Docket No. 109693.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

HEATHER JOHNSTON et al., Appellants, v. ANDREW WEIL et

 al., Appellees.

Opinion filed February 25, 2011.

JUSTICE FREEMAN delivered the judgment of the court, 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 certified the following question

of law for interlocutory appeal pursuant to Supreme Court Rule 308

(Ill. S. Ct. R. 308 (eff. Feb. 26, 2010)):

“Whether evaluations, communications, reports and

information obtained pursuant to section *** 604(b) of the

Illinois Marriage and Dissolution of Marriage [Act] [citation]

are confidential under the Mental Health and Developmental

Disabilities Confidentiality Act [citation] where the 604(b)

professional personnel to advise the court is a psychiatrist or

other mental health professional.”

The appellate court answered this question in the negative. 396 Ill.
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App. 3d 781. We allowed leave to appeal. Ill. S. Ct. R. 315 (eff. Feb.

26, 2010). For the following reasons, we likewise answer the certified

question in the negative, and remand the cause to the circuit court for

further proceedings.

I. BACKGROUND

Heather Johnston was married to Sean McCann and, in 1998, they

had a son. Their marriage was dissolved. Johnston subsequently

married Andrew Weil and, in 2002, they had a daughter. In June

2005, their marriage was dissolved. In each dissolution proceeding,

McCann and Weil were represented by several attorneys, and an

attorney was appointed as the child’s representative.

McCann filed a postdissolution petition to modify the joint

parenting agreement with Johnston. In January 2006, the circuit court

entered an order appointing Dr. Phyllis Amabile, a psychiatrist, to

conduct an independent evaluation and assist the court in determining

custody of the McCann son, pursuant to section 604(b) of the Illinois

Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS

5/604(b) (West 2006)). Pursuant to the order, Johnston, her parents,

McCann and Weil, among others, participated in the evaluation. The

order required them to fully cooperate with Dr. Amabile in

conducting her evaluation, including their submission to any tests

administered by Dr. Amabile, her agents, or her recommended third

parties. Dr. Amabile advised each of the parties that the information

obtained through the evaluation would be disclosed to the court, all

parties, and their attorneys. Dr. Amabile completed her evaluation

and sent a report to the circuit court. The record does not show that

Johnston or her parents sought a protective order regarding either the

information they provided to Dr. Amabile or her report.

Contemporaneous with the McCann postdissolution proceedings,

Weil filed a motion seeking temporary possession or custody of his

daughter, and seeking leave to subpoena Dr. Amabile. In response,

Johnston asserted that Dr. Amabile’s report was privileged under the

Mental Health and Developmental Disabilities Confidentiality Act

(Confidentiality Act) (740 ILCS 110/1 et seq. (West 2006)). In

December 2006, the circuit court in the Weil postdissolution

proceeding found that Dr. Amabile’s section 604(b) report in the
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McCann proceedingwas privileged under the Confidentiality Act and

not discoverable in the Weil proceeding.

In January 2007, plaintiffs, Johnston and her parents, filed the

instant complaint, which named as defendants McCann, McCann’s

attorneys, the McCann child representative, Weil, Weil’s attorneys,

and the Weil child representative. The complaint alleged that Dr.

Amabile was a therapist within the meaning of the Confidentiality

Act; Dr. Amabile engaged in confidential communications with

plaintiffs; and the information she obtained and included in her

604(b) report in the McCann proceeding was privileged under the

Confidentiality Act. Further, the complaint alleged, “upon

information and belief,” essentially that the McCann defendants

“individually and/or jointly” disclosed the confidential information

to the Weil defendants “individually and/or jointly.” The complaint

sought $200,000 in damages for each plaintiff in addition to costs and

attorney fees.

McCann, the McCann attorneys and child representative, Weil,

and the Weil attorneys filed motions to dismiss pursuant to section

2–619.1 of the Code of Civil Procedure (735 ILCS 5/2–619.1 (West

2006)). The motions sought dismissal of the complaint as a matter of

law (see 735 ILCS 5/2–615 (West 2006)), alleging that the contents

of Dr. Amabile’s 604(b) report were not privileged under the

Confidentiality Act. Alternatively, the motions sought dismissal of

the complaint based on affirmative matter that negates the claim. See

735 ILCS 5/2–619(a)(9) (West 2006). The McCann defendants

argued that the parties, as a matter of fact, did not regard the contents

of the 604(b) report as confidential. Weil attached an affidavit to his

motion, in which he stated that he participated in Dr. Amabile’s

evaluation and that she told him that her report would be disclosed 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 each attached

an affidavit to their motions, in which each stated that he or she did

not possess, disclose, or redisclose the contents of the 604(b) report.

