*1 (No. 109693. al., AN- et v. Appellants,
HEATHER JOHNSTON al., Appellees. et DREW WEIL February Opinion 2011. filed *2 Solo, Chicago, Miriam F. of appellants. for Monahan, Amy T. A. Joseph McCarty E. and Linda Bryceland, Cohen, Penn, of & Monahan Justin M. Stephen R. and E McGarry, Swofford Thomas of Hin Culbertson, Purcell, LLP, shaw & J. of Andrew Tressler LLP, Balson, Christie, and Laura of & A. Golan all LLP Konicek, of and Daniel Chicago, Francis of Konicek & Dillon, Geneva, of for appellees. PC,
Michael F. of Koenigsberger, Grand & Leavitt of (Paul counsel), Chicago Feinstein, L. for amicus curiae Illinois Chapter, Academy American of Matrimonial Lawyers. judgment
JUSTICE FREEMAN delivered court, opinion. Thomas, Garman, Karmeier, and
Justices Burke in judgment concurred and opinion. dissented,
Chief Justice Kilbride with opinion. part Justice Theis took no the decision.
171 OPINION the follow County certified court of Cook The circuit to interlocutory appeal pursuant law for ing question (eff. (Ill. Feb. R.Ct. Rule 308 S. Supreme Court 2010)): communications, evaluations, reports “Whether *** 604(b) of the pursuant obtained information [cita- Marriage [Act] Dissolution Illinois Health and the Mental confidential tion] are [citation] Developmental Disabilities to advise court professional personnel where the professional.” health other mental psychiatrist is a this question answered leave to appeal. Ill. 3d 781. We allowed negative. (eff. R. Feb. For follow S. Ct. l. Il ing reasons, question the certified we likewise answer negative, and remand the cause the circuit court proceedings. for further BACKGROUND
I. and, to Sean McCann Johnston was married Heather *3 marriage had Their dissolved. 1998, they in a son. was and, in subsequently married Andrew Weil Johnston 2005, In 2002, marriage had a June their they daughter. proceeding, In dissolution McCann was dissolved. each and an attorneys, represented and Weil were several representative. as the child’s attorney appointed was modify petition filed a to the postdissolution McCann January In agreement with Johnston. joint parenting Dr. appointing entered an order the circuit court Amabile, indepen- conduct an Phyllis to psychiatrist, determining dent and assist evaluation 604(b) of son, to section custody pursuant the McCann and Dissolution the Illinois (West 2006)). Act) (750 5/604(b) Pursu- ILCS (Marriage Johnston, McCann and order, parents, her ant to the in the Weil, others, evaluation. among participated order required them fully to cooperate with Dr. Amabile in conducting evaluation, including her their submission any to tests Amabile, administered Dr. her agents, her third recommended Dr. parties. Amabile advised each parties that the through information obtained court, be evaluation would disclosed all parties, and attorneys. their completed Dr. Amabile her evalua- tion report and sent a circuit court. The record does not show that parents Johnston or her sought protective order either the regarding they information provided to Dr. Amabile or her report.
Contemporaneous with the McCann postdissolution filed proceedings, Weil a motion seeking temporary pos- custody daughter, seeking session or of his and leave to subpoena Dr. Amabile. response, In Johnston asserted that report Dr. Amabile’s was privileged Mental Health and Confiden- Developmental Disabilities Act) (740 tiality Act (Confidentiality seq. et 110/1 (West 2006)). In December the circuit court in the postdissolution Weil found Dr. proceeding Amabile’s 604(b) report in the McCann was proceeding privileged under the Act and not discover- able in the Weil proceeding. January 2007, her plaintiffs, Johnston and parents,
