Mental health professionals must comply with subpoenas unless an accompanying court order is required under the Illinois Mental Health and Developmental Disabilities Confidentiality Act. The Act restricts subpoenas in certain legal proceedings without a court order, such as child custody cases. Clinicians should consult legal counsel if unsure whether a subpoena requires a court order due to the complexities of mental health confidentiality laws.

1. The Chicago School of Professional
Psychology
Law
and
Mental Health
Dr. James Walsh class
June 9, 2008
Presented by:
Brooke R. Whitted
WHITTED, CLEARY & TAKIFF, LLC
3000 Dundee Road
Suite 303
Northbrook, Illinois 60062
(847) 564-8662
www.WCT-LAW.com
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2. 2

3. Table of Contents
1. Qualities of a Good Clinical Report 7-10
2. Minor Consent Issues 11-16
3. Dealing With the Issue of Mental Health Subpoenas 17-26
4. Subpoena Policy 27-32
5. Illinois Mental Health Confidentiality Act and Comparison 33-48
With FERPA and Other Provisions
6. Breaking Confidentiality: Duty to Warn 49-56
7. Current Standards for Neglect/Abuse Reporting 59-61
8. Fee Splitting: Implications for Physicians, Psychologists, 63-69
and Social Workers
9. Non-Custodial Parents: Legal Issues 71-78
10. What Happens When a School District Fails to Respond 79-86
to the Needs of a Suicidal Child?
11. The Final Word on School Health Services: 87-91
Cedar Rapids CSD v. Garrett F.
12. School Student Records Act 93-100
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4. 4

5. Brooke R. Whitted
I. Current Boards
1. Leslie Shankman School Corporation (President, board member)
Operating the University of Chicago Orthogenic School (Residential –
ED)and the University of Chicago Hyde Park Day School (Days – gifted
LD)
2. Marx Memorial Fund (Chair) – Cook County Juvenile Court (for
delinquent wards’ life enrichment)
3. One-to-One Learning Center, Northfield (Board Member – Agency
performing tutoring, evaluation and reading instruction services)
4. Community and Residential Services Authority (Gubernatorial Appointee;
statutory agency overseeing placement of children)
5. University of Chicago Foundation for Emotionally Disturbed Children
(Secretary, Board Member)
6. Glenview/Northbrook Youth Services (Advisory Board)
7. National-Lewis University (School Psychology Advisory Board)
II. Former Boards
1. Glenview/Northbrook Youth Services
2. Heartspring/Wichita (Formerly Institute for Logopedics)
3. Glenkirk/Northbrook
4. Shelter, Inc./Arlington Heights (founding board member)
III. Association Clients
1. Illinois Child Care Association
2. Illinois Psychological Association
3. I-ASPEC
IV. Centers of Learning
1. University of Illinois at Chicago, Medical School, Department of
Psychiatry (Instructor)
2. University of Chicago, as president of a separate but affiliated unit of the
University
3. National-Louis University, member of committee advising the Education
Department on Policy issues.
4. Loyola University, School of Social Work (former instructor)
5. Adler Institute – Chicago (guest speaker)
6. Roosevelt University (guest speaker)
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6. 6

