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| [ Introduced ] | [ Enrolled ] | [ Senate Amendment 001 ] |
92_SB1664eng SB1664 Engrossed LRB9212601WHcs 1 AN ACT concerning mental health and developmental 2 disabilities. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Mental Health and Developmental 6 Disabilities Confidentiality Act is amended by changing 7 Section 10 as follows: 8 (740 ILCS 110/10) (from Ch. 91 1/2, par. 810) 9 Sec. 10. (a) Except as provided herein, in any civil, 10 criminal, administrative, or legislative proceeding, or in 11 any proceeding preliminary thereto, a recipient, and a 12 therapist on behalf and in the interest of a recipient, has 13 the privilege to refuse to disclose and to prevent the 14 disclosure of the recipient's record or communications. 15 (1) Records and communications may be disclosed in 16 a civil, criminal or administrative proceeding in which 17 the recipient introduces his mental condition or any 18 aspect of his services received for such condition as an 19 element of his claim or defense, if and only to the 20 extent the court in which the proceedings have been 21 brought, or, in the case of an administrative proceeding, 22 the court to which an appeal or other action for review 23 of an administrative determination may be taken, finds, 24 after in camera examination of testimony or other 25 evidence, that it is relevant, probative, not unduly 26 prejudicial or inflammatory, and otherwise clearly 27 admissible; that other satisfactory evidence is 28 demonstrably unsatisfactory as evidence of the facts 29 sought to be established by such evidence; and that 30 disclosure is more important to the interests of 31 substantial justice than protection from injury to the SB1664 Engrossed -2- LRB9212601WHcs 1 therapist-recipient relationship or to the recipient or 2 other whom disclosure is likely to harm. Except in a 3 criminal proceeding in which the recipient, who is 4 accused in that proceeding, raises the defense of 5 insanity, no record or communication between a therapist 6 and a recipient shall be deemed relevant for purposes of 7 this subsection, except the fact of treatment, the cost 8 of services and the ultimate diagnosis unless the party 9 seeking disclosure of the communication clearly 10 establishes in the trial court a compelling need for its 11 production. However, for purposes of this Act, in any 12 action brought or defended under the Illinois Marriage 13 and Dissolution of Marriage Act, or in any action in 14 which pain and suffering is an element of the claim, 15 mental condition shall not be deemed to be introduced 16 merely by making such claim and shall be deemed to be 17 introduced only if the recipient or a witness on his 18 behalf first testifies concerning the record or 19 communication. 20 (2) Records or communications may be disclosed in a 21 civil proceeding after the recipient's death when the 22 recipient's physical or mental condition has been 23 introduced as an element of a claim or defense by any 24 party claiming or defending through or as a beneficiary 25 of the recipient, provided the court finds, after in 26 camera examination of the evidence, that it is relevant, 27 probative, and otherwise clearly admissible; that other 28 satisfactory evidence is not available regarding the 29 facts sought to be established by such evidence; and that 30 disclosure is more important to the interests of 31 substantial justice than protection from any injury which 32 disclosure is likely to cause. 33 (3) In the event of a claim made or an action filed 34 by a recipient, or, following the recipient's death, by SB1664 Engrossed -3- LRB9212601WHcs 1 any party claiming as a beneficiary of the recipient for 2 injury caused in the course of providing services to such 3 recipient, the therapist and other persons whose actions 4 are alleged to have been the cause of injury may disclose 5 pertinent records and communications to an attorney or 6 attorneys engaged to render advice about and to provide 7 representation in connection with such matter and to 8 persons working under the supervision of such attorney or 9 attorneys, and may testify as to such records or 10 communication in any administrative, judicial or 11 discovery proceeding for the purpose of preparing and 12 presenting a defense against such claim or action. 