Docket No. 109693.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

HEATHER JOH NSTON et al. , Ap pel lan ts , v. AND RE W W EIL et al. , Appelle es.

Opinion filed February 25, 2011.

JUSTICE FREEMAN delivered the judgment of the cour t, with opinion. Justices Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion. Chief Justice Kilbride dissented, with opinion. Justice Theis took no part in the decision.

OPINION

The circuit court of Cook County ce rtified the following question of law for interlocutory

appeal pursuant to Supreme Court Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 26, 2010)): “Whether evaluat ions, comm

unicatio ns, repor

ts a n d infor ma tion obtained pursuant to section *** 604(b) of the Illinois Marriage and

Dissolution of Marriage [Act] [citation]

are confidential under the Mental He alth

and Developmental Disabilities Confidentiality Act [citation] where the 604(b) professional personne l to advise the cour t is a psychiatrist or other mental health professional.” The ap pell ate cour

t answer ed this que stion in the

negati ve. 396 I ll.-2- App. 3d 781. We all owed lea

ve to appe al. I ll. S. Ct. R. 315 (eff. Feb. 26, 2010). For the following reasons, we likewise a nswer the certified question in the negative, and remand the cause to the circuit court for further procee dings.

I. BACKGROUND Heather Johnston was married to Sean McCann and, in 1998, they had a son. The ir marri age wa s dissolve d. Johnston su b sequentl y married Andrew Weil and, in 2002, they ha d a daughter. I

n June 2005, their marriage was dissolved. I n each di ssol utio n proc eedin g, McCannand Weil were represented by several attorney s, and an attorney wa s appointed as the child’s representative. McCannfiled a postdissolution petition to mod if y the joint parentingagreement with Johnston. In January 2006, the circuit court entered an order appointin

g Dr. Phy llis Amabil e, a psy

chiatris t, to conduct an indepe ndent eva luation a nd assist the cour t in determining custody of the Mc Cann son, p

ursuant t o section604(b) of

the I llinois Marri age and

Dissolution of

Marriag e Act (Ma

rriag e Act) ( 750 I LCS 5/604(b) (West 2006)). Pursuant to the order, Johnston, her parents , McCannand Weil, among others, participated in the evaluation. The order re q uired the

m to fully

coopera te with Dr . Amabile

in conducting her evaluat

ion, inclu ding the ir submissi on to any tests administered

by Dr. Amabile, he

r agents, or

her recommended third parties. Dr. Amab ile advised each of the parties that the information obtained through the e valuatio n would be disclose d to the co

urt, all parties, and their attor

ney s. Dr. Amabile completed her evaluation and sent a report to the circuit court. Therecord d oes not show that Johnston or her parents sought a protective order

regarding either the informat ion they provided to Dr. Ama

bile or he r repor t. Contemporaneous with the McCann p ostdissol ution proc eeding s, Weil filed a mo tion seek

ing temp orary

posse ssio n or custo dy o f his daughter, and seeking leave to subpoena Dr. Ama bile. I n respon se, Johnston asserted that Dr. Amabile’s report was privileg ed under the Mental He al th an d D ev el op me nt al Di sa bi li ti es Co nf id en ti al it y Ac t (Confid entiality

Act) (740 IL CS 110/1 et seq. (West 2006)). In December

2006, the ci rc uit court in the Weil postdissolution proceeding

found that Dr. Amabile’s section 604(b) report in the-3- McCannprocee din g was p rivileged under the Confidentiality Act and not d iscov erable in th e Weil procee ding.
InJanuary 2007, plaintiffs, Johnston and her parents, filed the instantc om plaint, which named as defendants McCann, McCann’s
at to rn eys , the McCann child repr esentat ive, Weil, We il’s attor

ney s, and the Weil child representative. The complaint alleged that Dr

. Amabi le was a the

rapist wi thin the me aning o f the Conf identiali ty Act; Dr. Amabile engaged in c onfidential co m munications with plaintiff s; and the infor

mation she obtained and included in her 604 (b) r eport in the McCann proceeding was privileg ed under the Confiden tiality Act. Further, the com plaint alleged, “upon informationand belie f,” esse ntially that the Mc Cann def

endants “individu ally and/or jointly” disclosed the conf idential information
t o the Weil de fendant s “individ ually and/or jo intly .” The c omplain t sought $200,000 in damages for each plaintiff in addition to costs and attorne y f ees. McCann, the McCan

n attorne ys a nd child r eprese nta t ive, Weil, and the Weil at

torney s fil ed mot ions to dismiss pursuant to section 2–619.1 of the Code of Civ il Procedu

re (735 I LCS 5/2 –619.1 (We st 2006)). The motions sought dismissal of the complaint as a matter of law (see 735 I LCS 5/2

–615 (West

2006)), a lleging that the c ontents of Dr. Amabile’s 604(b) report were not privil eged under the Confiden tiali ty Act. Alternatively, the

motions sought dismissal of the complaint based on

affirmative matter

that negates the claim. See 735 I LCS 5/2

–619(a) (9) (West

2006). Th e McCann

defenda nts argued that the parties, as a matter of fact , did not re gard the conten ts of the 604(b) report as confidential. Weil attached anaffida vit to his motion, in which he stated that he participated in Dr. Amabile’s evaluation

and that she to ld him

that her report would be dis closed to the court and counsel in that case. However, Weil had never received

or read a copy

of Dr. Amabile’s report. Weil’s attorneys eac h attached

anaffidavit to their motions, in whicheach stated that he or she did notpossess, disclose, or redisclose the contents of the 604(b) r

eport. The Weil child representative, Dorothy Johnson, separately

filed

a section 2 –619(a) (9) motion

to dism iss, to which she attached an affida vit stating as follows. In late Nove mber or early

De cem ber 20 06, Johnson received notice of Weil’s motion. On December 6, 2006, Johnson telephoned Dr. Amabile to de termi ne whether her1 In addition to alleging a C onfidentiality Act v iolation on behalf of John ston (count I) and her p arent s (coun t II), the compl aint a lso al lege d (count II I) a vio lation of the confidentiality prov isions of the Children an

d Famil y Services Act (20

ILCS 5 05/1 et seq. (West 20 06)). Th e circui t court dismissed this count

with p rejudice a

nd plain tiffs do no t app eal ther efr om.

