Children and mental health law

The Illinois State Bar Association’s Mental Health Law Section Council recently hosted a mental health law continuing legal education program with a specific focus on issues of children’s rights. It involved children’s mental health treatment, confidentiality for these children, and an overview of the effect that trauma can have on children and their mental health treatment.

Robert Connor, the 2017-18 chair of the Mental Health Law Section Council, introduced the speakers. Connor is deputy general counsel of the Illinois Department of Human Services, where he has worked for 35 years in the areas of mental health, developmental disabilities, and confidentiality laws. He introduced each of the speakers: Barbara Goeben from the Illinois Guardianship and Advocacy Commission, Joseph Monahan of The Monahan Law Group, LLC, and Dr. Karen Pierce, a psychiatrist on faculty at the Northwestern University Feinberg School of Medicine.

Goeben first spoke on the rights of minors in behavioral health units. Since 2006, Goeben has worked at the Legal Advocacy Service, a part of the Illinois Guardianship and Advocacy Commission, representing clients at both the trial and appellate level. She represents clients on matters such as admission and discharge from hospitalization, adequate treatment, and confidentiality of mental health records. Goeben further directs the continuing legal education programming of the ISBA’s Mental Health Law Section Council. She spoke about the applicable Illinois statutes, including the Illinois Mental Health and Developmental Disabilities Code (“the Code”), the Illinois Mental Health and Developmental Disabilities Confidentiality Act, and the Abused and Neglected Child Reporting Act. Goeben noted that there was very little case law that addressed minors and the Mental Health Code, with one of the few being People vs. R.C., 175 Ill.App.3d 163 (1st Dist. 1988), which upheld an order committing a minor under the code as complying with due process. Most of her presentation referred to the points that exist in the statutes.

Under the code, a minor is defined as a person under the age of 18 years of age with some rights that are gained at ages 12 and 16. The definition of a “parent” does not distinguish between custodial and non-custodial. Thus, they have the same rights. The general rights of minors and parents under the ccode encompass the fact that the minor should be in the least restrictive environment with an Individualized Services Plan. Goeben emphasized that a person could be an emancipated minor under the Juvenile Court Act but still be a minor under the code. The facility shall formulate and periodically review the Individualized Services Plan with the participation of the recipient, if they are able, and also the participation of the guardian. The point was made that any person 16 years of age or older can become a voluntary patient to a mental health facility. When this occurs, the patient has the same rights as an adult recipient and the parents/guardian are informed of the decision. The rights of parents for minors were also discussed. Some special circumstances, which were discussed, include the right of the patients and guardians to refuse psychotropic medication and the specifics of the rules regarding electro-convulsive therapy of minors. Goeben noted that there is a need for more psychiatric beds in hospitals, particularly in Southern Illinois.

Beginning January 1, 2018, the code authorizes minors ages 12 or older to obtain counseling or psychotherapy on an outpatient basis. Children can be seen for eight 90-minute sessions without consent of a parent starting January 1. If abuse exists in the child’s history, the information will not be disclosed. Once the minor reaches age 17 (and above), there is no limit on the number of sessions. If the fact that the minor is receiving treatment remains confidential to the parents, then the parents are not liable to pay for it. Consent by a parent is not needed (though some limits do exist). This right was enacted to provide minors with mental health treatment who are afraid to go to their parents.

Goeben next discussed the topic of admission of minors to a mental health facility. This is based upon application of facility director and must state that the minor “has a mental illness or emotional disturbance of such severity that hospitalization is necessary and that the minor is likely to benefit from inpatient treatment.” The director’s note must have documentation from a qualified mental health professional that the minor meets the standard for admission and must specify which alternatives to admission have been explored. Most referrals are either from schools, a behavioral health center or another hospital, but parents/guardians are authorized to complete applications. The standard for admission is different than that for adults and must comply with due process requirements. In the event of an emergency admission, the code allows admission if no parent is located, though the hospital must make a diligent effort to locate parent/guardian. In addition, the code allows parents to petition for an order authorizing the police to transport the minor to the mental health facility. Within 24 hours, a psychiatrist must certify that the minor satisfies the criteria for admission. Other aspects of the code that were discussed include the notice of right to object to admission, the right to periodic review of admission, and the ability to register an objection to continued admission. This can be made by an interested party age 18 or older or by the minor herself or himself if they are 12 or older and, after the objection is made, the minor shall be discharged within 15 days. The discharge is not required if the petition is withdrawn. If within 15 days, a petition for review and two certificates are filed with the court, that documentation shall be based upon a personal examination. It shall specify that the minor has a mental illness or an emotional disturbance of such severity that hospitalization is necessary, that he can benefit from inpatient treatment, and that a less restrictive alternative is not appropriate.

