Working with Clients with Mental Health Issues: A Basic Introduction for Parents Lawyers in Child Welfare Cases

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1 Working with Clients with Mental Health Issues: A Basic Introduction for Parents Lawyers in Child Welfare Cases Illinois Parent Attorney Network Training November 13, 2015 Chicago, Illinois 11/13/2015 1

2 RECORDS AND CONFIDENTIALITY IN JUVENILE COURT Joseph T. Monahan, M.S.W., A.C.S.W., J.D. Monahan Law Group, LLC, Chicago 11/13/2015 2

3 TOPICS COVERED Juvenile Court Proceedings Actors Evidence Specially Protected Records Mental Health Drug and Alcohol Victim Sensitive Interviews Domestic Violence 11/13/2015 3

4 Juvenile Court Proceedings Actors Assistant State s Attorney (ASA) Prosecutes cases of abuse, neglect, and dependency Public Defender (PD) or Private Attorney Represents the parent/guardian Guardian ad Litem Guardian ad litem for minor Represents the best interest of the minor Public Guardian Attorney for Minor Represents the articulated interest of the minor Public Guardian CASA Court Appointed Special Advocate Usually not an attorney (lay person) DCFS Caseworker, Legal, Clinical, Administrative, Others Other Private Agencies Special Evaluators 11/13/2015 4

5 Juvenile Court Proceedings Evidence Juvenile Court Act of 1987 the privileged character of communication between any professional person and patient or client, except privilege between attorney and client, shall not apply to proceedings subject to this Article. 705 ILCS 405/2-18(e) Previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. 705 ILCS 405/2-18(4)(c) Illinois Supreme Court Rule 907(b) Child s attorney or guardian ad litem shall have access to all relevant documents State statutes and federal rules govern specific types of records and protect their confidentiality, i.e., more specific laws than general Juvenile Court Act 11/13/2015 5

6 Mental Health Illinois Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq. Mental health records and communications are confidential unless otherwise provided The Confidentiality Act is a strong statement about the importance of keeping mental health records confidential. Mandziara v. Canulli, 299 Ill. App. 3d 593, 599 (1st Dist. 1998) 11/13/2015 6

7 Mental Health Records may be disclosed pursuant to: Authorization Proper court order Exception 11/13/2015 7

8 Mental Health Disclosure Pursuant to Authorization Signed by those persons who are entitled to inspect and copy a recipient s record pursuant to Section 4 of the Confidentiality Act the parent or guardian of a recipient who is under 12 years of age Only need signature of one parent (Dymek v. Nyquist, 128 Ill. App. 3d 859 (1st Dist. 1994)) the recipient if he is 12 years of age or older the guardian of a recipient who is 18 years or older 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 Note: foster parents do not have authority 11/13/2015 8

9 Mental Health Disclosure Pursuant to Authorization Section 5 Requirements the person or agency to whom disclosure is to be made the purpose for which disclosure is to be made the nature of the information to be disclosed the right to inspect and copy the information to be disclosed the consequences of a refusal to consent, if any the calendar date on which the consent expires the right to revoke the consent at any time not a blanket consent (specifies information to be disclosed) witnessed 11/13/2015 9

10 Mental Health Court Order Section 110/10(d) Subpoena alone does NOT provide authority No subpoenas are to be served without court orders. Mandziara v. Canulli, 299 Ill. App. 3d 593, 599 (1st Dist. 1998). Notice Written notice of the request for disclosure to both the recipient of mental health services and the treatment provider. Subpoena Language Each subpoena for mental health records or communications must include the specific language set forth in Section 110/10(d). 11/13/

11 Mental Health Exception Parent, Guardian, or Legal Custodian Applies when the recipient is named as a parent, guardian, or legal custodian of a minor; who is the subject to a petition for wardship alleging the minor is abused, neglected, or dependent; or who is the subject of a petition, supplemental petition, or motion to appoint a guardian with the power to consent to adoption. 740 ILCS 110/10(a)(11) Recipient A person who is receiving or has received mental health or developmental disabilities services. 740 ILCS 110/2. 11/13/