The Weil child representative, Dorothy Johnson, separately filed

a section 2–619(a)(9) motion to dismiss, to which she attached an

affidavit stating as follows. In late November or early December

2006, Johnson received notice of Weil’s motion. On December 6,

2006, Johnson telephoned Dr. Amabile to determine whether her
 

1

In addition to alleging a Confidentiality Act violation on behalf of

Johnston (count I) and her parents (count II), the complaint also alleged

(count III) a violation of the confidentiality provisions of the Children and

Family Services Act (20 ILCS 505/1 et seq. (West 2006)). The circuit court

dismissed this count with prejudice and plaintiffs do not appeal therefrom.

 

2While the cause was before the appellate court, plaintiffs and Weil

settled. The appellate court granted the parties’ agreed motion to dismiss

Weil’s appeal. 396 Ill. App. 3d at 782 n.1.

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section 604(b) report had any relevance to Weil’s daughter. Dr.

Amabile advised Johnson of three areas she evaluated: the possibility

of ongoing substance (alcohol) abuse; the possibility of ongoing

violence; and the ongoing impact of poor impulse control. Dr.

Amabile advised Johnson that these areas of concern are relevant to

the parenting of any child and are not specific or unique to any

particular child. This was the extent of their telephone conversation,

and Dr. Amabile did not provide any information regarding

communications, opinions, or conclusions generated as a result of the

section 604(b) evaluation.

The circuit court denied defendants’ motions to dismissplaintiffs’

complaint.1 Defendants filed a motion to reconsider the dismissal or,

alternatively, to certify the question of law at issue in this case. The

circuit court certified the above-quoted question of law and stayed the

proceedings pending appellate resolution of the certified question.

The appellate court allowed defendants’ application for leave to

appeal and answered the certified question in the negative. 396 Ill.

App. 3d 781.2 The court concluded that information obtained

pursuant to section 604(b) of the Marriage Act is not confidential and

privileged under the Confidentiality Act. Accordingly, the court held

that plaintiffs may not invoke the Confidentiality Act with respect to

their communications with Dr. Amabile made in the course of her

section 604(b) evaluation. 396 Ill. App. 3d at 792.

This court allowed plaintiffs’ petition for leave to appeal (Ill. S.

Ct. R. 315(a) (eff. Feb. 26, 2010)), and plaintiffs subsequently elected

to have their petition stand as their brief (Ill. S. Ct. R. 315(h) (eff.

Feb. 26, 2010)). We subsequently granted the Illinois Chapter of the

American Academy of Matrimonial Lawyers leave to submit an
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amicus curiae brief in support of defendants. Ill. S. Ct. R. 345 (eff.

Sept. 20, 2010). Additional pertinent background will be discussed in

the context of our analysis of the issues.

II. ANALYSIS

Before this court, plaintiffs contend that Johnston was the subject

of, and her parents were collateral sources in, a court-ordered

“psychiatric evaluation related to fitness for child custody.”

According to plaintiffs, the appellate court erred by exempting what

they characterize as “604(b) psychiatric examinations” from the

protections afforded under the Confidentiality Act. Defendants and

supporting amicus contend that information obtained pursuant to

section 604(b) of the Marriage Act is not privileged under the

Confidentiality Act.

Although we ultimately answer the certified question in the

negative, our analysis reveals that several unresolved variables are at

work here. In other words, the certified question does not represent

the full range of issues presented in this case. However, this court

may go beyond the limits of a certified question in the interests of

judicial economy and the need to reach an equitable result. Bright v.

Dicke, 166 Ill. 2d 204, 208 (1995); see Dowd & Dowd, Ltd. v.

Gleason, 181 Ill. 2d 460, 468-72 (1998).

The certified question requires us to construe the relevant

provisions of the Marriage Act and the Confidentiality Act. The

primary rule of statutory construction is to give effect to the intent of

the legislature. The best evidence of legislative intent is the statutory

language itself, which must be given its plain and ordinary meaning.

The statute should be evaluated as a whole. Where the meaning of a

statute is unclear from a reading of its language, courts may look

beyond the statutory language and consider the purpose of the law,

the evils it was intended to remedy, and the legislative history of the

statute. Stroger v. Regional Transportation Authority, 201 Ill. 2d 508,

524 (2002); Reda v. Advocate Health Care, 199 Ill. 2d 47, 55 (2002).

However, legislative intent remains the primary inquiry and controls

a court’s interpretation of a statute. Traditional rules of statutory

construction are merely aids in determining legislative intent, and

those rules must yield to such intent. Collins v. Board of Trustees of
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the Firemen’s Annuity & Benefit Fund, 155 Ill. 2d 103, 111 (1993).

