Mental Health Is Issues: A A Basic In Introduction for Parents - PowerPoint PPT Presentation

Working wit ith Cli lients with Mental Health Is Issues: A A Basic In Introduction for Parents’ Lawyers in in Chil ild Welf lfare Cases Illinois Parent Attorney Network Training November 13, 2015 Chicago, Illinois 11/13/2015 1

RECORDS AND CONFIDENTIALITY IN IN JUVENILE COURT Joseph T. Monahan, M.S.W., A.C.S.W., J.D. Monahan Law Group, LLC, Chicago jmonahan@monahanlawllc.com 11/13/2015 2

TOPICS COVERED • Juvenile Court Proceedings • Actors • Evidence • Specially Protected Records • Mental Health • Drug and Alcohol • Victim Sensitive Interviews • Domestic Violence 11/13/2015 3

Juvenile Court Proceedings – Actors Ju • Assistant State’s Attorney (ASA ) • Attorney for Minor • Prosecutes cases of abuse, neglect, • Represents the articulated interest of and dependency the minor • Public Guardian • Public Defender (PD) or Private • CASA Attorney • Represents the parent/guardian • Court Appointed Special Advocate • Usually not an attorney (lay person) • Guardian ad Litem • DCFS • Guardian ad litem for minor • Represents the best interest of the • Caseworker, Legal, Clinical, minor Administrative, Others • Public Guardian • Other Private Agencies • Special Evaluators 11/13/2015 4

Ju Juvenile Court Proceedings – Evid idence • 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 11/13/2015 5

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 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) 11/13/2015 6

Mental Health • Records may be disclosed pursuant to: • Authorization • Proper court order • Exception 11/13/2015 7

Mental Health – Dis isclosure 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 11/13/2015 8

Mental Health – Dis isclosure 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 11/13/2015 9

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). 11/13/2015 10

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. 11/13/2015 11

Mental Health – Most Common Is 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 11/13/2015 12

When Your Cli lient is 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 11/13/2015 13

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 11/13/2015 14

Drug and Alc lcohol Treatment • Federal Rules: 42 CFR Part 2 • Records may be disclosed pursuant to: • Patient’s consent • Limited exceptions • Properly-procured court order 11/13/2015 15

Drug and Alc lcohol 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 11/13/2015 16

Drug and Alc lcohol 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. 11/13/2015 17

Drug and Alc lcohol 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 11/13/2015 18

Vic ictim Sensitive In Interv rviews • 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 11/13/2015 19