Johnston v. Weil ( 2009 )

THIRD DIVISION
December 2, 2009
No. 1-08-2861
HEATHER JOHNSTON, WILLIAM JOHNSTON ) Appeal from the
and JANE JOHNSTON, ) Circuit Court of
) Cook County.
Plaintiffs-Appellees, )
)
v. )
)
ANDREW WEIL, SEAN McCANN, DOROTHY B. )
JOHNSON, MARTA COBLITZ, BURTON )
HOCHBERT, KAREN PINKERT-LIEB, ANDREA )
MUCHIN, DEBRA DiMAGGIO and LESLIE )
FINEBERG, ) Honorable
) Ronald S. Davis,
Defendants-Appellants. ) Judge Presiding.
JUSTICE QUINN delivered the opinion of the court:
Plaintiffs filed a complaint against defendants alleging, inter alia, that defendants1 violated
the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (740
ILCS 110/1 et seq. (West 2006)) by disseminating, or causing to be disseminated, information
obtained by a professional witness who was appointed by the circuit court pursuant to section
604(b) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750
ILCS 5/604(b) (West 2006)). The circuit court denied defendants’ motion to dismiss plaintiffs’
1
Plaintiffs and defendant Andrew Weil settled out of court and this court granted the
parties’ agreed motion to dismiss Weil’s appeal on May 27, 2009.
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complaint and defendants filed a motion to reconsider or, in the alternative, to certify for appeal
the issue of whether the evaluations, communications, reports, and information obtained pursuant
to section 604(b) of the Marriage Act are confidential where the professional witness employed by
the court is a psychiatrist or mental health care provider. On October 2, 2008, the circuit court,
pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), certified the following question for
interlocutory appeal:
“Whether evaluations, communications, reports and information obtained pursuant to
section 750 ILCS 5/604(b) of the Illinois Marriage and Dissolution of Marriage [Act] are
confidential under the Mental Health and Developmental Disabilities Confidentiality Act
740 ILCS 110/1 et seq. where the 604(b) professional personnel [sic] to advise the court
is a psychiatrist or other mental health professional.”
This court granted defendants’ application for leave to appeal on November 26, 2008.
On appeal, defendants argue that the evaluations, communications, reports and
information obtained pursuant to section 604(b) of the Marriage Act are not confidential under
the Confidentiality Act where the section 604(b) expert witness is a court witness whose findings
are necessarily disclosed to the court and parties. Defendants also maintain that no confidential
relationship exists between a section 604(b) expert witness and the participants involved in the
court-ordered evaluation. Plaintiffs argue that a section 604(b) expert is a mental health provider
who provides mental health services to participants within the meaning of the Confidentiality Act.
For the following reasons, we agree with defendants and answer the certified question in the
negative.
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I. BACKGROUND
Plaintiff Heather Johnston was married to defendant Sean McCann and the parties had a
son together prior to defendant McCann filing a petition for dissolution of marriage on May 22,
1998 (McCann divorce). McCann was represented by defendants Debra DiMaggio and Leslie
Fineberg during divorce proceedings. Defendant Marta Coblitz was the appointed child’s
representative in those proceedings.
Plaintiff subsequently married defendant Andrew Weil and the parties had a daughter
together prior to defendant Weil filing a petition for dissolution of marriage on January 24, 2002
(Weil divorce). Weil was represented by defendants Burton Hochberg, Karen Pinkert-Lieb and
Andrew Muchin during divorce proceedings. Defendant Dorothy Johnson (attorney Johnson)
was the appointed child’s representative in those proceedings.
Following the McCann divorce, McCann filed a petition to modify provisions of the joint
parenting agreement with plaintiff Johnston. As a result of that petition, on January 27, 2006, the
circuit court entered an order stating that “Dr. Phyllis Amabile [a psychiatrist] shall conduct a
604[(b)] evaluation of the family” and “Both Parties *** shall fully cooperate with Dr. Amabile in
conducting her evaluation, including without limit submitting to any testing or evaluations
administered by Dr. Amabile or her agents or by third parties recommended by Dr. Amabile.”
