Mental Health and the Law

April 2nd, 2014 by

psychologyJohnston v. Weil: Defining Mental Health Treatment

The Illinois Supreme Court issued a major decision regarding the confidentiality of mental health treatment in 2011 when it decided the case of Johnston v. Weil.  In that case, the Court had to decide whether any part of a custody evaluation, performed by an appointed psychiatrist or psychologist, was confidential.

In an Illinois divorce or paternity case, the parties usually have to first attempt mediation, according to local rules in many of the counties in the state.  If no agreement is reached in mediation, the Court may decide to appoint a Guardian ad Litem (GAL) or child representative.  Either a GAL or child representative is usually, although not always, another lawyer.  Either a GAL or child rep may conduct an independent “investigation” and make recommendations to the Court.  If the involvement of these parties does not resolve the custody dispute, a court may appoint a psychiatrist or psychologist to conduct an in-depth investigation of the parties and develop an opinion regarding the best interests of the minor child(ren).  A court’s power to order such an investigation is found in the Illinois Marriage and Dissolution of Marriage Act at Section 604(b), and so in family law it is usually referred to as a “604(b) evaluation.” 

The 604(b) evaluator is an expert witness in the underlying case.  Rather than being a witness hired by one of the parties, the 604(b) evaluator is “hired” by the court (although paid for by the parties) and is therefore supposed to be neutral.  The 604(b) evaluation will include interviews with both of the parties, as well as with the children (unless age or other conditions prevent same), possible observation of the interaction of the children with the parents as well as the parents with each other, as well as possible administration of mental health diagnostic tests.

The question addressed in Johnston v. Weil is whether, because the 604(b) evaluator is a mental health professional, the Illinois laws governing the confidentiality of mental health treatment (officially known as the Illinois Mental Health and Developmental Disabilities Confidentiality Act, although sometimes colloquially referred to as the psychiatrist’s privilege) applies to the interviews, testing, observations or any other materials generated by a 604(b) evaluator.

The Court held that a 604(b) report and materials are not confidential and not covered by the Confidentiality Act.  The Court decided that when courts appoint a 604(b) evaluator, it is clear that they are doing so for the specific purpose of making a custody evaluation and not for the purposes of providing any mental health treatment to either one of the parties.  Because a court-ordered evaluation is not “treatment,” it is not considered confidential.  However, any report generated is still considered confidential within the case, and it cannot be disclosed to third parties (anyone other than the lawyers, parties, etc.)

It is important for litigants in a divorce case to understand fully that any participation in a custody evaluation can potentially be disclosed by the evaluator in the context of the case, and to be fully informed as to their rights and responsibilities when mental health may be relevant in a family law case.  This blog will be part of a series examining various aspects of mental health in family law.

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