Because this issue concerns a question of law certified by the circuit

court pursuant to Supreme Court Rule 308, our review is de novo.

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

Marriage Act. Part VI of the Marriage Act pertains to child custody.

Section 602 mandates: “The court shall determine custody in

accordance with the best interest of the child. The court shall

consider all relevant factors,” including specificfactorslisted therein.

(Emphasis added.) 750 ILCS 5/602(a) (West 2006). Section 604(b)

provides:

“(b) The court may seek the advice of professional

personnel, whether or not employed by the court on a regular

basis. The advice given shall be in writing and made available

by the court to counsel. Counsel may examine, as a witness,

any professional personnel consulted by the court, designated

as a court’s witness.” 750 ILCS 5/604(b) (West 2006).

The appellate court concluded that the plain language of section

604(b) provides no limitations or exceptions when the courtappointed expert witness is a psychiatrist or other mental health

professional, and that a court must not depart from this plain language

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 face limits distribution of the report to the [circuit

court] and the attorneys for the litigants”; nothing in the subsection

“indicates that anyone other than the attorneys will have access to this

information”; and section 604(b) “limits actual use of the information

to *** when the court designates the evaluator as a court’s witness.”

Plaintiffs also contend that nothing in the language of section 604(b)

“states or implies that if the ordered examination is a psychiatric

examination, then the participant has waived all confidentiality rights

to any psychiatric information received by the examining psychiatrist

and any psychiatric reports.” In contrast, defendants contend that
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section 604(b), on its face, does not provide that communications

with and the resulting report of the 604(b) professional are

confidential. Defendants further contend that section 604(b) does not

differentiate between a mental health professional and any other

professional personnel.

We agree with plaintiffs that section 604(b) of the Marriage Act,

considered alone, requires disclosure of the 604(b) report only in the

particular proceeding in which the advice is sought. Initially, the plain

language of the statute refers only to counsel in that proceeding. 750

ILCS 5/604(b) (West 2006).

Further, any reasonable difference of opinion in the meaning of

section 604(b) of the Marriage Act is dispelled by a consideration of

its purpose and the evils it was intended to remedy. In 1977, the

General Assembly enacted the Marriage Act (750 ILCS 5/101 et seq.

(West 2006)), which is a substantial adoption of the Uniform

Marriage and Divorce Act (Uniform Marriage Act). See Unif.

Marriage and Divorce Act §101, 9A U.L.A. 171 (1998); Ill. Ann.

Stat., ch. 40, par. 101, at 6-7 (Smith-Hurd 1980)(referencing Uniform

Marriage Act). Section 604 of the Marriage Act derives from section

404 of the Uniform Marriage Act. Ill. Ann. Stat., ch. 40, par. 604,

Historical and Practice Notes, at 56 (Smith-Hurd 1980). The

comment to this section in the Uniform Marriage Act explains:

“[T]he judge may call informally on experts in a variety of

disciplines without subjecting them, in the first instance, to

the formal hearing process. But the experts’ advice should be

available to counsel for the parties so that the judge’s

decision will not be based on secret information; and the

parties should be able to examine the expert as to the

substance of his advice to the judge.” (Emphases added.)

Unif. Marriage and Divorce Act §404, 9A U.L.A. 381, cmt.

(1998).

For these reasons, the term “professional personnel” is “intentionally

broad.” Ill. Ann. Stat., ch. 40, par. 604, Historical and Practice Notes,

at 57 (Smith-Hurd 1980); see In re Marriage of Auer, 86 Ill. App. 3d

84, 88 (1980). Nonetheless, disclosure of the section 604(b) report is

clearly intended to be limited to the parties in the particular

proceeding. We conclude that section 604(b) of the Marriage Act

confines Dr. Amabile’s 604(b) report to the McCann postdissolution
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proceeding.

Not only do defendants misapprehend section 604(b) of the

Marriage Act, they ignore section 605, which provides the remedy

intended by the legislature in cases where a party in a postdissolution

proceeding seeks relevant evidence adduced in another

postdissolution proceeding. The Marriage Act “should be evaluated

as a whole; each provision should be construed in connection with

every other section.” Bonaguro v. County Officers Electoral Board,

158 Ill. 2d 391, 397 (1994). Section 605 of the Marriage Act provides

that a parent or custodian may request the circuit court, or in a

contested custody proceeding, on the court’s own motion, to order

“an investigation and report concerning custodial arrangements for

the child.” 750 ILCS 5/605(a) (West 2006). In preparing the section

605 report, the investigator may consult any person who may have

information about the child and the child’s custodial arrangements.

