Privacy Considerations in Illinois Family Law

1. Privacy Considerations in Illinois Family Law Ronald S. Langacker Langacker Law, LTD 1-217-390-4932 langackerlaw@gmail.com

2. Overview • Attempt to balance the interests of a patient’s right to privacy/confidentiality regarding their medical treatment vs. society’s need for disclosure in various circumstances (court proceedings, abuse/neglect, etc.).

3. The Hippocratic Oath (Classical Version) • “What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.” -Hippocrates, aprox. 5th Cent. B.C.

4. Physician-Patient Privilege • Codified in 735 ILCS 5/8-802 • 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, except... (3) with the expressed consent of the patient, or in case of his or her death or disability, of his or her personal representative or other person authorized to sue for personal injury or of the beneficiary of an insurance policy on his or her life, health, or physical condition

5. Illinois' Medical Patient Rights Act410 ILCS 50/1 • Protects the "nature and details of services provided to patients." • Prohibits physicians/health care providers from disclosing a patient's health information without patient consent, unless otherwise authorized or required by law or an enumerated exception applies.

6. Illinois' Mental Health and Developmental Disabilities Confidentiality Act ("MHDDCA”)740 ILCS 110/1 • Governs all Illinois providers of mental health or developmental disabilities services. • Offers broad privacy and confidentiality protections for mental health records and treatment information.

7. MHDDCA, 740 ILCS 110/1 • Absent an exception, MHDDCA prohibits all unauthorized disclosures of mental health records or treatment information by requiring an individual's consent before a provider may disclose mental health records or communications. • In the event of a conflict between the application of the Physician-Patient’s Act and the Mental Health and Developmental Disabilities Confidentiality Act, the provisions of the MHDDCA shall control.

8. MHDDCA, 740 ILCS 110/1 • 740 ILCS 110/10: Permitted Disclosures • 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.

9. MHDDCA, 740 ILCS 110/10 • Raising the issue of an individual’s mental health in Custody/Divorce proceedings under the IMDMA does not meet the requirements of 740 ILCS 110/10. A party or a witness needs to testify concerning the record or communication. • If testimony is introduced, an additional two-pronged analysis is required under 110/10(a): • Court finds, after an in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; and • Disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship.

10. MHDDCA, 740 ILCS 110/1Relevant Case Law • Johnson v. Wall, 920N.E.2d 494 (1st. Dist. 2009). • Materials that were generated during a post-divorce 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 110/1et seq.

11. MHDDCA, 740 ILCS 110/1Relevant Case Law • In re Slomka, 2009 Ill. App. LEXIS 1270 (1 Dist. Dec. 23, 2009). • Spouse in a divorce case attempted to prevent the adverse party from taking the couple's two minor children to a particular psychologist waived any objection to disclosure of communications privileged under the MHDDCA by not objecting at the hearing where those communications were disclosed.

12. MHDDCA, 740 ILCS 110/10(d) • Subpoenas issued to obtain records or communications under the MHDDCA must append a written order issued by a judge, or the therapist is required to ignore the subpoena. • 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).

13. Other Illinois Statutes:

14. HIPAA • Health Insurance Portability and Accountability Act of 1996 • Federal law which requires health care providers to take reasonable safeguards to prevent the improper use or disclosure of patient information (PHI) • Health Care Provides must protect: • Verbal, Paper, Electronic information that can be used to identify patients • Use reasonable safeguards

15. HIPAA Terms • PHI = protected health information, e.g. name, address, phone numbers, birth date,, etc. • Minimum Necessary • Use only the information necessary to do your job • Use your computer access or facility access only to perform your job duties – no special privileges because you work here

16. HIPAA • HIPAA is meant to provide minimal safe guards for confidentiality of medical records. • HIPAA explicitly preempts contrary state laws unless a state law contains privacy protections that are "more stringent" than the Privacy Rule, provides for certain mandatory reporting, or requires certain health plan reporting. • Permitted Disclosures

17. IMDMA • Summary of related provisions within the IMDMA: • Section 602: Best Interest of the Child • Section 604: Interviews. • Section 604.5. Evaluation of child's best interest.

18. Privacy Law • Summary • Conclusions • Questions