7. Qualities of a
good clinical
report
Brooke R. Whitted
WHITTED, CLEARY & TAKIFF, LLC
3000 Dundee Road
Suite 303
Northbrook, Illinois 60062
(847) 564-8662
www.WCT-LAW.com
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9. QUALITIES OF A GOOD CLINICAL REPORT
Brooke R. Whitted
Whitted Cleary & Takiff, LLC
3000 Dundee Road, Suite 303
Northbrook, Illinois 60062
(847) 564-8662; fax (847) 564-8419
whittedlaw@aol.com
* This memo was drafted in response to an inquiry from a clinical psychologist who
requested information about the “essential characteristics of an effective psychological
evaluation.”
I have several requirements for reports, and in fact have been teaching these
principles in report writing for the past 20 years to UIC medical school doctors who want
to specialize in child and adolescent psychiatry. The principles apply to ANY clinical
report, not just psychological reports. I admit to a bias that I have to be able to utilize the
report as a basis for motivating sometimes reluctant agencies (like school districts, state
agencies, etc.) to pay for services that a patient/client might need.
Qualities are as follows:
• The report must flow logically, be written in excellent prose, and clinical
findings must be the basis for all recommendations presented;
• Ideally, the report should contain as a first section a comprehensive review
of all clinical material that preceded the report;
• After a review of prior evaluations, there should be an introduction to tests
or evals chosen, in light of prior testing efforts, and a highlighting of any
gaps, if any, that the current examiner found in prior materials;
• If the examiner uses a testing vehicle not commonly used, it’s a good idea
to educate the reader, in simple terms, as to the qualities the test is
designed to evaluate, and the reason the examiner is selecting this
particular evaluative tool;
• The recommendations section must contain recommendations! My pet
peeve is a wishy washy “Recommendations will await the team meeting”
or some such nonsense. The examiner must come right out and say what
the patient needs, with as much specificity as possible, and relate the
recommendations to the clinician’s findings. To me, a report is worthless
if there is not a concrete, detailed series of recommendations.
• It is not required, but usually a good idea, to examine what will likely
happen to the patient if the recommendations are NOT followed – this is
required where serious harm or death could occur;
• The examiner must be willing to leave the office and accompany his or her
report to the meeting that will usually be held to consider it. It is much
easier to discount the conclusions of a professional who isn’t there;
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10. • If the report is written for a specific purpose, such as to convince a school
district to declare a pupil eligible for ED special education services, the
examiner must be conversant with the definitions used by the particular
system appealed to. For example, the special education law has a different
definition of “Emotionally Disturbed” than does the DSM. The examiner
must know definitions from other systems (if applicable) prior to drafting
a report.
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11. MINOR CONSENT ISSUES
Brooke R. Whitted
WHITTED, CLEARY & TAKIFF
Suite 303
3000 Dundee Road
Northbrook, Illinois 60062
(847) 564-8662
(847) 564-8419 (Facsimile)
whittedlaw@aol.com (Email)
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13. MEDICAL CONSENT PROVISIONS
Enclosed please find an abbreviated summary of certain medical
consent provisions of Illinois statute and case law pertaining to children.
MEDICAL CONSENT PROVISIONS
I. The parent generally has the right and duty to make decisions concerning
medical care for his/her child.
A. However, the minor may consent:
1. When she is pregnant, she may consent to her own
medical care and surgery, 410 ILCS 210/1;
2. When (s)he is married, the minor may consent to
his/her own medical care and surgery, 410 ILCS 210/1;
3. When (s)he is a parent, the minor may consent to the
medical care, surgery, or dental care for his/her child,
410 ILCS 210/2.
4. When (s)he is 12 years of age or older, the minor may
consent to his/her treatment of venereal disease or for
abuse of alcohol or narcotic drugs, 410 ILCS 210/4.
5. When (s)he is the victim of a criminal sexual assault or
abuse, the minor may consent to his/her medical care
and/or counseling. 410 ILCS 210/3.
6. When she is pregnant, she may consent to an abortion
if considered mature enough to make that decision or if
she can show it is in her best interest. Bellotti v. Baird,
443 U.S. 662, 99 S. Ct. 3035, 61 L. Ed. 2nd 797,
(1979).
B. Physicians may consent to and render emergency medical care
to a child when a parent is not available during the emergency
and it is the judgment of the physician that there is not
additional time to await the parent's involvement. Ill. Rev.
Stat., Ch. 111, section 4503.
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14. C. Dentists may consent to and render emergency dental care to a
child when a parent is not available during the emergency and
it is the judgment of the dentist that there is not additional time
to wait the parent's involvement. Ill. Rev. Stat., Ch. 111,
section 4503.
II. The courts can and will intervene in a parent's decision which places a child
in danger or leaves a child in danger of death or permanent harm. Prince v.
Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645, (1944) rehearing
denied, 321 U.S. 804, 64 S. Ct. 784, (1944) [a case concerning child labor].
III. A parent's denial of medical treatment necessary to save a child's life is
neglect pursuant to the Juvenile Court. Intent to neglect is not a factor
Wallace v. Labrenz, 411 Ill. 618, 104 N.E. 2d 769 (1952), cert. denied 344
U.S. 824, 73 S. Ct. 24, 97 L. Ed. 2nd 642 (1952).
IV. CONSENT TO TREATMENT/RIGHT TO REFUSE
A. GENERAL RULE
In Illinois the rights of a recipient of services to refuse generally
accepted mental health or developmental disabilities services
including, but not limited to, medication are set forth in sections 2-107
and 3-608 of the Illinois Mental Health Code.
The right to refuse electro-convulsive therapy and any "unusual,
hazardous or experimental services or psychosurgery" is set forth in
section 2-110 of the Code and requires written and informed consent.
Under section 2-107, a recipient's guardian also has the right to refuse.
The guardian may only consent with the approval of the court for
such services as he or she deems to be in the best interests of the
ward. ILL. REV. STAT. Chapter 91 1/2, section 2-110.
Informed consent requires the physician to describe the proposed
treatment, indicate alternatives, describe risks and possible
complications. It also requires knowing and voluntary consent on the
part of the patient.
Both the notions of informed consent and the right to refuse
treatment are based on the constitutionally recognized right to privacy.
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15. B. EXCEPTIONS
(1.) Qualified Right: The patient's right to refuse is not absolute
but rather qualified, so that services may be given without
consent when it is necessary to prevent that patient from
causing serious harm to himself or others.
A 1976 report of the Governor's Commission for Revision of
the Mental Health Code of Illinois indicated that where a
mentally disabled person poses a threat to himself or others,
the interest of the state becomes more compelling than the
patient's right to refuse treatment. Thus, medication and other
treatment or habilitation which is necessary to arrest behavior
may be administered over the recipient's objection.
(2.) Minors: Under the Illinois law, minors 14 and older may
receive outpatient counseling without the consent of their
parents, up to five visits of 45 minutes each.
In addition, there are a few notable exceptions to the general
rule that parents are responsible for consenting to the medical
treatment of their minor children. In Illinois, minor girls of
any age may obtain abortions, minors 12 or older may consent
to treatment for venereal disease or drug abuse, and minors of
any age may obtain birth control.
(3.) Emergencies: Section 2-111 of the Illinois Mental Health
Code provides for the administration of medical procedures
without consent where the delay in obtaining consent would
endanger the life or adversely and substantially affect the health
of a recipient of services.
(4.) Incompetency: The right to refuse treatment may be exercised
by incompetent persons through their guardians. ILL. REV.
STAT. Chapter 91 1/2, sections 2-107 and 2-110. Provisions
for overriding the refusal or failure to consent in the case of an
incompetent are not specifically spelled out in the statute; the
guardianship procedure is an important means for obtaining
treatment objected to on a basis reflecting incapacity to make a
treatment decision.
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16. The Code provides in sections 2-100 and 2-101 that questions
of competency and commitment are separate and, following
commitment, all rights are unaffected. Accordingly, the
commitment procedure reflects only tangentially on a
recipient's capacity to make treatment decisions, with the
strongest correlation being found in section 1-119(2) where
admission is based on a person's inability to care for himself.
V. ILLINOIS PUBLIC ACT 87-460: CONSENT BY MINORS TO
MEDICAL PROCEDURES ACT AMENDMENTS
Illinois Public Act 87-460 amends two sections of the Consent by Minors to
Medical Procedures Act, 410 ILCS 210 et. seq. (1992) (formerly Ill. Rev.
Stat., ch. 111, para. 4500 et. seq. (1991)). The effect of this Act is to remove
exceptions to the general provision that notice need not be provided to a
parent when a minor who is 12 or older is receiving treatment for drug or
alcohol abuse.
Section 4 of the amended Act now allows a minor who is 12 years old or
older to consent to medical treatment for drug or alcohol abuse for himself
or a member of the child's family. But more importantly, the amended
Act no longer requires a person who furnishes such treatment
to notify the parent or guardian upon the second occasion in
which the minor is receiving such treatment.
Section 5 of the amended Act now sets forth explicit rules for counselors and
physicians who give notice to the parent or guardian of the minor receiving
treatment. Under the new Act, a physician or counselor is explicitly barred
from providing notice to a parent or guardian without the minor's consent,
unless the purpose is to protect the safety of the minor, another family
member, or another individual. This rule is enhanced by an amendment to
the section which removes the requirement that a physician or counselor
must notify the parent or guardian upon the second such treatment of the
minor.
The overall effect of these amendments is to accord greater deference to the
minor's decision to receive treatment for drug and alcohol abuse.
Furthermore, it eliminates the possible interference of a parent or guardian
who seeks to bar such treatment.
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17. DEALING WITH
THE ISSUE OF
MENTAL HEALTH
SUBPOENAS
Brooke R. Whitted
Whitted, Cleary + Takiff LLC
3000 Dundee Road-Suite # 303
Chicago, Illinois 60062
Phone: (847) 563-8662
Fax: (847) 564-8419
Website: www.wct-law.com
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19. Subpoenas
The IMHHDDCA has been amended over the years to
restrict service of subpoenas in certain circumstances, without
an accompanying court order. The provision, located at ILCS
110/10(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. The specific categories applicable to subpoena service have
been discarded previously.
A. In-Camera Inspection of File: Motion Required
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 camera1 and determines:
1. disclosure is relevant and probative;
1
This means a preliminary review of the restricted file, by the judge, in his office and off the record.
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20. 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.
B. What is ‘Relevant?’
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
In Renzi v. Morrison, an Appellate Court held that a therapist
who voluntarily disclosed a psychiatric patient's confidential
communications while acting as a witness for a patient's spouse in
divorce proceeding, could be held liable for damages. Renzi v.
Morrison, 249 Ill.App.3d 5 (Ill. 1993). Illinois law stipulates that a
witness' testimony when relevant is privileged information at judicial
proceedings.
A therapist offered to testify for a patient’s husband. However,
the patient objected that such testimony was privileged information
and was confidential. The trial judge overruled the objection and
allowed the testimony. The therapist revealed the patient’s
conversations, test results and made an opinion on the patient’s
emotional health. The testimony was significant enough to have
"tipped the balance of the scale," in the case and the patient’s husband
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.
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21. was awarded temporary custody of the child. The Appellant court
reasoned that the lower court did not appoint, subpoena, or order the
therapist to testify but instead the therapist appeared voluntarily and
offered testimony. The court held that the therapist’s function was to
treat the patient, and not to advise the court.
C. Death of Patient
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.
D. Actions 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.
E. Court Ordered Examinations
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.
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22. F. Case Study: Mandziara v. Canulli, 299 Ill.App.3d 593 (Ill. 1998).
A cause of action exists against attorneys who issue subpoenas
for mental health records without first obtaining the required court
order. This case, decided in September 1998, holds that a mental health
patient may sue an attorney for improperly serving a subpoena for
mental health records without first obtaining a court order.
i. Facts
An ex-husband filed an emergency petition seeking
modification of a court order awarding child custody to his
ex-wife, Mary Mandziara (“Mandziara”). The petition
alleged, among other things, that Mandziara attempted suicide
and was hospitalized at Northwest Community Hospital. In
connection with the petition, the husband’s attorney, Michael
Canulli (“Canulli”), served a subpoena on the Hospital’s
records custodian, Helen Langer (“Langer”), who appeared in
court with the requested records. Langer did not give the
records directly to Canulli. Instead, Canulli called Langer as
a witness and she gave the records directly to the trial court.
The judge immediately and improperly reviewed the records
in open court and then questioned Mandziara about her
hospitalization and about certain notes in the records. At the
end of the hearing the court awarded custody to the ex-
husband.
Mandziara sued Canulli for serving a subpoena
on the Hospital without first obtaining a court order.3
The trial court (a different court than the one that
conducted the custody hearing) granted summary
judgment to Canulli. Canulli filed a petition for
3
Initially Mandziara sued the Hospital for releasing the confidential information without a court order.
That case was dismissed on summary judgment after a finding that section 10(b) of the Act, cited
supra, protected the Hospital from liability,
While we do not condone the trial judge’s action in commenting upon Mandziara’s records in open
court, this was beyond the control of [Langer]. We find the Hospital did nothing more than follow
section 10(b) of the Act in that it provided the court with Mandziara’s medical records pursuant to a
request from an interested party for the sole purpose of an in camera inspection to determine their
relevance in a child custody issue.
Hospitals must be advised that Mandziara v. Canulli does not absolve them from liability under the
Act.
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23. sanctions under Illinois Supreme Court Rule 137
which the trial court denied. Canulli appealed the
denial of sanctions and Mandziara cross-appealed the
summary judgment for Canulli.
ii. The Holding of the Court
Canulli violated the Mental Health Confidentiality
Act by failing to obtain a court order before serving a
records subpoena on the hospital.
iii. Analysis
There are some strong reasons for maintaining
confidentiality in mental health records. Presumably, the
patient in psychotherapeutic treatment reveals the most
private and secret aspects of his mind and soul. To
casually allow public disclosure of such would desecrate
any notion of an individual’s right to privacy. At the same
time, confidentiality is essential to the treatment process
itself, which can be truly effective only when there is
complete candor and revelation by the patient. Finally,
confidentiality provides proper assurances and inducement
for persons who need treatment to seek it.
Section 110/10 of The Mental Health
Confidentiality Act, 740 ILCS 110/1 et seq., in pertinent
part, provides as follows:
Except as provided herein, in
any [court] or administrative ...
proceeding, ... a recipient [of
mental health services], 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 records or
communications.
***
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24. Before a disclosure is made
under subsection (a), any party
to the proceeding or another
interested person may request
an in camera review of the
record of communication to be
disclosed. The court ...
conducting the proceeding may
hold an in camera review on its
own motion ... the court ... may
prevent disclosure or limit
disclosure to the extent that
other admissible evidence is
sufficient to establish the facts in
issue. The court ... may enter
such order as may be necessary
to protect the confidentiality,
privacy, and safety of the
recipient ...
***
No party to any proceeding
described under ... subjection
(a) ..., 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.
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25. Section 110/15 of the Act also provides, “any person
aggrieved by a violation of this Act may sue for damages,
an injunction, or other appropriate relief.”
The appellate court found that Canulli’s actions
constituted a violation of the Act. The court rejected
Canulli’s argument that he complied with the legislative
intent of ensuring confidentiality by requesting that
Langer produce the records to the court for an in camera
review. Even assuming Canulli only intended the
documents be reviewed in camera;4 the Act does not
allow such disclosure without a court order.
The Act is carefully drawn to
maintain the confidentiality of
mental health records except in
specific circumstances ... The
General Assembly has made a
strong statement about the
importance of keeping mental
health records confidential. If
we were to hold Canulli did not
violate the Act merely because
he did not look at Mandziara’s
records, we would be rewriting
the statute, effectively eroding
unmistakable legislative intent
under the weight of judicial fiat
... Nothing in section 10(d)
excuses a court order when the
records are first examined by
the trial judge.
In reaching these conclusions, the court noted that
Canulli supposedly had honorable intentions in wanting
to protect his client’s children, but that these intentions
had no bearing on the determination of whether Canulli
violated the Act. “[M]otives have nothing to do with
4
The court also held that this argument was contradicted by testimony in the record of the trial court
hearing in which Canulli requested to be present when the judge reviewed the records.
25

