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The Illinois Mental Health and Developmental Disabilities Confidentiality Act (“the Act”), 740 ILCS 110/1 et seq.,[1] was passed in 1992 by the Illinois legislature to provide heightened privacy protections to recipients and providers of mental health services.  The Act has carved out a unique exception to our legal system’s principles of liberal discovery, strictly prohibiting the disclosure of mental health records, even after death[2], in all but the narrowest circumstances.  One such circumstance is when the recipient raises her mental health as part of a legal action. Because mental health is involved in countless varieties of litigation, this law is relevant to a wide range of practices. This article examines some of the seminal interpretations of the Act and some of the more recent case law interpreting the provision that makes mental health records discoverable where the recipient[3] of mental health records introduces his mental health as an element of his claim or defense.[4]

For context, the Act’s 17 sections enumerate specific requirements of a consent[5] and several exceptions to confidentiality, such as disclosures among medical providers and for purposes of evaluating professional licensure.[6]  Most relevant to attorneys in the field of civil litigation is Section 10, which addresses disclosure when the recipient (or therapist) does not consent to voluntary disclosure of the mental health records but a party seeks to gain access to those records through the legal process.[7]

SECTION 10(a)(1)

Specifically, Section 10(a)(1) allows disclosure in any civil, criminal, administrative, or legislative proceeding, over the objection of the recipient or therapist, where the recipient introduces his mental condition as an element of his claim or defense.[8]  After the court makes a determination that a recipient has introduced her mental health as an element of her claim, (discussed in further detail below), the court must conduct an in camera examination of the testimony or other evidence concerning the recipient’s mental health.  The in camera inspection is required to provide the court an opportunity to narrow the disclosure to include only the information that is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible.[9]  The court must also determine that other evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by such evidence.[10]  Finally, the court must also find, through the in camera inspection, that the disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship.[11]

If this seems to be a broad exception to widely accepted notions of liberal discovery and a hefty burden on the courts, it is meant to be.  Some of the earliest interpretations of the law confirmed its rejection of traditional analyses of discoverability and the law’s protections against unnecessary disclosure of irrelevant and duplicative mental health records.

BROAD APPLICATION AND FUNDAMENTAL FAIRNESS: EARLY INTERPRETATIONS OF THE ACT

In 1997, the Illinois Supreme Court interpreted Section 10(a)(1) in D.C. v. S.A., personal injury action brought by a pedestrian plaintiff who was struck by a vehicle while crossing Illinois Route 53 in Bolingbrook, Illinois.[12] In his complaint, the plaintiff alleged that at the time of the occurrence, she was “in the exercise of ordinary care and caution for his safety, and for the safety of all other persons and vehicles lawfully upon the highways.”[13] In discovery, it was revealed that three days after the accident, Plaintiff had been referred to a psychiatrist for a mental health evaluation.[14] The defendant moved to compel these mental health records and the trial court ordered an in camera inspection pursuant to Section 10(a)(1).[15] Following a hearing, the trial court found that the plaintiff had introduced his mental condition by alleging that he was exercising due care for his own safety at the time of the occurrence.[16] Based on this finding, the trial court ruled that several documents concerning the plaintiff’s mental health be disclosed after making the necessary findings required of a court under Section 10(a)(1).[17]

Plaintiff took an interlocutory appeal, and the case eventually came before the Illinois Supreme Court. The Supreme Court upheld the ruling of the trial court, but it used different reasoning than the trial court. First, the Supreme Court disagreed with the trial court that the plaintiff put his mental health at issue by pleading his own freedom from negligence.[18] Instead, the Supreme Court reasoned that “fundamental fairness” demanded the privilege yield given the specific factual circumstances of the case.[19] In so holding, the Court noted that the mental health privilege is not absolute, and that most importantly, the information contained within the records at issue have “the potential to completely absolve defendants from any liability.”[20] The Court also reasoned that aside from its disagreement that plaintiff placed his mental health at issue through his pleading, the trial court’s ruling regarding the records was otherwise in compliance with Section 10(a)(1).[21]

In sum, the Illinois Supreme Court carved out a very narrow “fundamental fairness” exception to the privilege provided by the Act in D.C. v. S.A. To date, no other reviewing court has favorably applied the “fundamental fairness” exception to a case involving a waiver of the mental health privilege. This includes the Illinois Supreme Court itself in its two subsequent decisions involving the Act: Norskog v. Pfiel, 197 Ill. 2d 60 (2001) and Reda v. Advocate Health Care, 199 Ill. 2d 47 (2002).

