Johnston v. Weil ( 2011 )

Docket No. 109693.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
HEATHER JOHNSTON et al., Appellants, v. ANDREW WEIL et
al., Appellees.
Opinion filed February 25, 2011.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Justices Thomas, Garman, Karmeier, and Burke concurred in the
judgment and opinion.
Chief Justice Kilbride dissented, with opinion.
Justice Theis took no part in the decision.
OPINION
The circuit court of Cook County certified the following question
of law for interlocutory appeal pursuant to Supreme Court Rule 308
(Ill. S. Ct. R. 308 (eff. Feb. 26, 2010)):
“Whether evaluations, communications, reports and
information obtained pursuant to section *** 604(b) of the
Illinois Marriage and Dissolution of Marriage [Act] [citation]
are confidential under the Mental Health and Developmental
Disabilities Confidentiality Act [citation] where the 604(b)
professional personnel to advise the court is a psychiatrist or
other mental health professional.”
The appellate court answered this question in the negative. 396 Ill.
App. 3d 781. We allowed leave to appeal. Ill. S. Ct. R. 315 (eff. Feb.
26, 2010). For the following reasons, we likewise answer the certified
question in the negative, and remand the cause to the circuit court for
further proceedings.
I. BACKGROUND
Heather Johnston was married to Sean McCann and, in 1998, they
had a son. Their marriage was dissolved. Johnston subsequently
married Andrew Weil and, in 2002, they had a daughter. In June
2005, their marriage was dissolved. In each dissolution proceeding,
McCann and Weil were represented by several attorneys, and an
attorney was appointed as the child’s representative.
McCann filed a postdissolution petition to modify the joint
parenting agreement with Johnston. In January 2006, the circuit court
entered an order appointing Dr. Phyllis Amabile, a psychiatrist, to
conduct an independent evaluation and assist the court in determining
custody of the McCann son, pursuant to section 604(b) of the Illinois
Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS
5/604(b) (West 2006)). Pursuant to the order, Johnston, her parents,
McCann and Weil, among others, participated in the evaluation. The
order required them to fully cooperate with Dr. Amabile in
conducting her evaluation, including their submission to any tests
administered by Dr. Amabile, her agents, or her recommended third
parties. Dr. Amabile advised each of the parties that the information
obtained through the evaluation would be disclosed to the court, all
parties, and their attorneys. Dr. Amabile completed her evaluation
and sent a report to the circuit court. The record does not show that
Johnston or her parents sought a protective order regarding either the
information they provided to Dr. Amabile or her report.
Contemporaneous with the McCann postdissolution proceedings,
Weil filed a motion seeking temporary possession or custody of his
daughter, and seeking leave to subpoena Dr. Amabile. In response,
Johnston asserted that Dr. Amabile’s report was privileged under the
Mental Health and Developmental Disabilities Confidentiality Act
(Confidentiality Act) (740 ILCS 110/1 et seq. (West 2006)). In
December 2006, the circuit court in the Weil postdissolution
proceeding found that Dr. Amabile’s section 604(b) report in the
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McCann proceeding was privileged under the Confidentiality Act and
not discoverable in the Weil proceeding.
In January 2007, plaintiffs, Johnston and her parents, filed the
instant complaint, which named as defendants McCann, McCann’s
attorneys, the McCann child representative, Weil, Weil’s attorneys,
and the Weil child representative. The complaint alleged that Dr.
Amabile was a therapist within the meaning of the Confidentiality
Act; Dr. Amabile engaged in confidential communications with
plaintiffs; and the information she obtained and included in her
604(b) report in the McCann proceeding was privileged under the
Confidentiality Act. Further, the complaint alleged, “upon
information and belief,” essentially that the McCann defendants
“individually and/or jointly” disclosed the confidential information
to the Weil defendants “individually and/or jointly.” The complaint
sought $200,000 in damages for each plaintiff in addition to costs and
attorney fees.
McCann, the McCann attorneys and child representative, Weil,
and the Weil attorneys filed motions to dismiss pursuant to section
2–619.1 of the Code of Civil Procedure (735 ILCS 5/2–619.1 (West
2006)). The motions sought dismissal of the complaint as a matter of
law (see 735 ILCS 5/2–615 (West 2006)), alleging that the contents
of Dr. Amabile’s 604(b) report were not privileged under the
Confidentiality Act. Alternatively, the motions sought dismissal of
the complaint based on affirmative matter that negates the claim. See
735 ILCS 5/2–619(a)(9) (West 2006). The McCann defendants
argued that the parties, as a matter of fact, did not regard the contents
of the 604(b) report as confidential. Weil attached an affidavit to his
motion, in which he stated that he participated in Dr. Amabile’s
evaluation and that she told him that her report would be disclosed to
the court and counsel in that case. However, Weil had never received
or read a copy of Dr. Amabile’s report. Weil’s attorneys each attached
an affidavit to their motions, in which each stated that he or she did
not possess, disclose, or redisclose the contents of the 604(b) report.