26. the legislative judgment that mental health records
should not be surrendered as a matter of course.”
The court also indicated in some cases strict
compliance with the statute can be excused, such as in
cases where a patient placed her own mental health at
issue. In the present case, however, “Mandziara did not
bring this action. She did not ask to be brought into a
courtroom to face a challenge to the custody of her
children.”
Lastly, the court concluded that an award of damages
could be appropriate pursuant to section 110/15 of the
Act, and remanded the case to the trial court to determine
causation and damages.
Some legal analysts note that Section 10(d) contains
no requirement of notice to the third person from whom
the records are being sought of intent to seek an order
authorizing disclosure or the issuance of the subpoena.
The order merely “authorizes” -- it does not compel --
issuance of the subpoena or disclosure of the record.
Obviously, a party must receive a notice of the motion for
issuance of the order and should at that point interpose
any objection by answer to the motion, citing the
appropriate privilege or other protective statute. The
authorization order does not preclude a motion to quash
by the person subpoenaed.
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27. SUBPOENA
POLICY
Brooke R. Whitted
WHITTED, CLEARY & TAKIFF, LLC
3000 Dundee Road
Suite 303
Northbrook, Illinois 60062
(847) 564-8662
www.WCT-LAW.com
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29. SUBPOENA POLICY
With increasing frequency, we are receiving subpoenas both for records
and requiring staff testimony in legal proceedings. This has most often occurred
in domestic relations proceedings in which one or both parties seek to compel
testimony by staff, taking them away from their duties with children. As the
frequency of these subpoenas has increased, their effect has become evermore
disruptive to the education of all of our students. Our board of directors has
therefore decided to implement the following procedures whenever a subpoena
is received in any civil matter not involving a dispute with the school itself. The
purpose of this policy is to ensure a stable and safe environment for our children
while at the same time attempting to reasonably accommodate individuals who
for one reason or another feel a need to request or compel testimony of staff or
copies confidential records.
I. SUBPOENAS FOR RECORDS ONLY
Whenever a subpoena for records only is received,
we will first determine if mental health records are included
in our files. If they are, as to those records only, Illinois law
requires that any properly served subpoena must be
accompanied by a court order. The court order must give
permission to the subpoenaing party to serve the subpoena
and it must also grant access to “personally identifiable”
mental health records. Service of a subpoena for mental
health records, without an accompanying court order as
above described, is a defectively served subpoena and will
be ignored. In addition, under Illinois decisional case law, an
attorney who defectively serves a subpoena for mental
health records is subject to a disciplinary complaint and
possible malpractice action.
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30. If there is a compelling reason, in the sole discretion
of the administration, a subpoena for records may be met by
a “motion to quash.” This means that we will challenge the
subpoena. We will challenge a subpoena if we think there is
information in the file that might cause harm to the child or
children in question, or if the subpoena is served for any
improper purpose. In such an event, we will retain legal
counsel, challenge the subpoena, and bill the subpoenaing
party accordingly, pursuant to III below.
II. SUBPOENA OF A WITNESS FOR TESTIMONY OR
DEPOSITION
1. SUBPOENA OF THE PRINCIPAL OR
EXECUTIVE DIRECTOR
If we receive a subpoena for the in-court testimony of
the Principal or Executive Director about our program, we
will usually accommodate the request but will try to restrict
testimony to a description of our programs. We will generally
resist multiple depositions, court dates, and the like and will
retain legal counsel for this purpose should testimony
become too disruptive for the Executive Director or our
program.
In addition, we will resist any subpoena if we think
that it was served for an improper purpose, such as to
harass or intimidate.
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31. 2. SUBPOENA OF ANYONE OTHER THAN THE
EXECUTIVE DIRECTOR OR PRINCIPAL
We will resist all subpoenas for in-court testimony
served upon anyone other than our Principal or Executive
Director. The purpose of this policy is to ensure a stable and
continuous service environment for the children we serve. To
permit lawyers or parents in a domestic relations or other
dispute to act out their own conflicts by disrupting staff
through subpoenas that take our staff away from serving
children will not be tolerated. We expect families who insist
on doing this to pay for any and all costs, including our
attorney fees, if they cause a subpoena to be served that in
our sole discretion requires the involvement of our attorney.
III. PAYMENT FOR SERVICES
We extend the availability of our Executive Director
for testimony as a courtesy to our families. However, at
times in legal cases the records registrar is required to
“authenticate” a record. With respect to any testimony for the
narrow purpose of records authentication, we will allow our
records custodian to testify for a flat fee of $500.00. The time
of the Executive Director is billed to the subpoenaing party
for any other case at a rate of $250.00 per hour. Should a
subpoenaing party wish the Executive Director to be
qualified in the case as an “expert,” in other words, to offer
opinions rather than just testimony as to things observed or
heard, or testimony about our services, the hourly rate is
$500.00. Hourly charges apply to preparation, travel, waiting,
31

