Protecting the Privacy of Mental Health in Court

The last few years have seen more Americans struggling with depression and anxiety, these effects of the COVID-19 pandemic that have put into sharp focus the growing need for mental health services in the United States.

According to the National Alliance on Mental Illness (NAMI), one in five adults experienced mental illness in 2020. That same year, mental illness categorized as serious was experienced by one in 20 U.S. adults.

The good news is that more people feel comfortable seeking treatment, as public awareness of mental health increases and taboos about getting help decrease. NAMI also reports these statistics from 2020:

● 46.2% of U.S. adults with mental illness received treatment

● 64.5% of U.S. adults with serious mental illness received treatment

As a growing number of Americans are treated for mental illness, the issue of privacy becomes more relevant than ever. If you’re involved in a divorce case, custody case, or other family court proceeding in which the mental health of one or more parties is called into question, it’s crucial to understand what types of disclosures the law allows.

What qualifies as “mental health care” under Illinois law?

Within the legal scope, mental health care includes treatment for a range of conditions. These include less common, more severe mental illnesses such as schizophrenia and bipolar disorder, along with issues that affect a greater number of people, such as anxiety, depression, and addiction disorders.

Regarding mental health services, Illinois law says this term spans all professional care related to the diagnosis and management of conditions. The term services include, but is not limited to the following:

Examination and diagnosis: This includes the process of identifying a mental health illness or issue, and having it formally diagnosed. This may include visits to multiple physicians, psychologists, and other practitioners, and it could result in the identification of co-occurring issues.

Treatment: Properly treating a mental illness often requires a multi-pronged approach that could involve care provided by psychiatrists, psychologists and possibly other physicians and professionals. Sometimes an entire treatment team is involved in a patient’s ongoing care.

These professionals conduct oversight of a person’s medical case, prescribe medications, provide talk therapy, and more.

In addition to counseling and medication, people with mental illness may engage in other treatments to help manage their symptoms. Especially in severe cases, treatments such as electroconvulsive therapy and ketamine infusions may ease the impacts of severe depression. More critical treatment may also be given in an inpatient or outpatient hospital setting.

Pharmaceuticals: Especially for people with serious mental illness, medication can be a critical part in managing their condition. Pharmaceuticals may be changed and adjusted over time to suit the person’s treatment needs.

Why is privacy so important when it comes to mental health care?

The entirety of a person’s mental health care records can reflect significant insights into their lived experiences, trauma, psyche, phobias, compulsions, and more. This incredibly personal and sensitive information deserves the utmost care.

The Illinois Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110) protects each patient’s privacy in their mental health care, making it illegal for practitioners to release records, notes, or any information without their permission or if a patient places their mental health at issue in litigation.

While the law protects those receiving mental health services now and in the past, its intent also extends to those who may consider getting help in the future. The authors of the law hope that the assurance of confidentiality around mental health services will actually encourage more people to seek treatment. The threat of having their private information revealed could dissuade people from pursuing the help they need; the law can help ease that fear.

Mental illness at issue in family court cases

Issues of mental health are sometimes broached in family court, especially during divorce and parenting cases. Other times, one parent may have legitimate concerns about the other party’s fitness as a responsible parent. While many people successfully live with mental health conditions, some struggle with medication consistency or relapsing symptoms. The first parent might call into question the other parent’s ability to manage their condition, and consequently the appropriate amount of parenting time or decision-making to grant legally them.

Even when concerns about a person’s mental health are genuine, privacy laws give them the right to keep confidential all their diagnosis, treatment, and medication records. If the person declines to reveal this information, the other parent may request that a mental health evaluation be conducted to examine their fitness to act as a responsible parent.  This is known as a 604.10 evaluation which may be ordered by the court as the court’s witness or requested by a parent.  

Regardless of the situation, it’s important to consider the potential implications of broaching the issue of mental illness in court. A person’s mental state is a delicate and potentially volatile issue to challenge in a court of law.

Disclosing your mental health information

You may find there are instances in which you decide to disclose part of your mental health information. Illinois law allows people to consent to have a portion of their mental health records released for specific purposes.  You should consult with an attorney before any disclosure is made. 

This is a significant decision, and anyone considering disclosure of their mental health treatment records should also consult with their treating physician before allowing disclosure.

Your consent to disclose mental health care records must be in the form of a written letter. The law instructs a person to restrict their disclosure consent to specific details, releasing only information that relates to a particular need or purpose.

“Blanket consent to the disclosure of unspecified information shall not be valid,” the law says, further protecting those receiving mental health treatment.

A consent to disclosure letter should indicate that you have the right to revoke your consent at any time. Also, the person receiving the disclosure may not redisclose the information to any other parties, unless they obtain additional written consent.

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Whether you are a current client or if you are looking for family law or estate planning assistance, our team is here for you to address your concerns.

To the extent possible, we will offer remote consultations and provide services from a distance.

You may message us here, complete the form below to email our office, or call 815-600-8950 and one of our team members will be able to assist you.


This is a legal advertisement from Sterk Family Law Group. It does not constitute legal advice and should not be construed as such. This article is for informational and educational purposes only.

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