The Weil child representative, Dorothy Johnson, separately filed
a section 2–619(a)(9) motion to dismiss, to which she attached an
affidavit stating as follows. In late November or early December
2006, Johnson received notice of Weil’s motion. On December 6,
2006, Johnson telephoned Dr. Amabile to determine whether her
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section 604(b) report had any relevance to Weil’s daughter. Dr.
Amabile advised Johnson of three areas she evaluated: the possibility
of ongoing substance (alcohol) abuse; the possibility of ongoing
violence; and the ongoing impact of poor impulse control. Dr.
Amabile advised Johnson that these areas of concern are relevant to
the parenting of any child and are not specific or unique to any
particular child. This was the extent of their telephone conversation,
and Dr. Amabile did not provide any information regarding
communications, opinions, or conclusions generated as a result of the
section 604(b) evaluation.
The circuit court denied defendants’ motions to dismiss plaintiffs’
complaint.1 Defendants filed a motion to reconsider the dismissal or,
alternatively, to certify the question of law at issue in this case. The
circuit court certified the above-quoted question of law and stayed the
proceedings pending appellate resolution of the certified question.
The appellate court allowed defendants’ application for leave to
appeal and answered the certified question in the negative. 396 Ill.
App. 3d 781.2 The court concluded that information obtained
pursuant to section 604(b) of the Marriage Act is not confidential and
privileged under the Confidentiality Act. Accordingly, the court held
that plaintiffs may not invoke the Confidentiality Act with respect to
their communications with Dr. Amabile made in the course of her
section 604(b) evaluation. 396 Ill. App. 3d at 792.
This court allowed plaintiffs’ petition for leave to appeal (Ill. S.
Ct. R. 315(a) (eff. Feb. 26, 2010)), and plaintiffs subsequently elected
to have their petition stand as their brief (Ill. S. Ct. R. 315(h) (eff.
Feb. 26, 2010)). We subsequently granted the Illinois Chapter of the
American Academy of Matrimonial Lawyers leave to submit an
1
In addition to alleging a Confidentiality Act violation on behalf of
Johnston (count I) and her parents (count II), the complaint also alleged
(count III) a violation of the confidentiality provisions of the Children and
Family Services Act (20 ILCS 505/1 et seq. (West 2006)). The circuit court
dismissed this count with prejudice and plaintiffs do not appeal therefrom.
2
While the cause was before the appellate court, plaintiffs and Weil
settled. The appellate court granted the parties’ agreed motion to dismiss
Weil’s appeal. 396 Ill. App. 3d at 782 n.1.
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amicus curiae brief in support of defendants. Ill. S. Ct. R. 345 (eff.
Sept. 20, 2010). Additional pertinent background will be discussed in
the context of our analysis of the issues.
II. ANALYSIS
Before this court, plaintiffs contend that Johnston was the subject
of, and her parents were collateral sources in, a court-ordered
“psychiatric evaluation related to fitness for child custody.”
According to plaintiffs, the appellate court erred by exempting what
they characterize as “604(b) psychiatric examinations” from the
protections afforded under the Confidentiality Act. Defendants and
supporting amicus contend that information obtained pursuant to
section 604(b) of the Marriage Act is not privileged under the
Confidentiality Act.
Although we ultimately answer the certified question in the
negative, our analysis reveals that several unresolved variables are at
work here. In other words, the certified question does not represent
the full range of issues presented in this case. However, this court
may go beyond the limits of a certified question in the interests of
judicial economy and the need to reach an equitable result. Bright v.
Dicke, 166 Ill. 2d 204, 208 (1995); see Dowd & Dowd, Ltd. v.
Gleason, 181 Ill. 2d 460, 468-72 (1998).
The certified question requires us to construe the relevant
provisions of the Marriage Act and the Confidentiality Act. The
primary rule of statutory construction is to give effect to the intent of
the legislature. The best evidence of legislative intent is the statutory
language itself, which must be given its plain and ordinary meaning.
The statute should be evaluated as a whole. Where the meaning of a
statute is unclear from a reading of its language, courts may look
beyond the statutory language and consider the purpose of the law,
the evils it was intended to remedy, and the legislative history of the
statute. Stroger v. Regional Transportation Authority, 201 Ill. 2d 508,
524 (2002); Reda v. Advocate Health Care, 199 Ill. 2d 47, 55 (2002).
However, legislative intent remains the primary inquiry and controls
a court’s interpretation of a statute. Traditional rules of statutory
construction are merely aids in determining legislative intent, and
those rules must yield to such intent. Collins v. Board of Trustees of
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the Firemen’s Annuity & Benefit Fund, 155 Ill. 2d 103, 111 (1993).
Because this issue concerns a question of law certified by the circuit
court pursuant to Supreme Court Rule 308, our review is de novo.
Thompson v. Gordon, 221 Ill. 2d 414, 426 (2006).
