you mr chief justice good morning your honor is my name is miriam solo i represent the plaintiffs if it please the court and counsel in this case is about the disclosure of protective personal mental health psychiatric information for purposes for which disclosure was never intended the case asks as a matter of statutory construction is this psychiatric information this mental health information like all other mental health information covered by the mental health confidentiality act and i've asked the public policy question does the decision to seek custody of one's children in a divorce matter carry the price of the wholesale waiving of confidentiality to private psychiatric information what possible public policy argument could be made in support of such a determination just miss or is it because she was the psychiatry is asked to do evaluation and testing and testing included psychological testing she was evaluating for fitness to have when they were all kinds of issues custody had visitation but it was a court appointed psychiatrist not an educational specialist not any other type of specialist specifically appointed for her expertise in psychiatric field to do psychiatric analysis and  therapeutic relationship with the choir no court ordered custody you know court ordered fitness evaluation is there ever a therapeutic if the relationship a court order to valuation is the antithesis of what by the way is something never define in terms of therapeutic relationship and i'm assuming that when people say therapeutic relationship they mean the kind of you're on the couch and you have a therapist patient relationship but that's why the court the statute looks at this separate distinct type of evaluation where you have a psychiatrist which is in ten for a the mental health statute where you have a psychiatrist who is appointed for evaluation purposes is it always like i was always or a physical therapist pointed any there are different types of people depending if you look at the six so for the statute what it says is that the court can appoint someone to give it advice it doesn't say and what specific area in my own experience in terms of divorce litigation you will frequently get an educational specialist you can get a doctor who's appointed when the issue relates to the children's medical needs you sometimes get a visitation specialist someone who is appointed strictly to observe visitation between parents and then report to the court as to how the parents and the visitation is going so i participating in this kind of waste in that it could be used in the court proceedings and therefore would not be closed see well what we what the what the participants know and this is why that one needs to look carefully at the act what the participants know is that it is going to be used for the purpose of that litigation of that specific intention that's why nourse just so important if you look at north whic this court ruled upon one of the it was based in part the court references the criminal code and says that in the now and now pardon me in analyzing the criminal code and court order to point to the value of poor court order to valuations in that context it found that it was even though the evaluation was submitted to the court sky that the people who get the report are the person or persons conducting a valuation excuse me submit the report to the court the state and the defense in other words just like six o four b these  reports are submitted to the court and the attorneys involved is named language that is notorious that's what norse god found that just because it's a given this court found in north scott just because the purpose the reason for the disclosure is just pretty used in that criminal case and just because it's given to the judge and the lawyers in that case that doesn't waive confidentiality for other proceedings and for mother areas missile it doesn't nor snowing in a way support of the opposing position because one of ford is fourteen a right that's what we're talking about a protocol procedure specifically states that information gathered during a court ordered fitness examination will not be admissible against the defendant you know unless he raises an insanity or similar defense goes on from there and in this case you admit that this is doesn't section ten unlike the code provision specifically of the confidentiality expositor glee example records and communications made to or by a therapist in the course of an examination ordered by the circuit court in addition to that i mean yeah don'ts a long question but add to that the fact that it is just as burke points out the you know the person was told that these evaluations could be used i know your position is only used in that case and that's the only thing they're waving but i know it's a long question but i think it's best to get it all on the table and i agree on because it all does tie together so that there has to be this how do you bring it all together into one  into one package so to say and what i would ask the court to do is first look at the language of the statute itself and this is towards answering your honour's question it's just that we have to bring it together if you look at section ten a warrant you really have to look at the language excuse me ten a four you have to look at the language very carefully because what the language says is that records in communications may to be disclosed and then follow in a civil proceeding in which the party the recipient is a party provided there was the proper admonition and then it says and this is something the appellate court didn't add or even look at the rest of paragraph says the following such records and communication shall be admissible again we're talking about admissibility the same way that we're talking about in this ability in the criminal statute ok it's limiting the admissibility only as to issues involving the recipient's condition and only to the extent that these are germane to such proceedings and the such proceedings refers to the proceedings in which they were order so that the disclosure that is allowed when you have a court appointed psychiatry's it is very narrow we subscribe it doesn't say it's disclosed in fact just like in side track here because i think it's important if you look at the criminal code one o four dash for team b which is one of the things cited in north skag it says except as provided in paragraph of this section no statement