Working with Clients with Mental Health Issues:

A Basic Introduction for Parents’ Lawyers in Child Welfare Cases

Illinois Parent Attorney Network Training November 13, 2015

Chicago, Illinois

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RECORDS AND CONFIDENTIALITY IN JUVENILE COURTJoseph T. Monahan, M.S.W., A.C.S.W., J.D.

Monahan Law Group, LLC, Chicago

jmonahan@monahanlawllc.com

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TOPICS COVERED

• Juvenile Court Proceedings• Actors

• Evidence

• Specially Protected Records • Mental Health

• Drug and Alcohol

• Victim Sensitive Interviews

• Domestic Violence

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• Assistant State’s Attorney (ASA) • Prosecutes cases of abuse, neglect,

and dependency

• Public Defender (PD) or Private Attorney • Represents the parent/guardian

• Guardian ad Litem• Guardian ad litem for minor• Represents the best interest of the

minor• Public Guardian

• Attorney for Minor• Represents the articulated interest of

the minor• Public Guardian

• CASA• Court Appointed Special Advocate • Usually not an attorney (lay person)

• DCFS• Caseworker, Legal, Clinical,

Administrative, Others

• Other Private Agencies• Special Evaluators

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Juvenile Court Proceedings – Actors

Juvenile Court Proceedings – Evidence

• Juvenile Court Act of 1987 • “the privileged character of communication between any professional person

and patient or client, except privilege between attorney and client, shall not apply to proceedings subject to this Article.” 705 ILCS 405/2-18(e)

• Previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. 705 ILCS 405/2-18(4)(c)

• Illinois Supreme Court Rule 907(b)• Child’s attorney or guardian ad litem shall have access to all relevant

documents

• State statutes and federal rules govern specific types of records and protect their confidentiality, i.e., more specific laws than general Juvenile Court Act

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Mental Health

• Illinois Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq.

• Mental health records and communications are confidential unless otherwise provided

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The Confidentiality Act is “a strong statement about the importance of keeping mental health records confidential.”

Mandziara v. Canulli, 299 Ill. App. 3d 593, 599 (1st Dist. 1998)

Mental Health

• Records may be disclosed pursuant to:• Authorization

• Proper court order

• Exception

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Mental Health – Disclosure Pursuant to Authorization

• Signed by those persons who are entitled to inspect and copy a recipient’s record pursuant to Section 4 of the Confidentiality Act• the parent or guardian of a recipient who is under 12 years of age

• Only need signature of one parent (Dymek v. Nyquist, 128 Ill. App. 3d 859 (1st Dist. 1994))

• the recipient if he is 12 years of age or older• the guardian of a recipient who is 18 years or older• 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

• Note: foster parents do not have authority

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Mental Health – Disclosure Pursuant to Authorization

• Section 5 Requirements• the person or agency to whom disclosure is to be made

• the purpose for which disclosure is to be made

• the nature of the information to be disclosed

• the right to inspect and copy the information to be disclosed

• the consequences of a refusal to consent, if any

• the calendar date on which the consent expires

• the right to revoke the consent at any time

• not a blanket consent (specifies information to be disclosed)

• witnessed

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Mental Health – Court Order

• Section 110/10(d)

• Subpoena alone does NOT provide authority • No subpoenas are to be served without court orders. Mandziara v. Canulli,

299 Ill. App. 3d 593, 599 (1st Dist. 1998).

• Notice • Written notice of the request for disclosure to both the recipient of mental

health services and the treatment provider.

• Subpoena Language • Each subpoena for mental health records or communications must include

the specific language set forth in Section 110/10(d).

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Mental Health – Exception

• Parent, Guardian, or Legal Custodian• Applies when the recipient is named as a parent, guardian, or legal custodian

of a minor;

• who is the subject to a petition for wardship alleging the minor is abused, neglected, or dependent;

• or who is the subject of a petition, supplemental petition, or motion to appoint a guardian with the power to consent to adoption.

• 740 ILCS 110/10(a)(11)

• “Recipient” • A person who is receiving or has received mental health or developmental

disabilities services. 740 ILCS 110/2.