32. and actual testimony time. We reserve the right to request
advance payment for these charges.
We, the parents of ______________(name)_________________, a
child served by ____(school or facility)_______, have read the above
policy on subpoenas. We certify that should we enter into a civil dispute
as with any party other than the school or faculty itself, we will not
subpoena anyone for testimony for any purpose in such proceedings; and,
we agree as part of our contract with this facility to pay for any and all
attorney fees that might be incurred as a result of a subpoena served by
us upon this facility which would in the sole discretion of management
require retention of legal counsel. We also understand, and agree in
advance, that our family may be dismissed from the facility if responding
to subpoenas and other legal procedures would, in the sole discretion of
the administration, be too burdensome and/or disruptive. We intend that
this document shall be incorporated into our current contract with this
facility.
X_________________________ X_________________________
(Parent) (Parent)
Principal
Accepted: X___________________________Title: Executive Director
(School or Facility)
32

33. ILLINOIS MENTAL HEALTH
CONFIDENTIALITY ACT AND
COMPARISON WITH FERPA
AND OTHER PROVISIONS
_________________________________________
BROOKE R. WHITTED
LARA A. CLEARY
Whitted, Cleary & Takiff LLC
3000 W. Dundee Road, Suite 303
Northbrook, Illinois 60062
(847) 564-8662
(847) 564-8419 (Facsimile)
Whittedlaw@aol.com (Email)
33

34. (Revised 9/2001)
34

35. The purpose of this memorandum is to summarize the provisions of the DMHDD
Confidentiality Act, which is a federal grant act, and to highlight certain similarities to the
Family Education and Right to Privacy Act (FERPA). The central themes are the right to
inspect and review records and the restriction of personally identifiable information.
FERPA is selected for certain comparisons because it contains many of the provisions found
in state confidentiality statutes, including those found in Illinois.
I. DEFINITIONS
The MHDDCA contains the following relevant definitions:
110/2. Definitions
§2. The terms used in this Act, unless the context requires
otherwise, have the meanings ascribed to them in this Section.
(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) "Guardian" means a legally appointed guardian or
conservator of the person.
(3) "Mental health or developmental disabilities services" or
"services" includes but is not limited to examination,
diagnosis, evaluation, treatment, training, pharmaceuticals,
aftercare, habilitation or rehabilitation.
(4) "Personal notes" means:
(i) information disclosed to the therapist in
confidence by other persons on condition
that such information would never be
disclosed to the recipient or other persons;
(ii) information disclosed to the therapist by the
recipient which would be injurious to the
recipient's relationships to other persons, and
(iii) the therapist's speculations, impressions,
hunches, and reminders.
(5) "Parent" means a parent or, in the absence of a parent or
guardian, a person in loco parentis.
35

36. (6) "Recipient" means a person who is receiving or has received
mental health or developmental disabilities services.
(7) "Record" means any record kept by a therapist or by an
agency in the course of providing mental health or
developmental disabilities service to a recipient concerning
the recipient and the services provided. Record does not
include the therapist's personal notes, if such notes are kept
in the therapist's sole possession for his own personal use
and are not disclosed to any other person, except the
therapist's supervisor, consulting therapist or attorney. If at
any time such notes are disclosed, they shall be considered
part of the recipient's record for purpose of this Act.
(8) "Record custodian" means a person responsible for
maintaining a recipient's record.
(9) "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.
FERPA defines Sole Possession Records at 20 U.S.C. §1232(g)(a)(4)(B) as follows:
(B) The term "education records" does not include -
(i) records of instructional, supervisory, and administrative
personnel and educational personnel ancillary thereto which are in
the sole possession of the maker thereof and which are not accessible
or revealed to any other person except a substitute. (Emphasis
added.)
FERPA applies to educational institutional recipients of federal financial assistance.
The fundamental consequence for non-compliance with FERPA is that the agency in
question (such as a state university) will not receive federal money if the provisions of the act
are not obeyed. For example, if due process is not provided, the following FERPA provision
applies:
(2) No funds shall be made available under any applicable program
to any educational agency or institution unless the parents of students
who are or have been in attendance at a school of such agency or at
such institution are provided an opportunity for a hearing by such
agency or institution, in accordance with regulations of the Secretary,
36

37. to challenge the content of such student's education records, in order
to insure that the records are not inaccurate, misleading, or otherwise
in violation of the privacy rights of students, and to provide an
opportunity for the correction or deletion of any such inaccurate,
misleading or otherwise inappropriate data contained therein and to
insert into such records a written explanation of the parents
respecting the content of such records.
II. WHAT RECORDS ARE PROTECTED?
Under both laws, all records are "protected" except those specifically mentioned in
the Act. Such exceptions might include separate law enforcement files, records of persons
employed but not in attendance, physician/psychologist records if generated by them in that
capacity and if the subject is 18 years of age or older, so-called "directory" information, and
"sole possession" records. None of these kinds of records are subject to disclosure under any
circumstances, for the simple reason that they are not defined as "records" under FERPA. A
closer examination of "sole possession" records may be helpful.
Sole possession records are not subject to disclosure if they fit within the above
definitions contained in either law, the MHDDCA being far more specific. One who is
seeking disclosure of the file cannot under any circumstances inspect, copy or challenge the
contents of sole possession records. However, the courts' interpretations have been strict in
this regard. Such records must be private notes, intended as personal memory aids, and
inaccessible by others. A similar definition of so-called "personal notes" holds generally in
most states.
In Illinois, there are even more specific provisions relating to personal notes and
protocols:
37

