CBA Record July-August 2020

to get a diagnosis, get medication, and get help. Illinois legislators made court-ordered therapy under §607.6(a) to heal grievous problems: reunify the estranged parent; address the anger problems; confront the substance abuse. It is one of the more powerful tools a court can use to move the family out of litigation, and to heal. Section §607.5 adds the same layer of pro- tection as §607.6 in that §607.5 requires therapeutic confidentiality “upon consid- eration of all relevant factors, particularly a history or possibility of domestic violence.” Even under the most egregious of circumstances, if there is court ordered therapy, a GAL or attorney cannot peel back the protection of privilege to discover what an individual says in counseling, and what a therapist is actively working with the individual to amend, to use that explo- sive information to persuade the court. Original Protections of the Mental Health Act The enactment of §607.6 in 2017 codi- fied in the IMDMA what had already been enacted in the Mental Health and Developmental Disabilities Act (Mental Health Act; 740 ILCS 110 et al.). In Illi- nois, and especially in domestic relations proceedings, one’s mental condition “shall be deemed to be introduced only if the recipient or a witness on his behalf first testifies concerning the record or com- munication.” 740 ILCS 110/10(a)(1). The recipient of mental health treatment holds the privilege, which is a strict and absolute bar. For over 30 years, Illinois has been consistent in holding that mere participation in child custody proceedings does not automatically put one’s mental health at issue. Bland v. Department of Children & Family Services , 141 Ill.App.3d 818, 490 N.E.2d 1327, 96 Ill. Dec. 122 (3d Dist. 1986). The Mental Health Act defines con- fidential counseling communication as “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.” 740 ILCS 110/2.

Section 110/3 of the Mental Health Act mandates that all records and communica- tions are deemed confidential unless other- wise provided for by the Act, and that any notes or records kept by a therapist are the work product and personal property of the therapist, and are not subject to discovery in any judicial, administrative or legislative proceeding. Further, psychological test material, which could compromise the objectivity or fairness of the testing process, may not be disclosed to anyone – including to the mental health recipient – except to another psychologist designated by the recipient. 740 ILCS 110/3(c). In a First District case, after the wife attempted suicide, when the husband’s attorney served a subpoena on the hospital to demonstrate the wife’s unfitness to retain custody, the Appellate Court held that the attorney violated the Mental Health Act and remanded to assess damages against him. Mandziara v. Canulli , 299 Ill.App.3d 593, 701 N.E.2d 127, 233 Ill. Dec. 484 (1st Dist. 1998). Other Illinois cases have held that mental health treaters violating the Mental Health Act are open to litigation for damages when the treater voluntarily testifies for the other parent. In re Marriage of Slomka and Lenehan-Slomka , 922 N.E.2d 36, 337 Ill. Dec. 178 (Ill. App. 2009) (therapist testi- fied on behalf of mother in order of pro- tection hearings); Renzi v. Morrison , 618 N.E.2d 794, 249 Ill.App.3d 5 (Ill. App. 1993) (treating psychiatrist voluntarily testified against patient/wife in custody proceedings). From this perspective, the furor caused when §607.6(d) was enacted – that counseling sessions are confidential, and communications are not to be used in any manner in litigation nor relied upon by any expert – seems futile. We have oper- ated for years under this confidentiality. Parenting matters do not immediately thrust a parent’s mental health into issue; the Mental Health Act prohibits therapists from interjecting themselves into the liti- gation; and overzealous attorneys cannot simply serve subpoenas to obtain mental health testing and records. When such a high bar exists in needing a court finding and order to obtain mental health records

with a subpoena, it is incongruent that a GAL or §604.10 expert can “request” and expect consent for that same information. What person would go into therapy – and even greater, court-ordered therapy – and speak openly and honestly about his or her problems, knowing that there is a possibility in the future that those counseling sessions could be used against him in litigation? What person would willingly participate in reunification counseling, knowing that every admission, every apology she makes in the effort to mend the family will thereafter be used in a report? To paraphrase from a particular court order: Section 607.6(d) in its cur- rent form prevents such information from being cannon fodder in the most delicate of litigation. In re Marriage of Lombaer states: “[T]he beneficent purposes of psychiatry can only be fully realized when the patient knows that what is revealed in the evaluation conferences or communications are free from judicial scrutiny unless the patient affirmatively places her mental condition into issue.” In re Marriage of Lombaer , 200 Ill.App.3d 712, 722 (1990). The Mental Health Act provides the protection for this confidentiality and should not take a back seat again to a purported “fix” of §607.6(d). A court-appointed GAL – who most frequently has a law degree and is not a licensed clinical social worker, psycholo- gist, or psychiatrist – does not need to peer into the therapist/patient confidential relationship to make a report to the court. A GAL is the “eyes and ears of the court,” and through interviews, observation and investigation, can make contemporaneous recommendations in keeping with the best interests of the child at the time. A GAL is well able to obtain information, inform the court, and make a recommendation based on the information in hand. Modifying §607.6 to permit GALs and other court-appointed professionals’ access to therapists’ notes, communications, opinions, diagnosis and the like will effec- tively undercut any therapy in place and CBA RECORD 27 GALs’ Knowledge of Counseling Sessions