A. Disclosure: Marriage Act
Dr. Amabile compiled her report pursuant to section 604(b) of the
Marriage Act. Part VI of the Marriage Act pertains to child custody.
Section 602 mandates: “The court shall determine custody in
accordance with the best interest of the child. The court shall
consider all relevant factors,” including specific factors listed therein.
(Emphasis added.) 750 ILCS 5/602(a) (West 2006). Section 604(b)
provides:
“(b) The court may seek the advice of professional
personnel, whether or not employed by the court on a regular
basis. The advice given shall be in writing and made available
by the court to counsel. Counsel may examine, as a witness,
any professional personnel consulted by the court, designated
as a court’s witness.” 750 ILCS 5/604(b) (West 2006).
The appellate court concluded that the plain language of section
604(b) provides no limitations or exceptions when the court-
appointed expert witness is a psychiatrist or other mental health
professional, and that a court must not depart from this plain language
by reading such an exception into the statute. 396 Ill. App. 3d at 785-
86.
Before this court, both sides point to the plain language of section
604(b), but disagree as to its meaning. According to plaintiffs: section
604(b) “on its face limits distribution of the report to the [circuit
court] and the attorneys for the litigants”; nothing in the subsection
“indicates that anyone other than the attorneys will have access to this
information”; and section 604(b) “limits actual use of the information
to *** when the court designates the evaluator as a court’s witness.”
Plaintiffs also contend that nothing in the language of section 604(b)
“states or implies that if the ordered examination is a psychiatric
examination, then the participant has waived all confidentiality rights
to any psychiatric information received by the examining psychiatrist
and any psychiatric reports.” In contrast, defendants contend that
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section 604(b), on its face, does not provide that communications
with and the resulting report of the 604(b) professional are
confidential. Defendants further contend that section 604(b) does not
differentiate between a mental health professional and any other
professional personnel.
We agree with plaintiffs that section 604(b) of the Marriage Act,
considered alone, requires disclosure of the 604(b) report only in the
particular proceeding in which the advice is sought. Initially, the plain
language of the statute refers only to counsel in that proceeding. 750
ILCS 5/604(b) (West 2006).
Further, any reasonable difference of opinion in the meaning of
section 604(b) of the Marriage Act is dispelled by a consideration of
its purpose and the evils it was intended to remedy. In 1977, the
General Assembly enacted the Marriage Act (750 ILCS 5/101 et seq.
(West 2006)), which is a substantial adoption of the Uniform
Marriage and Divorce Act (Uniform Marriage Act). See Unif.
Marriage and Divorce Act §101, 9A U.L.A. 171 (1998); Ill. Ann.
Stat., ch. 40, par. 101, at 6-7 (Smith-Hurd 1980) (referencing Uniform
Marriage Act). Section 604 of the Marriage Act derives from section
404 of the Uniform Marriage Act. Ill. Ann. Stat., ch. 40, par. 604,
Historical and Practice Notes, at 56 (Smith-Hurd 1980). The
comment to this section in the Uniform Marriage Act explains:
“[T]he judge may call informally on experts in a variety of
disciplines without subjecting them, in the first instance, to
the formal hearing process. But the experts’ advice should be
available to counsel for the parties so that the judge’s
decision will not be based on secret information; and the
parties should be able to examine the expert as to the
substance of his advice to the judge.” (Emphases added.)
Unif. Marriage and Divorce Act §404, 9A U.L.A. 381, cmt.
(1998).
For these reasons, the term “professional personnel” is “intentionally
broad.” Ill. Ann. Stat., ch. 40, par. 604, Historical and Practice Notes,
at 57 (Smith-Hurd 1980); see In re Marriage of Auer, 86 Ill. App. 3d
84, 88 (1980). Nonetheless, disclosure of the section 604(b) report is
clearly intended to be limited to the parties in the particular
proceeding. We conclude that section 604(b) of the Marriage Act
confines Dr. Amabile’s 604(b) report to the McCann postdissolution
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proceeding.
Not only do defendants misapprehend section 604(b) of the
Marriage Act, they ignore section 605, which provides the remedy
intended by the legislature in cases where a party in a postdissolution
proceeding seeks relevant evidence adduced in another
postdissolution proceeding. The Marriage Act “should be evaluated
as a whole; each provision should be construed in connection with
every other section.” Bonaguro v. County Officers Electoral Board,
158 Ill. 2d 391, 397 (1994). Section 605 of the Marriage Act provides
that a parent or custodian may request the circuit court, or in a
contested custody proceeding, on the court’s own motion, to order
“an investigation and report concerning custodial arrangements for
the child.” 750 ILCS 5/605(a) (West 2006). In preparing the section
605 report, the investigator may consult any person who may have
information about the child and the child’s custodial arrangements.