38. 110/3. Records and communications - Personal notes of therapist -
Psychological test material
§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, administraive or
legislative proceeding or any proceeding preliminary thereto.
(c) Psychological test material whose disclosure would
compromise the objectivity or fairness of the testing process
may not be disclosed to anyone including the subject of the
test and is not subject to disclosure in any administrative,
judicial or legislative proceeding. However, any recipient
who has been the subject of the psychological test shall have
the right to have all records relating to that test disclosed to
any psychologist designated by the recipient. Requests for
such disclosure shall be in writing and shall comply with the
requirements of subjection (b) of Section 5 of this Act.
The MHDDCA's list of persons entitled to inspect and copy a mental health file upon
request, without consent, is very specific:
110/4. Persons entitled to inspect and copy recipient's record
§4. (a) The following persons shall be entitled, upon request, to
inspect and copy a recipient's record or any part thereof:
(1) the parent or guardian of a recipient who is under
12 years of age;
(2) the recipient if he is 12 years of age or older;
(3) the parent or guardian of a recipient who is at
least 12 but under 18 years, if the recipient is
informed and does not object or if the therapist does
not find that there are compelling reasons for denying
the access. The parent or guardian who is denied
access by either the recipient or the therapist may
petition a court for access to the record;
Note here that there is no therapist "waiver" where
38

39. (4) the guardian of a recipient who is 18 years or
older;
(5) an attorney or guardian ad litem who
represents a minor 12 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; or
(6) an agent appointed under a recipient's power
of attorney for health care or for property, when
the power of attorney authorizes the access.
(Emphasis added.)
Further, agency attempts to restrict access by requiring that someone "assist" the
recipient in interpreting the file are improper if imposed over a recipient's refusal:
110/4(b).
§4. (b) Assistance in interpreting the record may be provided
without charge and shall be provided if the person inspecting
the record is under 18 years of age. However, access may in
no way be denied or limited if the person inspecting the
record refuses the assistance. A reasonable fee may be
charged for duplication of a record. (Emphasis added.)
III. RIGHT TO CHALLENGE
Under FERPA, there is a due process right to a hearing, as outlined on page 3, for the
purpose of challenging the accuracy of the contents of a particular file. There is also a
privilege for the subject of the record to insert his or her own version of an incident or
occurrence, and should that record ever be disclosed, the subject's explanation must also be
disclosed. There is a similar right in the DMHDDCA at 740 ILCS 110/4(c):
110/4(c):
§4. (c) Any person entitled to access to a record under this
Section may submit a written statement concerning any
disputed or new information, which statement shall be entered
into the record. Whenever any disputed part of a record is
disclosed, any submitted statement relating thereto shall
accompany the disclosed part. Additionally, any person
entitled to access may request modification of any part of the
39

40. record which he believes is incorrect or misleading. If the
request is refused, the person may seek a court order to
compel modification.
(d) Whenever access or modification is requested, the request
and any action taken thereon shall be noted in the recipient's
record.
IV. CONSENTS FOR RELEASE OF INFORMATION
The MHDDCA is one of the country's most complicated in this area:
110/5. Written consent for disclosure of records and communications
§5. (a) Except as provided in Sections 6 through 12.2 of this Act,
records and communications may be disclosed to someone
other than those persons listed in Section 4 of this Act only
with the written consent of those persons who are entitled to
inspect and copy a recipient's record pursuant to Section 4 of
this Act.
(b) Every consent form shall be in writing and shall specify
the following:
(1) the person or agency to whom disclosure is to be
made;
(2) the purpose of which disclosure is to be made;
(3) the nature of the information to be disclosed;
(4) the right to inspect and copy the information to be
disclosed;
(5) the consequences of a refusal to consent, if any;
and
(6) the calendar date on which the consent expires,
provided that if no calendar date is stated,
information may be released only on the day the
consent form is received by the therapist; and
(7) the right to revoke the consent at any time.
The consent form shall be signed by the person entitled to give
consent and the signature shall be witnessed by a person who
can attest to the identity of the person so entitled. A copy of
the consent and a notation as to any action taken thereon
40

41. shall be entered in the recipient's record. Any revocation of
consent shall be in writing, signed by the person who gave the
consent and the signature shall be witnessed by a person who
can attest to the identity of the person so entitled. No written
revocation of consent shall be effective to prevent disclosure
of records and communications until it is received by the
person otherwise authorized to disclose records and
communications.
(c) Only information relevant to the purpose for which
disclosure is sought may be disclosed. Blanket consent to the
disclosure of unspecified information shall not be valid.
Advance consent may be valid only if the nature of the
information to be disclosed is specified in detail and the
duration of the consent is indicated. Consent may be revoked
in writing at any time; any such revocation shall have no
effect on disclosures made prior thereto. (Emphasis added.)
And note that although redisclosures are not permitted, the patient may waive this right and
authorize redisclosures in advance:
(d) No person or agency to whom any information is
disclosed under this Section may redisclose such information
unless the person who consented to the disclosure specifically
consents to such redisclosure. (Emphasis added.)
Confidentiality of mental health records in Illinois survives death, as opposed to ordinary
medical records:
(e) Except as otherwise provided in this Act, records and
communications shall remain confidential after the death of a
recipient and shall not be disclosed unless the recipient's
representative, as defined in the Probate Act of 19751 and the
therapist consent to such disclosure or unless disclosure is
authorized by court order after in camera examination and
upon good cause shown. (Emphasis added.)
But ordinary consents are permitted in insurance coverage matters:
(f) Paragraphs (a) through (e) of this Section shall not apply
to and shall not be construed to limit insurance companies
writing Life, Accident or Health insurance as defined in
Section 4 of the Illinois Insurance Code,2 and Non-Profit
Health Care Service Plan Corporations, writing Health Care
Service contracts, under The Non-Profit Health Care Service
Plan Act,3 in obtaining general consents for the release to
41

42. them or their designated representatives of any and all
confidential communications and records kept by agencies,
hospitals, therapists or record custodians, and utilizing such
information in connection with the underwriting of
applications for coverage for such policies or contracts, or in
connection with evaluating claims or liability under such
policies or contracts, or coordinating benefits pursuant to
policy or contract provisions.
And in certain applications for benefits, no consent is required:
110/6. Information used in application for benefits - Disclosure
without consent.
§6. Such information from a recipient's record as is necessary to
enable him to apply for or receive benefits may be disclosed with
consent obtained pursuant to Section 5 of this Act. Disclosure may be
made without consent when despite every reasonable effort it is not
possible to obtain consent because the person entitled to give consent
is not capable of consenting or is not available to do so. The
recipient shall be informed of any disclosure made without consent.
The information disclosed without consent under this Section may
include only the identity of the receipient and therapist and a
description of the nature, purpose, quantity, and date of the services
provided. Any request for additional information shall state with
particularity what further information is needed and the reasons
therefor. Refusal to consent to the disclosure of more information
than is necessary to apply for or receive direct benefits shall not be
grounds for in any way denying, limiting, or cancelling such benefits
or refusing to accept an application or renew such benefits. Such
information shall not be redisclosed except with the consent of the
person entitled to give consent. (Emphasis added.)
Section 110/7.1 of the MHDDCA also allows certain interagency disclosures without
consent. Section 110/9.2 also states:
110/9.2 Interagency disclosure of recipient information.
§9.2. Interagency disclosure of recipient information. For the
purposes of continuity of care, the Department of Menthal Health and
Developmental Disabilities and community agencies funded by the
Department of Mental Health and Developmental Disabilities may
disclose a receipient's record or communications, without consent, to
each other, but only for the purposes of admission, treatment,
planning, or discharge. Entities shall not redisclose any personally
identifiable information, unless necessary for admission, treatment,
42