2 While the caus e was before t he appe llate co

urt, pla intiffs a nd Weil settled. The appellate court gran ted the partie s’ agreed m otion to dismiss Weil’s appeal. 396 I ll. App. 3d at 78 2 n.1.

-4- section604(b) report had any relevance to Weil’s da

ugh ter. Dr. Amabile advised Johnson of three areas she evaluated: the possibility of on going substance (alcohol) abuse ; the possibility of ongoin g violence; and the on

going impact of

poor impul s e contro l. Dr. Amabile advised Johnson that these areas of concer n are re levant to the parenting of any

child and are not sp ecific or unique to any particular child. This was the extent of their telephone conversation, and Dr. Amabile did not provide any information regarding communic ations, opinions, or concl usions ge nerate d as a

result of the section 604(b) evaluation. The circuit court denied defendants’ motions to dismiss plain tiffs’ complain t. 1 Defend ants filed a mo tion to reconsider the dismissal or, al te rn at iv el y, to certify the que stion of law at issue in this case. The circuit court certified the above-quoted question of law and stay ed the proceedings pending appe llate resolution of the certified question. The appellate court allowed defenda nts’ applica

tion for le ave to appeal and answered the certified question in the ne gative . 396 I ll. App. 3d 781. 2 The court concluded that information obtaine d pursuant to section 604(b) of the Marriage Ac tis not confidential and privileged

under the Confiden tiality Act. Accordingly , the court held that plaintiffs may

not invoke

the Confid

entiality Act with respec t to the ir communications with Dr. Amabile made in the course of he r section 604(b) evaluation. 396 Ill. App. 3d at 792. This court al l o wed plain

tiffs’ pe tition for leave to appeal ( Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010)), and plaintiffs subsequently ele cted to have their petition stand a s the ir brief (Ill. S. Ct. R. 315(h) (eff. Feb. 26, 2010)). We subsequently g ranted the Illinois Chapter of the American Academy

of Matrimonial Lawy

ers leave to submit an-5- amicus curiae brief in s upport of defendants. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). Additional pertinent background will be discussed in the conte xt of our analy sis of the i ssues.

II. AN ALYS IS Before this court, plaintiffs contend that Johnston was the subject of, and her

par ents were collateral sources in, a cour t-ordered “psy chiatric evaluat ion rela ted to fitness for c

hild cust ody.” According

to plaintif

fs, the a ppellate court erred by

exempting what they charac terize as “604(b)psychiatric

examinati ons” f

rom the protections affo rded under the Confidentiality Act. Defendants and supporting amicus contend that inf ormati on obtaine d pursuan t to section604(b) of the Marriage Act is not privileged under the Confiden tiality Act. Alth ough we ultimately answer the certified qu est ion in the negative, our analysis re

veals that several unresolved variablesare at work here. In other wor

ds, t he ce rtified question does not represent the full r ange of issues presented in this case. However, this court may go bey ond the limi

ts of a ce rtified q uestion in the interest s of judicial economy and the need to reach an equit

able re sult. Bright v. Dicke
, 166 Ill. 2d 204, 208 (1 995); see Dowd & Dowd, Ltd. v. Gleason , 181 Ill. 2d 460, 468-72 (1998). The certif

ied que stion requires us to construe the relevant provisions of the Marriage Act and the Confide nt ia li ty A ct. The primary rule of statutory c onstruction is to give effect to the intent of the legislature. The best evidence of legislative intent is the statutory langua ge itself, which must be given its plain and ordinary meani ng. The statute

should be evaluated as a whole. Where the meaning of a statu te is unclear from a reading of its language, courts may look beyond the statutory lang

uage and consider the purpose of the law
, the evils it was intended

to remedy, and

the legislative history of

the statute. Stroger v. Regional T ransportat

ion Authori ty , 201 Ill. 2d 508, 524 (2002); Reda v. Advocat e Health C

are , 199 Ill. 2d 47, 55 (2002). However, legislative intent remains the primary inquiry and contr ols

a court’s interpretation of a statute. Traditional rules of statutory construct ion are merely

aids in determining legislative intent, and those rules must yield to such intent. Collins v. Board of Trustees of-6- the Firemen’s Annuity &

Benefit Fund , 155 Ill. 2d 103, 111 (1993). Becau se this issue concer ns a quest ion of law certifi ed by

the circ uit court pursuant to Supreme

Court Rule

308, our r

eview is de nov o

. Thompson v. Gordon , 221 Ill. 2d 414, 426 (2006).