made by the defendant in course of examination will be admissible regarding criminal matters it didn't by the way and if you look at paragraph a it talks about the records also the concern in section b was about self incrimination really and it was about criminal matters the court in north korea looked at this and said fine this is about admissibility but what about disclosure disclosure of confidential it is this information particular case not just like in north scott there was no testimony there was no because they settled the case so nothing was ever disclosed actually but in generally speaking maybe this case that information is in the record let me repeat where the report of the guardian of the excuse me the expert report for guardianship proceeding is not placed in the record there is a record when there is testimony sometimes we don't have testimony in cases where we don't i'm trying to get the exact the court sided with approval ignore stock that the legislative care in limiting permissible disclosure strongly suggests that we may not assume that a limit dating eliminating confidentiality in one traditional setting means eliminating it in all settings invests particular case where it was never even very much like your sky because the case was settled the report never went into evidence there was never any witness testimony regarding it in this case even judge hamilton the second judge who was examining an issue stated in this report is not meant as a public  t in her order she writes this report is meant strictly to advise me it is not a public document it is not subject to disclosure nor skunk was talking about disclosure if it was talking about  admissibility then nourse card would have not have to deal with the the issue that it was before it which was a discovery issue because we know discovery you get information that may not necessarily be admissible but it may lead to admissible evidence nor scott was a discovery case and they said no this is another procedure another legal proceeding the information that was gathered by this doctor in the course of a court order evaluation was gathered strictly for the other proceeding and it's not even discoverable i'd like to kind of address and i don't know if i really answered your question but to try to pull it consequences are contempt of court because this is court ordered and i would dare say that the consequence will be if you refuse to undergo the fitness for custody evaluation the judge will say that he must not be fit to be the parent this is the if you look at the north star case and the criminal case at least here you have that you have an opt out option in the criminal code that says you don't have to cooperate if you don't cooperate issue here the legislature says you haven't placed your mental health at issue by asking for your kids but a judge can say i don't care i'm placing your mental health at issue you can't opt out if you it six so for being here is now locked out and i don't think the judge would say that because it isn't for the judges purpose are these the parents purposes i think the evaluation is what is in the best interest of the child so the focus is really on the child's best interest and not the mental health issues of the hearing but we're looking at the mental health issues of the parent in order to determine what's best for the child but what the judge does and place the parents mental health issues in issue it's it's for the best interest child we get there by placing their mental health at issue by saying we want you to be subject to a mental health exam to testing psychological testing to evaluation the purpose of which is to determine the best interest of the let me ask you a different question here i understand this came to the appellate court is a certified question and that's what they're restricted to answering how think but they did at least mention the fact that there were other options available to  think were i think they mentioned orders of protection how do you respond to that and why would that be some right first of all as a practical matter the change in the rules for the circuit court came about after this case was before the court i don't believe that balance it doesn't afford a person an absolute right to protect their mental health information not only that we don't know i'm sure what circumstances a judge may or may not issue it if on the other hand the argument is well they'll become pro forma and every time you have this there will be a protective order well that only proves the point of this that this is mental health information that needs to be guarded otherwise why have a protective order the other problem with that is while the litigants themselves may or may not for various reasons agree to a protective order and that will cause litigation there are other therapists involved the ones that you collect their information from there are children involved whose educational information is there and even defendants can see that it includes all that kind of information there are all kinds of collateral sources who may believe that they are talking to this doctor or submitting information to this psychiatry strictly for the purpose of a custody evaluation they don't ask for a protective order they don't even know if they can and then somewhere down the line they find that this document was somehow didn't get a protective order and now it surfaces so there are a lot of people who aren't really protected by this not even the children we have to assume that even if the parents don't want to protect the border that there will be child rapp who will ask for their if there's anything diagnosis testing evaluation if the court looks at the record there's at least it's at least the forty seven page document that analyzed but it's not in the record you know i mean there was a reference in this record to the report being at least twenty seven pages i'm so i didn't mean that the report was on the record it ran the gamut of mental health information analyzed testing they all were subjected to testing the children's educational records and at the end taking all this information be psychiatry's uses her expertise i'm sorry i see my time is up to evaluate for fitness for custody and visitation i apologize for going over the time that a lot of questions kids communications and information shared with the courts witness appointed to section six zero four b are not confidential even when the