special recipient-individual relationship; In addition, at 405 ILCS 5/6-103 the Illinois Mental Health Code provides anexemption from liability for practitioners who have made a good faith effort to fulfill theduty to warn: (b) There shall be no liability on the part of, and no cause of action shall arise against, any person who is a physician, clinical psychologist, or qualified examiner based upon that persons failure to warn of and protect from a recipients threatened or actual violent behavior except where the recipient has communicated to the person a serious threat of physical violence against a reasonably identifiable victim or victims. Nothing in this Section shall relieve any employee or director of any residential mental health or developmental disabilities facility from any duty he may have to protect the residents of such a facility from any other resident. (c) Any duty which any person may owe to anyone other than a resident of a mental health and developmental disabilities facility shall be discharged by that person making a reasonable effort to communicate the threat to the victim and to a law enforcement agency, or by a reasonable effort to obtain the hospitalization of the recipient. (Emphasis added) 55
  56. 56. SUMMARY Under current Illinois law, mental health practitioners may (and very possibly must)break confidentiality and warn third parties (and this means, when applicable, the intendedvictim and law enforcement authorities) if the harm is reasonably foreseeable, which means: 1. The patient has made specific threats of violence; 2. To a specific and identified victim 3. There is either a physician-patient relationship or a "special" relationship between the patient and the victim; and 4. The disclosure must be to the extent necessary to allow the victim to avoid harm and allow the authorities to intervene. 56
  57. 57. CURRENT STANDARDSFOR NEGLECT/ABUSE REPORTING Brooke R. Whitted Lara A. Cleary WHITTED, CLEARY + TAKIFF, LLC 3000 Dundee Road, Suite 303 Northbrook, Illinois 60062 (847) 564-8662 (847) 564-8419 (fax) WhittedLaw@aol.com 57
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