Public Act 098-0221
 
HB1458 EnrolledLRB098 08600 HEP 38718 b


  
    AN ACT concerning health.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  
 
 
    Section 5. The Mental Health and Developmental 
Disabilities Code is amended  by changing Section 3-812 as 
follows:
 
    (405 ILCS 5/3-812)  (from Ch. 91 1/2, par. 3-812)
    Sec. 3-812. Court ordered admission  on an outpatient basis; 
modification;
revocation.
    (a) If a respondent is found subject to involuntary 
admission on an outpatient basis, the court may issue an order: 
(i) placing the respondent in the care and custody of a 
relative or other
person willing and able to properly care for 
him or her; or (ii) committing the respondent to alternative

treatment at a community mental health provider. 
    (b) An order placing the respondent in the care and custody 
of a relative or other person shall
specify the powers and 
duties of the custodian. An order of care and custody entered 
pursuant to
this Section may grant the custodian the authority 
to admit a respondent to a hospital if the
respondent fails to 
comply with the conditions of the order. If necessary in order 
to obtain the
hospitalization of the respondent, the custodian 
may apply to the court for an order authorizing an
officer of 
the peace to take the respondent into custody and transport the 
respondent to a mental health facility the
hospital specified 
in the agreed order. The provisions of Section 3-605 shall 
govern
the transportation of the respondent to a mental health 
facility, except to the extent that those
provisions are 
inconsistent with this Section. No person admitted to a 
hospital pursuant to this
subsection shall be detained for 
longer than 24 hours, excluding Saturdays, Sundays, and 
holidays,
unless, within that period, a petition for 
involuntary admission on an inpatient basis and a
certificate 
supporting such petition have been filed as provided in Section 
3-611. 
    (c) Alternative treatment shall not be ordered unless the 
program being
considered is capable of providing adequate and 
humane treatment in the least
restrictive setting which is 
appropriate to the respondent's condition. The court shall have 
continuing authority to modify an order for
alternative 
treatment if the recipient fails to comply with the order or is

otherwise found unsuitable for alternative treatment.  Prior to 
modifying
such an order, the court shall receive a report from 
the facility director
of the program specifying why the 
alternative treatment is unsuitable.  The
recipient shall be 
notified and given an opportunity to respond when
modification 
of the order for alternative treatment is considered. If the 
court determines that the
respondent has violated the order for 
alternative treatment in the community or that alternative

treatment in the community will no longer provide adequate 
assurances for the safety of the
respondent or others, the 
court may revoke the order for alternative treatment in the 
community
and
may order a peace officer to take the recipient 
into custody and transport him to an inpatient
mental health 
facility. The provisions of
Section 3-605 shall govern the 
transportation of the respondent to a mental health
facility, 
except to the extent that those provisions are inconsistent 
with this Section. No person
admitted to a hospital pursuant to 
this subsection shall be detained for longer than 24 hours,

excluding Saturdays, Sundays, and holidays, unless, within 
that period, a petition for involuntary
admission on an 
inpatient basis and a certificate supporting such petition have 
been filed as
provided in Section 3-611.
(Source: P.A. 96-1399, eff. 7-29-10; 96-1453, eff. 8-20-10.)
 
    Section 10. 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 to a 
    court-appointed therapist, psychologist, or psychiatrist 
    for use in determining a person's fitness to stand trial if 
    the  records were made within the 180-day period immediately 
    preceding the date of the therapist's, psychologist's or 
    psychiatrist's court appointment. These records and 
    communications shall be admissible only as to the issue of 
    the person's fitness to stand trial. 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 or by the written consent under Section 5 of 
this Act of the person whose records are being sought, 
authorizing the disclosure of the records
or the issuance of 
the subpoena. No such written order shall be issued without 
written notice of the motion to the recipient and the treatment 
provider. Prior to issuance of the order, each party or other 
person entitled to notice shall be permitted an opportunity to 
be heard pursuant to subsection (b) of this Section. In the 
absence of the written consent under Section 5 of this Act of 
the person whose records are being sought, no 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. Each subpoena duces tecum issued by a court or 
administrative agency or served on any person pursuant to this 
subsection (d) shall include the following language: "No person 
shall comply with a subpoena for mental health records or 
communications pursuant to Section 10 of the Mental Health and 
Developmental Disabilities Confidentiality Act, 740 ILCS 
110/10, unless the subpoena is accompanied by a written order 
that authorizes the issuance of the subpoena and the disclosure 
of records or communications or by the written consent under 
Section 5 of that Act of the person whose records are being 
sought."

    (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 
Department of Human Services 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. A recipient's records and 
communications shall also be disclosed pursuant to subsection 
(g-5) of Section 1-17 of the Department of Human Services Act 
in testimony at health care worker registry hearings or 
preliminary proceedings when such are relevant to the matter in 
issue, 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. 

(Source: P.A. 96-406, eff. 8-13-09; 96-1399, eff. 7-29-10; 
96-1453, eff. 8-20-10; 97-566, eff. 1-1-12.)