A. Disclosure: Marriage Act
Dr. Amabile compiled

her report pursuant to section 604(b) of the Marri age Act. Par

t VI o f the Mar

riage Act pert ains to ch ild cu st od y. Section 602 manda

tes: “Th e court shall dete rmine cu stody

in accordancewith the best interest of the child. Th e court shal l consider all relev ant factor s ,” includ in g specific factors liste d therein. (Emphasi s added.) 750 ILCS 5/602(a ) (West 2006). Section 604(b) provides : “(b) The court may see k the a dvice of professional personne l, whether or not employed by the court on a regular basis. The advi ce give

n shall be in writing and made availab le by the court to counsel. Counsel may examine, a s a witnes s, any professional personnel consulted by the court, desig

nated as a court’s witness.” 750 IL CS 5/604(b) (West 2006). The appel late court concluded that the plain languag e of section 604(b) provides no limitations or exceptions when t he courtappointed expert wit

ness is a p syc

hiatrist or oth er menta

l health profess ional, and

that a court must not d epart f

rom th is pl ain la nguage by reading such an exception into the statute. 396 Ill. App. 3d at 785- 86. Before this court, both sides point to the plain language of section 604(b), but disagree as to its meaning. According to plaintiffs: section 604(b) “on its fa

ce limits d

istributio n of the r

eport to the [circui

t court] and th e atto rneys for t he lit iga nts ”; nothing in the subsection “indicates that anyone other thanthe attorneys will have access to this information”; and section 604(b) “limits actual use of the information to *** when the court de signate s the eva luator a s a

court’s witness.” Plaintiffs also contend that nothing in the language of section 604(b) “states or implies

that if the

ordere d examinati on is a psy chiatr i c examination, then the participant has waiv ed all confidentia lity rights to any psychiatric infor

mation received by

the examining psychiatris t and any psy chiatric reports.” I

n contrast, defend an ts contend that-7- section604(b), on its face, does not provide tha t commun ications with and the resulting report of the 604(b) professional are confide ntial. Defendants further contend that section 604(b) does not differe ntiatebetwee

n a menta

l health professional a

nd an y other profess ional personnel.
We agree with plaintiffs that section 604(b) of the Marr iage A ct, considered

alone, requires disclosure of the604(b) r eport onl y in the particular proceeding in which

th e a dv ic e i s s ou gh t. Ini ti al ly, the plain langua ge of the statute refers only to co unsel in th at pro ceedin g. 750 IL CS 5/604(b) (West 2006). Further, any rea son able difference of opinion in the meaning of section604(b) of

the Marriage Act is dispelled by a consideration of its purpose and t

he evils it was intended to remedy . In 1977, the General Assembly enacted the Marriage Act (750 I LCS 5/101 et seq. (West 2006)), which is a substantial adoption of the Un iform Marri age and Divorce Act (Uniform Marriag e Act). See Unif. Marri age and Divorce Act §101, 9A U.L .A. 171 ( 1998); Ill. Ann. Stat., ch. 40, par. 101, at 6-7 (Smith-Hurd 198 0) (re ferencing Uniform Marri age Act). Section 604 of the Marriage Act derives fr om section 404 o f the Uniform Marriage Act. I ll. Ann. Stat., ch. 40, par . 604
, Histor ical and Practice Notes, at 56 (Smith-Hurd 1980). Th e comment to

this secti on in the U

niform Ma

rriag e Act expla

ins: “[T]he judge ma

y c all in formally on experts in a varie ty of disciplines without sub

jecting them, in the

first insta

nce, to the formal hearing process. But the experts’ advice should be availab le to counsel for the parties so that the judge’s decisionwill not be

based on

secret informat i on; and the parties should be able to examine the expert as to the substance of his advice to the judge.” (Emphases adde d.) Unif. Marriage and Divorce Act §404, 9A U.L.A. 381
, cmt. (1998).
For these re asons, the term

“profe ssional pe

rsonnel” is “intent ionally broad.” Ill. Ann. Stat., ch. 40, pa r. 604, Hi storical

and Practice Note s, at 57 (Smith-Hurd 1980); see In re Marriage of Auer , 86 Ill. App. 3d 84, 88 (1980) . Nonethe less, disclosur e of the s ection 60 4(b) re

port is clearly intended to be limited to the parties in the pa rtic ular procee ding. We conclude that section 604(b) of the Marriage Act confines Dr. Amab ile’s 604 (b) rep ort to the McCann postdissolution-8- procee ding.
No tonly do defenda

nts misapprehend section 604(b) of t h e Marri age Act, they

ig n ore section 605, which provides the remedy intended by the leg islature

in cases where a party in a postdissolution proceeding seeks relevant evidence addu ced in anothe r postdissolution procee ding. The Marriage Act “should be e valuated

as a who le; each provision should be construe d in conne ction with every othe

r section.” Bonagurov. County Officers Electora l Board

, 158 Ill. 2d 391, 397 (1994). Section 605 of the Marriage Act provides that a paren t or custo dian ma

y requ est the circuit court, or in a contested custody proceeding, on the court’s own motion, to order “an investigation

and r eport concerning custodial arra ngements for the child .” 750 I

LCS 5/605(a) (West 2006). In prepa ring the section 605 report, the investigator may consult any person who ma y have informationabout the

child and

the child ’s custod

ial arra ngemen ts. Also: “The inv esti gator m ay consult with and obtain information frommedical, psychiatr

ic or other exper

t persons who have served the child in the p ast, with out obtaining the consent of the parent or the child’s custodia

n.” 750 I LCS 5/605(b)(West

2006). The investigator shallmail the r

eport to the partie s and couns el, and the court may examine and

consider the section 605 re po rt in de te rm in in g c us to dy. 75 0 IL CS 5/ 60 5( c) (W es t 2 00 6) . S ig ni fi ca nt ly: “The investig ator sha