Pursuant to the circuit court’s order, plaintiff Johnston and her parents, plaintiffs William
Johnston and Jane Johnston, participated in Dr. Amabile’s evaluation. Dr. Amabile advised each
of the plaintiffs that the information she obtained in the interviews would be disclosed to the
court, all parties and their attorneys. Dr. Amabile completed her evaluation and sent a report to
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the circuit court pursuant to section 604(b) of the Marriage Act. The record does not show that
plaintiffs sought a protective order regarding the information provided to Dr. Amabile or her
report.
Contemporaneous with the McCann postdecree proceedings, former defendant Weil filed
a motion for temporary possession and an emergency motion seeking leave to subpoena Dr.
Amabile. After receiving notice of Weil’s motion, on December 6, 2006, attorney Johnson, as the
court-appointed child representative in the Weil divorce, contacted Dr. Amabile in an effort to
determine whether Dr. Amabile’s section 604(b) evaluation had any relevance to the minor child
in the Weil divorce matter. In an affidavit, attorney Johnson stated that Dr. Amabile advised her
of three issues that she evaluated, but did not provide any information regarding her
communications with plaintiffs or any opinions or conclusions she formed as a result of the
section 604(b) evaluation. Plaintiff Johnston filed a response objecting to Weil’s motion and
asserting that Dr. Amabile’s report was privileged under the Confidentiality Act. On December
19, 2006, the circuit court presiding in the Weil divorce matter issued a written order finding that
Dr. Amabile’s section 604(b) report in the McCann divorce matter was subject to the
Confidentiality Act and not discoverable in the Weil divorce matter.
On January 30, 2007, plaintiffs filed their complaint against defendants alleging, in counts
I and II, that plaintiffs’ communications with Dr. Amabile, information she obtained from them,
and her resulting evaluation/report were confidential and had been disseminated by defendants in
violation of the Confidentiality Act. Plaintiffs alleged that because the section 604(b) professional
in this case was a psychiatrist, any information she obtained and her resulting report were
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confidential.
Defendants filed motions to dismiss plaintiffs’ complaint pursuant to sections 2-615 and 2-
619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619) (West 2006)), arguing
that the evaluation and report of the section 604(b) professional was neither privileged nor
confidential under the Confidentiality Act. Defendants also denied possessing, distributing,
disclosing or redisclosing the records and communications at issue.
Plaintiffs’ counsel was absent from the initial hearing on the motions to dismiss and the
circuit court granted defendants’ motions and dismissed counts I and II of plaintiffs’ complaint
pursuant to section 2-615 of the Code. The circuit court subsequently granted the motion to
vacate the dismissal order filed by plaintiffs’ counsel on the grounds that counsel had been
hospitalized on the date of the initial hearing. No new pleadings were filed. Following oral
arguments, the circuit court issued an order on April 18, 2008, denying defendants’ motion to
dismiss counts I and II of the complaint.
On May 16, 2008, defendants filed a motion requesting that the circuit court reconsider its
April 18, 2008, order or, in the alternative, certify the question of law at issue in this case. With
the agreement of the parties, the circuit court certified the question of law at issue in this case and
stayed the proceedings below pending this court’s resolution of the certified question.
II. ANALYSIS
We review a question of law certified by the circuit court pursuant to Supreme Court Rule
308 (155 Ill. 2d R. 308) de novo. Thompson v. Gordon, 221 Ill. 2d 414, 426 (2006).
The issue raised by the certified question of law is whether a section 604(b) court-
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appointed expert psychiatrist or other mental health professional who is providing an evaluation
falls under the Confidentiality Act (740 ILCS 110/1 et seq. (West 2006)). The fundamental rule
of statutory construction is to give effect to the intention of the legislature. Exelon Corp. v.
Department of Revenue, 234 Ill. 2d 266, 274-75 (2009). The most reliable indicator of the
legislature’s intent is the language of the statute, which must be given its plain and ordinary
meaning. Taylor v. Pekin Insurance Co., 231 Ill. 2d 390, 395 (2008). Where the statutory
language is clear and unambiguous, the court must give effect to the language without resort to
other tools of interpretation. In construing a statute, it is never proper for a court to depart from
plain language by reading into the statute exceptions, limitations, or conditions that conflict with
the clearly expressed legislative intent. Exelon Corp., No. 105582, slip op. at 6.