Also: “The investigator may consult with and obtain information
from medical, psychiatric or other expert persons who have served the
child in the past, without obtaining the consent of the parent or the
child’s custodian.” 750 ILCS 5/605(b) (West 2006). The investigator
shall mail the report to the parties and counsel, and the court may
examine and consider the section 605 report in determining custody.
750 ILCS 5/605(c) (West 2006). Significantly:
“The investigator shall make available to counsel, and to any
party not represented by counsel, the investigator’s file of
underlying data, reports, and the complete texts of diagnostic
reports made to the investigator pursuant to the provisions of
subsection (b) of this Section, and the names and addresses of
all persons whom the investigator has consulted. Any party to
the proceeding may call the investigator, or any person whom
he has consulted, as a court’s witness, for cross-examination.
A party may not waive his right of cross-examination prior to
the hearing.” 750 ILCS 5/605(c) (West 2006).
This plain language indicates that, when duly invoked, section 605
allows for disclosure in precisely the situation presented in this case.
Further, the plain language of section 605 supports the stated
legislative intent:
“The results of the investigations can aid the parties in
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determining which custodial arrangements are in the child’s
best interest and may be useful in facilitating the settlement of
disputes. The reports can also be valuable discovery tools, as
parties may call as witnesses those persons whom the
investigator contacted during the course of the investigation.”
(Emphasis added.) Ill. Ann. Stat., ch. 40, par. 605, Historical
and Practice Notes, at 61 (Smith-Hurd 1980).
The legislature intended that courts and counsel consider sections
604, 605, and 606 (hearings) together in child custody proceedings.
As the comment to section 404 of the Uniform Marriage Act, from
which section 604 of the Marriage Act derives, explains: “This
section, and the two which follow, are designed to permit the court to
make custodial and visitation decisions as informally and non-
contentiously as possible, based on as much relevant information as
can be secured, while preserving a fair hearing for all interested
parties.” Unif. Marriage and Divorce Act §404, 9A U.L.A. 381,
Comment (1998).
A contrary view would impede the expressed legislative goal of
part VI of the Marriage Act. Child custody proceedings epitomize the
need for maximum disclosure of information in the goal of reaching
justice. The paramount consideration and guiding principle in
determining child custody is the best interests of the child (In re
Marriage of Cotton, 103 Ill. 2d 346, 356 (1984); Miezio v. Miezio, 6
Ill. 2d 469, 472 (1955)), considering all relevant factors. 750 ILCS
5/602(a) (West 2006). Therefore, the circuit court exercises broad
discretion in admitting relevant evidence that may assist the court in
arriving at a custody determination (see Frees v. Frees, 99 Ill. App.
2d 213, 219 (1968)), and the court should hear and weigh all available
relevant evidence (see Marcus v. Marcus, 24 Ill. App. 3d 401, 407
(1974)). Section 604(b) “allows the court to seek the advice of
professional personnel in order to supplement the evidence provided
by the parties.” Ill. Ann. Stat., ch. 40, par. 604, Historical and Practice
Notes, at 57 (Smith-Hurd 1980). As defendants’ supporting amicus
observes, courts consider section 604(b) reports to be evidence of
record, and consider such reports prepared by mental health
professionals as prepared by any other professional personnel. See,
e.g., In re Marriage of Bhati, 397 Ill. App. 3d 53, 67-68 (2009); Auer,
86 Ill. App. 3d at 87-88.
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We agree with the appellate court that section 604(b) of the
Marriage Act provides no limitations or exceptions when the section
604(b) professional is a mental health professional. 396 Ill. App. 3d
at 785-86. Although section 605 of the Marriage Act provides
defendants with a remedy, we conclude that section 604(b) confines
disclosure of Dr. Amabile’s report to the court, counsel, and the
parties in the McCann postdissolution proceeding.
B. Privilege: Confidentiality Act
Nonetheless, plaintiffs argue before this court, as they argued
before the appellate court, that where the section 604(b) professional
is a psychiatrist, that person is a mental health provider who renders
mental health services within the meaning of the Confidentiality Act.
Therefore, according to plaintiffs, the communications and
information they shared with Dr. Amabile, with her resulting
evaluation contained in her section 604(b) report, are confidential and
privileged under the Confidentiality Act. The appellate court rejected
this argument. 396 Ill. App. 3d at 786-92.
Privileges are “governed by the principles of the common law as
they may be interpreted by Illinois courts in the light of reason and
experience,” except as otherwise provided by applicable statute. Ill.
R. Evid. 501 (eff. Jan. 1, 2011). The Confidentiality Act establishes,
except as provided therein, that “[a]ll records and communications
shall be confidential and shall not be disclosed” (740 ILCS 110/3(a)
(West 2006)), and that in any legal proceeding or preliminary
proceeding, “a recipient, and a therapist on behalf and in the interest
of a recipient, has the privilege to refuse to disclose and to prevent the
disclosure of the recipient’s record or communications.” 740 ILCS
110/10(a) (West 2006). Persons injured by a violation of the Act may
sue for damages or other appropriate relief, and may be awarded costs
and attorney fees. 740 ILCS 110/15 (West 2006).