filed the instant which named complaint, as defendants McCann, attorneys, McCann’s the McCann child repre- sentative, Weil, Weil’s and Weil attorneys, child representative. The that Dr. complaint alleged Amabile was a therapist meaning within the the Confidential- ity Act; Dr. Amabile confidential communica- engaged tions plaintiffs; information she obtained proceed- included her McCann Further, under the Act. ing privileged was alleged, belief,” es- information and complaint “upon *4 “individually that the McCann defendants sentially disclosed confidential information to jointly” the and/or “individually jointly.” the defendants Weil and/or $200,000 plaintiff for each sought damages in complaint attorney and fees. to costs addition attorneys representa- child McCann, McCann to dismiss tive, Weil, attorneys filed motions and the Weil of Civil Proce- 2—619.1 of Code pursuant to section (West 2006)). (735 The motions dure ILCS 5/2 —619.1 (see matter of law as a sought complaint dismissal (West 2006)), that alleging 735 ILCS 5/2 —615 not privi- were report contents of Dr. Amabile’s Alternatively, Act. leged under the af- based on sought complaint dismissal of motions See matter that claim. negates firmative 619(a)(9) (West 2006). The McCann defendants 5/2 — fact, regard did not argued that the as a matter of parties, at- report confidential. Weil contents motion, to his he that tached an affidavit which stated he in Dr. Amabile’s evaluation and that she participated report told him that be disclosed to the court her would However, never in that Weil had counsel case. report. or read a of Dr. Amabile’s Weil’s at- copy received motions, each attached an affidavit to their torneys disclose, he she did not possess, which each stated that or 604(b) report. or redisclose the contents of the Dorothy Johnson, representative, The Weil child 619(a)(9) dismiss, motion filed a section separately 2— stating as to which she attached an affidavit follows. received early late December Johnson November 6, 2006, Johnson of motion. On December notice Weil’s her sec- Amabile to determine whether telephoned Dr. daughter. tion had relevance to Weil’s any areas evalu- Dr. Amabile Johnson three she advised (alcohol) abuse; possibility ongoing substance ated: violence; ongoing ongoing and the possibility Dr. Amabile advised impact impulse control. poor are these areas of concern relevant Johnson *5 parenting any specific unique of child and are not or to particular any child. This the was extent of their telephone provide conversation, Dr. and Amabile did not any regarding opinions, communications, information generated a conclusions of the result evaluation.
The circuit court denied defendants’ motions to plaintiffs’ complaint.1 dismiss Defendants filed a motion alternatively, certify or, to reconsider the dismissal to the question of at law issue in this The case. circuit court above-quoted question stayed certified the of law and the proceedings pending appellate resolution of the certified question. appellate application
The court allowed defendants’ appeal question for leave to and the answered certified negative. App. 396 Ill. 781.2The court concluded pursuant that information obtained to section of privileged Act is not confidential and Confidentiality Accordingly, Act. the court held that plaintiffs may not invoke Act with respect to their communications with Dr. Amabile made her course of 396 Ill. evaluation. App. 3d at 792. plaintiffs’ petition appeal
This court allowed for leave 315(a) (eff. 2010)), (I 26, S. Ct. R. Feb. and ll. plaintiffs subsequently petition elected to have their (Ill. 315(h) (eff. stand as their brief S. Ct. R. Feb. 2010)). subsequently Chapter granted We Illinois alleging 1 In addition violation on (count I) (count II), parents behalf Johnston and her (count III) alleged complaint confidentiality also violation (20 provisions Family and Services Act Children 505/1 (West 2006)). seq. et The circuit court dismissed this count prejudice appeal plaintiffs do not therefrom. court, appellate plaintiffs
2 Whilethe was cause before appellate granted parties’ agreed settled. Weil mo appeal. Ill. tion to dismiss 3d at 782 n.l. Weil’s Lawyers Academy leave to of Matrimonial the American support defendants. curiae submit an amicus brief (eff. pertinent Sept. Additional R. 345 Ill. S. Ct. background discussed in the context our will be analysis of the issues.
II. ANALYSIS plaintiffs court, contend that Johnston Before this subject parents of, and her were collateral was the “psychiatric in, evaluation sources a court-ordered custody.” According to related to fitness for child plaintiffs, by exempting court erred what *6 “604(b) they psychiatric characterize as examinations” protections afforded under the from the supporting Act. contend that Defendants amicus pursuant information obtained Marriage to section privileged Act is not under the Act.
