Mental Health Privacy and Divorce

by Wes Cowell; updated 9 July 2016 -- suggest a correction

 

It is not unusual for parents in divorce to want to see a therapist (of physician, psychiartist, psychologist, etc.).  There are a few times when disclosure of a parent's mental health records might be necessary to facilitate an appropriate award of parental responsibilities.  With only a few, very stringent exceptions, however, a patient's mental health records and communicaitons are usually off-limits to disclosure before the court.   Need advice?  Callleave your info, or schedule a consult.

 

Background:  Illinois' Mental Health and Developmental Disabilities law (740 ILCS 110/1 et seq.) establishes a patient's interest in preventing the disclosure of their mental health records and communications.   The law says:

 
    Sec. 3. (a) All records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship.

(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, administrative 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 subsection (b) of Section 5 of this Act. 

740 ILCS 110/3
    

 

604.10(b) Evaluations Exempt:  Courts often appoint an expert (usually a psychiatrist) to evaluate the parties in a case involving 

 

The law says:

(b) Court's professional. The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child's best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court, under seal. The writing may be admitted into evidence without testimony from its author, unless a party objects. A professional consulted by the court shall testify as the court's witness and be subject to cross-examination. The court shall order all costs and fees of the professional to be paid by one or more of the parties, subject to reallocation in accordance with subsection (a) of Section 508.
    The professional's report must, at a minimum, set forth the following:
        (1) a description of the procedures employed during

    

the evaluation;

        (2) a report of the data collected;
        (3) all test results;
        (4) any conclusions of the professional relating to

    

the allocation of parental responsibilities under Sections 602.5 and 602.7;

        (5) any recommendations of the professional

    

concerning the allocation of parental responsibilities or the child's relocation; and

        (6) an explanation of any limitations in the

    

evaluation or any reservations of the professional regarding the resulting recommendations.

    The professional shall send his or her report to all attorneys of record, and to any party not represented, at least 60 days before the hearing on the allocation of parental responsibilities. The court shall examine and consider the professional's report only after it has been admitted into evidence or after the parties have waived their right to cross-examine the professional.

 

Johnson v. Weil:  

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