Goeben discussed the procedures for discharge, which may be made by the parent and guardian. Rules on Hearings on Petition for Review provide that: counsel shall be appointed for minor, the hearing shall be set within five business days, notice of the hearing shall be given to the minor, attorneys and parents, and that minor is hospitalized during the pendency of hearing. The parents are entitled to private, independent counsel during these proceedings. The court must order the minor discharged if any of the three conditions are satisfied: 1) the minor does not have a mental illness or an emotional disturbance of such a severity that hospitalization is necessary, 2) it is determined that the minor cannot benefit from inpatient treatment, or 3) it is determined that a less restrictive alternative is appropriate. The court also has the power to order alternative treatment or continued hospitalization.

Goeben concluded by discussing the handouts she provided, which discussed the sample pleadings from the Department of Human Services for: a request for discharge, an outpatient application for minors 12 and over, an examination of minor for admission or continued hospitalization, and an application by an adult for the admission of a minor to a state-operated center.

The next speaker was Joseph T. Monahan, founder of Monahan Law Group, LLC, and one of the preeminent mental health lawyers in Illinois. Under his direction, his firm represents over 78 hospitals, numerous mental health clinics, and individuals at all levels of administrative and judicial proceedings. Monahan is also an adjunct professor at Loyola University Chicago School of Law, where he has taught mental health law for over 24 years. Further, he is a past chairperson of the ISBA’s Mental Health Law Section Council. Monahan spoke about the issue of confidentiality and the release of the mental health records of minors. This is a problem that he comes across quite frequently in his practice.

The main law that governs confidentiality in Illinois is the Mental Health and Developmental Disabilities Confidentiality Act (“Act”). This Act states, per rule: 740 ILCS 110/3, that all records and communications are confidential and shall not be disclosed except as provided in the Act, regardless of a therapeutic relationship.
Monahan discussed some of the definitions of confidentiality under the Act. They include records of any person receiving services for mental health or developmental disabilities and the communication, or confidential communication, with the therapist which includes the fact that a person is a recipient of mental health services. It was noted that personal notes are generally not discoverable and should not be mixed in with the record. Monahan pointed out an important exception to the general confidentiality rules, as he cited a case in which a particular type of court-ordered examination was not deemed as confidential.

Monahan went on to discuss who is entitled to access the record of a minor. This is covered under 740 ILCS 110/4 and is broken down by various age categories. For those patients under age 12 years, the parent/guardian has access. There was a discussion about the right of the non-custodial parent. For patients 12 years and older, the minor also has access to their own record. Specifically, for those between 12 and 17 years old, the parent or guardian has access if the minor is informed and does not object and the therapist finds no compelling reason to withhold them. In other words, minors aged 12 through 17 control their record. However, the parents are entitled to certain limited categories of information even without consent. When it comes to third parties, disclosure is allowed with consent and it depends on who’s asking and what is their authority? There are several requirements for a valid authorization, which include the consent of one parent. Monahan thoroughly discussed several cases about attorneys and how to treat confidential information. A recent case held that the absolute litigation privilege provides no shield for someone charged with a violation of the Confidentiality Act. Before a person sends out or responds to a subpoena, they must possess a court order, which, itself, must follow the Confidentiality Act. Monahan also covered the law behind subpoenas for records and testimony, which requires authorization and a court order with a notice of motion and particular required language.

