MARCH 2005
DO FORENSIC EVALUATIONS FALL UNDER THE PURVIEW OF THE ILLINOIS MENTAL HEALTH CONFIDENTIALITY ACT?
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In a recent appellate decision, McGreal v. Ostrov, the Seventh Circuit Federal Appellate Court reestablished and confirmed that the Illinois Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq., must be strictly followed, even in non-patient/therapist settings. This case should remind all therapists that the provisions of the Confidentiality Act are absolute. Although this case involves a Afitness for duty@ evaluation, the reasoning applies to all forensic mental health evaluations including 604(b), Social Security Disability, Competency Hearings, etc. Many clinicians believe that absent a traditional patient/therapist relationship there is no Aprivilege@ of communications. This case reminds all therapists that even absent a Atherapeutic@ relationship, the Confidentiality Act still applies.
This case arose from a Afitness for duty@ examination performed by Dr. Eric Ostrov (a Ph.D. psychologist) on behalf of the Village of Alsip. Plaintiff James McGreal had been a police officer in the Village of Alsip for over 20 years. He served in the department Awithout incident@ until he challenged the incumbent Mayor in the April 1997 mayoral election. After he lost the election to Mayor Andrews by a slim 378 votes, McGreal Afound himself under unprecedented scrutiny from his superiors.@ After a series of events, his superiors attempted to remove him from his post Aon the ground that he was unfit for duty.@
Although we do not need to address in this article the various altercations he had with his supervisors during the time period in question, the plaintiff claimed that the Village had no valid reason to order him to submit to the fitness exam. He also alleged that the Village was simply trying to manufacture a reason to fire him in retaliation for his political views and his investigation into a political supporter of the Mayor. In 1998, Police Chief Kenneth Wood ordered Officer McGreal to report to Dr. Ostrov for a psychological evaluation to assess McGreal=s fitness for duty. McGreal was ordered, under threat of termination, to sign a waiver of his right to privacy, confidentiality and privilege before submitting to the psychological evaluation. McGreal signed the Consent for Evaluation but noted he was waiving his rights Aunder duress.@ He then submitted to the psychological evaluation and testing.
It is of paramount importance to fully appreciate the language of the consent form. The consent form provided:
AI understand that Alsip PD will pay for this evaluation and that they will receive a report based on this evaluation that will include an opinion about my fitness and evidence to back that opinion. I understand Dr. Ostrov is not my psychotherapist and that what I say to him or communicate to him is not confidentialY.. Accordingly, I waive any right I may have to know test results, interpretations made and access to the original data form which final judgments have been made.@
Dr. Ostrov=s report denoted the results of his interviews, the psychological testing and contained Aa great many details@ of McGreal=s home life, personal history and family relationships. Dr. Ostrov forwarded his report to Chief Wood, another police supervisor and the village attorney. The report was not labeled Aconfidential.@ Dr. Ostrov concluded that McGreal suffered from Ano identifiable mental illness.@ However, he recommended that McGreal should be allowed to continue on full active duty only if he was willing to undertake a course of psychotherapy directed toward helping him gain insight into Athe vagaries of his reasoning processesY.@
McGreal objected to the disclosure of this report, he questioned the validity of his consent and the scope of information contained therein. McGreal then filed a lawsuit, in part based upon a claim for breach of the Confidentiality Act. The trial court dismissed this claim and found that McGreal was not a Arecipient@ of mental health services because he only met with Dr. Ostrov for a fitness for duty evaluation.
On appeal, McGreal contended that he was a Arecipient@ under the plain language of the Confidentiality Act. He also argued that his consent was invalid and later withdrawn. He asserted that the disclosure far exceeded what was necessary to determine whether he was fit for duty. Finally, he claimed that the defendants republished the confidential information without his further consent in violation of the Confidentiality Act.
The defendants maintained that McGreal was not a recipient of mental health services and that he signed a consent that allowed the disclosure of Dr. Ostrov=s findings. The defendants also asserted that public policy requires fitness for duty exams to be exempt from the requirements of the Confidentiality Act.
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