court's witness happens to be a mental health care professional that is what the appellate court decided and we respect fully request that you affirm the appellate court's unanimous decision support for this proposition is found in the plain language of six o four b the interpretation of six o four b is found throughout the circuit court rules of address this issue and the longstanding precedence that the information epstein with the intent to share it with nine agent third parties is not confidential the strong public policy arguments also an expert to appoint and that's a six so for the witness that witness is the court's witness and under the rules there are three things that have to happen first is six so for the witness goes out  interviews interested people it could be the spouses it could be the grandparents it could be the neighbors it could be the teachers it's information that's going to be helpful to address the issue which is before the court step professional goes out and does that investigation or gathers information they are obligated to put that in a report a written report and presented to the court not only do they have to present it to the court they have to give it to the attorneys both sides of the attorneys and in the case of trial graps or guardian ad litem so those are also provided there's no prohibition for it being in the professional is the court's witness it's not acting as a therapist it's not providing counseling it's not providing medication it's not providing a therapeutic relationship with any individual interviewed it's a court witness who is designed to help the court in making up at this in coming to a decision if you were to suggest that the confidentiality act applied to witnesses that the zero four be interviewed it would be impossible it would be totally impractical so for example if the six o four b witness interviewed a grandparent or a teacher or someone else in the trying to figure out information for the court and they found information that would be very damaging you wouldn't share that you couldn't say if somebody said for example the spouse is now living with the sex offender that would be terrible information and the person who provided that information couldn't say but don't tell anybody it's confidential if that were the standard that the obligation of the six or for be witness would change from being the court's witness to that individual who provided that information if that if the expert found that they were driving where they were drawn or they were using corporal punishment that information is critical for the best interest of the children and it cannot be considered privilege or subject to the confidentiality act is there any limit to disclose information just doesn't have to be as is for example in the budget i'm thinking you know if you had some high sometimes in custody disputes or in divorce and domestic relations there might be millions of dollars at stake there might be people who have money and closely held corporations may own certain real estate that's very important and i'll tell you what their lawyers do when there's very private information they get protective orders when we're purchasing businesses we've got confidentiality agreements that say you can only use this information for that purpose we as lawyers we as advocates protect private information that private information doesn't mean it's confidential or subject to the confidentiality act what it means is it's private information that  have to protect and so they do take the necessary steps to make sure that that private information is kept private and the court looked at th grand jury case that we cited in our materials before elements that are necessary in order to have a privileged communication the appellate court found clearly it didn't even meet the first standard under standard because the information was not to be kept confidential by definition a six so forth the witness gets the information shares it in a written report to the court and it's shared with the other attorneys just like them to fifteenth and just like the reviewing courts have found for psychiatric examinations and grow to fifteen's those are not confidential the same process applies to a court appoints a psychiatrist the psychiatrist examines in the information is shared good individuals can there be an argument report it is counsel that's i think you have to look at the plain language of the statute there's no mention of confidentiality in the statute if the legislature one in two have the information to be confidential it could have stated so but it did not so i think it's still up to the lawyers had to come but upon the boyers to protect the private information and get a protective order when needed and that's exactly what cook decided to astrid be insanity defense it's an affirmative defense that is goes directly to the defendant during the course of the litigation that defendant decided not to use the insanity defense in pled guilty who has control over that information that was sheer look information was it was it a mental health it's not a six o four be it off so in and you look at norsk i once the defendant said i am not going to plead insanity anymore he controls what happens to that information the statute specifically says you decide whether that information saw the light of day it never saw the light of day and therefore it was the defendant that had that information in six o fo the witness is the court's witness and if a spouse said i don't want you to tell the court this information this six o four b witness has an application to the core it's the client is the court in the six zero four beach so that that's the huge difference between north sky and it has no application here in my opinion at all the local circuit court rules that we have mentioned in our pleadings support the plain reading of the statue into page county this the rules address specifically what i believe just sad about there being no therapeutic relationship here that the six zero four b does not function as that their posts the information that exchange is exchanged with a therapist is not confidential information that is supported by the numerous other circuit courts out there who have addressed that if we look at the long standing precedence that we've cited in our materials the interpretation by the local rules and the others is consistent with this court's finding that once you share information with