Clients receiving mental health treatment are entitled to confidentiality of their mental health records and communications with their mental health provider.  The Mental Health and Developmental Disabilities Confidentiality Act (“Confidentiality Act”) states that “All records and communications shall be confidential and shall not be disclosed except as provided in this Act.”  740 ILCS 110/3(a).  Since more children and adolescents are becoming recipients of mental health services, the confidentiality of the their records is important in order to protect them from the stigma of a mental disorder, to achieve full disclosure which is important to the therapeutic process, and to maintain the trust that is necessary to help the child.

The Confidentiality Act contains a specific provision for the inspection and copying of the minor’s mental health record, including some circumstances when the minor does not consent. 740 ILCS 110/4(a). The Confidentiality Act states that:

“[t]he following persons shall be entitled, upon request, to inspect and copy a recipient’s record or any part thereof: (1) the parent or guardian of a recipient who is under 12 years of age; (2) the recipient if he is 12 years of age or older; (3) the parent or guardian of a recipient who is at least 12 but under 18 years, if the recipient is informed and does not object or if the therapist does not find that there are compelling reasons for denying the access . . . ; (4) the guardian of a recipient who is 18 years or older; (5) 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; or (6) an agent appointed under a recipient’s power of attorney for health care or for property, when the power of attorney authorizes the access.”

Therefore, the parent or legal guardian of a child aged 12 or under is entitled upon request to copy and inspect the child’s mental health record. In addition, any minor who is at least 12 years of age also retains this right. The Confidentiality Act also provides two situations when parents can seek a judicial bypass. First, a judicial bypass can be obtained when a minor, who is at least 12 years of age, objects to his parent or legal guardian inspecting or copying his mental health record. Second, a judicial bypass can also be obtained when the therapist determines that compelling reasons exist to deny the parent or legal guardian access to those records. Specifically, the Confidentiality Act states that “[t]he parent or [legal] guardian who is denied access by either the recipient or the therapist may petition a court for access to the record.” A parent or legal guardian can always request and receive information about the minor’s “current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including medication, if any.”

In summary, when confronted with situations in which parents ask to review their child’s mental health record, the mental health professional should review the Confidentiality Act to determine whether to allow the parents access to the records. The mental health professional should be especially carefully when the client is an adolescent between the ages of 12 and 18 and avoid feeling pressured to breach the adolescent’s confidentiality.

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@bfkhlawcom.

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