Although ultimately question we answer the certified negative, analysis our reveals that several unre words, solved variables are at work here. In other question represent range certified does not the full of is presented may go However, sues in this case. this court beyond question the limits of a certified in the interests judicial economy equitable and the need to reach an (1995); Bright Dicke, 204, result. v. 166 Ill. 2d 208 see Dowd, Gleason, 460, Dowd & Ltd. v. 181 Ill. 2d 468-72 (1998). question requires
The certified us to construe the Marriage provisions relevant tiality of the Act and the Confiden- primary statutory Act. The rule of construction is give legislature. effect to the intent of the The best legislative statutory language evidence of intent is the given plain ordinary itself, mean- which must be its ing. The statute should be evaluated as whole. Where meaning reading the language, of a statute is unclear from a of its may beyond statutory language
courts look 176 purpose law,
and consider the of the the evils it was remedy, legislative history intended to and the Stroger Regional Transportation Authority, statute. v. (2002); 508, Care,
201 Ill. 2d 524 Reda v.AdvocateHealth (2002). legislative 47, However, 199 Ill. 2d intent primary inquiry remains interpretation and controls a court’s statutory
of a statute. Traditional rules of merely determining legislative construction are aids in yield intent, and those rules must to such intent. Collins Annuity v. Board Trustees the Firemen’s & Benefit (1993). Fund, 103, 155 Ill. Because this issue question concerns a of law certified the circuit court pursuant Supreme Court Rule our review is (2006). Thompson Gordon, de novo. v. 221 Ill. 2d Marriage A. Disclosure: compiled report pursuant Dr. Amabile her to section Act. Part VI of the pertains custody. to child Section 602 mandates: “The custody court shall determine in accordance with the best interest of the child. The court shall consider all including specific factors,” relevant factors listed therein. added.) 5/602(a) (West (Emphasis 750 ILCS Sec- 604(b) provides: tion
“(b) may professional The court seek the advice of personnel, employed by *7 whether or not the court on a regular given writing basis. The advice shall be in and by may made available the court to counsel. Counsel examine, witness, any professional personnel as a consulted court, by designated as a court’s witness.” 750 ILCS (West 5/604(b) plain language court concluded that 604(b) exceptions provides
section no limitations or when court-appointed expert psychiatrist witness is a professional, other mental health and that a court must language by reading depart plain this such an not from exception into the statute. 396 Ill. 3d at 785-86. plain point court, this both sides to the Before 604(b), disagree language of section but as to its mean- 604(b) ing. According plaintiffs: “on its face [circuit court] limits distribution of the and attorneys litigants”; nothing for the subsec- anyone attorneys tion “indicates that other than the will 604(b) information”; have access to this and section *** “limits actual use of the information to when designates evaluator as court’s witness.” nothing language Plaintiffs also contend that in the 604(b) implies “states or if the ordered psychiatric examination, examination is a then the participant confidentiality rights any has waived all psychiatric examining information received psychiatrist any psychiatric reports.” In contrast, 604(b), face, defendants contend that section on its does provide resulting not report that communications with and the 604(b) professional
of the are confidential. Defendants further contend that section does not professional differentiate between a mental health any professional personnel. other agree plaintiffs
We that section of the Marriage requires Act, alone, considered disclosure of the 604(b) report only particular proceeding in the in which sought. Initially, plain language the advice is only proceeding. statute refers to counsel in that 5/604(b) (West 2006). ILCS any opinion
Further, reasonable difference of meaning Marriage dispelled of section Act is purpose a consideration of its and the evils it was remedy. Assembly 1977, intended to the General (750 (West Marriage seq. enacted the et 5/101 2006)), adoption which is a substantial of the Uniform (Uniform Act). Marriage and Divorce Act See Unif. §101, and Divorce Act 9A U.L.A. 171 (Smith (1998); par. Stat., Ill. Ann. ch. at 6-7 *8 178 1980) Act).
Hurd Uniform (referencing Marriage Section 604 of the Act derives from section 404 of the Marriage Stat., 40, 604, Uniform Act. Ill. Ann. ch. Marriage par. (Smith-Hurd 1980). Notes, Historical and Practice at 56 Marriage The comment to this section in the Uniform Act explains: informally experts variety in a judge may