The records made confidential under the Confidentiality Act refer
to “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”; the
communications made confidential under the Act refer to “any
communication made by a recipient or other person to a therapist or
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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.” 740 ILCS 110/2 (West 2006). Further, the
term “recipient” means “a person who is receiving or has received
mental health or developmental disabilities services”; the term
“therapist” means “a psychiatrist, physician, psychologist, social
worker, or nurse providing mental health or developmental
disabilities services”; and the term “mental health or developmental
disabilities services” “includes but is not limited to examination,
diagnosis, evaluation, treatment, training, pharmaceuticals, after-care,
habilitation or rehabilitation.” 740 ILCS 110/2 (West 2006).
In the present case, plaintiffs contend that Dr. Amabile’s report is
privileged under the Confidentiality Act because Dr. Amabile was a
“therapist” who provided, and plaintiffs were “recipients” who
received, “mental health services” as the Act defines these terms. We
reject this argument, as did the appellate court. 396 Ill. App. 3d at
786-87.
Initially, this court and our appellate court have consistently
recognized that the purpose of the Confidentiality Act “is to preserve
the confidentiality of the records and communications of persons who
are receiving or who have received mental-health services.” Novak v.
Rathnam, 106 Ill. 2d 478, 483 (1985). In other words, the
Confidentiality Act “was intended to include all those persons
entering into a therapeutic relationship with clients.” Martino v.
Family Service Agency, 112 Ill. App. 3d 593, 599-600 (1982). The
Act “only applies to situations in which the patient is seeking
treatment for a mental health condition.” House v. SwedishAmerican
Hospital, 206 Ill. App. 3d 437, 446 (1990). Accordingly, under the
Confidentiality Act, where a person makes statements to a therapist
in the course of a professional consultation, those statements are
privileged. Dymek v. Nyquist, 128 Ill. App. 3d 859, 863 (1984); In re
Marriage of Semmler, 90 Ill. App. 3d 649, 654 (1980).
Further, courts at all levels have consistently recognized that the
therapist-patient privilege is grounded in the crucial role of
confidentiality in a therapeutic relationship:
“Effective psychotherapy *** depends upon an atmosphere of
confidence and trust in which the patient is willing to make a
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frank and complete disclosure of facts, emotions, memories,
and fears. Because of the sensitive nature of the problems for
which individuals consult psychotherapists, disclosure of
confidential communications made during counseling
sessions may cause embarrassment or disgrace. For this
reason, the mere possibility of disclosure may impede
development of the confidential relationship necessary for
successful treatment.” (Emphasis added.) Jaffee v. Redmond,
518 U.S. 1, 10 (1996).
Observing that all 50 states, the District of Columbia, and the federal
courts recognize some form of statutory or common law
psychotherapist-patient privilege, this court reasoned: “Clearly, this
reflects an understanding that people will increasingly avail
themselves of needed treatment if they are confident that their privacy
will be protected.” (Emphasis added.) Norskog v. Pfiel, 197 Ill. 2d 60,
72 (2001); see Reda v. Advocate Health Care, 199 Ill. 2d 47, 60
(2002) (same); Laurent v. Brelji, 74 Ill. App. 3d 214, 217 (1979)
(same).
In the present case, Dr. Amabile was not retained as a therapist to
treat plaintiffs. Rather, she was acting as an independent section
604(b) professional, whose sole function was to make an evaluation
for the circuit court to consider. Since Dr. Amabile and plaintiffs
were not engaged in a therapeutic relationship, the Confidentiality
Act does not apply.
Before this court, plaintiffs contend that section 110(a)(1) of the
Confidentiality Act “specifically grants special status and protection
in Domestic Relations proceedings.” That section provides in relevant
part:
“(1) Records and communications may be disclosed in a
civil *** proceeding in which the recipient introduces his
mental condition or any aspect of his services received for
such condition as an element of his claim or defense *** . ***
However, for purposes of this Act, in any action brought or
defended under the [Marriage Act], or in any action in which
pain and suffering is an element of the claim, mental
condition shall not be deemed to be introduced merely by
making such claim and shall be deemed to be introduced only
if the recipient or a witness on his behalf first testifies
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concerning the record or communication.” 740 ILCS
110/10(a)(1) (West 2006).
Plaintiffs contend that this section expresses “legislative intent to
accord specific protection to divorce litigants from disclosure of
private mental health information.”
