Legal Digest

Confidentiality and Disclosure privileged under the Mental Health and Develop- mental Disabilities Confidentiality Act (Confiden- of the Forensic Examination tially Act) and was not discoverable in the Weil John K. Northrop, MD, PhD daughter custody proceedings; in 2006 the circuit Fellow in Forensic Psychiatry court ruled in her favor. Robert L. Sadoff, MD In 2007 Ms. Johnston and her parents sued Mr. Clinical Professor of Forensic Psychiatry and Director McCann, his attorneys, the McCann son’s represen- Forensic Psychiatry Fellowship Program tative, Mr. Weil, his attorneys, and the Weil daugh- Department of Psychiatry ter’s representative for damages for disclosing confi- Perelman School of dential information. Dr. Amabile was not named as a University of defendant. The defendants filed motions for dis- , PA missal of the complaint as a matter of law. They argued that the contents of Dr. Amabile’s report were A Court-Ordered Forensic Examination in a Child Custody Proceeding Is Not Privileged not privileged under the Confidentiality Act. The Mental Health Information and Is circuit court denied their motion to dismiss and the Discoverable in Subsequent Custody defendants appealed. The appellate court allowed the Proceedings appeal and agreed that the information obtained by In Johnston v. Weil, 946 N.E.2d 329 (Ill. 2011), Dr. Amabile for the § 604(b) report was not confi- the Supreme Court of Illinois held that evaluations, dential and privileged under the Confidentiality Act. communications, reports, and information obtained The plaintiffs then appealed this decision to the Illi- for an independent evaluation to determine custody nois Supreme Court. are not confidential, even when the professional ad- vising the court is a psychiatrist. The court’s reason- Ruling and Reasoning ing gave substantial consideration to the distinction between a treating psychiatrist and a forensic psychi- In reaching its decision the court weighed the atrist, as well as the limits to confidentiality for the competing interests of disclosure called for in the forensic examination and report. Marriage Act against privilege set forth in the Con- fidentiality Act. The court relied heavily on a core Facts of the Case principle of the Marriage Act pertaining to child cus- Heather Johnston married Sean McCann, and tody proceedings, namely that the court should use they had a son in 1998, then divorced. Shortly after- all relevant factors to determine custody according to ward, Ms. Johnston married Andrew Weil and they the best interest of the child. The court found that had a daughter in 2002, before divorcing in 2005. the Marriage Act makes no distinction when one of Mr. McCann then filed a petition to modify the joint the relevant factors is mental health information and parenting agreement with Ms. Johnston. In 2006, thus agreed with the defendants in this case that dis- pursuant to § 604(b) of the Illinois Marriage and closure was permitted. The court agreed with the Dissolution of Marriage act (Marriage Act), the court plaintiff that § 604(b) itself limits the findings of a ordered psychiatrist Dr. Phyllis Amabile to conduct mental health evaluation to the original proceed- an independent evaluation to assist the court in de- ing, but also noted that the following § 605 out- termining custody of the McCann son. Dr. Amabile lines the acceptable conditions for discovery of a § evaluated Ms. Johnston, her parents, Mr. McCann, 604(b) report in subsequent proceedings. The and Mr. Weil and notified each individual that in- court reasoned that the disclosure required by the formation obtained from her evaluation would be Marriage Act in regard to custody is mandatory, disclosed in her report to the court and to all parties whereas the Confidentiality Act governs discre- involved in the custody case regarding the McCann tionary privilege. Thus, the court concluded that a son. Dr. Amabile completed her evaluation and sub- forensic psychiatric evaluation and report would mitted a report to the circuit court. At the same time, be discoverable in a child custody proceeding beyond Mr. Weil filed a motion seeking custody of the Weil the original one. daughter and subpoenaed Dr. Amabile’s report. Ms. The court affirmed that the purpose of the Confi- Johnston countered that Dr. Amabile’s report was dentiality Act is to preserve the confidentiality of