Also: “The investigator may consult with and obtain information

from medical, psychiatric or other expert persons who have served the

child in the past, without obtaining the consent of the parent or the

child’s custodian.” 750 ILCS 5/605(b) (West 2006). The investigator

shall mail the report to the parties and counsel, and the court may

examine and consider the section 605 report in determining custody.

750 ILCS 5/605(c) (West 2006). Significantly:

“The investigator shall make available to counsel, and to any

party not represented by counsel, the investigator’s file of

underlying data, reports, and the complete texts of diagnostic

reports made to the investigator pursuant to the provisions of

subsection (b) of this Section, and the names and addresses of

all persons whom the investigator has consulted. 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-examination prior to

the hearing.” 750 ILCS 5/605(c) (West 2006). 

This plain language indicates that, when duly invoked, section 605

allows for disclosure in precisely the situation presented in this case.

Further, the plain language of section 605 supports the stated

legislative intent:

“The results of the investigations can aid the parties in
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determining which custodial arrangements are in the child’s

best interest and may be useful in facilitating the settlement of

disputes. The reports can also be valuable discovery tools, as

parties may call as witnesses those persons whom the

investigator contacted during the course of the investigation.”

(Emphasis added.) Ill. Ann. Stat., ch. 40, par. 605, Historical

and Practice Notes, at 61 (Smith-Hurd 1980).

The legislature intended that courts and counsel consider sections

604, 605, and 606 (hearings) together in child custody proceedings.

As the comment to section 404 of the Uniform Marriage Act, from

which section 604 of the Marriage Act derives, explains: “This

section, and the two which follow, are designed to permit the court to

make custodial and visitation decisions as informally and noncontentiously as possible, based on as much relevant information as

can be secured, while preserving a fair hearing for all interested

parties.” Unif. Marriage 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 Marriage Act. Child custody proceedings epitomize the

need for maximum disclosure of information in the goal of reaching

justice. The paramount consideration and guiding principle in

determining child custody is the best interests of the child (In re

Marriage of Cotton, 103 Ill. 2d 346, 356 (1984); Miezio v. Miezio, 6

Ill. 2d 469, 472 (1955)), considering all relevant factors. 750 ILCS

5/602(a) (West 2006). Therefore, the circuit court exercises broad

discretion in admitting relevant evidence that may assist the court in

arriving at a custody determination (see Frees v. Frees, 99 Ill. App.

2d 213, 219 (1968)), and the court should hear and weigh all available

relevant evidence (see Marcus v. Marcus, 24 Ill. App. 3d 401, 407

(1974)). Section 604(b) “allows the court to seek the advice of

professional personnel in order to supplement the evidence provided

by the parties.” Ill. Ann. Stat., ch. 40, par. 604, Historical and Practice

Notes, at 57 (Smith-Hurd 1980). As defendants’ supporting amicus

observes, courts consider section 604(b) reports to be evidence of

record, and consider such reports prepared by mental health

professionals as prepared by any other professional personnel. See,

e.g., In re Marriage of Bhati, 397 Ill. App. 3d 53, 67-68 (2009); Auer,

86 Ill. App. 3d at 87-88.
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We agree with the appellate court that section 604(b) of the

Marriage Act provides no limitations or exceptions when the section

604(b) professional is a mental health professional. 396 Ill. App. 3d

at 785-86. Although section 605 of the Marriage Act provides

defendants with a remedy, we conclude that section 604(b) confines

disclosure of Dr. Amabile’s report to the court, counsel, and the

parties in the McCann postdissolution proceeding.

B. Privilege: Confidentiality Act

Nonetheless, plaintiffs argue before this court, as they argued

before the appellate court, that where the section 604(b) professional

is a psychiatrist, that person is a mental health provider who renders

mental health services within the meaning of the Confidentiality Act.

Therefore, according to plaintiffs, the communications and

information they shared with Dr. Amabile, with her resulting

evaluation contained in her section 604(b) report, are confidential and

privileged under the Confidentiality Act. The appellate court rejected

this argument. 396 Ill. App. 3d at 786-92.

Privileges are “governed by the principles of the common law as

they may be interpreted by Illinois courts in the light of reason and

experience,” except as otherwise provided by applicable statute. Ill.

R. Evid. 501 (eff. Jan. 1, 2011). The Confidentiality Act establishes,

except as provided therein, that “[a]ll records and communications

shall be confidential and shall not be disclosed” (740 ILCS 110/3(a)

(West 2006)), and that in any legal proceeding or preliminary

proceeding, “a recipient, and a therapist on behalf and in the interest

of a recipient, has the privilege to refuse to disclose and to prevent the

disclosure of the recipient’s record or communications.” 740 ILCS

110/10(a) (West 2006). Persons injured by a violation of the Act may

sue for damages or other appropriate relief, and may be awarded costs

and attorney fees. 740 ILCS 110/15 (West 2006).