ll make av ailable

to counse l, and to any party not represented by

counsel, the inve stigator’s file of underlying

data, re ports, and the c omplete

texts of dia

gnostic reports made to the investigator pursuant to the provisions of subsection(b) of this Section, and the names and addresses of all persons w

hom the inv estiga

tor has c onsulted. Any

party to the proceeding

may call the

investigator, or any

person whom he has consulted, as a court’s witness, for cross-examination. A party may not waive his right of cross-e xamination p

rior to the hearing.” 750 I

LCS 5/605(c) (West 2006). This plain language indicates that
, when duly invoked, section 605 allows for disc losure in

precise ly the situation presen ted in this case. Further, the plain language of section 605 supports the stated legisla tive inten t: “The res ults of the

investig ations ca

n aid the p arties in-9- determining whic h custodial arrangements are in the c hild’s best interest and

may be useful in facilitating the settlement of disputes. The reports can also be va luable discovery tools, as parties may call as witnesses those persons whom the inves tigator conta cted during the course of the investigation. ” (Emphasi s added.)Ill. Ann. Stat., ch. 40, par. 605, Historical and Practice Notes, at 61 (Smith-Hurd 1980). The leg isl ature intended that courts and counsel consider sections 604, 605, an d 606 (hea

rings)togethe

r in child c

ustody procee dings. As the comment to section 404 of the Uniform Marriage Ac t, from whichsection 604 of the Marriage Act der ives, ex plains: “This section, and the two which follow, are designed to per mit the court

to make custodia

l and visita

tion deci sio ns as informally and noncontenti ously

as possible, based

on as much relevant

information as

can be secured, while preserving a fair h ear ing for all interested parties.” Unif. Mar

ria ge and Divorce Act §404, 9A U.L.A . 381, Comment (1998).
A contrary

view would impede the expressed legislative goal of part VI of the Marr iage A ct. Child custody proceeding s epitomize the need for maximum disclosure of information in the goal of reaching justice. The par

amount considera

tion and g

uiding pr inciple in determining child cus tody is the b est interests of the child ( In re Marriage of

Cotton , 103 Ill. 2d

346, 356 ( 1984); Miezio v. Miezio , 6 Ill. 2d 469, 472(1955)) , conside ring al l releva

nt facto rs. 750 IL CS 5/602(a) (West 2006). Therefore, the circuit court exerci s es broad discretioninadmitting releva nt eviden ce that ma

y a ssist the c ourt in arrivingat a custody dete rmination (see Frees v. Frees , 99 Ill. App

. 2d 213, 219 (1968)), and the c ourt shoul d hear a nd weig h all ava ilable relevant evidence (s ee Marcu s v. Marcus , 24 Ill. App. 3d 401, 407 (1 974)). Section 604(b) “allows the court to seek the ad vice o f professional personnel in order to supplement the evidence provided by the parties.” Ill. Ann. Stat., ch. 40, par. 604, Historical and Practice N otes, a t 57 (S mith -Hurd 1980) . As de fendan ts’ su pport ing amicus

o bserves
, courts consider section 604(b) reports to be evidence o f

recor d, and cons ider such report s prepar ed by mental he alt

h profes siona ls as prepared by any other pr

ofessional personnel. See,
e.g. , In re Marriage of

Bhati , 397 I ll. App. 3d

53, 67-68 (2009); Auer
, 86 Ill. App. 3d at 87-88.-10- We agree with the a

ppellate court that sec tion 604(b) of the Marri age Act

provides no limitations or exceptions when the section 604(b) profess ional is a

mental health professional. 396 Ill. App. 3d
at 785-86. Although section 605 of the Marriage Act provides defenda nts with aremedy, we

conclude that

section 604(b) confines disclosure of Dr. Amabile’s report to the court, couns el , and the parti es in t he McC ann po stdi ssol utio n proc eedin g.

B. Privilege: Confidentiality Act Nonethe less, plaintiffs argue before this court, a s they arg ued before the appellate court, that where the section 604(b) professional is a psy chiatris t, that person is a mental health provider who renders mental health services within the meaning of the Con fidentia

lity Act. Therefore, according to plai nt iffs, the communications and informationthey

sha red with Dr. Amabile, with her resulting evaluation

containe d in

her section 604(b) report, are conf idential and privileged

under the Confiden tiality Act. The appellate court rejected this argument. 396 Ill. App. 3d at 786-92. Privileges are “governed

by the principles of the c ommon law as they may be inter preted by I

llinois cou

rts in the li ght of reason and experience,” except as otherwise provided by applicable statute. Ill. R. Evid. 501 (eff. Jan. 1, 2011). The Confi dentialit y A ct estab lishes, except as provided therein, that “[a]ll records and communications shallbe confidential and shall not be disclosed” (740 IL CS 110/3(a) (West 2006)), a

nd that in a

ny l egal pr

oceedin g or pre limi nary procee ding, “a rec ipient, and a thera pist on beh

alf and i n the inte rest of a recip ient, has

the privil ege to r

efuse to disclose and to prevent the disclosure of the rec ipient’s r ecord or communic ations.”