The next topic Monahan covered was records that are disclosed to third parties. There are some reasons that there can be disclosure without consent. These include: coordination of care, duty to warn, disclosure to law enforcement, and a mandatory duty to report an abused or neglected child. In addition, Monahan covered some considerations in Family Therapy and Domestic Relations, including parents’ rights and what is the best interest of the minor.

Monahan summarized his talk with the point that all mental health records are confidential and the fact that someone is the recipient of mental health services is confidential information. There are specific legal contexts in which this information can be released. Monahan stated that therapists should caution parents and children about the limitations of confidentiality.

The final lecture of the day was by Dr. Karen Pierce, a child, adolescent, and adult psychiatrist who is a clinical associate professor of child psychiatry at Northwestern University Feinberg School of Medicine. She writes, speaks, and consults in the areas of children and adults with ADHD, LD, anxiety, and behavior treatment. She is currently the chair of the Child and Adolescent Committee of the Illinois Psychiatric Society. Dr. Pierce works on policy that makes children’s lives safe. Dr. Pierce spoke about breaking the communication barriers with children diagnosed with mental illness and, also, about trauma-informed care.

Dr. Pierce began by discussing that mental health disorders are common, with one in five children meeting a criteria for a major mental disorder, and with the majority of mental illnesses beginning in childhood or adolescence. These have a significant impact in childhood and educational attainment. There are some specific therapeutic challenges specific to mental health providers, including the fact that psychiatric illnesses are not universally acknowledged as illness, funding for treatment, and the fact that diagnosis and treatment can be performed by a wide range of professionals in a wide range of settings.

Dr. Pierce mentioned social determinants of health, including physical environment, socioeconomic factors, healthcare, and health behaviors (such as the potential for use of alcohol and tobacco). She noted that adverse childhood experiences stem from adverse community environments and that some of these adverse experiences result in: disrupted neurodevelopment, social-emotional and cognitive impairment, adoption of health risk behaviors, disease, disability, social problems, and early death. These experiences cause stress, and this can cause these patients being triggered more easily and more often, even in false alarm situations. They can cause a negative impact on health and well-being, as well as difficulty returning to baseline functioning.
Dr. Pierce went on to discuss trauma-informed care, which is an approach or framework related to delivering services that acknowledges the impact of trauma and attempts to create a sense of safety. She discussed in detail a trauma-informed approach that first recognizes the impact of trauma and potential paths for recovery; second, recognizes signs and symptoms in clients, families, staff, etc.; third, responds by integrating knowledge about trauma into policies, procedures and practices and, fourth, resist re-traumatization. This approach is emphasized in the American Bar Association’s policy in 2014 on trauma-informed advocacy for children and youth, particularly to recognize the impact exposure to violence and trauma has on physical emotional, psychological, and behavioral development and well-being. Further, attorneys should be able to respond to child traumatic stress through legal representation that reflects the awareness of trauma’s adverse impacts on children and youth who have contact with the legal system. Attorneys should also be able to collaborate with other professionals involved with the child/youth to facilitate and support recovery and resiliency of the child and family. Dr. Pierce went on to discuss principles or trauma-informed interviewing, making suggestions on how to help someone with a trauma history. She offered tips for supporting distressed children including comfort and also discussed de-escalation and effective coping with children.

Dr. Pierce then went on to discuss the importance of self-care including principles of self-care, such as awareness, balance and connection. She discussed self-help guides to encourage healing.
She closed by speaking about suicides. Dr. Pierce mentioned that girls are more likely to attempt suicide, but males are more likely to die by suicide. She discussed suicide warning signs and protective factors for suicide, including means restriction. She spoke about risk factors and warning signs in youth. Finally, she discussed the external and internal problems that could trigger a suicide attempt and closed with suicide prevention resources that are available.

Dara M. Bass is an independent contractor attorney, based out of the Chicago area, who is licensed in Illinois and Missouri. She has been a member of the ISBA’s Mental Health Law Committee since 2006. She may be contacted at: darabasslaw@gmail.com