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Lake County family law attorneys Michael Strauss and Gary Schlesinger have been active attending and presenting Continuing Legal Education seminars, commenting on new Illinois law and helping people with their family law needs.

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HOW DO I GET THE RECORDS INTO EVIDENCE?

LAKE COUNTY BAR ASSOCIATION
FAMILY LAW SEMINAR 2006
SAVANNAH, GEORGIA

GARY L. SCHLESINGER
1512 ARTAIUS PARKWAY, SUITE 300
LIBERTYVILLE, ILLINOIS 60048
Toll Free: (888) 361-4745
Phone: (847) 213-9065
www.illinois-family-lawyer.com

You are involved in a contested custody case. You represent a parent. The child is seeing a therapist. The child is under age 12. You want to review the therapy notes and take the deposition of the therapist.

The applicable statute is the Illinois Mental Health and Developmental Disabilities Confidentiality Act. 740 ILCS 110/1. If the child is under age 12, either parent may consent to a release of the records. In Re: Kerman, 253 Ill.App. 3d 492 191 Ill.Dec 682 624 N.E. 2d 870 (2nd District 1993). 740 ILCS 110/4(a)(1). Therefore, the parent can go to the therapist, get the records, and review them.

Once the child is age 12 or older, the child has his or her own privilege. 740 ILCS 110/4(a)(2). Therefore, the child can block the parent from getting the records. However, subparagraph (a)(3) may permit the therapist to release the records if the child is informed and does not object "or if the therapist does not find that there are compelling reasons for denying the access." So if the child objects, perhaps the therapist could give you the reason. Most likely, most therapists will not release the material. Then, the same statutory section permits the parent to petition the court for access to the records.

What if your client gets the records, can you then review them? 740 ILCS 110/5(d) "no person or agency to whom any information is disclosed under this Section may re-disclose such information unless the person who consented to the disclosure specifically consents to such re-disclosure." If the child is under age 12, your client got the records and can consent to give them to you. If the child is 12 or over and consents to the parent having the records, the child must also consent to let you read them. If the therapist releases the records to the parent, the therapist must consent to release them to you.

You decide rather than messing around with all of the above, you are just going to issue a records deposition subpoena to the therapist, get the records, review them yourself, and then decide whether or not you want to depose the therapist. You decide you want to depose the therapist and you issue a subpoena for deposition. Now what?

First of all, a records deposition subpoena must comply with Local Court Rule 3.09(d) which contains a certain legend which must be on all subpoenas. It must be conspicuous. In the Rule, it is all in caps, the last line is all in caps, bolded, and underlined. It reads as follows: "Do not forward materials before the date stated on subpoena." What most attorneys do is issue the subpoena returnable on a certain date and tell the person or entity subpoenaed that he or she need not appear at the records deposition if the records are provided before the date of the deposition. This violates the Local Court Rule.

Local Court Rule 3.09(f) permits any party to request copies of all materials obtained by any other party pursuant to a records deposition subpoena. However, it appears the material must be request. Therefore, the person issuing the records deposition subpoena has no affirmative obligation to provide the materials to all other parties unless asked.

More important than the form, is 740 ILCS 110/10 entitled Disclosure in Civil, Criminal, and Other Proceedings. A therapist has the privilege to refuse to disclose the records. The records may be disclosed only after 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..." In any action brought or defended under the Illinois Marriage and Dissolution of Marriage Act, "mental conditions 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." 740 ILCS 110/10(a)(1).

The situation is that the mental health services recipient must first put his or her mental condition in evidence by testifying about it and then the door is opened. Before that, the door is not open and the material cannot come in.

740 ILCS 110/10(d) requires that no party to a proceeding 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 persons shall comply with the 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." Therefore, if the lawyer issues a subpoena without the court order, the therapist must not provide the records.

The safest way to attempt to get the mental health records is to move the Court to issue a records deposition subpoena returnable to the Court. In your motion explain to the Court why the records are necessary and relevant to your side of the case. If the Judge agrees, the Judge will order the therapist to release the records sealed to the Court for an in-camera review by the Court. The Court will then review the records and determine whether or not they should be introduced into evidence. If so, you get them in. If not, you do not.

If you want to take the deposition of the therapist, then you must go through the same procedure, ask the Court to permit you to issue a deposition subpoena. Attach a copy of the order to the subpoena.

