Forms to Use When a Subpoena for a Mental Health File is Received

Date: ____________________

Dear Counsel:

Our client has received a request for information in the form of a subpoena for records and/or for deposition (copy attached).  The subject matter of the subpoena falls within the Department of Mental Health and Developmental Disabilities Confidenti­ality Act.  Consequently, that Act unequivocally mandates that we not recognize the subpoena or request as served, unless it is also accompa­nied by a court order which authorizes you to have access to the confidential information and/or to serve the subpoena.

We have asked that our client forward a full and complete copy of the entire requested file to our office.  Once we receive an appropriate order authorizing your access to the materials, we will be happy to forward them directly to you.  I enclose a sample petition and order which you might want to use as a template for obtaining your order on this issue.  I also enclose our house memorandum describing the amendment to the Confidentiality Act which is the subject of this correspondence.

Sincerely,

BROOKE R. WHITTED

Enclosures

Attorney #

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

 ________________ DEPARTMENT – _____________ DIVI­SION

IN RE:

_______________________________,

Petitioner, and  ________________________________,   Respondent.

No. _________________________

EMERGENCY MOTION FOR ORDER TO ISSUE SUBPOENA

NOW COMES the Petitioner, _________________________, by and through his/her attorneys, _________________, P.C., and pursuant to Section 10 of the Illinois Mental Health and Developmental Disabili­ties Confidentiality Act (740 ILCS 110/10 (1992)), moves this Court for the entry of an Order authorizing the issuance of a Subpoena for the Records and/or for the Deposition of ______________, the Practitioner (hereafter “Practitioner”) who has evaluated and/or counseled ________________, in this cause.  In support of said Motion, Petitioner, Respondent herein states as follows:

  1. The records, communications, notes and testi­mony of practitioner are relevant and material to this matter, and should be discoverable.
  2. The Petitioner is also seeking a deposition of Practitio­ner in this matter in preparation and advance of any hearing, and desire the issu­ance of a Subpoena for same.
  3. Section 10 of the Illinois Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/10(d) (1992)) provides that [n]o party to any proceeding… nor his or her attorneys, 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.
  4. Practitioner and his/her records are covered by the Illinois Mental Health and Developmen­tal Disabilities Confidentiality Act; accord­ingly, an order authorizing the issuance of a subpoena for deposition and records is re­quired before Petitioner may further adequate­ly prepare.

WHEREFORE, Petitioner respectfully requests that this Court enter its Order authorizing the issuance of a subpoena for the deposition and/or records of Practitio­ner pursuant to Section 10 of the Illinois Mental Health and Developmental Disabilities Confidentiality Act, and granting Practitioner such further relief as this Court deems just and fair.

Respectfully submitted,

__________________________________                                                                                                                                                                  ATTORNEY

(Sample petition prepared by Brooke R. Whitted)

ORDER                                                                                              CCG-2

IN THE CIRCUIT COURT OF __________________________ COUNTY, ILLINOIS

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v.                                      )             NO.

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ORDER

THIS CAUSE coming on to be heard on the Emergency Petition for Order to Issue Subpoena and for Access to Records, the parties being in Court and represented by counsel and the Court having jurisdiction, and the Court being fully advised in the premises, having duly consid­ered all arguments of counsel,

IT IS HEREBY ORDERED:

  1. Petitioner’s motion pursuant to Section 10 of the Illinois Mental Health and Developmental Disabili­ties Confidentiality Act at 740 ILCS 110/10 is granted, and a subpoena for confi­dential records shall be issued by the moving party accordingly.
  2. The moving party shall have full access to written files of the practitioner, _____________________________, (other than personal notes) and said practitioner is hereby ordered to cooperate, either directly or through counsel, in the disclosure of said confi­dential files.
  3. The moving party shall also have this Court’s authority to conduct a deposition of the practitio­ner, provided that the said deposition shall be conducted at a time of convenience to the practi­tioner in light of the practitioner’s schedule.

Atty No.

Name

Attorney for                                                               _____________________________,19____

Address                                                                      ENTER

City

Telephone                                                           ____________________________________

Judge                                   Judge’s No.