Norskog was a personal injury action brought by a 13-year-old decedent’s estate against her 17-year-old ex-boyfriend and his parents after the boyfriend stabbed her to death.[22] The plaintiff in Norskog sought discovery of the defendant’s mental health records. After the defendant refused to produce the information regarding his mental health care providers, an appeal followed. In argument before the Illinois Supreme Court, the plaintiff claimed that the defendant waived the privilege by raising insanity defense in his criminal trial, disclosing records during his fitness for duty examinations, and providing mental health records to school officials.[23] The plaintiff also argued that the “fundamental fairness” exception found in D.C. v. S.A. applied.[24]

The Illinois Supreme Court, in holding that the defendant had not waived the protections of the privilege, recognized that “[w]hen viewed as a whole, the Act constitutes a ‘strong statement’ by the General Assembly about the importance of keeping mental health records confidential”[25] and that “anyone seeking the nonconsensual release of mental health information faces a formidable challenge and must show that disclosure is authorized by the Act.”[26] The Court also held that the “fundamental fairness” exception did not apply.[27] Specifically, the Court reasoned that in this case, unlike D.C., the defendant’s mental health records did not have the potential to be outcome determinative and that to recognize the fundamental fairness exception in this case would “eviscerate the statutory privilege.”[28]

In Reda v. Advocate Health Care, the Illinois Supreme Court held that the plaintiff did not put her mental health at issue by claiming damages that included loss of memory, decline in comprehension, difficulties performing daily activities, and changes in personality.[29] The Court reasoned that these claimed damages were neurological injuries, not psychological. Accordingly, the Court held that the plaintiff had not placed her mental health at issue.[30] The Court stated that if it were to hold otherwise, the mental health privilege would be deemed waived in every brain injury case.[31] The Court also declined to apply the fundamental fairness exception given the facts of the case.[32]

WHO IS INTRODUCING? GOLDBERG AND CASES INVOLVING LICENSURE OR TERMINATION

When analyzing whether confidentiality has been waived by a recipient, courts not only weigh whether mental health has been placed at issue, but who placed it at issue.  Sometimes the recipient of mental health services is not directly involved in the proceeding, but their mental health records are sought to support the claims or defenses of a party.

Early on, the Illinois Supreme Court took a seemingly broad view of the waiver issue in the context of litigation.  In Goldberg v Davis, 151 Ill. 2d 267 (1992), the court held that a recipient waived her right to confidentiality under the Act when she filed a complaint against her psychiatrist for alleged sexual misconduct with the Illinois Department of Professional Regulation.   Although the underlying licensing IDPR proceedings were brought by the State against a professional licensee, and the recipient was not a party to the proceeding, the court found that the recipient introduced her mental health as an element of “her claim” when two doctors offered conflicting testimony regarding the severity of her borderline personality disorder.[33]

In a strikingly similar case, Thompson v. N.J., 2016 IL App (1st) 142918, the court reached the opposite conclusion, likely due to the young age of the recipient, but the reasoning is informative.  In Thompson, a coach was terminated from his job with Chicago Public Schools as a result of accusations of inappropriate sexual behavior toward his student.[34] The coach sought the student’s mental health records, and brought a declaratory action to declare her waiver of confidentiality under the Act.  The Thompson court held, however, that the Board of Education -- not the recipient student herself -- placed her mental health at issue in the decision to terminate the coach.  Since it was not the recipient who was placing mental health at issue, the privilege was not waived.[35]  The court distinguished this case from the facts of Goldberg, in part because the recipient was a minor and did not have the capacity to consent to a waiver.

Likewise, in Sassali v. Rockford Memorial Hosp., 296 Ill. App. 3d 80 (2nd Dist. 1998), the court held that a patient who was subjected to involuntary commitment proceedings at Rockford Memorial Hospital did not place her mental health at issue when she sought to refute the allegations of the State as to her mental instability; instead, the State placed the patient’s mental health at issue by initiating the involuntary commitment proceedings.[36]

DOES A PRAYER FOR PAIN AND SUFFERING “INTRODUCE” MENTAL HEALTH?

The Illinois Supreme Court’s ruling in Reda, supra, suggests that even where the plaintiff was claiming neurological injuries, including headaches, loss of memory, decline in comprehension and changes in personality – deficits which have at least a psychological ring to them – those neurological injuries do not equate to psychological injury and thus do not amount to and “introduction” of mental health or a waiver of the privilege.

Courts have applied the neurological/psychological distinction with since Reda with varying results.  While courts acknowledge that normally such a prayer does not place mental health at issue, the review of mental health records by a retained expert may open the door to the disclosure of those records to the opposing party.  See Deprizio v. MacNeal Memorial Hosp. Ass’n, 2014 IL App (1st) 123206.

Courts may also look to the prayer for damages, disclosed treating physicians and deposition testimony for evidence of the “introduction” of mental health.  In Phifer v. Gingher, 2017 IL App (3d) 160170, the court found that plaintiff had placed her mental health at issue through claims for injuries strikingly similar to those claimed in Reda: difficulties with multitasking and remembering details, headaches, anxiety, depression, frequent crying episodes, anxiety, lowered professional confidence, panic attacks, and cognitive inefficiencies that caused difficulty with learning, recall and reduced attention span.[37]  Yet the court distinguished Reda by referencing her complaint which sought damages to mind and body[38] and by answers to interrogatories that inquired about “psychiatric, psychological and/or emotional injuries” and identified a neuropsychologist and a social worker as witnesses to testify about her injuries.[39]  The terminology used to characterize the injuries is more important than the symptoms themselves and parties should be keenly aware of all terms used to describe the injuries throughout the course of litigation.