The records made confidential under the Confidentiality Act refer

to “any record kept by a therapist or by an agency in the course of

providing mental health or developmental disabilities service to a

recipient concerning the recipient and the services provided”; the

communications made confidential under the Act refer to “any

communication made by a recipient or other person to a therapist or
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to or in the presence of other persons during or in connection with

providing mental health or developmental disability services to a

recipient. Communication includes information which indicates that

a person is a recipient.” 740 ILCS 110/2 (West 2006). Further, the

term “recipient” means “a person who is receiving or has received

mental health or developmental disabilities services”; the term

“therapist” means “a psychiatrist, physician, psychologist, social

worker, or nurse providing mental health or developmental

disabilities services”; and the term “mental health or developmental

disabilities services” “includes but is not limited to examination,

diagnosis, evaluation,treatment, training, pharmaceuticals, after-care,

habilitation or rehabilitation.” 740 ILCS 110/2 (West 2006). 

In the present case, plaintiffs contend that Dr. Amabile’s report is

privileged under the Confidentiality Act because Dr. Amabile was a

“therapist” who provided, and plaintiffs were “recipients” who

received, “mental health services” as the Act defines these terms. We

reject this argument, as did the appellate court. 396 Ill. App. 3d at

786-87.

Initially, this court and our appellate court have consistently

recognized that the purpose of the Confidentiality Act “is to preserve

the confidentiality of the records and communications of persons who

are receiving or who have received mental-health services.” Novak v.

Rathnam, 106 Ill. 2d 478, 483 (1985). In other words, the

Confidentiality Act “was intended to include all those persons

entering into a therapeutic relationship with clients.” Martino v.

Family Service Agency, 112 Ill. App. 3d 593, 599-600 (1982). The

Act “only applies to situations in which the patient is seeking

treatment for a mental health condition.” House v. SwedishAmerican

Hospital, 206 Ill. App. 3d 437, 446 (1990). Accordingly, under the

Confidentiality Act, where a person makes statements to a therapist

in the course of a professional consultation, 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 recognized that the

therapist-patient privilege is grounded in the crucial role of

confidentiality in a therapeutic relationship:

“Effective psychotherapy *** depends upon an atmosphere of

confidence and trust in which the patient is willing to make a
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frank and complete disclosure of facts, emotions, memories,

and fears. Because of the sensitive nature of the problems for

which individuals consult psychotherapists, disclosure of

confidential communications made during counseling

sessions may cause embarrassment or disgrace. For this

reason, the mere possibility of disclosure may impede

development of the confidential relationship necessary for

successful treatment.” (Emphasis added.) Jaffee v. Redmond,

518 U.S. 1, 10 (1996).

Observing that all 50 states, the District of Columbia, and the federal

courts recognize some form of statutory or common law

psychotherapist-patient privilege, this court reasoned: “Clearly, this

reflects an understanding that people will increasingly avail

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 Reda v. Advocate Health Care, 199 Ill. 2d 47, 60

(2002) (same); Laurent v. Brelji, 74 Ill. App. 3d 214, 217 (1979)

(same).

In the present case, Dr. Amabile was not retained as a therapist to

treat plaintiffs. Rather, she was acting as an independent section

604(b) professional, whose sole function was to make an evaluation

for the circuit court to consider. Since Dr. Amabile and plaintiffs

were not engaged in a therapeutic relationship, the Confidentiality

Act does not apply.

Before this court, plaintiffs contend that section 110(a)(1) of the

Confidentiality Act “specifically grants special status and protection

in Domestic Relations proceedings.”That section provides in relevant

part:

“(1) Records and communications may be disclosed in a

civil *** proceeding in which the recipient introduces his

mental condition or any aspect of his services received for

such condition as an element of his claim or defense *** . ***

However, for purposes of this Act, in any action brought or

defended under the [Marriage Act], or in any action in which

pain and suffering is an element of the claim, mental

condition shall not be deemed to be introduced merely by

making such claim and shall be deemed to be introduced only

if the recipient or a witness on his behalf first testifies
 

3Plaintiffs rely on McGreal v. Ostrov, 368 F.3d 657, 687-90 (7th Cir.

2004), which did not consider whether a therapeutic relationship existed in

the context of a police officer’s mental fitness evaluation taken under

orders. However, this federal case is not binding on this court. City of

Chicago v. Groffman, 68 Ill. 2d 112, 118 (1977).

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concerning the record or communication.” 740 ILCS

110/10(a)(1) (West 2006).