13 (4) Records and communications made to or by a 14 therapist in the course of examination ordered by a court 15 for good cause shown may, if otherwise relevant and 16 admissible, be disclosed in a civil, criminal, or 17 administrative proceeding in which the recipient is a 18 party or in appropriate pretrial proceedings, provided 19 such court has found that the recipient has been as 20 adequately and as effectively as possible informed before 21 submitting to such examination that such records and 22 communications would not be considered confidential or 23 privileged. Such records and communications shall be 24 admissible only as to issues involving the recipient's 25 physical or mental condition and only to the extent that 26 these are germane to such proceedings. 27 (5) Records and communications may be disclosed in 28 a proceeding under the Probate Act of 1975, to determine 29 a recipient's competency or need for guardianship, 30 provided that the disclosure is made only with respect to 31 that issue. 32 (6) Records and communications may be disclosed 33 when such are made during treatment which the recipient 34 is ordered to undergo to render him fit to stand trial on SB1664 Engrossed -4- LRB9212601WHcs 1 a criminal charge, provided that the disclosure is made 2 only with respect to the issue of fitness to stand trial. 3 (7) Records and communications of the recipient may 4 be disclosed in any civil or administrative proceeding 5 involving the validity of or benefits under a life, 6 accident, health or disability insurance policy or 7 certificate, or Health Care Service Plan Contract, 8 insuring the recipient, but only if and to the extent 9 that the recipient's mental condition, or treatment or 10 services in connection therewith, is a material element 11 of any claim or defense of any party, provided that 12 information sought or disclosed shall not be redisclosed 13 except in connection with the proceeding in which 14 disclosure is made. 15 (8) Records or communications may be disclosed when 16 such are relevant to a matter in issue in any action 17 brought under this Act and proceedings preliminary 18 thereto, provided that any information so disclosed shall 19 not be utilized for any other purpose nor be redisclosed 20 except in connection with such action or preliminary 21 proceedings. 22 (9) Records and communications of the recipient may 23 be disclosed in investigations of and trials for homicide 24 when the disclosure relates directly to the fact or 25 immediate circumstances of the homicide. 26 (10) Records and communications of a deceased 27 recipient may be disclosed to a coroner conducting a 28 preliminary investigation into the recipient's death 29 under Section 3-3013 of the Counties Code. However, 30 records and communications of the deceased recipient 31 disclosed in an investigation shall be limited solely to 32 the deceased recipient's records and communications 33 relating to the factual circumstances of the incident 34 being investigated in a mental health facility. SB1664 Engrossed -5- LRB9212601WHcs 1 (11) Records and communications of a recipient 2 shall be disclosed in a proceeding where a petition or 3 motion is filed under the Juvenile Court Act of 1987 and 4 the recipient is named as a parent, guardian, or legal 5 custodian of a minor who is the subject of a petition for 6 wardship as described in Section 2-3 of that Act or a 7 minor who is the subject of a petition for wardship as 8 described in Section 2-4 of that Act alleging the minor 9 is abused, neglected, or dependent or the recipient is 10 named as a parent of a child who is the subject of a 11 petition, supplemental petition, or motion to appoint a 12 guardian with the power to consent to adoption under 13 Section 2-29 of the Juvenile Court Act of 1987. 14 (12) Records and communications of a recipient may 15 be disclosed when disclosure is necessary to collect sums 16 or receive third party payment representing charges for 17 mental health or developmental disabilities services 18 provided by a therapist or agency to a recipient; 19 however, disclosure shall be limited to information 20 needed to pursue collection, and the information so 21 disclosed may not be used for any other purposes nor may 22 it be redisclosed except in connection with collection 23 activities. Whenever records are disclosed pursuant to 24 this subdivision (12), the recipient of the records shall 25 be advised in writing that any person who discloses 26 mental health records and communications in violation of 27 this Act may be subject to civil liability pursuant to 28 Section 15 of this Act or to criminal penalties pursuant 29 to Section 16 of this Act or both. 30 (b) Before a disclosure is made under subsection (a), 31 any party to the proceeding or any other interested person 32 may request an in camera review of the record or 33 communications to be disclosed. The court or agency 34 conducting the proceeding may hold an in camera review on its SB1664 Engrossed -6- LRB9212601WHcs 1 own