Indeed, the court reached a seemingly contradictory result in Sparger v. Yamini, 2019 Il App (1st) 180566, where the plaintiff claimed irritability, emotional volatility, decreased cognitive processing speed, social interaction deficits, decreased attention, sensory sensitivity and sustained concentration after contracting meningitis from a spinal fluid leak following a lumbar laminoplasty surgery.  The Sparger court relied heavily on Reda.  Interestingly, the court also relied, in part, on defendants’ ability to cross examine the treating neuropsychologist, who issued a report that included her “road map” as to plaintiff’s condition before the meningitis.[40]  That same potential for cross examination of a neuropsychologist did not preserve the privilege in Phifer, illustrating some of the inconsistencies in interpretations under the Act.

When a recipient does not introduce his mental health as an element, those records are strictly off limits - even for purposes of impeachment.  The court made this clear in Garton v. Pfeifer, 2019 IL App (1st) 180872, an action by an ex-husband against his ex-wife and her attorney and NorthShore University Hospital for issuing and responding to subpoenas for his mental health records as part of a dissolution of marriage action.  The ex-wife’s lawyer claimed that he sought the ex-husband’s mental health records for purposes of impeaching the ex-husband when he testified in contempt proceedings against his ex-wife.  However, the Garton court rejected the notion that the Act contemplated the use of mental health records for purposes of impeachment, noting the “stringent protections on the disclosure of mental health records for litigation purposes.”[41]

CONCLUSION

The Illinois Mental Health and Developmental Disabilities Act has transformed the civil litigation discovery landscape in Illinois.  Courts’ interpretations of the law suggest that there are still some grey areas when applying the law.  Regardless, it has unquestionably helped protect the privacy of recipients of mental health services and it can be used as an effective sword or shield by parties to litigation.  Practitioners would greatly benefit from familiarizing themselves with it to better advocate for their clients.

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[1] The Act is part of the “Civil Liabilities” section of the Illinois Compiled Statutes, as distinguished from its counterpart, the Mental Health and Developmental Disabilities Code, 405 ILCS 5/1-100 et seq., which is part of the “Mental Health and Developmental Disabilities” section of the Statutes, and provides protections and rights to individuals receiving mental health services.

[2] 740 ILCS 110/5(e).

[3] The Act designates both “recipients” of mental health service and “therapists” as the holders of the broad privilege of confidentiality, and it defines the limited circumstances mental health records may be disclosed – with and without the consent of the recipient or therapist.

[4] 740 ILCS 110/10(a)(1).

[5] 740 ILCS 110/5.

[6] 740 ILCS 110/7(a), 9

[7] There is some disagreement as to when the Section 10 requirements of in camera inspections apply prior to disclosure.  Some judges have interpreted the Act to mean that all disclosures of mental health records under the Act comply with the in camera requirements of Section 10, whether consensual or not.

[8] 740 ILCS 110/10(a)(1).

[9] 740 ILCS 110/10(a)(1).

[10] 740 ILCS 110/10(a)(1).

[11] 740 ILCS 110/10(a)(1).

[12] D.C. v. S.A., 178 Ill. 2d 551, 554 (1997).

[13] Id.

[14] Id. at 555.

[15] Id.

[16] Id. at 556.

[17] Id. at 557.

[18] Id. at 566.

[19] Id. at 568.

[20] Id. at 569.

[21] Id.

[22] Norskog v. Pfiel, 197 Ill. 2d 60 (2001)

[23] Id. at 73-80

[24] Id. at 80-86

[25] Id. at 71-72

[26] Id. at 72

[27] Id. at 85

[28] Id. at 84-85

[29] Reda v. Advocate Health Care, 199 Ill. 2d 47, 51-52 (2002)

[30] Id. at 58.

[31] Id.

[32] Id. at 61-63.

[33] Id. at 51.

[34] Id. at 6.

[35] The court reasoned that the student’s disclosure to the Board of Education was for a limited purpose of making her report and was not intended to be a general waiver of confidentiality. Id. at 39.

[36] Id. at 82.  The court noted that the process set up under the Mental Health and Developmental Disabilities Code, 740 ILCS 110/11(vi)  to protect the privacy of the recipient’s records was “circumvented” and if followed properly may well have resulted in the records going to the same person who received them in this case, but emphasized that this fact did not make the disclosure less improper. Id. at 85.

[37] Id. at P10.

[38] Id. at P28.

[39] Id.   Note that the plaintiff also made a verbal assurance to defendant that she was withdrawing her mental health claims, but the court noted that such verbal assurance was too vague to establish abandonment. Id. at P33.

[40] Id.

[41] Id. at 17, 21.