12 Mental Health Most Common Issues Notice to Therapist Form order entered in juvenile court proceeding Entered without notice to the therapist not a valid order for purposes of Section 110/10(d) Minors Up to Age 12 Minor is the recipient Section 110/10(a)(11) exception does not apply because recipient is not the parent, guardian, or legal custodian Section 4(a)(5) does not apply because the minor is not 12 years of age or older Requires authorization signed by parent or guardian or proper court order procured pursuant to notice and motion 11/13/

13 When Your Client is the Recipient Another party to a juvenile court proceeding (State s Attorney, Public Guardian, etc.) requests records from your client s therapist Section 110/10(a)(11) authorizes disclosure Section 110/10(b) Before disclosure is made Any party or any other interested person may request in camera review of record or communication to be disclosed Court can also hold an in camera review on its own motion Therapist may assert privilege on behalf of client if disclosure would not be in the best interest of the recipient Court may prevent or limit disclosure Court may enter such orders as may be necessary in order to protect the confidentiality, privacy, or safety of the recipient or of other persons 11/13/

14 When Your Client s Child is the Recipient Another party to a juvenile court proceeding requests records If the minor is under 12 years of age, a parent or guardian can execute an authorization allowing the disclosure Reminder, only need one parent If the minor is between 12 and 17 years old, the minor must authorize the disclosure If no authorization, requesting part must file a motion, provide notice to the recipient and the therapist, and obtain an order 11/13/

15 Drug and Alcohol Treatment Federal Rules: 42 CFR Part 2 Records may be disclosed pursuant to: Patient s consent Limited exceptions Properly-procured court order 11/13/

16 Drug and Alcohol Treatment Consent Consent must meet the requirements under 42 CFR 2.31 Name/designation of the program/person permitted to make the disclosure Name of individual or organization to which disclosure is to be made Name of the patient Purpose How much and what kind of information is to be disclosed Signature of patient, or legally authorized individual Minor Illinois law allows 12 year old or older to consent to treatment, thus minor must sign consent to release records Dated Statement regarding revocation The date, event, or condition upon which the consent will expire 11/13/

17 Drug and Alcohol Treatment Exception Exception for reports of suspected child abuse and neglect but only with regards to making a report. 42 CFR The exception does not apply to the disclosure or use of records in civil or criminal proceedings which may arise out of the report of suspected child abuse and neglect. 11/13/

18 Drug and Alcohol Treatment Court Order 42 CFR 2.64 for noncriminal purposes A subpoena alone does permit the disclosure of information. 42 CFR 2.13 Procedure and criteria Application Notice Review of evidence Criteria for entry of the order Content of the order 11/13/

19 Victim Sensitive Interviews Children s Advocacy Centers Victim sensitive interviews May also provide mental health services In re Daveisha C., 2014 IL App (1st) Protective order to restrict the retention of the recorded interviews by the minor s attorney and guardian ad litem. Recognized the sensitive nature of these interviews. Recognized that the Juvenile Court Act did not protect the records outside of juvenile court. Common argument from party seeking records juvenile court proceedings are by statute closed to the general public Same issue decided in In the Interest of C.W., 2014 IL App (1st) U 11/13/

20 Domestic Violence Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq. Communications between domestic violence counselors and victims are privileged and confidential. Prohibition on disclosing any confidential communication. Confidential communication means: any communication between an alleged victim of domestic violence and a domestic violence advocate or counselor in the course of providing information, counseling, or advocacy. Includes all records kept by the advocate or counselor or by the domestic violence program in the course of providing services to an alleged victim concerning the alleged victim and the services provided. Confidential communications may only be disclosed in accordance with the provisions of the Abused and Neglected Child Reporting Act or in cases where failure to disclose is likely to result in an imminent risk of serious bodily harm or death of the victim or another person. 750 ILCS 60/227(b). 11/13/

21 Conclusion Certain types of records are specially protected Provisions regarding the disclosure Exceptions for juvenile court proceedings Procedures and requirements for court orders 11/13/

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