“[T]he call on instance, them, disciplines subjecting in the first without process. experts’ hearing to the formal But the advice parties so that the should be available to counsel for information; judge’s on secret decision will not be based parties and expert should be able to examine the judge.” (Emphases advice to the the substance his added.) §404, Marriage Unif. and Divorce Act 9A U.L.A. (1998). 381, cmt. reasons, is “professional personnel” For these the term 40, 604, Stat., Ann. ch. “intentionally par. broad.” Ill. (Smith-Hurd 1980); Notes, Historical and Practice at 57 (1980). Auer, 84, 86 Ill. 3d Marriage see In re 604(b) Nonetheless, of the section is report disclosure parties limited to the clearly intended to be conclude that section particular proceeding. We report Dr. Amabile’s Marriage Act confines proceeding. McCann postdissolution misapprehend defendants only Not do Act, which Marriage they ignore in cases remedy legislature intended provides seeks postdissolution proceeding a party where postdissolution in another relevant evidence adduced Act “should be evaluated as proceeding. be construed in connection whole; each should provision County v. every Bonaguro other section.” Officers (1994). Board, Section 605 158 Ill. Electoral that a or custodian provides parent custody court, in a contested the circuit may request motion, “an to order on the court’s own proceeding, arrange concerning custodial investigation 5/605(a) (West 750 ILCS ments for the child.” preparing report, investigator may the section 605 any person may consult who have information about the arrangements. child and the child’s custodial Also: “The *9 investigator may consult with and obtain information psychiatric expert persons medical, from or other who past, obtaining have served the child in the without parent consent of the or the child’s custodian.” 750 ILCS 5/605(b) (West 2006). investigator The shall mail the report parties may to the counsel, and and the court examine and consider the section 605 in determin- 5/605(c)(West2006). ing custody. Significantly: 750 ILCS investigator “The shall counsel, make available to and to any party represented by counsel, not investigator’s data, file underlying of reports, and complete texts of diagnostic reports made to investigator pursuant (b) provisions of subsection Section, of this and the names and persons addresses of all investigator whom the has Any consulted. party to proceeding may call the investigator, any person consulted, whom he has as a witness, court’s for party cross-examination. A may not waive right his of prior cross-examination to the hearing.” 5/605(c) (West 2006). 750 ILCS plain language duly This that, indicates when invoked, precisely section 605 allows for disclosure the situa- presented tion in this case. plain language supports
Further, the of section 605 legislative the stated intent:
“The results of investigations parties can aid the determining which arrangements custodial are in the child’s may best interest and be useful in facilitating the disputes. settlement of reports The can also be valuable tools, discovery parties as may call as witnesses those persons investigator whom the during contacted the course added.) investigation.” (Emphasis Stat., Ill. Ann. ch. 40, (Smith par. 605, Notes, Historical and Practice at 61 Hurd legislature The intended that courts and counsel consider (hearings) together 604, 605, sections and 606 in child custody proceedings. As the comment to section 404 of Marriage Act, 604 of the from which section
the Uniform explains: Marriage section, and the derives, “This designed permit the court follow, are which two informally and decisions as custodial and visitation make non-contentiously possible, as much relevant based on preserving secured, a fair while as can be information parties.” hearing Unif. for all interested (1998). 381, §404, cmt. 9A U.L.A. Divorce legisla impede expressed contrary A view would custody goal part Child Act. VI of the tive epitomize proceedings maximum disclosure the need for reaching justice. goal of information guiding principle paramount consideration custody determining interests of the is the best child (In Marriage 2d Cotton, 103 Ill. child re (1955)), (1984); Miezio, 6 Ill. Miezio v. 5/602(a) (West considering 750 ILCS all relevant factors. *10 2006). broad discre Therefore, court exercises the circuit may admitting assist evidence that in relevant tion (see custody arriving Frees v. determination in at a court (1968)), App. and the court 213, 219 Frees, Ill. 2d 99 weigh relevant evidence all available and should hear (1974)). (see App. 401, 407 Marcus, 24 Ill. 3d Marcus v. 604(b) the advice court to seek “allows the Section supplement personnel professional order parties.” provided Stat., ch. Ill. Ann. evidence (Smith par. Notes, at 57 and Practice 604, Historical 1980). supporting observes, amicus As defendants’ Hurd 604(b) reports to be evidence section courts consider reports prepared mental record, and consider such profes by any prepared professionals other as health Marriage e.g., Bhati, personnel. See, In re sional App. (2009); App. at 87- Auer, 86 Ill. 3d 53, 67-68 Ill. 3d 88. 604(b) appellate agree that section court We exceptions provides limitations or no Act 604(b) professional section is a mental health when the professional. Although 396 Ill. at 785-86. section provides 605 of the Act defendants with confines disclo remedy, we conclude that counsel, court, and sure of Dr. Amabile’s postdissolution proceeding. parties McCann B. Privilege:
Nonetheless, court, this as plaintiffs argue before court, before that they argued where is a professional psychiatrist, person that is a mental health provider who renders mental health meaning services within the Act. Therefore, according plaintiffs, the communications Amabile, and they information shared with Dr. with her resulting evaluation contained in her section report, are confidential privileged the Confi dentiality rejected Act. The appellate argu this Ill. App. ment. 396 3d at 786-92.
