Appellate Court Clarifies Minor’s Right to Confidentiality

A recent First District Appellate Court opinion answers a number of decades-long and lingering questions about mental health records concerning minors. The decision is a must read for attorneys, mental health professionals, school administrators, school social workers, school counselors and anyone who works with minors and mental health. The opinion addresses issues which arise in the context of marital disputes, a minor’s right to control access to his or her mental health record, whether a therapeutic school record is a mental health record and other very practical issues faced by practitioners on a regular basis.
     
In re Marriage of Wendy W. and James W., 2022 IL App (1st) 201000, opinion filed March 24, 2022. Imagine that you are 14 years old and are seeing a therapist to deal with some anxiety or depression or just want to speak with a therapist about private matters. Being a teenager is difficult. You may be more comfortable talking with your therapist about things like sex, gender issues, pressure to take drugs and/or other concerns. Some things are easier to talk about with a therapist rather than your parent. But what if your parent or guardian could read the notes your therapist writes in your record? What if a parent or guardian could know all of the things you shared with your therapist? Would you be comfortable and open during your treatment? Would it make it more likely that you would not share the information with your therapist? What if you are OK with one parent seeing everything, but really do not want the other parent to access the information?

In Illinois, minors over the age of 12 have limited authority themselves to decide what mental health records are shared and with whom they are shared. It is essential for professionals who work with children to be very clear about confidentiality and the limitations on confidentiality to protect minors’ rights and to make certain they do not compromise the ethical and legal obligations they have to their minor clients.  

Mental health practitioners often have to balance the pressure of a parent’s request to see their child’s mental health records with their client’s desire to keep the records confidential. A parent may assume that they have a right to review everything; after all, they might be paying for the service and may even have identified the need and arranged for treatment. Parents, guardians and school professionals are often surprised to learn that, under the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act), a minor 12 years or older has significant control over, and must consent to, the release of their mental health records.¹

While the minor has some control over their record, it is not absolute. For example, if the parent or guardian requests to see the record, the minor must be informed of the request. If the minor objects or if the therapist finds there are compelling reasons for denying the access, the parent or guardian can petition the court for access.² Even if the minor objects, the parents are able to receive current physical and mental condition, diagnosis, treatment needs, services provided, and services needed, including any medication.

In In re Marriage of Wendy W. and James W.,³the First District addressed many of these issues in the context of a domestic relations action where the court had to examine the minor’s statutory rights with the authorities ordered in a parenting agreement. Specifically, the Appellate Court in Wendy W. addressed what happens when a minor authorizes the release of records to one parent and denies authorization to the other.⁴

The case addresses the issues as part of a post-dissolution of marriage proceeding. The mother sought to restrict respondent father’s parenting time based on allegations that visitation was distressing to the minor and the father would continue to interfere with their child’s mental health treatment. The couple’s original 2016 divorce decree allowed shared parenting time and access to their child’s medical, mental health and school records. In 2019, however, Wendy filed an emergency petition to restrict her ex-husband James’s parenting time based on their son’s deteriorating mental health, assumed to be exacerbated by James’s unsupervised visitation with his son. The court entered an order which suspended James’s parenting time and other contact with his son. The order further instructed James not to interfere with his son’s mental health treatment.

In December 2019, James moved for production of their son’s medical, psychiatric, psychological and school records. Their son had consented to release of his mental health records to his mother but denied consent to release the same records to his father. James argued that: (1) he was entitled to his son’s mental health records based on their marriage dissolution parenting allocation; (2) the records were relevant to the issue at bar; and (3) he was entitled to his son’s school records. Wendy objected based on the child’s statutory privilege to keep the records confidential and the minor’s objection to the disclosure of the records to his father. The trial court denied the father’s entire request for records; the appellate court affirmed the denial of mental health records but reversed the release of non-privileged school records from a therapeutic school.