Maybe there is an easier way. How about if you know that your opposing party is seeing a psychiatrist and taking medication. However, you do not know what medication, nor why. You know that the prescriptions are filled at a certain pharmacy. Therefore, you decide to subpoena the pharmacist to find out what drugs have been dispensed to your opposing party. Then, with that information, you can also find out who the psychiatrist is, and then you can go get records from the psychiatrist. While that may be a brilliant idea, it may not work.

A husband served a subpoena on three drug stores seeking prescription records for his wife. The Circuit Court denied the wife’s motion to quash the subpoena but certified the following question to the Appellate Court: Are requests for pharmaceutical records from pharmacy protected under the Illinois Mental and Developmental Confidentiality Act?" It was an interlocutory appeal pursuant to Illinois Supreme Court Rule 308. The First District, Third Division, decided that the pharmacy records are included in those records protected from disclosure under the Act. In Re: The Marriage of Jennifer Peters-Farrell and Thomas Peters-Farrell, 345 Ill.App. 3d 603 802 N.E. 2nd 1250 280 Ill.Dec 729 (1st Dist. 2003).

The Illinois Supreme Court granted leave to appeal and vacated the judgment of the Appellate Court and dismissed the appeal as moot because while the interlocutory appeal was pending, the parties settled the case and entered a Judgment for Dissolution of Marriage. The Court held "we cannot grant Jennifer any effectual relief in this case because the Judgment of Dissolution resolved all issues, including her challenge to the subpoenas that sought disclosure of her prescription records. Therefore, this case is clearly moot." The Supreme Court vacated the judgment of the Appellate Court and dismissed the appeal as moot.

Well, now what? Since there is no law saying you cannot, perhaps you can subpoena the pharmacy. If a Rule 23 opinion is not precedential, is a vacated opinion precedential? I suspect that any further attempts to subpoena pharmacy records for psychotropic drugs will meet the same response that the Appellate Court gave in the Peters-Farrell case.

What if you wish to subpoena a medical doctor and depose him or her? Illinois Supreme Court Rule 204(c): "The discovery depositions of non-party physicians being deposed in their professional capacity may be taken only with the agreement of the parties and the subsequent consent of the deponent or under a subpoena issued upon order of Court. A party shall pay a reasonable fee to a physician for the time he or she shall spend testifying at any such deposition. Unless the physician was retained by a party for the purpose of rendering an opinion at trial, or unless otherwise ordered by the Court, the fee shall be paid by the party at whose instance the deposition is taken."

I believe that clearly a psychiatrist is a physician governed by Rule 204(c). Probably a psychologist, even a PhD, is not but then you are left with all of the above to contend with.

There is an excellent article by Belle Lind Gordon in the July, 2005 issue of the Illinois State Bar Association’s Section on Family Law Newsletter, entitled "The Affect of HIPAA on Discovery and Divorce Cases." To summary Belle’s article, HIPAA supercedes Illinois Law. If you wish to subpoena medical records or a medical provider, there must be a qualified protective order attached to the subpoena. There must be written authorization from the patient or a statement that proper notice has been given to the patient or has provided a proposed court order. In order to get a copy of her article, become a member of the Illinois State Bar Association. Go to its website, www.isba.org. On the left side of the home page is a red box. Under publications, click on newsletters. Then, if you are a member of the Family Law Section, you can view archived and current issues of the newsletter. If you are not a member of the Family Law Section, if you are going to do divorces, you should become a member.

There is another tool on the ISBA website which can be very helpful. Those are the various discussion groups. Although joining one results in the receipt of many daily emails, the discussion groups can be very helpful in researching questions such as the one presented in these materials. A lot of the cases cited here were provided to me by Sandra Nye of that discussion group and answers to questions others asked about the Mental Health Act. There is a wealth of research material available in the brains of other members of the ISBA. The discussion groups are a way to tap them.

Here are some opinions dealing with items mentioned in these materials:

In Re: The Marriage of Lombaier, 200 Ill.App.3d 712, 558 N.E. 2d 388; 146 Ill.Dec 425 (First District 1990). In that case, the wife had been psychiatrically hospitalized several times. The husband sought custody of the children and restriction of the wife’s visitation. The husband asked the court to permit the deposition of the wife’s psychiatrist. The wife objected under the Mental Health Confidentiality Act to any discussion of whether or not she was required to take medication and to the deposition of her psychiatrist. The trial court overruled her objections and permitted the deposition. The Appellate Court held that the trial court failed to comply with Illinois Law by refusing to honor the wife’s decision not to introduce her mental condition into the proceedings and to compel the psychiatrist’s deposition. She did not first testify concerning privileged communications, she tried to assert her privilege. Absent that evidence, there was nothing in the record to justify restricting her visitation or excluding her from the martial residence. The trial court was reversed.