Privileges are “governed by the com principles of the they mon may interpreted by law be Illinois courts the light of reason experience,” except as otherwise (eff. provided by applicable statute. Ill. Evid. R. Jan. The Confidentiality establishes, except as provided therein, “[a]ll records and communications (740 shall be confidential and shall not be disclosed” 110/3(a) (West 2006)), and that in any legal proceeding or preliminary “a proceeding, recipient, and a on therapist behalf and in the interest a recipient, has the privilege to refuse to to prevent disclose and disclosure of the recipient’s record or communications.” (a) (West 2006). 740 ILCS injured by Persons 110/10 *11 may violation the Act sue damages ap for or other relief, propriate may be attorney awarded costs and (West 2006). fees. 740 ILCS 110/15 The records made confidential under the Confidenti- ality Act refer to record “any a or kept therapist agency providing
an in the mental health or course of recipient developmental a disabilities service to concern- ing recipient provided”; and the services the com- made the Act refer to munications confidential under “any by recipient person made a or other communication therapist presence persons a of other or to or providing during mental health or or connection recipient. developmental disability to a Com- services indicates that munication includes information which (West 2006). recipient.” person is a 740 ILCS 110/2 “recipient” person “a who is Further, the term means developmental receiving or or has received mental health “therapist” “a services”; the term means disabilities psychiatrist, physician, psychologist, worker, social or developmental providing dis- nurse mental health or “mental or services”; and the term health abilities developmental “includes is not disabilities services” but diagnosis, evaluation, treatment, examination, limited to training, pharmaceuticals, after-care, or habilitation (West2006). 740 ILCS rehabilitation.” 110/2 present plaintiffs Am case, contend that Dr. In the privileged is abile’s “therapist” provided, who Dr. Amabile was a
because “recipients” plaintiffs received, “mental were who reject these terms. We health services” the Act defines argument, appellate as did the court. Ill. this at 786-87.
Initially, have this and our court recognized purpose consistently that the Confiden confidentiality tiality preserve Act “is persons who are receiv records and communications ing services.” Novak have received mental-health who (1985). words, 478, other Rathnam, 106 Ill. 2d v. those intended to include all the persons Act “was
entering therapeutic relationship with App. into 112 Ill. Family Agency, Service clients.” Martino v.
183 (1982). 593, 3d “only 599-600 The Act applies situa tions in which the is patient seeking treatment for a mental health condition.” House v. SwedishAmerican (1990). Hospital, 437, 206 Ill. 3d 446 App. Accordingly, Confidentiality Act, person where a makes therapist statements to a in the course a professional of consultation, those statements privileged. Dymek are v. Nyquist, 859, (1984); 128 Ill. 3d App. 863 re Marriage (1980). Semmler, 649, 90 Ill. 3d 654 of Further, courts at all levels have consistently recog- nized that the therapist-patient privilege is in grounded the crucial role confidentiality in a therapeutic relationship: *** “Effective psychotherapy depends upon an atmosphere
of confidence and trust in which patient willing is make complete facts, a frank and emotions, disclosure of memories, and fears. Because of the sensitive nature of the problems for which psychotherapists, individuals consult disclosure of confidential during communications made counseling may sessions disgrace. cause embarrassment or reason, For this possibility mere may disclosure impede development relationship neces- confidential added.) sary treatment.” (Emphasis v. for successful Jaffee Redmond, (1996). 1, 518 U.S. 10 states, that all Observing 50 Columbia, the District of and the federal courts recognize some form of statutory or common law psychotherapist-patient privilege, this court reasoned: “Clearly, this reflects an understanding will people increasingly avail themselves needed they treatment if are confident that their privacy will be added.) protected.” (Emphasis Norskog Pfiel, v. 197 Ill. 60, 2d (2001); 72 see Care, Reda v. Advocate Health 199 (2002) Ill. 2d (same); Laurent v. Brelji, 74 Ill. App. (1979) (same). In the present case, Dr. Amabile was not retained as a therapist Rather, to treat plaintiffs. she acting was an independent professional, whose sole function was to make an evaluation for the circuit plaintiffs were not
to consider. Since Dr. Amabile relationship, engaged therapeutic in a apply. does not plaintiffs court, contend that section Before this 110(a)(1) “specifically grants protection special in Relations status and Domestic provides part: proceedings.” That section relevant “(1) may communications be disclosed Records and *** recipient introduces his *13 proceeding civil which any aspect of his services received for mental condition or ***. element of his claim or defense such condition as an *** Act, brought However, any action purposes for of this Act], any action in [Marriage under the or or defended claim, suffering is an element of the mental pain which and merely by condition shall not be deemed to be introduced to introduced making claim and shall be deemed be such or a witness on his behalf first testifies only recipient if the concerning or communication.” 740 ILCS the record 110/ 10(a)(1) (West 2006). “legislative expresses contend that this section
