May, 1998
Vol. 1, No. 1

The Illinois Appellate Court, 2nd District has recently ruled in the case of The Estate of Bagus, that a psychiatrist’s personal notes are subject to a court’s in camera inspection (a private inspection by a judge) and perhaps subject to discovery.  This case greatly emasculates the entire issue of personal notes.

Historically, a therapist’s personal notes were separate and distinct from a patient’s records or chart.  Personal notes have never been subject to discovery although a patient’s records were subject to disclosure with proper authorization or court order.  Section 2 of the Mental Health and Developmental Disabilities Confidentiality Act defines personal notes as:

‘Personal notes’ means:

(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.

Also - Section 2 defines “Record” as:

‘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.

Section 3 of the Confidentiality Act states:

“A therapist is not required to but may, to the extent he determines it necessary and appropriate, keep personal notes regarding a recipient.  Such personal notes are the work product and personal property of the therapist and shall not be subject to discovery in any judicial, administrative or legislative proceeding or any proceeding preliminary thereto.”

Personal notes were always thought to be separate and apart from entries in the patient’s chart.  In fact, we always advise clients to keep personal notes in a separate folder and location (filing cabinet) than where patients’ files are kept.

The appellate court found that although according to Section 3 personal notes are not discoverable, they are still subject to in camera inspection by a judge.  Accordingly, the court decided it is up to the judge to determine what notes are “personal notes” and what notes are subject to discovery.  The court stated a potentially liable therapist could hide behind the label of “personal notes.”  The court felt a patient would be denied access to his own records if they would allow a therapist to decide what were personal notes or not and  the therapist declared that all his records relating to the patient constituted personal notes.

The court stated that documents that the trial court determines are personal notes shall not be disclosed to the patient or his attorneys.  Records that are not personal notes could be disclosed if the other requirements of the Confidentiality Act were met.

The real problem and concern for therapists with this ruling is that many judges view discovery in a liberal light.  A judge may not know what  information might be “injurious” or what constitutes a therapist’s “speculations, impressions, hunches and reminders.”  Too often, I have seen judges order all records to be turned over “in the interests of justice” without regard to the Confidentiality Act or the mental well-being of the patient.

Accordingly, all therapists should be forewarned that if you intend to keep personal notes with the expectation that no one will ever be able to see them, this is no longer true.  A judge may decide that your “personal notes” are not personal and are subject to disclosure to others.  Therefore, if you write something down, assume a judge, the patient and attorneys may see that entry in the future.

The Psychiatric/Legal Newsletter is published quarterly and is offered as a free service of  Beranek, Feiereisel, Kasbohm & Hammer, 55 West Monroe, Suite 3400, Chicago, Illinois 60603, (312) 782-9255, to interested members of the psychiatric community.  The provision of the information contained within is informational only, and no attorney/client or other relationship is intended or inferred.

If you would like more information about the issues in the above article, or about Beranek, Feiereisel & Kasbohm & Hammer, please address your inquiries to Scott Hammer at shammer@bfkhlaw.com.

You may go back to our Newsletter Table of Contents
or to return to our Home Page.