Illinois Marriage FAQ's - Nye & Associates, Ltd.

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- Illinois Mental Health Confidentiality FAQ's -

1) Am I a "therapist" for mental health confidentiality purposes?

The Illinois Mental Health and Developmental Disabilities Confidentiality Act defines "therapist" very broadly:
"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.
In other words, "therapist" is determined by what you do for the client. Not necessarily by the letters after your name. If you are providing mental health services, you are a therapist and are required to abide by the Confidentiality Act.

2) What is confidentiality?

Confidentiality refers to the legal duty not to disclose confidential information without the client’s written, informed consent. There are exceptions to the duty of non-disclosure. These are set out in the statute that covers the particular activity which gives rise to the duty of confidentiality. The general rule is that one may disclose confidential information without the client’s consent when required to do so by statute (such as child or elder abuse reporting acts), and under certain circumstances to attempt to prevent harm, or in an investigation or trial for homicide.

3) What laws create a duty of confidentiality?

The duty of confidentiality is created in several ways: by licensing and other statutes and regulations; by the contract between the provider and recipient of services; by professional ethical codes; by employers’ policies and procedures.
In Illinois, mental health information is governed by the Illinois Mental Health and Developmental Disabilities Confidentiality Act. Substance abuse information is governed by the Alcoholism and Other Drug Abuse and Dependency Act, which incorporates the Federal Regulations on confidentiality of substance abuse information. Licensed behavioral health clinicians are also governed by their licensing statutes.

4) Are EAP and/or Alcohol & Drug Abuse counseling considered mental health care delivery?

Sometimes, but not always. It depends upon what the counselor is doing with and for the client. If, for example, the client is looking for help in getting an aged family member placed in a long term care facility, or seeking a referral for credit counseling, or in trouble in a legal matter in an EAP setting, the services being provided are not mental health services or treatment as defined in the Mental Health Code or the Confidentiality Act. In such cases, the duty of confidentiality still exists because the client has been invited to participate in EAP services with a guarantee of confidentiality (with certain exceptions). When the client accepts the invitation and participates in the EAP, there is a contract between the Agency and the employee which places a duty of confidentiality on the EA coordinator.
If for example, a patient is seeing a therapist and alcohol and/or drug abuse component are present, the services may be considered alcohol and drug abuse counseling and subject to the federal regulations of confidentiality. When ever there is an alcohol or substance abuse related component, the State statute and Federal regulation on confidentiality of alcohol and drug information apply. The mental health and substance abuse statutes are similar, but not exactly the same.

5) What is confidential mental health information?

This is information derived from 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.
"Mental health or developmental disabilities services" or "services" includes but is not limited to examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation.
"Treatment" is an effort to accomplish an improvement in the mental condition or related behavior of a recipient, and includes, but is not limited to, hospitalization, partial hospitalization, outpatient services, examination, diagnosis, evaluation, care, training, psychotherapy, pharmaceuticals, and other services provided for recipients by mental health facilities.

6) Whose information is confidential?

Any information received in the course of providing mental health or substance abuses services is confidential. Illinois mental health law refers to clients as "recipients" of services. A "Recipient" is anyone who is receiving or has received mental health or developmental disabilities services. In addition to information given by the "recipient," any other information a therapist received while providing services is also confidential.

7) What is a "record"?

"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 purposes of this Act.

8) What are "personal notes"?

"Personal notes" are defined as "not records" under the Confidentiality Act, as long as they are kept in the therapist’s sole possession and not disclosed to anyone other than a supervisor, consultant or attorney. Personal notes are not subject to subpoena or to mandatory access by the client. Only certain types of information and material may be given personal notes protection:
(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.

9) What does "privileged communication" mean?

The word "privileged" is used in several ways in the law, depending on the context, In the context of confidentiality, it means that the holder of the information cannot be compelled to disclose it in the course of a judicial, administrative, or legislative proceeding in which production of testimony or material evidence can be compelled by subpoena and court order. The rules of privilege are very technical, and in any instance in which a subpoena is served to produce records or give testimony, immediate notification of Administration and legal advice are mandatory.

10) Are, Social Workers, Psychologists, Psychiatrists, Counselors, Therapists, or other human service providers mandated reporters for child abuse and elder abuse purposes?

Yes, and a report must be immediately made whenever there is a possibility that abuse or neglect has occurred regarding a child or the elderly. When in doubt, seek immediate consultation.

11) If I am served with a subpoena for mental health or substance abuse related information, what should I do?

In most instances, a court order is required before a subpoena can lawfully be issued when mental health or substance abuse are implicated. Legal advice is always necessary when a mental health or human services professional receives a subpoena. Failure to comply with a subpoena, even an illegal one, may result in contempt charges being made against a non-compliant witness, on the other hand, compliance with a subpoena which is served without being accompanied by a Court Order issued by a Judge is not only a crime but may result in civil liability - damages.

The Law Offices of Nye & Assoc., Ltd.
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The material presented here is for informational use only. It is intended to provide an in-depth review of Illinois marriage, divorce and custody law for use by non-lawyers in understanding the issues involved. Under no circumstances should this be considered legal advice, nor does it substitute for legal consultation. A lawyer should be consulted when legal advice is indicated.
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