Mental Health – Most Common Issues

• Notice to Therapist • Form order entered in juvenile court proceeding • Entered without notice to the therapist – not a valid order for purposes of

Section 110/10(d)

• Minors Up to Age 12• Minor is the recipient • Section 110/10(a)(11) exception does not apply because recipient is not the

parent, guardian, or legal custodian • Section 4(a)(5) does not apply because the minor is not 12 years of age or

older • Requires authorization signed by parent or guardian or proper court order

procured pursuant to notice and motion

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When Your Client is the Recipient

• Another party to a juvenile court proceeding (State’s Attorney, Public Guardian, etc.) requests records from your client’s therapist

• Section 110/10(a)(11) – authorizes disclosure • Section 110/10(b)

• Before disclosure is made• Any party or any other interested person may request in camera review of record or

communication to be disclosed• Court can also hold an in camera review on its own motion• Therapist may assert privilege on behalf of client if disclosure would not be in the

best interest of the recipient • Court may prevent or limit disclosure • Court may enter such orders as may be necessary in order to protect the

confidentiality, privacy, or safety of the recipient or of other persons

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When Your Client’s Child is the Recipient

• Another party to a juvenile court proceeding requests records

• If the minor is under 12 years of age, a parent or guardian can execute an authorization allowing the disclosure • Reminder, only need one parent

• If the minor is between 12 and 17 years old, the minor must authorize the disclosure

• If no authorization, requesting part must file a motion, provide notice to the recipient and the therapist, and obtain an order

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Drug and Alcohol Treatment

• Federal Rules: 42 CFR Part 2

• Records may be disclosed pursuant to:• Patient’s consent

• Limited exceptions

• Properly-procured court order

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Drug and Alcohol Treatment – Consent

• Consent must meet the requirements under 42 CFR § 2.31• Name/designation of the program/person permitted to make the disclosure• Name of individual or organization to which disclosure is to be made• Name of the patient• Purpose • How much and what kind of information is to be disclosed• Signature of patient, or legally authorized individual

• Minor – Illinois law allows 12 year old or older to consent to treatment, thus minor must sign consent to release records

• Dated• Statement regarding revocation • The date, event, or condition upon which the consent will expire

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Drug and Alcohol Treatment – Exception

• Exception for reports of suspected child abuse and neglect but only with regards to making a report. 42 CFR § 2.12.

• The exception does not apply to the disclosure or use of records in civil or criminal proceedings which may arise out of the report of suspected child abuse and neglect.

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Drug and Alcohol Treatment – Court Order

• 42 CFR § 2.64 – for noncriminal purposes

• A subpoena alone does permit the disclosure of information. 42 CFR 2.13

• Procedure and criteria • Application

• Notice

• Review of evidence

• Criteria for entry of the order

• Content of the order

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Victim Sensitive Interviews

• Children’s Advocacy Centers• Victim sensitive interviews• May also provide mental health services

• In re Daveisha C., 2014 IL App (1st) 133870 • Protective order to restrict the retention of the recorded interviews by the

minor’s attorney and guardian ad litem. • Recognized the sensitive nature of these interviews. • Recognized that the Juvenile Court Act did not protect the records outside of

juvenile court.• Common argument from party seeking records – juvenile court proceedings are by

statute “closed to the general public”

• Same issue decided in In the Interest of C.W., 2014 IL App (1st) 133279-U

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Domestic Violence

• Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq.

• Communications between domestic violence counselors and victims are privileged and confidential.

• Prohibition on disclosing any confidential communication.

• “Confidential communication” means:• any communication between an alleged victim of domestic violence and a domestic violence

advocate or counselor in the course of providing information, counseling, or advocacy. • Includes all records kept by the advocate or counselor or by the domestic violence program in

the course of providing services to an alleged victim concerning the alleged victim and the services provided.

• Confidential communications may only be disclosed in accordance with the provisions of the Abused and Neglected Child Reporting Act or in cases where failure to disclose is likely to result in an imminent risk of serious bodily harm or death of the victim or another person. 750 ILCS 60/227(b).

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Conclusion

• Certain types of records are specially protected

• Provisions regarding the disclosure

• Exceptions for juvenile court proceedings

• Procedures and requirements for court orders

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55 West Monroe St., Suite 3700

Chicago, IL 60603

Phone: 312-419-0252

Fax: 312-419-7428

www.monahanlawllc.com