43. planning, or discharge of the identified recipient to another setting.
(Emphasis added.)
V. MANDATED DISCLOSURES
In certain instances, disclosures are required:
110/11. Disclosure of records and communications.
(Child Abuse) §11. Disclosure of records and communications.
Records and communications may be disclosed, (i)
in accordance with the provisions of the Abused
and Neglected Child Reporting Act;1 (ii) when, and
to the extent, a therapist, in his or her sole
discretion, determines that disclosure is necessary
to initiate or continue civil commitment
proceedings under the laws of this State or to
otherwise protect the recipient or other person
(Risk of Harm) against a clear, imminent risk of serious physical
or mental injury or disease or death being inflicted
upon the recipient or by the recipient on himself or
another; (iii) when, and to the extent disclosure is,
in the sole discretion of the therapist, necessary to
the provision of emergency medical care to a
recipient who is unable to assert or waive his or
her rights hereunder; (iv) 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 under Chapter V
of the Mental Health and Developmental
Disabilities Code2 or to transfer debts under the
Uncollected StatesClaims Act ...; (v) when
requested by a family member, the Department of
Mental Health and Developmental Disabilities may
assist in the location of the interment site of a
deceased recipient ...; (vi) in commitment
proceedings under the Mental Health and
Developmental Disabilities Code and proceedings
and investigations preliminary thereto, to the
State's Attorney for the county or residence of a
person for whom involuntary or judicial admission
is sought, or in which the person is found, or in
which the facility is provided that the information
so disclosed shall not be utilized for any other
43

44. purpose nor be re-disclosed except in connection
with the proceedings or investigations; (vii) when,
and to the extent disclosure is necessary to comply
with the requirements of the Census Bureau in
taking the federal Decennial Census; and (viii)
when, and to the extent, in the therapist's sole
discretion, disclosure is necessary to warn or
protect a specific individual against whom a
recipient has made a specific threat of a specific
threat of violence where there exists a therapist-
recipient relationship or a special recipient-
individual relationship. Any person, institution, or
agency, under this Act, participating in good faith
in the making of a report under the Abused and
Neglected Child Reporting Act or in the disclosure
of records and communications under this Section,
shall have immunity from any liability, civil,
criminal or otherwise, that might result ...
(Emphasis added.)
The most important mandated releases above cover abused children and the codified Tarasoff
duty.
There is also a more specific provision at §110/9:
110/9. Disclosure by therapist without consent.
§9. In the course of providing services and after the conclusion of the
provision of services, a therapist may disclose a record or
communications without consent to:
(1) the therapist's supervisor, a consulting therapist,
members of a staff team participating in the provision of
services, a record custodian, or a person acting under the
supervision and control of the therapist;
(2) persons conducting a peer review of the services being
provided;
(3) the Institute for Juvenile Research and the Institute for the
Study of Developmental Disabilities; and
44

45. (4) an attorney or advocate consulted by a therapist or
agency which provides services concerning the therapist's or
agency's legal rights or duties in relation to the recipient and
the services being provided.
In the course of providing services, a therapist may disclose a record
or communications without consent to any department, agency,
institution or facility which has custody of the recipient pursuant to
State statute or any court order of commitment.
Information may be disclosed under this Section only to the extent
that knowledge of the record or communications is essential to the
purpose for which disclosure is made and only after the recipient is
informed that such disclosure may be made. A person to whom
disclosure is made under this Section shall not redisclose any
information except as provided in this Act. (Emphasis added.)
VI. 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 740 ILCS 110/10(d) states:
(d) No party to any proceeding described under paragraphs (1), (2),
(3), (4), (7), or (8) of subsection (a) of this Section, no rhis 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.
A. Civil, Criminal, or Administrative Proceedings
Where Patient's Mental Conditional is Introduced
Section 10(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
45

46. of his claim or defense." Such disclosures are to be made only after the judge or hearing
officer examines the documents in camera5 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.6
5
This means a preliminary review of the restricted file, by the judge, in his office and off the
record.
6
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, unless the therapist has determined a disclosure is necessary to
"initiate or continue civil commitment proceedings" per 740 ILCS 110/11 (outlined at Section
V).
46

47. B. Documents Sought After Death of Patient
Where Mental Condition is at Issue
Section 10(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.
C. Actions by Patient or, if Deceased,
Patient's Representative, Against Therapist
Section 10(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.
D. Records Generated in the Course of a Court Ordered Evaluation
Section 10(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.
E. Proceedings Involving Validity of Insurance
Coverage When Mental Condition of Patient is at Issue
Section 10(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.
F. In Any Proceedings Under the DMHDD Confidentiality Act
Section 10(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."
47

48. VII. NON-DISCLOSURE OF PERSONALLY IDENTIFIABLE
INFORMATION
As can be seen, the most fundamental rule of any confidentiality code is that
personally identifiable information is prohibited from being disclosed except with the
consent of the subject of the record in question. There are other exceptions, which
might include the various school administrative officials, officials in an institution
where a student seeks to enroll, disclosures in connection with an application for
financial aid, natural parents, disclosures necessary to protect the health and safety of
the subject of the record, or in response to judicial order or lawful subpoena. Any
disclosures made by the institution must be documented. Under both acts, when a
student or other subject of a file reaches the age of 18, only he or she may consent to
the disclosure, not the parents.
VIII. CONFIDENTIALITY RULES UNDER THE
EDUCATION OF THE HANDICAPPED ACT
The Education of the Handicapped Act (EHA) also has its own confidentiality
provision. This act is broader than FERPA and encompasses children age 3 to 21 on
whom files are generated. The act applies to all agencies involved in receiving
money under the Education of the Handicapped Act. The right to access by parents is
more extensive, and the parental consent requirements are slightly different. There
are more detailed procedures for safekeeping and destruction of files. Unlike FERPA,
when the student reaches 18, the severity of his or her disability must be considered
before the rights transfer to the pupil. Each state is required to have enforcement
sanctions in the event of non-compliance with the EHA confidentiality provision.
IX. MISCELLANEOUS
A note on substance abuse: a physician may disclose to parents the fact that
their minor child has sought substance abuse counseling or treatment from him, but
the physician must tell the parents of an age-12-or-older minor after the second
treatment. The only exception to mandatory disclosure after the second treatment for
substance abuse problems is certification by the physician that doing so would
jeopardize treatment. In that instance, the physician may wait up to three months
before disclosing. However, if a member of the family is abusing drugs or alcohol,
no disclosure need be made (see more detailed memo on this subject).
A note on abuse reporting: In all states, confidentiality is waived when a
mandated reporter has reasonable cause to believe an abuse or neglect situation is
present. Moreover, any reports pursuant to abuse reporting acts are immune from
civil suit. Depending on the state, sanctions may be present, for the failure of a
mandated reporter to submit a report of abuse or neglect. Such sanctions might
include loss of a professional license.
48

