Bill Text: IL HB5680 | 2009-2010 | 96th General Assembly | Introduced

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Bill Title: Amends the Mental Health and Developmental Disabilities Confidentiality Act. Provides that records and communications may be disclosed in a proceeding concerning child custody or child visitation, if and only to the extent the court finds, after in camera examination, that the records and communications are relevant to the safety or health of the child, and admissible.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2010-02-09 - Referred to Rules Committee [HB5680 Detail]

Download: Illinois-2009-HB5680-Introduced.html

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96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 HB5680 Introduced 2/9/2010, by Rep. Dan Brady SYNOPSIS AS INTRODUCED:
740 ILCS 110/10 from Ch. 91 1/2, par. 810
Amends the Mental Health and Developmental Disabilities Confidentiality Act. Provides that records and communications may be disclosed in a proceeding concerning child custody or child visitation, if and only to the extent the court finds, after in camera examination, that the records and communications are relevant to the safety or health of the child, and admissible.
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A BILL FOR
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AN ACT concerning civil law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. 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

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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

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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

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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 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,

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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

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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

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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.
(13) Records and communications of a recipient may be
disclosed in a proceeding concerning the custody of a child
or visitation with a child, if and only to the extent that
the court in which the proceedings have been brought finds,
after in camera examination of testimony or other evidence,
that the records and communications are relevant to the
safety or health of the child and admissible.
(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

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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

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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, 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.
(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

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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.)