740 I LCS 110/10(a) (West 2006). Persons injured by a violation

of the Act may

sue for damages or other appropriate r elief, and may

be awar ded costs and attorney f

ees. 740 IL CS 110/15 (West 2006). The records made confidential under the Confidentiality Act r efer to “any re cord kept by a

therapist or by an a

gency in the course o f p rovidin g mental health or developmental disabilities service to a recipient concer ning the recipie nt and the

service s p rovide d”; the communications made c onf idential under the Act refer to “any

co mm un ic at io n m ad e b y a recipient or other person to a therapist or-11- to or in the presence of other persons during or i n connec tion with providing mental health or developmental disability se rvices to a recipie nt. Communication includes information which indicates that

a person is a recip ient.” 74 0 IL CS 110/2 (W est 2006). Further, the
t erm “reci pient” means “a person who is receiving or has received mental healt

h o r developmental disabilities services”; the term “thera pist” means “a psy

chiatrist, physician, psy

chologist, soci a l worker, or nurse

providing

mental he alth or de

velopmen ta l disabilities services”; and the term “mental health or developmental disabilities service s” “incl udes but is not lim ited to examination, diagno sis, evaluation, tre atment, training, pharmaceuticals, a fter-care
, habilitation or rehabilitation.” 740 IL CS 110/2 (West 2006).
Inthe present case, plaintiffs contend that Dr. Amabile’s report is privileged

under the Confiden

tiality Act bec ause Dr . Amabile was a “thera pist” who provided, and p laintiffs were “recipients” who received, “mental health

services” as the Act definesthese term s. We reject this argument, as did the a ppellat e court. 396 Ill. App. 3d at 786-87. Ini ti al ly, this co urt an d our app ellate c ourt have consiste ntly recognized

that the p urpose of the Con fidentia

lity Act “is to preserve the confidentiality of the re cords and communications of persons who

are receiving or who have received mental-health servic es.” Novak v. Ra thnam
, 106 Ill. 2d 478, 483 (1985). I n other wo rds, th e Co nfidentia

lity Act “was intended to include all those pe rson s enteringinto a therapeutic relationship with clients.” M ar tino v. Family Ser vice Agency , 112 Ill. App. 3d 593, 599-600 (1982). The Act “only appliesto s ituations in which the patient is seeking treatment for a mental health condition.” House v. SwedishAmerican H ospita l
, 206 Ill. App. 3d 437, 446 (1990). Accordingly, under the Confidentiality Act, where a person makes sta

tements to

a thera pist inthe cour se of a pr

ofessional consul

t ation, those statements are privileged. Dymek v

. Nyquist, 128 Ill. App. 3d 859, 863 (1984 ); In re Marriage of Semmler , 90 Ill. App. 3d 649, 654 (1980). Further, courts at

all levels have consistently r ecognized

that the therapi st-pati e ntprivilege is grounded in the crucia l role of confidentiality in a thera

peutic relationship: “Effective psychothera

py *** depends upo n an a

tmosphere of confidence and trust

in which the patien

t is willing to make a-12- frank and compl ete disc losure of facts, e motions, me

mories, and fears. Because of the se

nsitive nature of the problems for whichindividuals consult psychotherapists, disclos u re of

c onfidential communic ations mad e during counseli

n g sessions may cause

embarrassment or disgrace. For t his

reason, the mere possibility of disclosure may impede development of

the confidential relationship necessary for successful

treatmen t. ” (Empha sis added.) Jaffee v. Redmond
, 518 U.S. 1, 10 (1996). Observingthat

all 50 states, the District of Columbia, and the federal court s recognize some form of statutory or common law psychothera

pist-patient

privilege, this court reasoned: “C le ar ly, this reflects an understanding that peo ple will increa singly av

ail themselves of

needed treatment

if they are

confident that their privacy will be protected.” (Emphasis added.) Norskog v. Pfiel , 197 Ill. 2d 60, 72 (2001); see Red

a v. A dvocate

Health Car

e , 199 Ill. 2d 47, 60 (2002) (same); Laurent v. Brelji , 74 Ill. App. 3d 214, 217 (1979) (same).
Inthe present case, Dr. Amabile was not retaine d as a thera pist to tre at plaintiff s. Rather , she was

acting as an inde

pendent s e ctio n 604(b) profess ional, whose sole function was to make an evaluation for the circuit court to consider. Since Dr. Amabile and plaintiffs

were not en ga ged in

a thera peutic r elationsh ip, the Con fidentia

lity Ac t d oe s n ot ap pl y. Before this cour

t, plaintiffs contend

that section 110(a)(1) of the Confiden tiality Act “specifically

grants special status and

protection inDomestic

Relatio ns proceedings.” Tha t section provides in relevant part: “(1) Records and communications may be disc losed in a civil*** proc eeding

in which the recip ient intro duces his mental condition or any aspe ct of his services rece ived f or suchcondition

as an ele ment of his

claim or defense *** . *** However, for purposes of this Act, in any action br ought or defended under the [Marriage Act], or in any action in which pain and suff

ering i s an eleme nt of the claim, mental condit ion sh al l n ot be de em ed to be in tr od uc ed me re ly b y making suchclaim and shall be deemed to be intro duced on

ly if the rec ipient or a

witness on

his behal f first t est ifies3 Plaint iffs rely on McGreal v. Ostrov , 368 F .3d 65 7, 687 -90 (7th Ci r. 2004), which did not

consid er whet her a therape utic rela tionship existed in the contex

t of a po lice off

icer’s m ental fit ness ev alu at ion taken under ord ers. However, this

federal case is not bindin g on this court. City of Chicago v. Groffm an , 68 I ll. 2d 1 12, 11 8 (1977 ).