Plaintiffs contend that this section expresses “legislative intent to

accord specific protection to divorce litigants from disclosure of

private mental health information.”

We disagree. By its plain language, section 10(a)(1) applies only

to prevent one party in a dissolution proceeding from accessing

mental health records of the opponent by attempting to place the

opponent’s mental health at issue. This section is unrelated to the

circuit court’s appointment of a section 604(b) professional to advise

the court on child custody matters, with the disclosure of that advice

to all parties and their counsel. Here, there is no attempt by one party

to place his or her opponent’s mental health at issue. Further, as

discussed above, a custody evaluation pursuant to section 604(b) of

the Marriage Act does not constitute psychiatric services received for

a mental condition. Accordingly, section 10(a)(1) of the

Confidentiality Act does not apply to the information obtained by and

the report of a section 604(b) professional.3

Further, as the appellate court recognized, section 10(a)(4)

provides the following exception to the therapist-patient privilege:

“(4) Records and communications made to or by a

therapist in the course of examination ordered by a court for

good cause shown may, if otherwise relevant and admissible,

be disclosed 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 and communications would not

be considered confidential or privileged.” 740 ILCS

110/10(a)(4) (West 2006).

As the appellate court observed, it is undisputed that Dr. Amabile
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informed plaintiffs that their communications with her were not

confidential, and that her report would be presented to the circuit

court, the parties and their attorneys. The appellate court concluded:

“Accordingly, the communications to Dr. Amabile, as a courtappointed section 604(b) witness, could not be deemed confidential

under the Confidentiality Act.” 396 Ill. App. 3d at 788. We agree and

so hold.

Before this court, plaintiffs argue that the appellate court’s

reliance on section 10(a)(4) “has effectively eviscerated” the privilege

established in section 10(a). This argument is unavailing. Section

10(a)(4) speaks to situations where disclosure is discretionary. In

contrast, the disclosure of the section 604(b) report and its contents

to the opposing party and counsel is mandatory pursuant to section

604(b) of the Marriage Act. Accordingly, section 110(a)(4) of the

Confidentiality Act does not apply to the contents of a 604(b) report.

Nonetheless, plaintiffs continue to rely on Norskog v. Pfiel, 197

Ill. 2d 60 (2001), in support of their argument that the

communications and information contained in Dr. Amabile’s 604(b)

report are privileged. In Norskog, the circuit court ordered the

defendants, the patient who received mental health services as a

minor and his parents, to identify the mental health service providers

seen by the patient and to disclose information regarding the patient’s

diagnosis and treatment as part of discovery in a civil wrongful death

action. Defendants failed to comply with the discovery orders, and

appealed from the resulting contempt citations. Id. at 64-68. This

court held that the circuit court erred when it held the defendants in

contempt because the information was privileged under the

Confidentiality Act, and no exception allowed for disclosure in that

case. Id. at 86-87.

After fully discussing Norskog, the appellate court correctly

concluded that Norskog was distinguishable from the present case.

396 Ill. App. 3d at 789-90. Norskog was governed by the strict

requirements of section 104–14(a) of the Code of Criminal Procedure

of 1963 (725 ILCS 5/104–14(a) (West 2006)), which mandated that

statements made by a defendant and information gathered during a

court-ordered mental-fitness examination “shall not” be admissible

against the defendant unless he raises an insanity or similar defense,

which that defendant did not do. Further, unlike section 604(b) of the
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Marriage Act, the criminal statute at issue in Norskog explicitly

prohibits any other use of statements made by a defendant in a

criminal fitness examination without the defendant’s informed

written consent. 725 ILCS 5/104–14(b) (West 2006); Norskog, 197

Ill. 2d at 77.

In the present case, plaintiffs did not undergo a criminal forensic

evaluation governed by the strict requirements of the Code of

Criminal Procedure. Rather, they participated in interviews with a

section 604(b) professional to advise the circuit court in making a

custody determination. Unlike section 104–14(a) of the Code of

Criminal Procedure, section 604(b) of the Marriage Act does not

require that a person from whom the 604(b) professional obtains

information give written informed consent before such information

contained in the 604(b) report may be used in any proceeding. To the

contrary, 604(b) reports must be given to both parties and their

counsel, and the 604(b) professional remains available to testify at

trial as the court’s witness subject to examination by both parties.

Norskog does not apply to the present case.

This court has repeatedly recognized that the Confidentiality Act

constitutes “a strong statement” by the legislature about the

importance of keeping mental health records confidential. Reda, 199

Ill. 2d at 60; Norskog, 197 Ill. 2d at 71-72. We expressly reaffirm this

unmistakable legislative intent. However, the Confidentiality Act

simply does not apply in the present case because Dr. Amabile and

plaintiffs were not engaged in a therapeutic relationship.