We disagree. By its plain language, section 10(a)(1) applies only
to prevent one party in a dissolution proceeding from accessing
mental health records of the opponent by attempting to place the
opponent’s mental health at issue. This section is unrelated to the
circuit court’s appointment of a section 604(b) professional to advise
the court on child custody matters, with the disclosure of that advice
to all parties and their counsel. Here, there is no attempt by one party
to place his or her opponent’s mental health at issue. Further, as
discussed above, a custody evaluation pursuant to section 604(b) of
the Marriage Act does not constitute psychiatric services received for
a mental condition. Accordingly, section 10(a)(1) of the
Confidentiality Act does not apply to the information obtained by and
the report of a section 604(b) professional.3
Further, as the appellate court recognized, section 10(a)(4)
provides the following exception to the therapist-patient privilege:
“(4) Records and communications made to or by a
therapist in the course of examination ordered by a court for
good cause shown may, if otherwise relevant and admissible,
be disclosed in a civil *** proceeding in which the recipient
is a party or in appropriate pretrial proceedings, provided such
court has found that the recipient has been as adequately and
as effectively as possible informed before submitting to such
examination that such records and communications would not
be considered confidential or privileged.” 740 ILCS
110/10(a)(4) (West 2006).
As the appellate court observed, it is undisputed that Dr. Amabile
3
Plaintiffs rely on McGreal v. Ostrov, 368 F.3d 657, 687-90 (7th Cir.
2004), which did not consider whether a therapeutic relationship existed in
the context of a police officer’s mental fitness evaluation taken under
orders. However, this federal case is not binding on this court. City of
Chicago v. Groffman, 68 Ill. 2d 112, 118 (1977).
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informed plaintiffs that their communications with her were not
confidential, and that her report would be presented to the circuit
court, the parties and their attorneys. The appellate court concluded:
“Accordingly, the communications to Dr. Amabile, as a court-
appointed section 604(b) witness, could not be deemed confidential
under the Confidentiality Act.” 396 Ill. App. 3d at 788. We agree and
so hold.
Before this court, plaintiffs argue that the appellate court’s
reliance on section 10(a)(4) “has effectively eviscerated” the privilege
established in section 10(a). This argument is unavailing. Section
10(a)(4) speaks to situations where disclosure is discretionary. In
contrast, the disclosure of the section 604(b) report and its contents
to the opposing party and counsel is mandatory pursuant to section
604(b) of the Marriage Act. Accordingly, section 110(a)(4) of the
Confidentiality Act does not apply to the contents of a 604(b) report.
Nonetheless, plaintiffs continue to rely on Norskog v. Pfiel, 197
Ill. 2d 60 (2001), in support of their argument that the
communications and information contained in Dr. Amabile’s 604(b)
report are privileged. In Norskog, the circuit court ordered the
defendants, the patient who received mental health services as a
minor and his parents, to identify the mental health service providers
seen by the patient and to disclose information regarding the patient’s
diagnosis and treatment as part of discovery in a civil wrongful death
action. Defendants failed to comply with the discovery orders, and
appealed from the resulting contempt citations. Id. at 64-68. This
court held that the circuit court erred when it held the defendants in
contempt because the information was privileged under the
Confidentiality Act, and no exception allowed for disclosure in that
case. Id. at 86-87.
After fully discussing Norskog, the appellate court correctly
concluded that Norskog was distinguishable from the present case.
396 Ill. App. 3d at 789-90. Norskog was governed by the strict
requirements of section 104–14(a) of the Code of Criminal Procedure
of 1963 (725 ILCS 5/104–14(a) (West 2006)), which mandated that
statements made by a defendant and information gathered during a
court-ordered mental-fitness examination “shall not” be admissible
against the defendant unless he raises an insanity or similar defense,
which that defendant did not do. Further, unlike section 604(b) of the
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Marriage Act, the criminal statute at issue in Norskog explicitly
prohibits any other use of statements made by a defendant in a
criminal fitness examination without the defendant’s informed
written consent. 725 ILCS 5/104–14(b) (West 2006); Norskog, 197
Ill. 2d at 77.
In the present case, plaintiffs did not undergo a criminal forensic
evaluation governed by the strict requirements of the Code of
Criminal Procedure. Rather, they participated in interviews with a
section 604(b) professional to advise the circuit court in making a
custody determination. Unlike section 104–14(a) of the Code of
Criminal Procedure, section 604(b) of the Marriage Act does not
require that a person from whom the 604(b) professional obtains
information give written informed consent before such information
contained in the 604(b) report may be used in any proceeding. To the
contrary, 604(b) reports must be given to both parties and their
counsel, and the 604(b) professional remains available to testify at
trial as the court’s witness subject to examination by both parties.
Norskog does not apply to the present case.
This court has repeatedly recognized that the Confidentiality Act
constitutes “a strong statement” by the legislature about the
importance of keeping mental health records confidential. Reda, 199
Ill. 2d at 60; Norskog, 197 Ill. 2d at 71-72. We expressly reaffirm this
unmistakable legislative intent. However, the Confidentiality Act
simply does not apply in the present case because Dr. Amabile and
plaintiffs were not engaged in a therapeutic relationship.
In the case at bar, we conclude that section 604(b) of the Marriage
Act does not distinguish mental health personnel from other 604(b)
professional personnel. Further, although section 605 provides
defendants with a remedy, section 604(b) confines Dr. Amabile’s
report to the McCann postdissolution proceeding. Additionally, the
Confidentiality Act does not apply in this case.