49. BREAKING CONFIDENTIALITY:
DUTY TO WARN
Brooke R. Whitted
Lara A. Cleary
WHITTED, CLEARY + TAKIFF, LLC
3000 Dundee Road, Suite 303
Northbrook, Illinois 60062
(847) 564-8662
(847) 564-8419 (fax)
WhittedLaw@aol.com
49

50. 50

51. INTRODUCTION
The Illinois Mental Health and Developmental Disabilities Confidentiality Act
(“MHDDCA”), 740 ILCS 110/1 et seq., provides protection for communications between
mental health practitioners and their patients. Pursuant to the MHDDCA, no disclosures
of confidential information may be made to anyone without the express written
permission of the patient except in a few, very specific, exceptions. One of those
exceptions is the duty to warn.
As a general rule, a person owes no duty to warn a third party concerning the
potentially dangerous conduct of another. In many jurisdictions, however, case law has
carved out exceptions to that rule, where a "special relationship" is involved. In Tarasoff v.
Regents of the University of California, the landmark case on this subject, the California
Supreme Court7 held that a psychologist who had knowledge of a patient's intention to harm
a specific individual had a duty to exercise reasonable care to warn the intended victim.
Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551
P.2d 334 (1976).
TARASOFF
Facts: Prosenjit Poddar was a Bengali of the Harijan (untouchable) caste who
had worked his way through the Indian educational system and eventually
traveled to California to study naval architecture at the University of
California-Berkley in 1967. One year later he met Tatiana Tarasoff.
Despite Prosenjit’s attempts at romance with Tatiana, she was uninterested
and rebuffed his advances. After Tatiana’s final rejection of him, Prosenjit
began to exhibit symptoms of clinical depression; eating and sleeping
irregularly, failing to keep up with his classes or his job, and listening
endlessly to tape recordings he had secretly made of his conversations
with Tatiana. Upon the urging of a friend, Prosenjit agreed to seek mental
health counseling at the University of California-Berkeley Hospital. In
August 1969, Prosenjit confided to the clinical psychologist he was seeing
at the hospital of his intention to kill Tatiana. After consulting with two
psychiatrists, the psychologist decided to commit Prosenjit for observation
and reported the threat to campus police. Although the police briefly
detained Prosenjit and searched his apartment, he was eventually released
because he appeared rational and stated that he would stay away from
Tatiana. Prosenjit never returned to therapy and his psychologist’s
supervisor directed that no further action be taken to commit Poddar or
warn Tatiana or her parents of the threats. On October 27, 1969, Prosenjt
Poddar killed Tatiana Tarasoff. After Tatiana’s death, her parents filed suit
against the University. The lower courts dismissed the civil action against
7 Although the seminal case in this area, Tarasoff was not a U.S. Supreme Court case but rather just a
Supreme Court of California case. Because it was not a U.S. Supreme Court decision, no other states were
bound by Tarasoff, however many states such as Illinois embraced and eventually appear to have implicitly
codified the duty to warn requirement.
51

52. the University, finding that there was no cause of action because the
University owed no duty of care to Tatiana, as she was not their patient,
but rather just a third party.
Holding: The California Supreme Court reversed the decision of the lower courts
and allowed Tatiana’s parents to maintain their cause of action against the
University of California for the failure to warn. The case was remanded
back to the district court for a retrial.
Reasoning: The Court carefully considered the impact of the confidential nature of
mental health communications and the necessity of obtaining mental
health services, but determined that the public policy interest in protecting
the public from a known threat of harm prevailed. The Court stated:
We realize the open and confidential character of
psychotherapeutic dialogue encourages patients to
express threats of violence, few of which are ever
executed. Certainly a therapist should not be
encouraged routinely to reveal such threats; such
disclosures could seriously disrupt the patient’s
relationship with his therapist and with the persons
threatened. Tothe contrary, the therapist’s
obligations to his patient require that he not
disclose a confidence unless such disclosure is
necessary to avert danger to others, and even then
that he do so discreetly, and in a fashion that would
preserve the privacy of his patient to the fullest
extent compatible with the prevention of the
threatened danger.
The Tarasoff opinion does not decide whether the University was negligent. The
case merely holds that the Plaintiff has stated a cause of action that, if proved at trial,
would entitle Tatiana’s parents to relief. On remand to the lower court, the trier of fact
would have had to decide whether the University’s failure to notify the victim or her
family did in fact constitute a breach of the duty to the third-party victim. The trial court
could have found that by notifying the police, the University had exercised due care and
was not negligent. Interestingly, the case was settled by the parties out of court prior to
retrial.
IMPACT OF TARASOFF
Following the issuance of the Tarasoff opinion, an increasing number of
jurisdictions held that personnel involved in the psychiatric treatment of a patient have not
only a right, but a duty to warn of a patient's potential dangerousness.
52