one entity with the specific intention to share it with non agent third parties that is not confidential as a matter of law and we think that that's very important in looking at the different duty is to advise the court the court is the client and if this six o four b witness gets information that's critical to the best interest of children that information must be shared it cannot be considered confidential at all the six zero four b is a legal process it's not a clinical process there is no therapeutic relationship the reason that the six o four b witness in the interviews the people that they're interviewing are together is because there's a court order saying go cooperate with this court witness they're not a fact finder the six o four b expert is not a fact finder they are an individual who is has special skills that the court has chosen to assisted  making that decision the people interviewed are not we subpoenaed so of services in fact in the plaintiff's complaint in paragraph forty nine the parents are considered quote collateral sources of information they are not recent being sort of services protected under the mental health confidentiality act we think that because of the plain language of the stature because of the clear in long standing precedence of this court in the inter meeting reviewing course we believe that there's strong public policy reasons that are clearly defined and would only result in more litigation if this court were to find that this information was confidential we would be in circumstances like we are today where this case has to go all the way to the illinois supreme court because someone is saying somebody said something that shouldn't bit sad that it's confidential and it's just go litigation and frankly in the domestic relations arena they do not need more tools for litigation let me monahan just use me to make sure i understand the background this case the dispute over this information arose in the original custody cases are correct that's correct and it did not the trial court judge ordered the parties and the counsel not to disclose the information there was a court order that said in one of those instances that the information that was available on the six o four b was not discoverable and the other case and so judge that would that would support the notion that boys can go in and get a protective order to protect private information i'm just trying to understand the facts in this case and the original custody case so i understand you say the trial court did or did not order it not to be disclosed and that was not discoverable in the second case really what this litigation arises out of is a law division case in which the plaintiffs are claiming that there was a breach of confidentiality we filed motions to dismiss saying that one of the clear elements of the cause of action doesn't exist because it's not confidential information so the issue before the appellate court was whether six so for  records communications and information are confidential when the six o four b witness is a psychiatrist or other mental health provider i position is it doesn't matter because by virtue of the fact that the court appoints a witness with the intent to share that information with non agent third parties it's impossible to have it be confidential and it doesn't matter whether the six o four b witness is a psychiatrist a mental health provider a special ed it consultant it's the issue is who does the duty of confidentiality go to and we think that the statute is very clear that the six o four b goes to the court and not to people that they interview and the other important thing is that they it's a veil of all that witnesses available to be examined cross examined present information to the court at any time by any party in their written report and so that's why it's very different than cases like yours god where here you have an application in norfolk dr marcos had no obligation to provide a written report to the court unless the defendant decided to go forward with this difference here we have no it doesn't apply here at all i first like to clarify the question that your honor asked regarding the factual matters here this arose as follows in the initial proceeding a six o four b evaluation was ordered and judge figaro  after receiving that document and giving it to the two attorneys told them they could not disseminate the document subsequently they settled the case the document never went into evidence there was no testimony and it rested there in a subsequent case unrelated to the first case the litigants attempted to read disclose and i used the word reed disclose purposely the information from the first case even though it was never disseminated and they were told not to disseminate it they tempted to read disclose it in the second  that case the judge also found that this was just for the first case itself it was never meant for the second case and i reason i purposely used the word read disclosure because i think there's a bit of confusion here mr monahan argument seems to imply that the plaintiffs are saying in the middle of the six o four b evaluation they can say oops confidential you're the you know you're the evaluator you can't say anything that tell the judge anything that i've told you that's not the issue before this court a six o four b is a court appointed expert psychiatric expert in this case under the court's order and everybody's order to comply and they give  six ok or be information and that information is transferred to the judge the question before the court is is this really disclosable for other purposes and for other proceedings there is no allegation there's no allegation here that at some point in the original proceeding the plaintiff said oh wait we don't want you to disclose this it's very much like the proceeding in north s relationship with the doctor there he had been appointed strictly there were two issues in north skive there was a ten and a one issue that related to all therapists that mr field had had that was a first issue and the court had said that under ten a one since they never testified so that's where there was a therapeutic relationship it wasn't six or four it was a six up or b is what ten a four calls a psychiatrist mental health person appointed by the court so whether it's called the six zero four b or a two fifteen there are various statutes all over that allow for the appointment of an expert but the