In the case at bar, we conclude that section 604(b) of the Marriage

Act does not distinguish mental health personnel from other 604(b)

professional personnel. Further, although section 605 provides

defendants with a remedy, section 604(b) confines Dr. Amabile’s

report to the McCann postdissolution proceeding. Additionally, the

Confidentiality Act does not apply in this case.

We observe that, in dicta, the appellate court discussed possible

remedies that plaintiffs could pursue as an alternative to a

Confidentiality Act claim. 396 Ill. App. 3d at 791. While we have

reviewed the record in the interests of judicial economy and the need

to reach an equitable result (Bright, 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.
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v. Haas, 226 Ill. 2d 334, 358 (2007).

III. CONCLUSION

For the foregoing reasons, we answer the certified question in the

negative, and remand the cause to the circuit court for further

proceedings consistent with this opinion

Certified question answered;

cause remanded.

JUSTICE THEIS took no part in the consideration or decision of

this case.

CHIEF JUSTICE KILBRIDE, dissenting: 

The certified question requires this court to construe the Mental

HealthandDevelopmentalDisabilities Confidentiality Act (740 ILCS

110/1 et seq. (West 2006)) on whether mental health information

obtained by a psychiatrist or other mental health professional under

a court order pursuant to section 604(b) of the Illinois Marriage and

Dissolution of Marriage Act (750 ILCS 5/604(b) (West 2006)) is

confidential. The majority correctly recognizes that the central

purpose of the Confidentiality Act is to preserve the confidentiality

of mental health information. Nonetheless, the majority answers the

certified question negatively, holding that mental health information

provided to a psychiatrist or other mental health professional in a

court-ordered section 604(b) report is not confidential. The majority

reasons that the Confidentiality Act is intended to make confidential

only information obtained when a person is in a therapeutic

relationship with a mental health professional, a relationship

purportedly outside a section 604(b) report created pursuant to court

order. Slip op. at 11-12.

I disagree and therefore respectfully dissent. In my view, the

majority’s decision contravenes the undisputed legislative intent

underlying the Confidentiality Act, namely, the vigorous protection

of the confidentiality of mental health information. As even the

majority recognizes, this court has consistently determined that the
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Confidentiality Act constitutes a “strong statement” by the legislature

about the importance of keeping mental health records confidential.

Slip op. at 15 (citing Reda v Advocate Health Care, 199 Ill. 2d 47, 60

(2002), and Norskog v. Pfiel, 197 Ill. 2d 60, 71-72 (2001)). In fact, the

legislature has carefully restricted disclosure of mental health

information to certain statutory exceptions, with each exception

subject to a narrow construction. Norskog, 197 Ill. 2d at 71. Contrary

to clear legislative intent, the majority effectively holds that mental

health information divulged in a court-ordered section 604(b) report

is never confidential. Simply stated, the majority has created a broad

and unwarranted exception to the Confidentiality Act.

The plain language of the Confidentiality Act shows that the

certified question should be answered affirmatively. Specifically,

section 10 of the Confidentiality Act, entitled “Disclosure in civil,

criminal, and other proceedings,” identifies several exceptions to the

Confidentiality Act’s blanket prohibition on the disclosure of mental

health information. Critically, section 10(a)(4) addresses the precise

issue presented in the certified question, the disclosure of mental

health information in a court-ordered examination, providing that:

“Records and communications made to or by a therapist

in the course of examination ordered by a court for good

cause shown may, if otherwise relevant and admissible, be

disclosed in a civil, criminal, or administrative 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 and

communications would not be considered confidential or

privileged. Such records and communications shall be

admissible only as to issues involving the recipient’s physical

or mental condition and only to the extent that these are

germane to such proceedings.” (Emphasis added.) 740 ILCS

110/10(a)(4) (West 2006).

Thus, the plain language of section 10(a)(4) allows for disclosure of

mental health information obtained in a court-ordered examination

only if two important conditions are met: (1) the information must be

relevant, germane, and admissible in the proceeding at issue and (2)

the recipient must be adequately and effectively informed that any
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record or communication is not confidential before submitting to the

court-ordered examination. 

Clearly, if section 10(a)(4)’s conditions are not satisfied, the

legislature intended that the mental health information in the courtordered examination remain confidential, consistent with the

overarching legislative goal of the Confidentiality Act to safeguard

the confidentiality of that information. Therefore, directly rebutting

the majority’s holding, the plain language of section 10(a)(4)

demonstrates that the legislature contemplated instances when mental

health information obtained during a court-ordered examination

would not be divulged.

