CBA Record July-August 2020

extend the courtroom into the therapist’s office. Attorneys will advise their clients with parenting matters at issue to stop all personal therapy, for fear that anything said in session is subject to discovery. Parents will have to be coached as to what to say or do in court-ordered therapeutic counseling sessions, as this information is ripe to be reported to a judge. And if there is consent, is it that far- fetched that the GAL sits in on the child’s therapy, or the reunification therapy? Parents will be advised not to permit their children to participate in any kind of therapy to help them through their par- ents’ separation. If a child complains to a counselor that, for example, Mom spanks or Dad yells, these kernels of “physical” or “emotional” abuse will ricochet and rebound if reported by a GAL to a judge. A GAL must sift through all the allega- tions from one parent blaming the other of all sorts of mental health misdeeds. Attor- neys also lobby the GAL with the other parent’s purported bad behavior. A GAL can make sufficient, impartial recommen- dations to the court as the case progresses to protect the child. All a GAL needs to know from a therapist is that: (a)The parties are participating in coun- seling, either court-ordered or voluntary; (b) Court-ordered counseling is occur- ring as scheduled; (c) The parents are complying with regularly taking the child to counseling; (d) Counseling sessions are progress- ing; and (e) Counseling is being done in good faith. The Mental Health Act protects even this limited, generic information: a consent form must be signed by the parent, or child, to learn even those simple matters. But that underscores how protected mental health and therapy should be. Other Professionals’ Knowledge of Counseling Sessions The court’s professional appointed pursu- ant to 750 ILCS 5/604.10(b) also does not need to have access to privileged mental health information to express an opinion to the court regarding parenting matters. It was clear in our Supreme Court’s

ruling in Johnston v. Weil that a 604.10 psychiatrist, psychologist or other mental health expert appointed by the court to evaluate and create a report does not form a therapist-patient relationship with any of the participants. Johnston v. Weil , No. 109693, 2011 WL 681684. However, the court’s expert, with his or her level of training and experience, is able to indepen- dently diagnose and render a professional opinion based upon testing and consulta- tion. The §604.10 evaluator does not need to talk to the reunification therapist, the child’s therapist, or a parent’s own therapist to form this opinion. Many evaluators do not want to speak with therapists because they want to come to an independent con- clusion. Others, however, insist that this information is critical, but that seems to undervalue the expert’s own experience as a diagnostician. Does a therapist treating a patient always need to consult with another therapist to confirm a diagnosis of anxiety disorder, bipolar, etc.? Of course not. Even if a §604.10 expert does request and obtain such consents from the parents, the problem thereafter lies with the expert, and then others’, redisclosure of this pro- tected information. Redisclosure The Mental Health Act in 3(a) protects a therapeutic patient’s mental health infor- mation, and Section 5(d) prohibits redis- closure of this information: “No person or agency to whom any information is disclosed under this Section may redisclose such information unless the person who consented to the disclosure specifically consents to such redisclosure.” In Johnson v. Lincoln Christian College , a former student at Lincoln Christian Col- lege (LCC) sued the college and counselor for violating the Mental Health Act by disclosing and redisclosing confidential information from his counseling sessions to the LCC faculty, students and members of the student’s family. Johnson v. Lincoln Christian College , 150 Ill.App.3d 733, 501 N.E.2d 1380 (Ill. App. 1986). LCC refused to grant the student a diploma, claiming that he could only graduate if he sought counseling for his diagnosis of “homosexuality.” The LLC counselor –

without the student’s consent – informed LCC’s Dean of Students that the student “had not changed and was not progress- ing.” The Dean then warned that if the student was dismissed, the reason for his dismissal would be “stamped across his transcript.” While LCC argued that even if the student had not given consent for the initial disclosure, the subsequent redisclo- sure of this confidential information did not violate the Mental Health Act. The Appellate Court found that the Mental Health Act did intend to proscribe any kind of redisclosure, regardless of whether the initial disclosure was with consent, or not, holding that” the Confidentiality Act (citations omitted) shows the legislature’s general intent to prevent any unauthorized disclosure of confidential information.” Johnson v. Lincoln Christian College , 150 Ill.App.3d 733, 501 N.E.2d 1380 (Ill. App. 1986). So, should the modification of §607.6 permit the GAL or §604.10 expert to inquire into mental health treatment with the appropriate consent? Note that chil- dren 12 and older must also give informed consent for their information to be redis- closed. Additionally, should consents for redisclosure of private mental health information not only include the judge, but also opposing counsel, the opposing party, and anyone else who is sitting in an open courtroom when argument is made? Does the above mean that redisclosure may then be made to any possible future court, individual or entity? Johnson v. Lin- coln Christian College expressed concern that the “imperfectly drafted” 5(d) presents an “unintended loophole which defeats one of the basic purposes of the Confidential- ity Act,” especially when the Act demands both criminal and civil liabilities for improper disclosure. Can altering §607.6 and §607.5 expose otherwise immune GALs or §604.10 experts to criminal and civil litigation when the privileged mental health information is redisclosed, even inadvertently? Perhaps. Who Protects the Child’s Interest? The Mental Health Act permits children 12 and over to provide consent to access

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