Plaintiffs litigants specific protection to divorce to accord intent private mental health information.” from disclosure of 10(a)(1) plain language, disagree. By its section We proceed- only prevent party applies in a dissolution to one opponent ing accessing mental health records of from opponent’s by attempting place at mental health to ap- court’s unrelated to the circuit This section is issue. 604(b) professional pointment to advise of a section custody matters, the disclosure of court on child parties Here, there is and their counsel. that advice to all opponent’s by party place attempt her his or one no above, a Further, as discussed at issue. mental health pursuant custody the Mar- section evaluation psychiatric riage received services not constitute Act does 10(a)(1) Accordingly, section mental condition. for a apply to the information does not by report profes- and the of a section obtained sional.3 appellate recognized,
Further, as the court 10(a)(4)provides followingexception therapist- patient privilege:
“(4) Records communications made to or therapist in the course of examination ordered a court good may, for cause shown if otherwise relevant and admis- *** sible, proceeding be disclosed a civil in which the recipient party appropriate pretrial proceedings, is a or in provided such court recipient has found that has been adequately effectively as possible as informed before submitting to such examination that such records and com- munications would not be considered confidential 110/10(a)(4) (West 2006). privileged.” 740 ILCS appellate undisputed observed, As the it is that Dr. plaintiffs Amabile informed that their communications confidential, with her were not and that her would presented parties be torneys. court, to appellate circuit and their at “Accordingly, court concluded: court-appointed communications Amabile, to Dr. as a witness, could not be deemed confidential under the Act.” 396 Ill. 3d at 788. agreeWe and so hold. plaintiffs argue court,
Before this that the *14 10(a)(4) effectively court’s reliance on section “has 10(a). privilege eviscerated” the in established 10(a)(4) argument unavailing. speaks This is Section situations where disclosure contrast, is In discretionary. 604(b) report the disclosure of the and its opposing party contents and counsel is mandatory 604(b) pursuant to section Act. Accord- rely Ostrov, 3 Plaintiffs on McGreal v. 368 F.3d 687-90 (7th 2004), Cir. which did therapeutic not consider whether a relationship existed in police the context of a officer’s mental fit However, ness evaluation taken under orders. this federal case is binding not City Chicago on this court. Groffman, v. Ill. 2d (1977). 112, 118 110(a)(4)
ingly, section Act does 604(b) report. apply not to the contents of a rely Norskog plaintiffs Nonetheless, continue to on v. (2001), argument support in of their Pfiel, 197 Ill. that the communications and information contained privileged. Norskog, Dr. Amabile’s are patient defendants, the who the circuit court ordered the mental health services as a minor and his received identify providers parents, to the mental health service by regarding patient and to discloseinformation seen discovery diagnosis part patient’s treatment wrongful in a civil death action. Defendants failed to comply discovery appealed orders, and from the with the resulting contempt court citations. Id. at 64-68. This held that the circuit court erred when it held contempt was defendants in because the information excep privileged Act, and no case. Id. at 86-87. tion allowed for disclosure that fully discussing Norskog, After distinguishable correctly Norskog concluded that was present Nors case. 396 Ill. 3d at 789-90. from the by requirements kog governed the strict of section was 14(a) Criminal Procedure of 1963 of the Code of 104— (725 14(a) (West 2006)), mandated which 5/104— by a defendant and information that statements made gathered during a mental-fitness examina court-ordered against the defendant un tion “shall not” be admissible insanity defense, an or similar which less he raises Further, unlike section defendant did not do. Act, statute at issue Nors the criminal any explicitlyprohibits
kog
made
other use of statements
examination without
defendant in a criminal fitness
consent. 725 ILCS
the defendant’s informed written
(West
2006); Norskog,
187
requirements
Rather,
Procedure.
the Code of Criminal
604(b)
they participated
a section
in interviews with
making
professional
circuit court
advise the
14(a)
custody
section
determination. Unlike
104—
604(b)
Procedure,
of the Mar-
Code of Criminal
person
require
riage
that a
from whom
Act does not
604(b)
give
professional obtains information
written
information contained
informed consent before such
604(b)
any proceeding.
report may
To the
used in
be
604(b)
parties
contrary,
reports
given to both
must be
604(b) professional
counsel,
remains
and their
and the
subject
testify
trial as the court’s witness
available to
at
apply
parties. Norskog does not
to examination
both
present
case.
recognized
repeatedly
court has
that the Confi
This
dentiality
strong
Act
“a
statement”
constitutes
keeping
legislature
importance
mental
about
Reda,
60;
Ill. 2d
health records confidential.
