Maintaining good mental health is just as important as maintaining good physical health. Nearly 20% percent of the population struggles with maintaining their mental health, and, until recently many looked down upon an individual for seeking treatment for mental health issues.  In recent years, access to treatment for mental health issues has become a growing concern for both the national and the Illinois government. In 2013, the Illinois State Legislature developed a five-year plan to improve access to mental health treatment for all residents.  Recent statistics indicate that the plan has been successful, as Illinois was recently ranked 6thin the nation for the low prevalence of mental illness in adults and the high rate of access to treatment facilities.  Besides ensuring that citizens have access to treatment, the Illinois State Legislature has also taken steps to maintain the privacy of individuals who seek treatment for mental health issues.
In 1992, The Mental Health and Developmental Disabilities Confidentiality Act was passed; the Act provides framework for the protections of confidentiality in accessing mental health records. The Act protects any information pertaining to; mental examinations, diagnosis, treatments, medications, and makes any information regarding these services confidential.  While this is a critical policy to ensure mental health records are not disclosed in situations that may be inappropriate or detrimental to the individual, in some situations disclosure of these records may be vital. For example, a therapist or doctor treating an individual may disclose an individual’s records if they believe the individual is in danger of harming themselves or another.  Additionally, records may be disclosed to an individual’s employer if it is necessary to ensure that the individual is receiving proper care.  But what about when the individual with mental health records is subject to a lawsuit? The Mental Health and Developmental Disabilities Act outlines strict guidelines for when mental health records may be used in an Illinois court.
WHEN ARE MENTAL HEALTH RECORDS RELEVANT IN COURT?
Excepting certain situations, a therapist or doctor treating an individual’s mental health may refuse to disclose the individual’s records. In Illinois, mental health records may only be released in a court if they are essential to the proceedings at hand. This provision means that the individual’s mental health cannot be a detail or subsequent aspect, instead it must be an essential element of the claim by or against the individual. Section 10(a) of the Act outlines twelve situations in which mental health records may be disclosed to the court:
- If the mental health issue is an element of the individual’s claim or defense;
- If a beneficiary of the individual initiates a civil suit following the individual’s death;
- If an individual receiving mental health treatment files a civil proceeding regarding an injury sustained during the course of their treatment;
- If the court had previously ordered a mental examination was required;
- If the proceeding was initiated to determine an individual’s competency or need for guardianship;
- If the individual’s records are used to determine their ability to stand trial;
- If the proceeding involves determining the validity or extent of an individual’s benefits under an insurance policy;
- If the action is brought under a violation of the Mental Health and Developmental Disabilities Act.
- If the individual is on trial for a homicide;
- If the disclosure is directed to a coroner following the individual’s death.
- If the case at hand is initiated by the State and regards an individual’s ability to adequately care for their child;
- If the service provider of the mental health services initiates a suit to collect payments owed to them by the individual who received the care.
All of these situations are subject to the circumstance that no other evidence, besides the individual’s mental health records, will sufficiently communicate the necessary facts. Further, the disclosure is only permitted to the extent to communicate the necessary information. Although the court may permit mental health records to be disclosed in these situations, an attorney requesting the disclosure of such records must follow the proper procedure in order for the records to be deemed admissible, or usable in court . 
WHAT STEPS MUST BE TAKEN FOR RECORDS TO BE DISCLOSED?
If an attorney seeks to have the mental records of an individual admissible in court, they must follow the procedure outlined in Section 10(d) of The Mental Health and Developmental Disabilities Confidentiality Act. This section details that in order to serve a subpoena to obtain mental health records, the subpoena must be accompanied by a court order. This is significant because typically when an attorney seeks to gain information from someone, they are allowed to serve a subpoena without filing for an order from the court. Before a court may rule on the subpoena request a written motion indicating the request must be issued to both the individual and the treatment provider. This gives both the individual and the treatment facility time to object to the motion or seek counsel to assist in objecting to the disclosure. If a subpoena is issued without an approved court order, and the treatment center still complies, the treatment center may be liable for any damage that comes to the individual. Furthermore, every subpoena served to a mental health treatment facility must include the language below;
“No person shall comply with a subpoena for mental health records or communications pursuant to Section 10 of the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/10, unless the subpoena is accompanied by a written order that authorizes the issuance of the subpoena and the disclosure of records or communications or by the written consent under Section 5 of that Act of the person whose records are being sought.”
Even if the subpoena includes a court order, but does not include this language, it can be denied by the treatment center or subsequently deemed inadmissible in a court proceeding. For these reasons, attorneys must carefully follow the procedures outlined in Section 10 to ensure that the records they seek to obtain may be entered. 
WHAT HAPPENS IF RECORDS ARE IMPROPERLY DISCLOSED?
In a recent Illinois Appellate decision, the Court held that an individual may suffer harm from the improper disclosure of mental health records, even if the records are not used in that proceeding or even read. In Garton v. Pfeifer, 2019 IL App (1st) 180872, the Court held that Plaintiff Garton was aggrieved when the opposing counsel of his ex-wife, Linda, improperly subpoenaed North Shore University Health System Evanston Hospital, violating The Mental Health and Developmental Disabilities Confidentiality Act. Linda’s counsel, Pfeifer, sought to introduce Garton’s history of mental illness, and treatment at the North Shore University Hospital, in the original action filed against Linda alleging various violations of the preestablished orders regarding the parties’ shared children. In response to Garton’s suit and without obtaining a court order or filing a motion, Pfeifer issued the initial subpoena directly to the hospital. When the court received the records, Pfeifer requested the circuit court disclose Garton’s mental health records. Garton’s counsel objected and the judge ruled in their favor, sealing the records. With the court’s permission, Pfeifer reissued another subpoena to the hospital. In response to the second subpoena, the hospital again complied and mailed Garton’s mental health records directly to Pfeifer’s law office. At the next hearing, Pfeifer presented an open envelope containing Garton’s records during the ongoing court proceeding. Pfeifer claimed that the envelope had been opened by his law partner, and that he had no knowledge of their contents. Unsurprisingly, the court denied the request to release Garton’s mental health records and ordered them sealed.
The question for the Appellate Court to answer then was, was Garton injured by the release of his mental health records, even though they were never disclosed? Ultimately, the Court found that the language of Section 10 and Section 15 of The Mental Health and Developmental Disabilities Confidentiality Act indicated that Pfeifer had wrongly obtained the records and Garton had satisfactorily indicated that he may be aggrieved by Pfeiffer’s actions.
Garton v. Pfeifer is the most recent example of what can happen if the proper procedure for obtaining mental health records is not followed. Furthermore, the case indicates an important principle, that even if mental health records are not disclosed publicly, if they are disclosed improperly, they can affect the individual that is the subject of the records. In his testimony, Garton spoke of how he became fearful of the records becoming public when considering the how easily Pfeifer had obtained them. The Mental Health and Developmental Disabilities Act is designed to work against fears like Garton’s and provide all citizens security in seeking mental health treatment.
If you have any questions about how past mental health issues may affect the court’s decision in a family law or probate issue, it is important to obtain representation.
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 740 ILCS 110/10. Sec. 10. (a)