Wednesday, January 13, 2010

Psychiatrist Communications Unprotected Under Act in IL Custody Cases

In answering a question certified for interlocutory appeal, an Illinois Appellate Court determined that the Mental Health Confidentiality Act does not protect communications with Section 604(b) court-appointed psychiatrist in custody-visitation evaluation.  The party did no receive mental health services under the Act and the relationship was not therapeutic.  Here, the party also had no expectation of the confidentiality of the communications.

The case is Johnston v. Weil, No. 1-08-2861 (Ill. Ct. of App., Dec. 2, 2009) and the opinion can be read here.

MR     

http://lawprofessors.typepad.com/family_law/2010/01/in--answering-a-question-certified-for-interlocutory-appeal-an-illinois-appellate--court-determined-that-the-mental-heal.html

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Comments

This is not the first ruling in Illinois along these lines.

The Appellate Court for the Fifth District of Illinois has also addressed this issue. In Salingue v. Overturf, 269 Ill. App.3d 1102 (5th Dist. 1995), the Court held that "the physician-patient privilege does not apply to reports obtained by defense counsel under the provisions of Supreme Court Rule 215.” Overturf, 269 Ill. App.3d at 1070.

The Court explains:
[A] Rule 215 examination is legal, not medical, in nature. By definition, it is neither based on any benefit to be derived by the plaintiff nor contingent upon plaintiff’s consent. . . .

The plaintiff knows that the doctor has been selected by his or her opponent and that all findings from the examination, and all statements made by the plaintiff will be revealed to the opponent. Therefore, one of the elements of the privilege that the communication will be kept confidential is absent in Rule 215 examinations. [citation omitted.]

Overturf, 269 Ill. App.3d at 1070.

I think it's a proper ruling as the Court hits the nail on the head. The party KNOWS that the other side picked the doctor, AND the party is NOT receiving services from the psychiatrist, but an evaluation ORDERED by the court. AND the party KNOWS the report will be disclosed to the other side, AND the court.

There's no gray area here that I can see in terms of treatment, services, or any pretense of confidentiality. If the party wants the report sealed from the public, all they have to do is ask the court.

Posted by: Kristy Gosteli | Jan 13, 2010 3:13:53 PM

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