Health Care Privacy Considerations in Illinois Family Law
by
Ronald S. Langacker, Attorney at Law
Langacker Law, LTD.
I.
Introduction
II. Family Law Considerations
a. ILDMA
i. Sec. 602. Best Interest of Child
(a) The court shall determine custody in accordance with the best interest of the
child. The court shall consider all relevant factors including:
(5) the mental and physical health of all individuals involved;
(emphasis added)
ii. Sec. 604. Interviews
(b) The court may seek the advice of professional personnel, whether or not
employed by the court on a regular basis. The advice given shall be in writing
and made available by the court to counsel. Counsel may examine, as a
witness, any professional personnel consulted by the court, designated as a
court's witness.
iii. Sec. 604.5. Evaluation of child's best interest
(a) In a proceeding for custody, visitation, or removal of a child from Illinois, upon
notice and motion made within a reasonable time before trial, the court may
order an evaluation concerning the best interest of the child as it relates to
custody, visitation, or removal. The motion may be made by a party, a parent,
the child's custodian, the attorney for the child, the child's guardian ad litem,
or the child's representative. The requested evaluation may be in place of or
in addition to an evaluation conducted under subsection (b) of Section 604.
III.
Physician/Patient Privilege, 735 ILCS 8/802
a)
735 ILCS 8/802 No physician or surgeon shall be permitted to disclose any
information he or she may have acquired in attending any patient in a
professional character, necessary to enable him or her professionally to serve
the patient.
In the event of a conflict between the application of this Section and the Mental
Health and Developmental Disabilities Confidentiality Act…the provisions of the
Mental Health and Developmental Disabilities Confidentiality Act shall control.
IV.
Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et.seq.
a)
Purpose
b)
Definitions 740 ILCS 110/2.
d)
1.
"Confidential communication" or "communication" means any
communication made by a recipient or other person to a therapist or to
or in the presence of other persons during or in connection with
providing mental health or developmental disability services to a
recipient. Communication includes information which indicates
that a person is a recipient.
2.
"Therapist" means a psychiatrist, physician, psychologist, social worker,
or nurse providing mental health or developmental disabilities services
or any other person not prohibited by law from providing such services
or from holding himself out as a therapist if the recipient reasonably
believes that such person is permitted to do so. Therapist includes any
successor of the therapist.
Confidentiality exemptions, 740 ILCS 110/3.
(a) All records and communications shall be confidential and shall not be
disclosed except as provided in this Act.
(b) A therapist is not required to but may, to the extent he determines it
necessary and appropriate, keep personal notes regarding a recipient. Such
personal notes are the work product and personal property of the therapist and
shall not be subject to discovery in any judicial, administrative or legislative
proceeding or any proceeding preliminary thereto.
e)
Persons entitled to inspection of records 740 ILCS 110/4.
f)
Disclosure in civil, criminal, and other proceedings, 740 110/10.
1) 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.
2)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…
However, for purposes of this Act, in any action brought or defended under the
Illinois Marriage and Dissolution of Marriage Act [750 ILCS 5/101 et seq.]
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.
3)
Relevant Case Law
i)
In re Slomka, Ill. App. 3d , Ill. Dec. , N.E.2d , 2009 Ill. App.
LEXIS 1270 (1 Dist. Dec. 23, 2009).
Father in a divorce case trying to prevent the mother from
taking the couple's two minor children to a particular
psychologist waived any objection to disclosure of
communications privileged under the Illinois Mental Health and
Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et
seq., by not objecting at the hearing where those
communications were disclosed.
ii)
Johnson v. Wall, 920 N.E.2d 494 (1st. Dist. 2009)
Materials that were generated during a postdivorce
proceeding by an evaluator who was appointed by the trial
court pursuant to 750 ILCS 5/604(b) were not protected by the
confidentiality provisions of mental health law under 740 ILCS
110/1 et seq.
iii)
Mandziara v. Canulli, 299 Ill. App. 3d 593, 233 Ill. Dec. 484, 701
N.E.2d 127 (1 Dist. 1998), appeal denied, 182 Ill. 2d 547, 236 Ill.
Dec. 668, 707 N.E.2d 1238 (1999).
An attorney who represented a father in a child custody
proceeding was not entitled to summary judgment in an action
brought by the mother based on his service of a subpoena on a
hospital for her mental health records without first obtaining a
court order for such subpoena as the statute clearly states that
subpoenas are not to be served without a court order.
iii)
Martino v. Family Serv. Agency, 445 N.E.2d 6 (4 Dist. 1982)
iv)
Dymek v. Nyquist, 469 N.E.2d 659 (1 Dist. 1984)
V. The Health Insurance Portability and Accountability Act of 1996 (HIPAA)
a)
Purpose of Act-Privacy
*
HHS has stated that the purpose of the Privacy Rule is threefold:
(1) to protect and enhance the rights of consumers by providing them access to their
health information and controlling the inappropriate use of that information;
(2) to improve the quality of health care in the U.S. by restoring trust in the health care
system among consumers, health care professionals, and the multitude of organizations
and individuals committed to the delivery of care; and
(3) to improve the efficiency and effectiveness of health care delivery by creating a
national framework for health privacy protection that builds on efforts by states, health
systems, and individual organizations and individuals.
b)
c)
Definitions.
1)
PHI (Patient Health Information)
2)
“Minimum Necessary” Standard
Exceptions to Privacy.
1) Judicial and Administrative Proceedings
VI. Interrelation between HIPAA and MHDDCA
a)
Federal Law does not preempt more stringent state law guidelines.
Where State law imposes additional restrictions on disclosure of health information to
law enforcement, those State laws continue to apply. This Rule sets a national floor of
legal protections; it is not a set of "best practices."
b)
MHDDCA more strict than HIPAA
1)
More stringent guidelines for mental health records.
2)
More detailed information needed for patient authorizations (consents)
3)
MHDDCA provides more protections for patients.
VII. Other Emerging Areas of Health Law
IX. Summary/Questions