MENTAL HEALTH RECORDS: HOW DOES A GAL GET THEM?

MENTAL HEALTH RECORDS: HOW DOES A GAL GET THEM?

BY JUDGE JERELYN D. MAHER

CONFIDENTIALITY

MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CONFIDENTIALITY ACT:740 ILCS 110/1-13

IF NOT COMPLY, civil and criminal sanctions

DISCLAIMER!

• PRESENTATION SOLELY FOR OCTOBER, 2014, GAL TRAINING

• LIMITED TO THE GAL SEEKING RECORDS WITHIN THE SCOPE OF THE MHDDCA

Key Definitions110/2

• Confidential communication• Mental health or developmental disabilities

services (MHDDS)• Recipient• Therapist• Record• Personal notes

Confidential communication

• Any communication made by recipient • Or other person to a therapist• Or to or in the presence of other persons

during or in connection with providing MHDDS

Mental health or developmental disability services (MHDDS)

Includes but not limited to…..ExaminationDiagnosisEvaluationTreatmentTrainingPharmaceuticalsAftercareHabilitationrehabilitation

Recipient:

A person who is or has received MHDDS

Therapist

Any of the following providing MHDDS:PsychiatristPhysicianPsychologistSocial workerNurseAnd……..

Therapist cont

• Someone who holds self out as therapist and not prohibited by law and

• Recipient reasonably believes that such person is entitled to do so

Record

Any record kept by therapist or agency in the course of providing MHDDSButDoes not include therapist “personal notes” IF…

Personal notes are not included in the record

• If kept in therapist’s sole possession for own personal use AND

• Not disclosed to any other person except therapist’s supervisor, consulting therapist, or therapist atty

IF disclosed considered part of the record

Personal notes

• Info disclosed to therapist in confidence by other persons on condition not disclosed

• Info disclosed to therapist by recipient that would be injurious to the recipient’s relationship to other persons

• Therapist’s speculations, impressions, hunches and reminders

What is confidential?

ALL RECORDS and COMMUNICATIONS in connection with providing mental health services to a recipient EXCEPT AS PROVIDED IN THIS ACT

NOT DISCOVERABLE HOWEVERPersonal notesPsychological testing material that would compromise objectivity

Who is entitled to inspect and copy? 110/4

• (1) the parent or guardian of a recepient who is under 12 years of age

• (2) the recipient if 12 or older

Who entitled to inspect and copycont

• (3) parent or guardian of recepient 12 to 18 IFRecipient informed and does not object

OrTherapist does NOT find that there are compelling reasons for denying accessIf denied, parent may petition court for access

12-18 year old recipient cont.

Nothing prohibits parent or guardian from requesting and receiving:Current physical and mental conditionDiagnosisTreatment neededServices providedServices needed including meds

Who may inspect and copy cont.

• (5) an atty or GAL who represents a minor 12 years or older in any judicial or adm proceeding providing that the Court enters Order granting

What may find in the records: 110/4(c)(d)

(c) Correction or modification by any person entitled to access to a record(d) Whenever access or modification is requested and action taken

How disclosed

• 110/5 consent• 110/10 subpoena

Remember

Consents only needed by person seeking records who are not entitled to inspect

Consent:110/5

• Must be in writing and witnessed signiture• In the form prescribed in paragraph (b)• Only info relevant to the purpose for which

disclosure is sought BLANKET CONSENTS NOT VALID

• May not be redisclosed without specific consent

5(b)form shall specify…

1. person or agency to whom disclosure 2. purpose for disclosure3. nature of the info disclosed4. right to inspect and copy info disclosed5. consequence of a refusal to consent, if any6. calendar date consent expires if none day

received7. right to revoke at any time

Subpoena:110/10

In any civil, criminal,….proceeding or in any proceeding premlinary thereto a recipient and a therapist on behalf of recipient and in the interest of the recipient has the PRIVILEGE to refuse to disclose and to prevent the disclosure of the records or communication

Except

exception

• The recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense

And• Under the IMDMA only if the recipient or a

witness on his behalf first testifies concerning the record or communication

What does this mean?

• NORSKOG V PFIEL, 197 Ill.2d 60 (2001)• REDA v ADVOCATE HEALTH CARE, 199 Ill.2d 47

(2002)• DEPRIZIO v THE MacNEAL MEMORIAL

HOSPITAL ASSOCIATION, 2014 IL App (1st) 123206

Pause………

Child does not have a “claim” or “defense”

Think about this……

Note we are not talking about SCR 215 exams or 604(b)

Special subpoena process: 110/10(d)

• Subpoena is accompanied by a written order issued by a judge or by written consent under this act

• Notice to the recipient and provider of intent to serve subpoena and opportunity to be heard

• Hearing must be set

If grant subpoena

• Special language on subpoena• Returns to court for in camera

Disclosure after in camera if

• Relevant• Probative• Not unduly prejudicial or inflammatory• And otherwise clearly admissible• Other evidence is demonstrably unsatisfactory• Disclosure more important to interest of

substantial justice than protection

Disclosure order with protective order

• 110/10 and SCR 201(c)(1)• To protect the confidentiality, privacy, and

safety of the recipient or of other persons

Summary of thinking process

• First, can I inspect?• Second, can I get a consent• Third, do I get a subpoena