at Nors
expressly
kog,
In the case at we conclude that section distinguish Act does not mental health personnel professional personnel. from other although provides Further, section 605 defendants with remedy, confines Dr. Amabile’s Additionally, postdissolution proceeding. the McCann apply in this case. does not that, dicta, We observe dis possible plaintiffs pursue cussed remedies that could Confidentiality Act claim. 396 Ill. an alternative to a the record in the 3d at 791. While we have reviewed judicial economy the need to reach an interests of (Br 208), equitable ight, Ill. 2d at we find that *16 suggested the court’s remedies fall outside the proper scope question. of our review of the certified See Sale, Vision Point Haas, Inc. v. 226 Ill. 2d 358 (2007).
III. CONCLUSION foregoing For reasons, the we answer the certified question negative, and remand the cause to the proceedings circuit court for further consistent with this opinion. question
Certified answered; cause remanded. part
JUSTICE THEIS took no in the consideration or decision of this case. dissenting:
CHIEF
KILBRIDE,
JUSTICE
question requires
The certified
this court to construe
Developmental
the Mental Health and
Disabilities
(740
(West 2006))
Confidentiality
seq.
ILCS
et
110/1
on whether mental health information obtained
psychiatrist
professional
or other mental health
under a
pursuant
court order
to section
of the Illinois Mar
(750
5/604(b)
riage
and Dissolution of
(West 2006))
majority correctly
is confidential. The
recognizes
purpose
Confidentiality
that the central
preserve
confidentiality
isAct
the
of mental health
majority
Nonetheless,
information.
answers the certi
question negatively, holding
fied
that mental health
provided
psychiatrist
information
to a
or other mental
professional
health
in a court-ordered section
report
majority
is not confidential. The
reasons that the
Confidentiality
only
Act is intended to make confidential
person
therapeutic
information obtained when a
in a
is
relationship
professional,
with a mental health
a relation
ship purportedly
outside a section
created
pursuant to court order.
I undisputed majority’s contravenes view, decision underlying Act, legislative intent confidentiality protection namely, vigorous majority recog information. As even mental health consistently determined nizes, has this court “strong statement” Act constitutes keeping importance legislature mental about the (citingReda 2d at 187 241 Ill. confidential. health records (2002), 47, 60 Care, 1ll. 2d Health v Advocate (2001)). Norskog fact, 71-72 197 Ill. Pfiel, v. carefully legislature mental disclosure of has restricted statutory exceptions, with to certain health information subject exception construction. Nors to a narrow each legislative Contrary kog, intent, to clear Ill. 2d at 71. *17 majority effectively health informa holds that mental the 604(b) report divulged is in a court-ordered section tion majority Simply stated, has cre the never confidential. exception to the Confiden ated a and unwarranted broad tiality Act. Confidentiality plain language shows question be answered af-
that the certified should firmatively. Specifically, 10 of the section civil, criminal, and other Act, entitled “Disclosure exceptions proceedings,” the Confi- identifies several dentiality prohibition on the disclosure Act’s blanket 10(a)(4) Critically, ad- mental health information. ques- presented precise in the certified the issue dresses in a tion, disclosure of mental health information providing examination, that: court-ordered by therapist made to or “Records and communications good by a court for examination ordered in the course of admissible, be may, if relevant and cause shown otherwise civil, criminal, proceeding or administrative disclosed pretrial party appropriate or in recipient is a which recipi- that the court has found proceedings, provided such effectively possible as as adequately ent has been informed before submitting to such examination that such records and communications would not be considered privileged. confidential or Such records and communica- tions shall only be admissible as to involving issues recipient’s physical or mental only condition and extent germane these are to such proceedings.” added.) 110/10(a)(4) (West (Emphasis 740 ILCS 10(a)(4) plain language Thus, the of section allows for disclosure of mental health information obtained in a only important court-ordered examination if two condi- (1) tions are met: the information relevant, must be germane, proceeding and admissible in the at issue and (2) recipient adequately effectively must be any informed that record or is communication not submitting confidential before to the court-ordered examination. 10(a)(4)’s
Clearly, if section conditions are not satis- legislature fied, the intended that the mental health information in the court-ordered examination remain overarching legislative confidential, consistent with the goal safeguard Act to the confiden- tiality directly rebutting of that Therefore, information. majority’s holding, plain language of section 10(a)(4) legislature contemplated demonstrates that the instances when mental health information obtained dur- ing divulged. a court-ordered examination would not be acknowledging legislative