-13- concerning

the record or communication.” 740 IL CS 110/10(a)(1) (West 2006). Plaintiffs contend t

hat this se ction expr

esses “l egisla

tive inten t to

a ccord specific protection to divorce litigants from disclosure o f private mental health information.”
We disagree. By

its plain language, section10(a)( 1) applie s only to prevent one party

in a dissolution proceeding fr om accessing mental health records of the opponent by attempting to place the opponent’s mental health at issue. T his section is unrelated to the circuit court’s appointme

nt of a se ction 604(

b) profe ssional to a

dvise the court on c

hild custo dy matters, with the disclosure of that advice to all parties and

their counsel. Here, th

ere is no attempt by

one part y to place his or her opponen t’s mental health at issue. Further, as discussed above, a custody evaluation

pursuant to section 604(b) of the Marriag e Act doe s not const itute psychiatric

services received for

a mental condition. Ac cordingly, se cti on 10(a)(1) of the Confiden tiality Act does not

apply to the information obtained by and the report of a se ction 604( b) profe ssional. 3 Further, as th e appellate court recognized, sec tion 10(a)(4) provides the following exception to the therapist-patient privilege:

“(4) Re co rd s a nd co mm un ic at io ns ma de to or by a therapist in the course of examination ordered by a court for good cause shown

may, if otherwise r

elevant and admissible, be disclo sed in

a civil *** proceeding in which the recipient is a party or in appropriate pretrial

proceedings, provided such court has found that the recipient has been as adequately

and

as effectively

as possible informed before submitting to such examination that such records an d communic ations would not be consider

ed confi dential or p rivileg ed.” 740 IL CS 110/10(a)(4) (West 2006). As the appellate court observed, it is undi s puted tha t Dr. Ama

bile-14- informed plaintiffs that their communications with h e r were not confide ntial, and that h er report would be present ed to the c ircuit court, the part

ies and th eir attor

ney s. The ap

pellate court concluded: “A cc or di ng ly, the communicat ion s to Dr. Amabile, a s a court

appointed section 604(b) witness, could not be deemed confidential under the Confidentiality Act.” 396 I ll. App. 3d at

788. We agree and so hold. Befor e this court, plaintiffs argue that the appellate c ourt’s relian ce on section 10(a)(4) “has effec tively eviscera

ted” the pr ivileg e established

in section

10(a). T his arg ument i s una vailing. Section 10(a)(4) speaks to situations where disclosure is d iscretion ary . In contras t, the d isclosur e of the s ection 60 4(b) re port and i ts conten ts to the oppo sing par

ty a nd counse l is mandatory

pursuant to section 604(b) of the Ma

rriag e Act. Ac cordingly, secti on 110 (a)(4) of the Confiden tiality Act does not apply to the contents of

a 604(b)report. Nonethe less, plaintiffs continue to rely on Norskog v. Pfiel , 197 Ill. 2d 60 (2001), in support of their ar gumen t that the communications and information contained in Dr. Amabile’s 604(b) report are privileged. I

n Norskog , the circuit court ordered the def endants
, the patie

nt who re ceived mental he alth serv ices as a minor and his parents, to identify the mental health service providers

seen by the patient and to disclose infor mation regarding the patient’s diagno sis and treatment

as part of discovery

in acivil wrongful de ath actio n. Defendants failed to comply with the discovery orde

rs, and appealed from the resulting contempt citations. Id. at 64 -68. This court held that the circuit court erred when it held the

defenda nts in contempt because the information was privileged unde r the Confiden tiality Act, and no exception allowed for disclosure in that

case. Id. at 86-87. After fully di scuss ing Norskog , the appe llate cou rt corre ctly concluded

that Nors k

og was distinguishable from the present case. 396 Ill. App. 3d at 789-90. Nors kog w as governed by

the strict require ments of section 104–14(a) of the Code of Criminal Procedure of 1963 (725 IL CS 5/104–14(a) (West 2006)), which mandated that stat ement s made b y a defendan t and i nform ation gathere d duri ng a court-ordered

mental-fitness examination “shall not” be ad mi ssible agains tthe defendant

unless he raises an insanity or similar defense, whichthat defendant did not do. Further, unlike section604(b) of the-15- Marri age Act, the criminal statute at issue in No rskog ex plicitly prohibits any othe

r us e of statements made by a defendant in a criminal fitness examination w ithout the d

efenda nt’ s in formed writtenconsent. 725 ILCS 5/1 04–14(b)(West 2006 ); Norskog , 197 Ill. 2d at 77.
Inthe pres ent case , plaintif fs did not u ndergo a crimina

l forens ic evalu ation governed by

the strict requirements of the Code o f Crimina l Pr ocedure. Rather, they participated in interviews with a section604( b) prof

essio nal to advis e the ci rcuit court in mak ing a custody determination. Unlike section 104–14(a) of the Code of Criminal Procedure, section 604(b) of the Marriag e Act does not require that a pe

rson fro m whom the 6 04(b) pr ofess ional o btains informationgive written informed consent before suc h info rmati on contained in the 604(b) report

may be used

in any proce eding. To the

co nt ra ry, 604(b) r

eports must

be give n to both pa

rties and their counsel, and the 60 4(b) pro fessiona l remain s avail able to testify at trial as the co

urt’s witn ess s ubject to

examination by

both part

ies. Norskog does not apply to the prese nt case. This court has repeatedly

recognized that

the Confid

entiality Act constitutes “a strong statemen t” by the legislature about the importance of

keeping mental health records conf idential. Reda
, 199 Ill. 2d at 60; Norskog , 197 I ll. 2d at 71 -72. We expr essly reaff irm this unmistaka

ble legisla

tive in tent. However, the Confidentiality Act simply does not apply in the prese nt case because Dr. Amabile and plaintiffs were not engage d in a therapeutic relationship.
Inthe case

at bar, we concludethat s ectio n 604( b) of t he Marr iage Act does not distinguish mental health personnel fro m o ther 604(b) professional personnel. Further, although section 605 pr o vides defenda nts with a remedy , se ction 604(b) confines Dr. Amabile’s report to the M cCann postdissolution proceeding. Additionally, the Confidentiality Act does not apply in this case. We observe that, in dicta , the appe llate cou rt discuss ed possibl e remedies that plaintiffs could pursue as an alternative to a Confide ntiality

A ct claim. 396 Ill. App. 3d at 791. While we have reviewed the record

in the inte

rests of j udicial e conomy

and the need to reach a n equitab le result

( Br ight , 166 Ill. 2d at 208), we find that the appellate court’s suggested remedies fall outside the proper scope of our review

of the certified question. See Vision Point of Sale, Inc.-16- v. Haas , 226 Ill. 2d 334, 358 (2007).