We observe that, in dicta, the appellate court discussed possible
remedies that plaintiffs could pursue as an alternative to a
Confidentiality Act claim. 396 Ill. App. 3d at 791. While we have
reviewed the record in the interests of judicial economy and the need
to reach an equitable result (Bright, 166 Ill. 2d at 208), we find that
the appellate court’s suggested remedies fall outside the proper scope
of our review of the certified question. See Vision Point of Sale, Inc.
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v. Haas, 226 Ill. 2d 334, 358 (2007).
III. CONCLUSION
For the foregoing reasons, we answer the certified question in the
negative, and remand the cause to the circuit court for further
proceedings consistent with this opinion
Certified question answered;
cause remanded.
JUSTICE THEIS took no part in the consideration or decision of
this case.
CHIEF JUSTICE KILBRIDE, dissenting:
The certified question requires this court to construe the Mental
Health and Developmental Disabilities Confidentiality Act (740 ILCS
110/1 et seq. (West 2006)) on whether mental health information
obtained by a psychiatrist or other mental health professional under
a court order pursuant to section 604(b) of the Illinois Marriage and
Dissolution of Marriage Act (750 ILCS 5/604(b) (West 2006)) is
confidential. The majority correctly recognizes that the central
purpose of the Confidentiality Act is to preserve the confidentiality
of mental health information. Nonetheless, the majority answers the
certified question negatively, holding that mental health information
provided to a psychiatrist or other mental health professional in a
court-ordered section 604(b) report is not confidential. The majority
reasons that the Confidentiality Act is intended to make confidential
only information obtained when a person is in a therapeutic
relationship with a mental health professional, a relationship
purportedly outside a section 604(b) report created pursuant to court
order. Slip op. at 11-12.
I disagree and therefore respectfully dissent. In my view, the
majority’s decision contravenes the undisputed legislative intent
underlying the Confidentiality Act, namely, the vigorous protection
of the confidentiality of mental health information. As even the
majority recognizes, this court has consistently determined that the
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Confidentiality Act constitutes a “strong statement” by the legislature
about the importance of keeping mental health records confidential.
Slip op. at 15 (citing Reda v Advocate Health Care, 199 Ill. 2d 47, 60
(2002), and Norskog v. Pfiel, 197 Ill. 2d 60, 71-72 (2001)). In fact, the
legislature has carefully restricted disclosure of mental health
information to certain statutory exceptions, with each exception
subject to a narrow construction. Norskog, 197 Ill. 2d at 71. Contrary
to clear legislative intent, the majority effectively holds that mental
health information divulged in a court-ordered section 604(b) report
is never confidential. Simply stated, the majority has created a broad
and unwarranted exception to the Confidentiality Act.
The plain language of the Confidentiality Act shows that the
certified question should be answered affirmatively. Specifically,
section 10 of the Confidentiality Act, entitled “Disclosure in civil,
criminal, and other proceedings,” identifies several exceptions to the
Confidentiality Act’s blanket prohibition on the disclosure of mental
health information. Critically, section 10(a)(4) addresses the precise
issue presented in the certified question, the disclosure of mental
health information in a court-ordered examination, providing that:
“Records and communications made to or by a therapist
in the course of examination ordered by a court for good
cause shown may, if otherwise relevant and admissible, be
disclosed in a civil, criminal, or administrative proceeding in
which the recipient is a party or in appropriate pretrial
proceedings, provided such court has found that the recipient
has been as adequately and as effectively as possible informed
before submitting to such examination that such records and
communications would not be considered confidential or
privileged. Such records and communications shall be
admissible only as to issues involving the recipient’s physical
or mental condition and only to the extent that these are
germane to such proceedings.” (Emphasis added.) 740 ILCS
110/10(a)(4) (West 2006).
Thus, the plain language of section 10(a)(4) allows for disclosure of
mental health information obtained in a court-ordered examination
only if two important conditions are met: (1) the information must be
relevant, germane, and admissible in the proceeding at issue and (2)
the recipient must be adequately and effectively informed that any
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record or communication is not confidential before submitting to the
court-ordered examination.
Clearly, if section 10(a)(4)’s conditions are not satisfied, the
legislature intended that the mental health information in the court-
ordered examination remain confidential, consistent with the
overarching legislative goal of the Confidentiality Act to safeguard
the confidentiality of that information. Therefore, directly rebutting
the majority’s holding, the plain language of section 10(a)(4)
demonstrates that the legislature contemplated instances when mental
health information obtained during a court-ordered examination
would not be divulged.
Rather than acknowledging the legislative intent underlying
section 10(a)(4), the majority attempts to distinguish the provision by
noting that disclosure of mental health information is discretionary
under section 10(a)(4) but disclosure of a report under section 604(b)
is mandatory. Slip op. at 13-14. That distinction, however, is of little,
if any, consequence, and should certainly not be considered
dispositive after a careful comparison between section 10(a)(4) of the
Confidentiality Act and section 604(b) of the Marriage Act.