Rather than intent underlying 10(a)(4), majority attempts distinguish provision by noting that disclosure of *18 discretionary mental health information is under section 10(a)(4) but disclosure of a under section is mandatory. 241 Ill. 2d at distinction, 186-87. That any, consequence, however, little, is of if and should certainly dispositive not be considered after a careful 10(a)(4) comparison between section of the Confidential ity Act and section Act. 10(a)(4) Confidentiality Act noted, section
As specifically information obtained health addresses mental particular, section examination. court-ordered a 10(a)(4) discretion- the information admission of makes legislature showing ary, indisputably intended authority admit to refuse to to have for the trial court its confidential- and maintain mental health information ity. contrary majority’s conclusion, Moreover, 10(a)(4) any language contain does section nowhere indicating application legislature to limit its intended Confidentiality relationship. therapeutic Indeed, the to a physician, “therapist” psychiatrist, “a defines a providing psychologist, mental worker, or nurse social *** 2006). (West Under ILCS health services.” 740 110/2 Confidentiality types a of “services” Act, the the therapist may provide and “evalu-
include “examination” (740 2006)), as the more as well ation” ILCS West 110/2 traditionally recognized therapeutic services of treat- training, pharmaceuticals, or rehabili- ment, habilitation (West 2006). tation, See 740 ILCS and aftercare. 110/2 majority’s Thus, the determination that Confidential- involving ity application situations Act’s is limited to supported by therapeutic relationship purely is not statutory language, plain meaning the best indica- legislative intent. tor of directly majority’s interpretation conflicts with 10(a)(4), making plain language of section “[rjecords applicable and com- by therapist in the course
munications made to or added.) (Emphasis a court.” examination ordered 110/10(a)(4) (West examina- Court-ordered “therapeu- rarely, ever, if constitute the tions alone would by majority application relationship” required for tic (10)(a) (4). legislature If intended the of section during only apply the course of Act to specially “therapeutic relationships,” have it would not *19 “[r]ecords addressed disclosures related to and com- during traditionally munications” that occurred non- therapeutic by examinations “ordered a court” proceeding.” “civil, criminal, or administrative 740 ILCS 110/10(a)(4)(West2006).
Norskog supports also the conclusion that protect Act was intended to records and during types communications made various of court- Norskog, ordered examinations. In this court determined protected that the records and com munications from a court-ordered fitness evaluation from proceeding therapist disclosure in a civil when the failed potential Norskog, to mention that disclosure. 197 Ill. 2d Although Norskog at 77. the court-ordered evaluation in proceeding, general principles was in a criminal the same applicable are here. 604(b) comparison, Marriage
In Act, majority, relied on is silent on the admission of through mental health information obtained a court- provision speaks ordered Instead, examination. generally authority proceedings on the trial court’s under the Act to obtain the written “advice of professional personnel” that must also be made available 5/604(b) parties’ respective counsel. 750 (West 2006). Notably, requirement has no that otherwise confidential mental information, health therapeutic relationship whether obtained in a not, always Consequently, majority’s must be disclosed. 604(b) requires mandatory assertion that section disclo- during sure of mental health information obtained supported court-ordered examination is not the statu- tory language. agree majority’s
I with the observation that section promotes thorough consider- epitomizes ation of a child’s best interests and the need custody for maximum disclosure of in child information however, disagree, strongly I proceedings. health that mental final determination
majority’s under section in a court-ordered information the Confidential- never be confidential can ity Act. child for full disclosure the need my opinion, *20 604(b) of the under
custody proceedings goal equally important the balanced with Act should be mental confidentiality of an individual’s protecting Act. I Confidentiality health information it balance when proper struck the legislature believe 10(a)(4) Confidentiality of the enacted section health information of mental authorizing the disclosure it relevant when is examination from a court-ordered informed and the individual has been the proceedings majority’s remain confidential. The that it would not thoughtful balanc- holding legislature’s circumvents the has created a harsh majority of those interests. ing admits all sensitive mental exception automatically case, reports every information in section health or the that information is relevant regardless whether information made aware that would individual was divulged. be underlying intent summary, legislature’s 10(a)(4) Act, of section
language here, control when issue should addressing precise Marriage Act, silent on to section compared ques- I the certified Accordingly, the issue. would answer informa- that mental health affirmatively, holding tion in a section tion from a court-ordered examination require- unless the is confidential inadmissible 10(a)(4) of the its admission under section ments for bal- approach properly Act are met. This the need for full disclosure under ances confidentiality of mental the need to protect Confidentiality Act. health information under the