III. CONCL

USION For the foregoing reasons, we answer the certified question inthe negative, and remand the ca use t o the circuit court for further proceedings consistent with this opinion Certified question answered; cause remanded.

JUSTICE THEIS took no part in the consideration or dec ision of this case.

CHIEF JUSTI CE KI LBRI DE, disse nting: The certified question requires this court to construe the Mental H ealth and Developmental Dis abilities Confiden tiality Act (740 IL CS 110/1 et seq. (West 2006)) on whether mental health info rmat ion obtained by a psychiatris t or other

me ntal health professional under a court order pursuant to section 604(b) of the I llinois Marriage and Dissolution of Marriage Act (750 I LCS 5/604( b) (West 2006 )) is confidential

. The majority corr ectly rec ognizes that the central purpose of th e C on fi de nt ia li ty Act i s to prese rve the c onfident

iality of mental he alth

information. Nonetheless, the majority a nswers the certified question negatively , holding that mental health information provided to a psy chiatris t or other

mental he alth prof

essi o nal in a court-ordered

section 604(b) report

is not conf

idential. The major

ity

reasons that

the Confid

entiality Act is intended to make confidential only information obtained when a pe rson is in a therape utic relation ship with a mental health professional, a re lation ship purporte dly

outside a section 604(b) report created pursuant to court order. Slip op. at 11-12.
I di sagree and therefor

e respectfully

dissent. In my

view, th e majority’s d ec ision contravenes the undisputed legislative intent under lyi ng the Confidentiality Act, namely , the vigorous protection of th e c on fi de nt ia li ty o f mental health information. As even the majority r ec ognizes, this court has consistently dete rmined that the-17- Confiden tiality Act constitutes a

“strong statement” by

the legislature about the importance of keepi

ng menta l health r ecords c onfident

ial. Slip op. at 15 (ci ting Reda v Ad vocate H ealth Care , 199 I ll. 2d 47, 60 (2002), and Norskog v. Pfiel , 197 I ll. 2d 60, 71 -72 (2001 )). I n fact, the legislature has carefully restricted discl osure of menta l health informationto certain statutory exceptions, with each exception subject to a narrow construction. Norskog , 197 Ill. 2d at 71. Contrary to clear legislative intent, the major ity effectively

holds that mental health information divulged in a court-ordered sec tion 604(b) report is never confide ntial. Simpl

y st ated, the majority has created a broad and unwa rrante d exception to the Con fidentia lity Act. The plain language of the Confident ial ity Act shows that the

cer tifi ed qu es ti on sh ou ld be an sw er ed af fi rm at iv el y. S pe ci fi ca ll y, section10 of the C onfident iality Act, enti tled “Dis closure

in civil, criminal
, and other proceedings,” identifies several exceptions to the Confiden tiality Act’s blanket prohibition on the disclosure of mental health information. Critically, section 10(a)(4) addre sses the precise is sue pre sented in the certified question, the disclosure of mental health in formation in a cour t-order ed examina

tion, prov iding tha t: “Records and communications made to or by a therapist in the course of examination ordere d by a cou rt for good

cau se show n may, if otherwise r elevant and admissible, be disclosed ina civil, criminal, or administrative proceeding in whichthe r e cipient is a party or in a ppropriate pretrial procee dings, provided

such court has found

that the recipient has been as adequately

and as effectively

as possible informed before submitting to such examination that such records and

com munic ations would not be considered confidential or privileged. Such records and communications shall be admissible

only as to issues involving the recipient’s physic al

or menta l con ditio n and

only to the ext ent tha t these are germane to such pr

oceedin gs.” (E mphasis added.) 740 IL CS 110/10(a)(4) (West 2006). Thus, the plain language of section 10(a)(4) allows for disclosure of mental health information obtained i n a co urt-ordered examination only if two important

conditions are met: (1) the information must be releva nt, germane, and

admissible in the proceeding at issue and (2) the recipie

nt must be a

dequate ly and e ffectively informed that any-18- record or communication is not confidential before submitting to the court-ordered examination. Cl ea rl y, if section 1 0( a)(4)’s conditions are not satisfied, the legislature intended

that the me

ntal hea lth information in the

courtordered examination remain

confide ntial, co nsiste nt with the overarching

legisla tive goal of the Confidentiality Act to safeguard the confidentiality of that informa tion. Therefore, directly

rebutting the m ajor ity’s holding, the plain lang uage of section 10(a)(4) demonstrates that the legislature contempl ate d instances when mental health information obtained during a court-ordere d exam inati on would not be divulged.
Ra ther than ack

nowledging the l egisla

tive inten

t underly in g section10(a)(4), the major ity attempts to distinguish the provision by noting that disclosure of mental he al th information is discretionary under section 10(a)(4) but disclosure of a report under section 604(b) is mandatory. Slip op. at 13-14. That distinction, however , is of little, if any, conseque

nce, and should certainly not be considered dispositive after a careful comparison be tween section 10(a)(4) of

the Confidentiality Act and section 604(b) of the Marriage Act. As noted, section