As noted, section 10(a)(4) of the Confidentiality Act specifically
addresses mental health information obtained in a court-ordered
examination. In particular, section 10(a)(4) makes admission of the
information discretionary, indisputably showing that the legislature
intended for the trial court to have authority to refuse to admit mental
health information and maintain its confidentiality. Moreover,
contrary to the majority’s conclusion, nowhere does section 10(a)(4)
contain any language indicating the legislature intended to limit its
application to a therapeutic relationship. Indeed, the Confidentiality
Act defines a “therapist” as “a psychiatrist, physician, psychologist,
social worker, or nurse providing mental health *** services.” 740
ILCS 110/2 (West 2006). Under the Confidentiality Act, the types of
“services” a therapist may provide include “examination” and
“evaluation” (740 ILCS 110/2 West 2006)), as well as the more
traditionally recognized therapeutic services of treatment, training,
pharmaceuticals, habilitation or rehabilitation, and aftercare. See 740
ILCS 110/2 (West 2006). Thus, the majority’s determination that the
Confidentiality Act’s application is limited to situations involving a
purely therapeutic relationship is not supported by the plain meaning
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of the statutory language, the best indicator of legislative intent.
The majority’s interpretation directly conflicts with the plain
language of section 10(a)(4), making the Confidentiality Act
applicable to “[r]ecords and communications made to or by a
therapist in the course of examination ordered by a court. (Emphasis
added.) 740 ILCS 110/10(a)(4) (West 2006). Court-ordered
examinations alone would rarely, if ever, constitute the “therapeutic
relationship” required by the majority for application of section
(10)(a)(4). If the legislature intended the Confidentiality Act to apply
only during the course of “therapeutic relationships,” it would not
have specially addressed disclosures related to “[r]ecords and
communications” that occurred during traditionally non-therapeutic
examinations “ordered by a court” in a “civil, criminal, or
administrative proceeding.” 740 ILCS 110/10(a)(4) (West 2006).
Norskog also supports the conclusion that the Confidentiality Act
was intended to protect records and communications made during
various types of court-ordered examinations. In Norskog, this court
determined that the Confidentiality Act protected records and
communications from a court-ordered fitness evaluation from
disclosure in a civil proceeding when the therapist failed to mention
that potential disclosure. Norskog, 197 Ill. 2d at 77. Although the
court-ordered evaluation in Norskog was in a criminal proceeding, the
same general principles are applicable here.
In comparison, section 604(b) of the Marriage Act, relied on by
the majority, is silent on the admission of mental health information
obtained through a court-ordered examination. Instead, the provision
speaks generally on the trial court’s authority in proceedings under
the Marriage Act to obtain the written “advice of professional
personnel” that must also be made available to the parties’ respective
counsel. 750 ILCS 5/604(b) (West 2006). Notably, section 604(b) has
no requirement that otherwise confidential mental health information,
whether obtained in a therapeutic relationship or not, must always be
disclosed. Consequently, the majority’s assertion that section 604(b)
requires mandatory disclosure of mental health information obtained
during a court-ordered examination is not supported by the statutory
language.
I agree with the majority’s observation that section 604(b) of the
Marriage Act promotes thorough consideration of a child’s best
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interests and epitomizes the need for maximum disclosure of
information in child custody proceedings. I strongly disagree,
however, with the majority’s final determination that mental health
information in a court-ordered report under section 604(b) can never
be confidential under the Confidentiality Act.
In my opinion, the need for full disclosure in child custody
proceedings under section 604(b) of the Marriage Act should be
balanced with the equally important goal of protecting the
confidentiality of an individual’s mental health information under the
Confidentiality Act. I believe the legislature struck the proper balance
when it enacted section 10(a)(4) of the Confidentiality Act by
authorizing the disclosure of mental health information from a court-
ordered examination when it is relevant to the proceedings and the
individual has been informed that it would not remain confidential.
The majority’s holding circumvents the legislature’s thoughtful
balancing of those interests. The majority has created a harsh
exception that automatically admits all sensitive mental health
information in section 604(b) reports in every case, regardless of
whether that information is relevant or the individual was made aware
that the information would be divulged.
In summary, the legislature’s intent underlying the language of
section 10(a)(4) of the Confidentiality Act, addressing the precise
issue here, should control when compared to section 604(b) of the
Marriage Act, silent on the issue. Accordingly, I would answer the
certified question affirmatively, holding that mental health
information from a court-ordered examination in a section 604(b)
report is confidential and inadmissible unless the requirements for its
admission under section 10(a)(4) of the Confidentiality Act are met.
This approach properly balances the need for full disclosure under the
Marriage Act with the need to protect the confidentiality of mental
health information under the Confidentiality Act.
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