November, 2002

 STUDENT RIGHTS REGARDING CONFIDENTIALITY

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Mental health professionals understand that their clients possess a right to confidential mental health services.  According to the Illinois Mental Health and Developmental Disabilities Confidentiality Act (“Confidentiality Act”), “[all] records and communications shall be confidential and shall not be disclosed except as provided in [the Confidentiality] Act.”  740 ILCS 110/3(a).  Records are defined as “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.”  740 ILCS 110/2(7).  Communications are defined as “any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient” including information indicating that the person is a recipient of mental health services.  740 ILCS 110/2(1).  However, a therapist may disclose a record or communication without the recipient’s consent to “the therapist’s supervisor, a consulting therapist, members of a staff team participating  in the provision of services, a record custodian, or a person acting under the supervision and control of the therapist.”  740 ILCS 110/9(1).  Once information has been disclosed, either with or without the recipient’s consent, the information cannot be redisclosed unless the Confidentiality Act provides otherwise.  740 ILCS 110/1 et seq.

In addition, educators understand that students possess a right to confidentiality regarding their student school records.  According to the Illinois School Student Records Act (“Student Records Act”), a school student record is “any writing or other recorded information concerning a student and  by which a student may be individually identified, maintained by a school or at its direction or by an employee of a school, regardless of how or where the information is stored.”  105 ILCS 10/2(d).  The school student record contains a student permanent record and a student temporary record.  See 105 ILCS 10/1 et seq.  The student permanent record is the “minimum personal information necessary to a school in the education of the student and contained in a school student record” including “the student’s name, birth date, address, grades and grade level, parents’ names and addresses, [and] attendance records.”  105 ILCS 10/2(e).  The student temporary record is the remaining information not contained in the student permanent record and can include “family background information, intelligence test scores, aptitude test scores, psychological and personality test results, teacher evaluations...serious disciplinary infractions...involving drugs, weapons, or bodily harm to another.”  105 ILCS 10/2(f).  Any mental health information maintained by a school would be included in the student temporary record.

The Student Records Act states that “the student temporary record shall not be disclosed except according to Section 5" of the Student Records Act or by court order.  105 ILCS 10/4(f).  Section 5 of the Student Records Act lists the individuals who can inspect and copy a school student record.  A parent, or a parent’s representative, has the right to inspect and copy his or her child’s student permanent record and student temporary record.  105 ILCS 10/5(a).  A student, on the other hand, only has the right to inspect and copy his student permanent record.  105 ILCS 10/5(a).  Section 5 also requires that the Student Records Act does not impair or limit the confidentiality of “[c]ommunications otherwise protected by law as privileged or confidential, including but not limited to, information communicated in confidence to a physician, psychologist or other psychotherapist,” 105 ILCS 10/5(f)(1); and “info which is communicated by a student or parent in confidence to school personnel,” 105 ILCS 10/5(f)(2).  However, the principal of a school, or his designate, must “periodically review each student temporary record for verification of entries and elimination or correction of all inaccurate, misleading, unnecessary or irrelevant information.”  105 ILCS 10/4(g).  Furthermore, “[a]ny person injured by a willful or negligent violation of [the Student Records Act] may institute an action for damages.”  105 ILCS 10/9(b).

The Student Records Act appears to preserve a student’s confidentiality under the Confidentiality Act when those communications are made to a psychologist or other psychotherapist.  For example, in one Illinois case, Johnson v. Lincoln Christian College, and one Federal court case, Treadwell v. St. Joseph High School, both a mental health professional and a school were sued for breaching a student’s confidentiality.  In both cases, the school required the student to attend counseling.  In one instance, counseling was provided by a psychologist.  In the other instance, counseling was provided by an individual who held himself out as a therapist and whom the student reasonably believed was a therapist.  The therapists subsequently revealed confidential information to the school without the student’s consent and the school redisclosed the information to third parties without the student’s consent.  Both the Illinois court and the Federal court found that the student had stated a cause of action for breach of the Confidentiality Act against both the school and the therapist.

Furthermore, in another Illinois case, Norskog v. Pfiel, the Illinois Appellate Court found that a student does not waive his confidentiality privilege when he shares his mental health treatment records with school officials.  In that case, a third party sought to obtain the student’s mental health records and claimed that the student had waived his confidentiality privilege by voluntarily sharing his mental health records with his school.  The court felt that “[a]ny confidential information which may have been shared was released for a limited purpose and did not constitute a general waiver of the confidentiality privilege.”  See Norskog v. Pfiel.  Thus, even when a student voluntarily shares his mental health information with school personnel, this information cannot be redisclosed except as provided under the Confidentiality Act.