10(a)(4) of

the Confid

entiality Act spec ifically addresses mental health information obtained in a court-ordered examination. In pa

rticular , section

10(a)( 4) makes a d mission of the information discretio nary , indisputably showing that the legislature intended for the tr ial cour t to have a uthority to refus e to admit mental health information and maintain its confidentiality. Moreove r, contrary to the majority’s conclusion, nowhere does section 10(a)(4) contain any lang uag e i ndicatin

g the le gislatu

re intended to limit

its applica tion to a the

rapeuti c relati onship. I

ndeed, the Confide

ntiality Act defines a “ther apist” a s “a psy

chiatris t, phy sician, p syc

hologist
, social wor

ker, o r nurse providing mental health *** services.” 740 IL CS 110/2 (West 2006). Under the Confidentiality Act, the types of “servic es” a therapist may pr ovide include “ examination” and “evaluation” (740 IL CS 110/2 West 2006)), as well as the more traditionally

rec o gnize d ther apeut ic ser vices of tre atmen t, tra inin g, pharmac euticals
, habilitation or rehabilitation, and aftercare. See 740 IL CS 110/2 (West 2006). Thus, the majority’s determination that the Confiden tiality Act’s ap plication is limi ted to situ ation s inv olvi ng a purely therapeutic relationship is not supported by

the plain meaning-19- of the sta tutory langua ge, the best indic ator of le gislativ e intent. The ma jority ’s interpretation

directly conflic ts with the

plain langua ge of section 10(a)(4), making the Confidential it y Act applica ble to “[r]ecords and c ommu nicatio ns ma de to or by a therapi st in the cou rse of ex amination o rdered by

a court. (Emphasi s added.) 740 IL CS 110/10(a)(4) (West 2006). Court-ordered examinations alone would rarely , if ever, constitute the “the rapeuti c relationship” require d by the major

ity f or applic atio n o f section (10)(a)(4). If

the legisla

ture inte nded the C onfident

iality Act to app ly only during t he cours e of “the

rapeuti c relati onships,”

it would n ot have specially addr

essed disclosures related to “ [r]ec ords and communic ations” that occur red duri ng trad itionally non-ther apeutic examinations “ordered by a court” in a “ civil, criminal, or administrative proceeding.” 740 I LCS 110/10(a)(4) (West 2006). Norskog also supports the conclusion that the Confidentiality Act

was intended to protect records and communications made during various types of court- ordered examination s. In Norskog , this court determined

that the Confidentiality Ac t pr otected records and

com munications from a court-ordered fitness evaluation fr o m disclosure in a civil

proceeding when

the therapist failed to mention that potential disclosure. Norskog , 197 Ill. 2d at 77 . Although the court-ordered

evaluation in Norskog wa s in a criminal proceeding, the same general principles are applicable here.
I n compa rison, section 604(b) of the Marriage Ac t, relied on by the majority

, is silent on the admission of mental health information obtained through a court-ordered

examination. Instead, the provision speaks gener

ally on the tria

l court’s authority in proc eedings under the Marriage Act to obtain the written “advic e of profes sio nal personne l” that must also be made available to the parties’ respective counsel. 750 I LCS 5/604(b) (West 2006). Notably, sec tion 604(b) has

no requi rement that other

wise confidential mental health information, whether obtained ina therapeutic relationship or not, must alway s be disclosed. Consequently, the majority ’s assertion that section 604(b) requires mandatory disclosure of mental he alth

information obtained during a court-ordered examination is not supported

by the statutory language.
Iagree with the majority ’s observation that section 604(b) of

the Marri age Act promo te s thoroug h conside ration of a child’ s best-20- interest s a nd e pitomizes the need for maximum disclosure of informationin chi ld cu stody procee dings. I strongly disagree, however, with the majo rity ’s final d etermina tion that me

ntal hea lth informationina court-ordered report under se ction 604(b) can never be confidential under the Confidentiality Act.
Inmy opinion, the need for f ull disclosure in child c ustody procee dings under section 604(b) of the Marriag e Act should be balanced wi th th e e qu al ly i mp ortant goal of protecting the confide ntiality of an individual’s mental health information under the Confiden tiality Act. I believe

the legislature struck the proper balance when it enacted section 10(a)(4) of the Confident ia li ty Act by authorizing the disclo sure of m ental he alth infor mation fr om a courtord ered examination when it is relevant to the proceedings and the individual has been informed that it would not remain confidential

. The majority ’s holding

cir c umvents the legislature’s thoughtful balancing of those inte rests. Th e majorit y ha s creat

ed a harsh exception tha t automati cally admits all

sensitive

mental he alth inform ation in section 604(b) reports in every case, r egard less o f whether that information is relevant or the individual was made aware that the information would be divulged.
Insumma

ry, the leg

islature’s intent underlying the language of section10(a)(4) of the Confi dent iality Act, add ressing the prec ise issue here, should contr

ol whe n compared to section 604(b) of the Marri age Act, silent on the issue. Accordingly , I would answer the certified qu es ti on af

fi rm at iv el y, hold ing that mental he alth informa ti on from a court-ordered examination in a section 604(b) report is confidential and inadmissible unless the requirements for its admission under se ction 10( a)(4) o f the Conf identiali ty Act are met. This approach properly

balances the need for full disclosure under the Marri age Act with the need to prote ct the confidentiality of menta l health in formation under the Confide ntiality Act.