Mental Health Records

1. The court found that, although shared records were allowed per the parenting allocation agreement, the minor controlled the sharing of his mental health records once he reached the age of 12. The court emphasized that the Confidentiality Act is clear; the intent is to preserve confidentiality of records and protect the privilege granted to the person receiving mental health services.⁵ This includes minors over the age of 12 years who control the privilege and must provide consent to the release of their mental health records. Without his child’s consent, the father cannot access the minor’s mental health records except for limited information as allowed by statute; namely, the child’s current physical and mental condition, diagnosis, treatment needs, services provided and services needed.⁶ Further, the court rejected the father’s assertion that he was requesting records from the mother rather than the mental health practitioner. The court noted that the father cannot circumvent the minor’s privilege by seeking the documents from another source.⁷ In fact, the court highlighted that any disclosure of the records by either the mother or the Guardian ad Litem would be in violation of the Confidentiality Act.⁸
2. The court also considered whether the Confidentiality Act protects these records when the minor’s mental health is introduced as an allegation under the Illinois Marriage and Dissolution of Marriage Act.⁹ James argued that their son’s mental health was directly related to the emergency petition to restrict his parenting time and contact with his son. Under the Confidentiality Act: “in any action brought or defended under the [Marriage Act],*** mental condition shall not be deemed to be introduced by making such claim and shall be deemed to be introduced only if the recipient or a witness on his behalf first testifies concerning the record or communication (740 ILCS 110/10(a)(a)).”¹⁰ Although Wendy did argue that their son’s mental health was a fact in support of her petition, it was not the minor who introduced his mental health condition as part of his parents’ post-dissolution of marriage proceeding.¹¹ Given that he was not a party to the proceedings, the minor could not have waived his privilege.¹²

Therapeutic School Records

1. The father was also denied access to his child’s school records by the trial court. The trial court determined that attendance at a therapeutic school, which provides education in a therapeutic setting, would warrant protection of the records under the Confidentiality Act.¹³ The court recognized that there is a question whether a therapeutic school must comply with both the Confidentiality Act and the Illinois School Student Records Act.¹⁴ It noted while a parent has the right to inspect and copy all school student records of their child, the Student Records Act does not specifically address access to records and communications which are protected by the Confidentiality Act.¹⁵ The Student Records Act does specifically protect communications between a student and a mental health practitioner.¹⁶ Considering both statutes, the court determined that academic records- such as the minor’s grades, academic assessments and similar information – are not protected merely because they were recorded at a therapeutic school.¹⁷ The court found, however, that many services provided by a therapeutic school to support the minor’s mental health needs are privileged under the Confidentiality Act.¹⁸ Accordingly, under these circumstances, a therapeutic school may not release information related to the minor’s mental health beyond the limited information allowed under the Confidentiality Act.¹⁹

The Mental Health and Developmental Disabilities Confidentiality Act recognizes that minors over the age of 12 years hold the privilege to control access to their records, even preventing release to the child’s parent(s) or guardian(s). Although the Confidentiality Act does allow a parent to petition a court for disclosure of the records, the court in Marriage of Wendy W. determined that disclosure sought over the minor’s objection is protected by the Confidentiality Act, including when raised under the Marriage and Dissolution of Marriage Act. Further, the protection extends regardless of the treatment setting. The court clarified that this privilege extends to the academic setting – including a therapeutic school – but only for those services and communications with mental health practitioners. Schools must assess their record keeping practices in order to ensure that mental health records are distinguishable from academic records and are not inadvertently released without proper consent.

Most importantly, young people aged 12 and up need to be aware of their rights regarding confidentiality and their privilege to consent or object to the disclosure of their mental health records, and be empowered to exercise this privilege. An adolescent, like any recipient of mental health services, can only benefit if they are comfortable engaging in treatment. Fear of parental access to their records should not be a barrier to a minor’s treatment success in mental health services.

This article was provided by Joseph T. Monahan, MSW, JD, ACSW, the founding partner of Monahan Law Group, LLC, in Chicago, and Melissa Ludington, MSW, LCSW, JD. The firm focuses its practice in mental health, confidentiality, guardianship, probate and health care law. They may be contacted at jmonahan@monahanlawllc.com and mludington@monahanlawllc.com, respectively.