Under the Illinois Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 11/3 (et seq.),
All records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship.
Further, under section (10)(a),
[E]xcept as provided herein, in any civil, criminal, administrative, or legislative proceeding . . . 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 communication.
At first glance, the Illinois Mental Health and Developmental Disabilities Confidentiality Act acts as an absolute statutory privilege for mental health care professionals. The privilege can be asserted by the therapist, and act to prevent the disclosure of records. There are some statutory exceptions to the Act. However, it is more interesting to consider a potential non-statutory exception to the act. The common law Crime-Fraud exception. What happens when the therapist has been personally accused of a crime involving their patients?
Historically speaking, the Crime-Fraud exception has only been applied to attorney client confidentiality. One situation it can be applied in is when the attorney has been personally accused of a crime. The Crime-Fraud exception has been used to permit searches of attorney law offices, so long as certain procedures are followed (which will not be discussed here). Historically speaking, the Crime-Fraud exception has deep roots in cases such as Clark v. United States, 289 U.S. 1 (1933), which held that the Crime-Fraud exception applies to jurors as well as attorneys. More important than the specific holding of Clark though, is the rationale of Clark, as well as many other Federal and Illinois State cases.
Assuming there is a privilege [. . . ], we think the privilege does not apply where the relation giving birth to it has been fraudulently begun or fraudulently continued. [ . . .] The privilege takes as its postulate a genuine relation, honestly created and honestly maintained. If that condition is not satisfied, if the relation is merely a sham and a pretense, the juror may not invoke a relation dishonestly assumed as a cover and cloak for the concealment of the truth.
Clark continues,
We turn to the precedents in the search of an analogy, and the search is not in vain. There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.
This rationale is continued in the recent Illinois Supreme Court case of People v. Radojcic, 2013 IL 114197 (2013). In Radojcic,
“The rationale underlying the Crime-Fraud exception is intimately connected to the nature of the attorney-client relationship. [ . . . ] in seeking legal counsel to further a crime or fraud, the client does not seek advice from an attorney in his professional capacity.
In other words, the fatal crack in the armor to the defenses provided by the Illinois Mental Health and Developmental Disabilities Confidentiality Act may be the same crack for juror confidentiality and attorney-client confidentiality. In seeking counsel to further a crime or fraud, the client does not seek advice from a service provider in their professional capacity.
When viewed in this light, there may be a crime-fraud exception to the Illinois Mental Health and Developmental Disabilities Confidentiality Act. As we examine section (3) more closely, we see that records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure. Hence, records may not be protected if the assertion is that the records or communications were not made in the course of providing mental health treatment, but were in fact made in the course of committing a crime. Similarly, “Record” is defined in the code as being kept in the course of providing mental health services.
Therefore, the trick to getting around the juror privilege and the attorney-client privilege could potentially also be used to get around the confidentiality provisions of the Illinois Mental Health and Developmental Disabilities Confidentiality Act.
Phrased another way, records which are made in furtherance of crime may not be records made or created in the course of providing mental health or developmental disabilities services. The confidentiality act does not apply because the therapist is not truly acting in their professional capacity.
Can the common law Crime-Fraud exception negate the privilege provided by the Illinois Mental Health and Developmental Disabilities Confidentiality Act? Only time will tell. It does not seem there is any published opinion regarding the Crime-Fraud exception and the Illinois Mental Health Confidentiality Act. Therefore, the brief argument here may be a case of first impression one day in the future!