Norskog v Pfiel, 197 Ill.2d 60; 755 N.W.2d 1; 257 Ill.Dec. 899 (2001). In that case, a man was convicted of murdering a woman. The woman’s mother was the administratrix of her estate. She sued the murderer and his parents. She tried to discover the psychiatric records of the murderer as well as any psychiatric information disclosed to the parents of the murderer before the murder. The trial court ordered the disclosure and held the family in contempt for not disclosing the material. The Appellate Court reversed holding that the information sought was protected under the Illinois Mental Health and Disabilities and Confidentiality Act. The Illinois Supreme Court affirmed.

Mandziara v Canulli, 299 Ill.App. 3d 593, 701 N.E. 2d 127, 233 Ill.Dec. 484 (First District 1998). In this case the lawyer subpoenaed some mental health records and brought them to court and they were used by a Judge in a custody case. The lawyer represented the father. The father won custody. The mother sued the lawyer. The Appellate Court found that the mother had a right to sue the lawyer for serving a records deposition subpoena on the hospital without a court order. Let this be a lesson to us all.

Renzi v Morrison, 249 Ill.App. 3d 5, 618 N.E. 2d 794, 188 Ill.Dec 224 (First District 1993). The wife was being treated by a psychiatrist. The husband filed a divorce case. The psychiatrist voluntarily appeared at the custody hearing and offered to testify for the husband. The wife objected to the testimony as privileged and confidential. The trial Judge overruled the objection and let the psychiatrist testify. The psychiatrist revealed communications, the results of psychological tests and offered her opinion on the wife’s emotional health. The trial court decided that this testimony tipped the balance of the scale in favor of the husband and awarded him temporary custody of the child. The wife then sued the psychiatrist. The Appellate Court held that the wife had a viable cause of action against the psychiatrist. Let that be a lesson to you all.

Martino v Family Service Agency of Adams County, 112 Ill.App.3d 593, 445 N.E. 2d 6, 67 Ill.Dec. 714 (Fourth District 1982). A wife was in therapy with a social worker. The social worker disclosed certain information to the husband and used the information to form an intimate relationship with the husband. The wife sued for malpractice, breach of contract to provide therapy services and breach of the Mental Health and Developmental Disabilities Confidentiality Act. The Appellate Court held that there was a viable cause of action against the social worker for violating the privilege contained in the Mental Health Act.

People v Kaiser, 239 Ill.App. 3d 295, 606 N.E. 2d 695, 179 Ill.Dec. 863 (Second District 1992). The defendant was charged with driving under the influence of alcohol and improper lane usage. The State issued a subpoena for the defendant’s hospital records. The defendant moved to quash the subpoena under the Mental Health and Developmental Disabilities Confidentiality Act. The Second District held that Act was broader than the physician-patient privilege and that all communications and records generated in connection in providing mental health services to a recipient were protected unless excepted by State Law. The Appellate Court concluded that the State failed to show how the matter was not privileged and quashed the subpoena.

Reda v Advocate Health Care, 199 Ill.2d 47, 765 N.E. 2d 1002, 262 Ill.Dec. 394 (2002). A man and his wife sued a hospital and a physician claiming medical malpractice and neurological injury to the man. The defendants in that malpractice case requested the man's psychiatric records. The attorney refused to disclose them invoking the Mental Health Therapist-Patient Privilege. The trial court held the lawyer in contempt for refusing to comply with discovery. The Appellate Court affirmed. The Supreme Court reversed stating that a neurological injury was not the same as psychological damage; neurological injuries did not directly result in psychological damage. A party can introduce his or her mental health in several ways during the course of litigation including pleadings, answers to discovery, depositions, briefs, motions, or arguments before a court or by stipulation. In this case, the plaintiff had not introduced his mental condition as an element of his claim and therefore the records were privileged under the Mental Health and Developmental Disabilities Confidentiality Act.