302 The Journal of the American Academy of Psychiatry and the Law Legal Digest mental health services to encourage individuals to case. The relevance of the information in this case seek necessary mental health treatment. The court and Dr. Amabile’s clear notification to Ms. Johnston found that the therapist-patient privilege is grounded and her parents regarding the limits of confidential- in the therapeutic relationship, but that this privilege ity would satisfy the concerns raised in the dissent did not extend to mental health evaluations outside regarding the § 10(a)(4) exceptions to the Confiden- the treatment context. Dr. Amabile was not treating tiality Act. the plaintiffs, but rather she was acting as an inde- pendent evaluator for the circuit court. Therefore, because Dr. Amabile and the plaintiffs were not en- Discussion gaged in a therapeutic relationship, the court rea- Although the psychiatrist involved in the court- soned that the Confidentiality Act does not apply. ordered forensic evaluation was not named in the Furthermore, it was undisputed that Dr. Amabile lawsuit for damages, the issues regarding confiden- informed the plaintiffs that their communications tiality and disclosure are of great relevance to the with her were not confidential and that her report forensic psychiatrist. As the forensic report applied would be presented to the circuit court. Because of to custody proceedings, the court reasoned that this notification, the court reasoned that the evalua- the best interests of the child stood above matters tion and report were not confidential. Thus, the of confidentiality. Nonetheless, the court’s reason- court found that under § 10(a)(4) of the Confiden- ing, as well as that of the dissenting chief justice, tiality Act, which governs exceptions to privilege, the are applicable broadly to the practicing forensic plaintiffs could have no expectation of privilege for psychiatrist’s conduct of an evaluation and prepa- the custody evaluation. ration of a report. In particular, the court’s reasoning highlights a Dissent clear distinction between the two roles that a psychi- atrist may serve, namely that of a treating provider or In his dissent, Chief Justice Kilbride departed a forensic examiner. The court in this case reasoned from the majority primarily in his reasoning that all that because the forensic evaluation was not for ther- mental health information per se is protected by the apeutic or treatment purposes, it was exempted from Confidentiality Act, irrespective of whether the con- text is treatment. Therefore, mental health informa- the usual privilege of confidentiality for mental tion contained in a § 604(b) report would be pro- health information. This distinction is in accord with tected by the Confidentiality Act, and § 10(a)(4) our subspecialty’s understanding of these distinct identifies the circumstances under which mental roles, but may not be understood by the layperson, health information obtained in a court-ordered ex- who may be more familiar with the psychiatrist in the amination may be admissible in another civil, crim- therapeutic role. Therefore, psychiatrists operating inal, or administrative proceeding: the information is in the role of forensic examiner must also take care to relevant to the new proceeding, and the examinee in inform the examinee of the limits of confidentiality the evaluation must be adequately informed as to the and make clear that the psychiatrist is functioning in limits of confidentiality before proceeding. Although the role of a forensic examiner and not a treating in agreement with the majority that the Marriage Act provider. This notification is essential to good prac- promotes thorough consideration of all information tice and to satisfying the legitimate concerns raised in available for determining the best interest of the the dissenting opinion. child, Chief Justice Kilbride argued that this interest Current best practices in forensic psychiatry must be balanced against the interests of confidenti- would satisfy the legal concerns expressed in both ality of mental health information. To balance these the majority ruling and dissent in this case. The interests he would apply the test of § 10(a)(4) requir- forensic psychiatrist must also meet the ethics- ing both relevance and prior disclosure of the limits based obligation to minimize harm to the exam- to confidentiality of the forensic evaluation. inee by maintaining confidentiality to the extent Chief Justice Kilbride disagreed with the majori- possible in the legal context and informing the ty’s reasoning, but, in our opinion, his argument examinee as to the limits of confidentiality and does not seem to be at odds with the result in this purpose of the evaluation.

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