53. Non-Illinois Cases Following Tarasoff
In Thompson v. County of Alameda, another California case, a juvenile delinquent
stated that if released from custody, he would kill a young child residing in his
neighborhood, but he named no specific victim. Upon his release from the county
institution, the delinquent made good on his threat by killing a young neighbor. In a lawsuit
against the county institution, however, the California Supreme Court held that in the
absence of a readily identifiable foreseeable victim,
there was no duty to warn. The existence of an identifiable group of potential victims was
insufficient to create a duty to warn, in light of the infrequency with which threats of
violence by a patient are carried out, and in light of society's interest in encouraging free
communication between therapist and patient. Thompson v. County of Alameda, 27 Cal. 3d
741, 167 Cal. Rptr. 70, 614 P.2d 728 (1980).
In Brady v. Hopper, individuals shot by John Hinckley during his attempted
assassination of Ronald Reagan sued Hinckley's psychiatrist. Again, however, the federal
district court in that case held that even in a situation involving a special relationship, such
as the one between a therapist and patient, the therapist does not owe a duty to the world at
large, and cannot be held liable for injuries inflicted on third persons, absent specific threats
to a readily identifiable victim. Brady v. Hopper, 570 F. Supp. 1333, 1338 ( D. Colo. 1983).
Several courts have discussed the foreseeability component of the duty to warn, and
have imposed upon therapists an affirmative duty to investigate the possibility of
dangerousness. In Bradley Center Inc. v. Wessner, a private hospital was held liable for
failing to pursue "further attempts to evaluate in a more intensive fashion the inside
deterioration" of a patient who, while released on a one-day pass, murdered his ex-wife.
Bradley Center Inc. v. Wessner, 161 Ga. App. 576, 287 S.E. 2d 716, 723 (1982). In
Hedlund v. Superior Court of Orange County, a California court recognized that the duty to
warn is "inextricably interwoven with the diagnostic function," and that "the duty imposed
on the therapist... is first to diagnose or recognize the danger posed by the patient..."
Hedlund v. Superior Court of Orange County, 34 Cal. 3d 695, 669 P.2d 41, 45 (1983).
Under these cases, then, the therapist has a duty to take some initiative in determining a
patient's dangerousness.
Illinois Cases Following Tarasoff
The first Illinois case to recognize that a duty to warn might exist was Kirk v.
Michael Reese Hospital and Medical Center. In that case the Illinois Supreme Court found
that a hospital had no duty toward an individual injured while riding in the
automobile driven by a recently released patient who allegedly had not been warned not to
mix alcohol with his prescribed medication. Stressing the unreasonable burden that would
be placed upon a hospital if it were held liable for all of the harmful acts of released patients,
the court held that no duty arose, since the third party who was injured had no "special"
relationship with either the hospital or the patient.
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54. The court took care, however, to distinguish the instant case, in which it found no
duty, from cases cited by the plaintiff, in which there were allegations that treatment
personnel negligently released a patient, or were aware of a patient's dangerous propensities,
and in which courts imposed a duty to take reasonable measures to protect third parties.
Kirk v. Michael Reese Hospital and Medical Center, 117 Ill. 2d 507, 513 N.E. 2d 387
(1987).
Going a step further, in Novak v. Rathnam, the Illinois Appellate Court stated that it
believed "that Illinois would adopt Tarasoff's affirmative duty on therapists to warn
foreseeable third parties." Novak v. Rathnam, 153 Ill. App. 3d 408, 505 N.E. 2d 773 (3rd
Dist. 1987).
Not long thereafter, in the case of Eckhardt v. Kirts, Novak's prediction was proven
correct when the Appellate Court, citing Tarasoff, Brady, Thompson and Kirk, held that
under certain circumstances, a psychiatrist would have a duty to warn threatened individuals
about a potentially dangerous patient. Joyce Eckhardt, who suffered from mental disabilities
and who had been under the treatment of Dr. Thomas Kirts, a psychiatrist, shot and killed
her husband Harold. In a suit filed by Harold Eckhardt's mother against Dr. Kirts, the
Appellate Court, while ultimately finding that Dr. Kirts owed no duty to the plaintiff, did
establish three criteria for determining the existence of a duty to warn: "First, the patient
must make specific threat(s) of violence; second, the threat(s) must be directed at a
specific and identified victim, and third, a direct physician-patient relationship
between the doctor and the plaintiff or a special relationship between the patient and
the plaintiff."
The court concluded that Dr. Kirts had no duty to warn Harold Eckhardt about Joyce
Eckhardt, since Mrs. Eckhardt had never made any specific threats against her husband.
The court refused to consider whether the required "special relationship" existed in this case,
leaving open the question of whether such a relationship exists in a situation involving a
patient, a psychiatrist and the patient's spouse. Eckhardt v. Kirts, 179 Ill. App. 3d 863, 534
N.E. 2d 1339 (2nd Dist. 1989).
In Charleston v. Larson, 297 Ill.App.3d 540, 606 N.E.2d 793 (1st Dist. 1998), a nurse
at a psychiatric facility brought an action against one of the facilities psychiatrists after she
was attacked by a patient at the facility. Prior to the attack, the patient-attacker had
voluntarily admitted himself on an emergency basis and had been seen by the defendant.
The plaintiff nurse claimed that pursuant to Eckhardt, the defendant psychiatrist had an
affirmative obligation to warn plaintiff or other facility employees of the attacker-patient’s
violent propensities. The defendant claimed he had no duty because the attacker-patient had
never made a specific threat against the nurse. He also argued that no physician-plaintiff
relationship existed between the doctor and plaintiff nor did a special relationship exist
between the plaintiff and the attacker-patient. The court accepted defendant’s arguments and
upheld the lower court’s dismissal of plaintiff’s cause of action.
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55. Illinois Appears to Codify Tarasoff
Thus, after Eckhardt, Illinois appeared to adopt an implicit duty to warn, although
this has yet to be tested in Illinois courts. Illinois statutory law has addressed the duty in two
statutes, the Mental Health Code and the Mental Health and Developmental Disabilities
Confidentiality Act. At 740 ILCS 110/11, The Illinois Mental Health and Developmental
Disabilities Confidentiality Act provides that records and communications may be
disclosed:
(viii) when, and to the extent, in the therapist's sole
discretion, disclosure is necessary to warn or protect a
specific individual against whom a recipient has made a
specific threat of violence where there exists a therapist-
recipient relationship or a special recipient-individual
relationship;
In addition, at 405 ILCS 5/6-103 the Illinois Mental Health Code provides an
exemption from liability for practitioners who have made a good faith effort to fulfill the
duty to warn:
(b) There shall be no liability on the part of, and no
cause of action shall arise against, any person who is a
physician, clinical psychologist, or qualified examiner
based upon that person's failure to warn of and protect
from a recipient's threatened or actual violent behavior
except where the recipient has communicated to the person
a serious threat of physical violence against a reasonably
identifiable victim or victims. Nothing in this Section shall
relieve any employee or director of any residential mental
health or developmental disabilities facility from any duty
he may have to protect the residents of such a facility from
any other resident.
(c) Any duty which any person may owe to anyone
other than a resident of a mental health and developmental
disabilities facility shall be discharged by that person
making a reasonable effort to communicate the threat to
the victim and to a law enforcement agency, or by a
reasonable effort to obtain the hospitalization of the
recipient. (Emphasis added)
55

56. SUMMARY
Under current Illinois law, mental health practitioners may (and very possibly must)
break confidentiality and warn third parties (and this means, when applicable, the intended
victim and law enforcement authorities) if the harm is reasonably foreseeable, which means:
1. The patient has made specific threats of violence;
2. To a specific and identified victim
3. There is either a physician-patient relationship or a "special" relationship
between the patient and the victim; and
4. The disclosure must be to the extent necessary to allow the victim to avoid
harm and allow the authorities to intervene.
56

57. CURRENT STANDARDS
FOR NEGLECT/ABUSE
REPORTING
Brooke R. Whitted
Lara A. Cleary
WHITTED, CLEARY + TAKIFF, LLC
3000 Dundee Road, Suite 303
Northbrook, Illinois 60062
(847) 564-8662
(847) 564-8419 (fax)
WhittedLaw@aol.com
57

58. 58

59. CURRENT STANDARDS FOR NEGLECT/ABUSE
REPORTING BECAUSE CHILD IS NOT RECEVING
PROPER MENTAL HEALTH CARE
By
Brooke R. Whitted
Lara A. Cleary
Whitted Cleary & Takiff LLC
QUERY:
Under the Abused and Neglected Children’s Reporting Act (“ANCRA”), may a
parent or caretaker be reported for potential child neglect for failing to obtain mental
health services for a seriously mentally ill child?
RESPONSE:
Yes, if the lack of mental health treatment could, if left untreated, constitute a
serious or long-term harm to the child.
ANALYSIS:
ANCRA8 requires mandated reporters to report any suspected abuse or neglect. It
also provides rebuttable “good faith” immunity for such reports. 325 ILCS 5/9. At 325
ILCS 5/3 neglect is defined, in part, as “Any child who is not receiving proper
nourishment or medically indicated treatment or other care necessary for child's well
being” including “care not provided solely on the basis of present or anticipated mental or
physical impairment as determined by a physician acting alone or in consultation with
other physicians.”
Appendix A to the ANCRA regulations at 89 Ill.Admin.Code 300 provides a
more complete definition of “medical neglect,” and includes several factors to consider,
such as the probable outcome without medical treatment, the seriousness of the health
problem, and the generally accepted health benefits of the prescribed treatments. This
definition also provides that neglect may be found where there is “lack of follow-through
on a prescribed treatment plan for a condition that could become serious enough to
constitute serious or long-term harm to the child if the plan goes unimplemented.”
Thus, the harm without treatment needs to be of a very serious nature. Generally
speaking, in the absence of a compelling state interest, parents have a right to refuse
8 The Abused and Neglected Children’s Reporting Act
59