SUBPOENA SERVICE

The DMHDD Confidentiality Act has been amended to restrict service of subpoenas in certain circumstances, without an accompa­nying court order.  The new provision, which is contained at Illinois Revised Statutes, Chapter 91 1/2, Section 810(d) states:

(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.  (Source:  P.A. 86-1417).  (em­phasis added)

In order to become acquainted with the operation of this new section, which serves as a statutory command to all “persons” not to comply with an improperly served subpoena, it is necessary to examine the sections referred to.  That is the purpose of this memorandum.

Civil, Criminal, or Administrative Proceedings Where Patient’s Mental Condition is Introduced

Section 810(a)(1) concerns records and communications which are subpoenaed pursuant to 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.”  Such disclosures are to be made only after the judge or hearing officer examines the documents in camera[1] and determines:

  1. disclosure is relevant and probative;
  2. disclosure will not be unduly prejudicial or inflammatory;
  3. disclosure is otherwise clearly admissible;
  4. other satisfactory evidence (other than that contained in the confidential record) is “demonstrably unsatisfactory;”
  5. 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 the disclosure is likely to harm.

This section goes on to say that no record or communication between a therapist and patient is deemed “relevant” 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 production of the document, or if the proceeding is a criminal trial in which insanity is claimed as a defense.[2]

Documents Sought After Death of Patient Where Mental Condition is at Issue

Section 810(a)(2) concerns civil proceedings in which a document is sought to be introduced after the death of the patient.  The same procedure regarding an in camera examination by the judge or hearing officer is outlined.  Post-death disclosures under this section must also involve the patient’s physical or mental condition having been introduced in the procedures as an element of a claim or defense, by any party.

Actions by Patient or, if Deceased, Patient’s Representa­tive, Against Therapist

Section 810(a)(3) describes actions by a patient, or by a representa­tive of a deceased patient, against the therapist alleging that the therapist or other practitioner caused the injury complained of in the course of providing services to the patient.

Records Generated in the Course of a Court Ordered Evalua­tion

Section 810(a)(4) concerns records and communications “made to or by a therapist in the course of examination ordered by a court.”  These communications may be disclosed in civil, criminal, or adminis­trative proceedings or in appropriate pretrial proceedings provided that the court has found that the patient has been adequately and “as effectively as possible” informed before submitting to such examination that such records would not be considered confidential or privileged.  However, these records are only admissible as to issues involving the patient’s physical or mental condition and only to the extent that they are germane to the proceedings.

Proceedings Involving Validity of Insurance Coverage When Mental Condition of Patient is at Issue

Section 810(a)(7) concerns records and communications of the recipient being disclosed in any civil or administrative proceeding involving the validity of benefits under a life, accident, health, or disability insurance policy or certificate, or health care service plan contract.  However, disclosure is only allowed to the extent that the patient’s mental condition or treatment or services is a material element of any claim or defense.

In Any Proceedings Under the DMHDD Confidentiality Act

Section 810(a)(8) concerns records or communications being disclosed pursuant to any action brought under the DMHDD Confidenti­ality Act, provided that the information disclosed shall not be utilized for “any other purpose.”

ATTORNEY REQUESTS

The Mental Health Code was also amended at paragraph 804 (a) (5), which lists as one of the persons entitled upon request to inspect and copy a recipient’s record or any part thereof (in the absence of a proper consent form):

An attorney or Guardian ad Litem who represents a minor twelve years of age or older in any judicial or administrative proceeding, provided that the court or administrative hearing officer has entered an order granting the attorney this right. (emphasis added)

Don Paull, who was involved in the drafting of this provision, states that it was the intent of the amendments that any orders merely appointing an attorney to represent a child are insufficient for access to records.  In fact, the order must specifically say that the attorney shall have the right to access mental health records.  Thus, any attorneys requesting medical records must also supply a copy of a bona fide court order which authorizes access.

 

[1]    This means a preliminary review of the restricted file, by the judge, in his office and off the record.

 

[2]    It is our position that subpoenas received in the course of proceedings pursu­ant to the Mental Health Code, such as, for example, Involuntary Admission, are included in this section.  Thus, if a subpoena is received from a party to these proceedings, it must be accompanied by a court order.