expert in norse god the one that they did the questioning of and and he said i only warned him that it could be used for the purposes of the criminal case there was no therapeutic relationship there but the difference there was that the defendant there could tell the health professional do not disclose anything and here i mean he didn't go forward with th insanity well he didn't so it wasn't you know report was given but in the six or four be even if the plane just didn't want it to go forward it would have on the norse god actually the report did go through there was a report it was submitted to the court that's what they were seeking somewhere down the line towards the end i guess there was a plea bargain and thing settled but there was a report and the report was issued and it was a report by a psychiatrist which is why i keep going back to the language of the mental health statute to look at six o four b is the same thing is looking at two fifteen to fifteen allows for a variety of different examinations but that's one of the varieties that is allowed is a mental health examination and if it's a mental health examination then you have to look to set to the mental health code to see how we treat it in the same way when a six o four b which can be a variety of evaluations when it becomes a fitness evaluation and if you look at ten a one and i know i'm sounding a little scattered but i want to go back to what the legislature said any pleading at all under the marriage just solution that so normally what one please in marriage and dissolution you played i am a fit and proper person to have custody of the legislature says that's not putting your fitness into issue your mental health  nevertheless a judge can put your mental health at this can do a mental health evaluation and i know mr monaghan made it sound like it was just an interview when you talk to people but the order specifically said evaluation and testing trust me don't spend ten thousand dollars to have a psychiatrist call up the neighbors the border said testing and evaluation strictly psychiatric so does it make a difference  difference who does the report and what the court orders in other words if the court orders an evaluation from a social worker or you know somebody that's a nurse or  something there's one standard but if it happens to be a psychiatrist it's a difference it is confidential are might well in that misunderstanding which is what i think when we use the word confidential again we're are going arguing it's not subject to read disclosure so but the question that i think is really the question is if it happens to be a psychiatry order to do psychiatric services evaluation and testing does that come under the mental health code whereas if it's a visitation supervisor it doesn't i believe that's the question that's the question ok yes because the mental health code specifically says at the very beginning and it starts out way and it makes absolutely no exclusion it says all records in communication shall be confidential and shall not be disclosed except as provided in the act and it goes on to define what those communications are so that any time there are communications that arise in the mental health context we have to look here and then ten a four tells us well what do we do when it's a court appointed psychiatrist there's no therapeutic relationship there strangers to each other in any court appointed it's going to be no therapeutic relationship so if you say there has to be a therapeutic relationship of ishaq to apply then ten a four is moot but the court  there will be times when there is no therapeutic relationship because the court has said talk to the psychiatrist in value case you have to look at what ten a four says and ten a force says that the results of those pleading of those conversations evaluations and testing with the court appointed psychiatrist those results can only be used in such proceedings in the proceedings in which they are ordered the question here is  specifically says any time you want to disclose you have an affirmative obligation to find that permission to disclose in the mental health act and there was no absolutely no permit of action or statute were anything that allowed the really disclosure not the initial disclosure this idea of third party nominations it's not it doesn't exist in the act client doesn't exist in the act the act is a very specific talks about communications between a psychiatrist and the person who's receiving those the service and it defines a service as evaluation and testing community confidential communication means any communication made by a recipient or other person to if there is or in the presence of persons during or in connection with providing mental health or developmental disability services to a recipient so that makes that icon a confidential relation information but if it isn't made in their contacts under the mental health and developmental disability confidentiality act it doesn't become you know well what it says is this you have to get the rest of the definitions to when you have these communications and they arise in the context of not your normal therapeutic relation but when they arise in the context of a court order when you talk to a psychiatrist that's putting it in short terms when that happens you are still considered to re and these are the rules that apply and the rules that apply in the narrow spectrum of when a court tells you you must engage with the psychiatry services for services services meaning evaluation and testing that's the definition it says evaluation examination and evaluation and in the order said evaluation so the act says when you're in this narrow narrow corridor that talks about your being ordered to engage in it with a psychiatrist what happens then because you're doing it by court order not voluntary what happens then so the court says ok he'll reveal everything to the psychiatrist he'll give the records that are there you know you'll talk you'll do the testing the multiple personality testing everything that goes but then they can only use it for the fact proceeding for such proceeding in which it was ordered and the question before this court is really just closure it's not the initial disclosure it's read disclosure can get then taken and willy nilly say well you obeyed the court order your stock now your private information is public i see my time is up and unless the court has read the questions