Rather than acknowledging the legislative intent underlying

section 10(a)(4), the majority attempts to distinguish the provision by

noting that disclosure of mental health 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, consequence, and should certainly not be considered

dispositive after a careful comparison between section 10(a)(4) of the

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

As noted, section 10(a)(4) of the Confidentiality Act specifically

addresses mental health information obtained in a court-ordered

examination. In particular, section 10(a)(4) makes admission of the

information discretionary, indisputably showing that the legislature

intended for the trial court to have authority to refuse to admit mental

health information and maintain its confidentiality. Moreover,

contrary to the majority’s conclusion, nowhere does section 10(a)(4)

contain any language indicating the legislature intended to limit its

application to a therapeutic relationship. Indeed, the Confidentiality

Act defines a “therapist” as “a psychiatrist, physician, psychologist,

social worker, or nurse providing mental health *** services.” 740

ILCS 110/2 (West 2006). Under the Confidentiality Act, the types of

“services” a therapist may provide include “examination” and

“evaluation” (740 ILCS 110/2 West 2006)), as well as the more

traditionally recognized therapeutic services of treatment, training,

pharmaceuticals, habilitation or rehabilitation, and aftercare. See 740

ILCS 110/2 (West 2006). Thus, the majority’s determination that the

Confidentiality Act’s application is limited to situations involving a

purely therapeutic relationship is not supported by the plain meaning
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of the statutory language, the best indicator of legislative intent.

The majority’s interpretation directly conflicts with the plain

language of section 10(a)(4), making the Confidentiality Act

applicable to “[r]ecords and communications made to or by a

therapist in the course of examination ordered by a court. (Emphasis

added.) 740 ILCS 110/10(a)(4) (West 2006). Court-ordered

examinations alone would rarely, if ever, constitute the “therapeutic

relationship” required by the majority for application of section

(10)(a)(4). If the legislature intended the Confidentiality Act to apply

only during the course of “therapeutic relationships,” it would not

have specially addressed disclosures related to “[r]ecords and

communications” that occurred during traditionally non-therapeutic

examinations “ordered by a court” in a “civil, criminal, or

administrative proceeding.” 740 ILCS 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 examinations. In Norskog, this court

determined that the Confidentiality Act protected records and

communications from a court-ordered fitness evaluation from

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 Norskogwas in a criminal proceeding, the

same general principles are applicable here.

In comparison, section 604(b) of the Marriage Act, relied on by

the majority, is silent on the admission of mental health information

obtained through a court-ordered examination. Instead, the provision

speaks generally on the trial court’s authority in proceedings under

the Marriage Act to obtain the written “advice of professional

personnel” that must also be made available to the parties’ respective

counsel. 750 ILCS 5/604(b) (West 2006). Notably, section 604(b) has

no requirementthat otherwise confidential mental health information,

whether obtained in a therapeutic relationship or not, must always be

disclosed. Consequently, the majority’s assertion that section 604(b)

requires mandatory disclosure of mental health information obtained

during a court-ordered examination is not supported by the statutory

language. 

I agree with the majority’s observation that section 604(b) of the

Marriage Act promotes thorough consideration of a child’s best
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interests and epitomizes the need for maximum disclosure of

information in child custody proceedings. I strongly disagree,

however, with the majority’s final determination that mental health

information in a court-ordered report under section 604(b) can never

be confidential under the Confidentiality Act. 

In my opinion, the need for full disclosure in child custody

proceedings under section 604(b) of the Marriage Act should be

balanced with the equally important goal of protecting the

confidentiality of an individual’s mental health information under the

Confidentiality Act. I believe the legislature struck the proper balance

when it enacted section 10(a)(4) of the Confidentiality Act by

authorizing the disclosure of mental health information from a courtordered examination when it is relevant to the proceedings and the

individual has been informed that it would not remain confidential.

The majority’s holding circumvents the legislature’s thoughtful

balancing of those interests. The majority has created a harsh

exception that automatically admits all sensitive mental health

information in section 604(b) reports in every case, regardless of

whether that information is relevant or the individual was made aware

that the information would be divulged.

In summary, the legislature’s intent underlying the language of

section 10(a)(4) of the Confidentiality Act, addressing the precise

issue here, should control when compared to section 604(b) of the

Marriage Act, silent on the issue. Accordingly, I would answer the

certified question affirmatively, holding that mental health

information from a court-ordered examination in a section 604(b)

report is confidential and inadmissible unless the requirements for its

admission under section 10(a)(4) of the Confidentiality Act are met.

This approach properly balances the need for full disclosure under the

Marriage Act with the need to protect the confidentiality of mental

health information under the Confidentiality Act.