Introduction

The Mental Health and Developmental Disabilities Confidentiality Act (the “Mental Health Confidentiality Act”) is a state statute that provides confidentiality to the records and communications of therapy recipients, collected during mental health and developmental disabilities services, provided in the state of Illinois. The statute also criminalizes knowing and willful violations of the confidentiality.

Applicability

The Mental Health Confidentiality Act applies to communications and records. The term “communication” means any communication made by a therapy recipient, or other person, to a therapist or in the presence of other persons during the provision of mental health or developmental disability services. 

A record is any record kept by a therapist, or by an agency, in the course of providing mental health or developmental disabilities service, concerning the recipient and the services provided. Although therapy notes fit that definition, a therapist’s personal notes are excluded from the definition of “record” if the 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. And the notes will not be subject to discovery in any judicial, administrative or legislative proceeding.

Requirements

Records and communications are required to be kept confidential. However, there are allowable disclosures to the recipient, his parent, guardian, attorney, or other authorized agent. Disclosures to any other party requires the written consent of one of those persons. In addition to disclosures, these parties also have the right to dispute incorrect or misleading information through a modification request or the inclusion of a submitted statement in the record.

The statute provides for limited disclosures in specific circumstances. For example, limited disclosure may be made for the recipient’s application for benefits, without consent, if the recipient is not capable of consenting or is not available to do so. There is also a confidentiality exception for facility employees to assist law enforcement in their investigation of criminal, and otherwise serious incidents, involving the recipient. Similarly, disclosure may be made to protect the recipient, or another person, from a clear and imminent serious injury, disease, or death.

Enforcement & Liability

Any person harmed by a violation of the statute may file a civil action for damages, an injunction, or other appropriate relief. Reasonable attorney’s fees and costs may be awarded to the plaintiff.

Penalties

A knowing and willful violation of the statute is subject to the penalties of a Class A misdemeanor.