motion. When, contrary to the express wish of the 2 recipient, the therapist asserts a privilege on behalf and in 3 the interest of a recipient, the court may require that the 4 therapist, in an in camera hearing, establish that disclosure 5 is not in the best interest of the recipient. The court or 6 agency may prevent disclosure or limit disclosure to the 7 extent that other admissible evidence is sufficient to 8 establish the facts in issue. The court or agency may enter 9 such orders as may be necessary in order to protect the 10 confidentiality, privacy, and safety of the recipient or of 11 other persons. Any order to disclose or to not disclose 12 shall be considered a final order for purposes of appeal and 13 shall be subject to interlocutory appeal. 14 (c) A recipient's records and communications may be 15 disclosed to a duly authorized committee, commission or 16 subcommittee of the General Assembly which possesses subpoena 17 and hearing powers, upon a written request approved by a 18 majority vote of the committee, commission or subcommittee 19 members. The committee, commission or subcommittee may 20 request records only for the purposes of investigating or 21 studying possible violations of recipient rights. The 22 request shall state the purpose for which disclosure is 23 sought. 24 The facility shall notify the recipient, or his guardian, 25 and therapist in writing of any disclosure request under this 26 subsection within 5 business days after such request. Such 27 notification shall also inform the recipient, or guardian, 28 and therapist of their right to object to the disclosure 29 within 10 business days after receipt of the notification and 30 shall include the name, address and telephone number of the 31 committee, commission or subcommittee member or staff person 32 with whom an objection shall be filed. If no objection has 33 been filed within 15 business days after the request for 34 disclosure, the facility shall disclose the records and SB1664 Engrossed -7- LRB9212601WHcs 1 communications to the committee, commission or subcommittee. 2 If an objection has been filed within 15 business days after 3 the request for disclosure, the facility shall disclose the 4 records and communications only after the committee, 5 commission or subcommittee has permitted the recipient, 6 guardian or therapist to present his objection in person 7 before it and has renewed its request for disclosure by a 8 majority vote of its members. 9 Disclosure under this subsection shall not occur until 10 all personally identifiable data of the recipient and 11 provider are removed from the records and communications. 12 Disclosure under this subsection shall not occur in any 13 public proceeding. 14 (d) No party to any proceeding described under 15 paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a) 16 of this Section, nor his or her attorney, shall serve a 17 subpoena seeking to obtain access to records or 18 communications under this Act unless the subpoena is 19 accompanied by a written order issued by a judge, authorizing 20 the disclosure of the records or the issuance of the 21 subpoena. No person shall comply with a subpoena for records 22 or communications under this Act, unless the subpoena is 23 accompanied by a written order authorizing the issuance of 24 the subpoena or the disclosure of the records. 25 (e) When a person has been transported by a peace 26 officer to a mental health facility, then upon the request of 27 a peace officer, if the person is allowed to leave the mental 28 health facility within 48 hours of arrival, excluding 29 Saturdays, Sundays, and holidays, the facility director shall 30 notify the local law enforcement authority prior to the 31 release of the person. The local law enforcement authority 32 may re-disclose the information as necessary to alert the 33 appropriate enforcement or prosecuting authority. 34 (f) A recipient's records and communications shall be SB1664 Engrossed -8- LRB9212601WHcs 1 disclosed to the Inspector General of the Department of Human 2 Services within 10 business days of a request by the 3 Inspector General in the course of an investigation 4 authorized by the Abused and Neglected Long Term Care 5 Facility Residents Reporting Act and applicable rule. The 6 request shall be in writing and signed by the Inspector 7 General or his or her designee. The request shall state the 8 purpose for which disclosure is sought. Any person who 9 knowingly and willfully refuses to comply with such a request 10 is guilty of a Class A misdemeanor. 11 (Source: P.A. 91-726, eff. 6-2-00; 92-358, eff. 8-15-01.) 12 Section 99. Effective date. This Act takes effect upon 13 becoming law.