Section 604(b) of the Marriage Act provides:
“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).
Therefore, section 604(b) provides a mechanism for court appointment of an independent
evaluator on custody and visitation issues. The purpose of the statute is to make the information
available to assist the circuit court and the expert witness is appointed to protect the interests of
minor children regarding issues of custody and visitation. See In re Marriage of Petersen, 319 Ill.
App. 3d 325, 334 (2001) (circuit court designated a section 604(b) expert witness for the ultimate
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benefit of the minor children with respect to issues of custody and visitation and court had
inherent plenary powers to enter orders necessary for the benefit of the minor children, including
requiring a party to pay for the section 604(b) expert witness).
Consequently, under the terms of section 604(b), the expert is the court’s witness and it is
the duty of the court-appointed evaluator to conduct an independent investigation and provide the
court and each party with her findings. In addition, any party may call the evaluator to testify at
trial. See 750 ILCS 5/604(b) (West 2006) (“Counsel may examine, as a witness, any professional
personnel consulted by the court, designated as a court’s witness”). The statute provides no
limitations or exceptions when the court-appointed evaluator is a psychiatrist or other mental
health professional and this court must not depart from the plain language by reading such an
exception into section 604(b). See Exelon Corp., 234 Ill. 2d at 275.
Plaintiffs, nonetheless, assert that where a section 604(b) evaluator is a psychiatrist, the
Confidentiality Act applies because a psychiatrist is a mental health provider rendering mental
health services within the meaning of the Confidentiality Act. As such, plaintiffs maintain that a
confidential relationship existed between plaintiffs and Dr. Amabile.
The relevant sections of the Confidentiality Act provide, in pertinent part, as follows:
“ ‘Confidential communication’ or ‘communication’ means any communication
made by a recipient or other person to a therapist or 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.
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***
‘Mental health or developmental disabilities services’ or ‘services’ includes but is
not limited to examination, diagnosis, evaluation, treatment, training,
pharmaceuticals, aftercare, habilitation or rehabilitation.
***
‘Recipient’ means a person who is receiving or has received mental health or
developmental disabilities services.” 740 ILCS 110/2 (West 2006).
Plaintiffs argue that because Dr. Amabile “examined” and “evaluated” them, plaintiffs were
“recipients” of mental health services under the Confidentiality Act. We disagree.
“Because the [Confidentiality] Act’s goal is to ensure the confidentiality of therapeutic
relationships, it includes only ‘those persons entering into a therapeutic relationship with
clients.’ ” Quigg v. Walgreen Co., 388 Ill. App. 3d 696, 702 (2009), quoting Martino v. Family
Service Agency, 112 Ill. App. 3d 593, 599-600 (1982). Dr. Amabile was acting as an
independent, court-appointed evaluator rather than a therapist assisting patients. For a therapist,
the client is the patient. In contrast, for a child custody professional, the client is the court. The
goal of a therapist is to assist the patient in effectively treating a mental health issue. The goal of
a child custody professional, on the other hand, “is to assist the trier of fact in acquiring and
understanding psycholegal information relevant to the pending legal dispute.” D. Royce-Baerger,
R. Galatzer-Levi, J. Gould & S. Nye, A Methodology for Reviewing the Reliability and
Relevance of Child Custody Evaluations, 18 J. Am. Acad. Matrim. Law. 35, 38-39 (2002). Since
the court-appointed professional evaluates custody issues, the position taken by the section 604(b)
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professional may be adverse to one of the witnesses who participates in the evaluation. This is
contrary to the goal of mental health services that are provided in the context of a therapeutic
relationship between a therapist and patient.
Here, Dr. Amabile was not retained to act on behalf of plaintiffs and her only basis for
contact with plaintiffs was to report findings to the circuit court. Information divulged by
plaintiffs to the evaluator was necessary to Dr. Amabile’s evaluation for the court, and plaintiffs
were aware from the outset that the evaluator would relate her findings and conclusions to the
circuit court and parties involved. We therefore find that plaintiffs’ participation in the evaluation
performed by the court-appointed section 604(b) evaluator did not constitute a therapeutic
relationship. See Quigg, 388 Ill. App. 3d at 703 (where pharmacy was not engaged in a
therapeutic relationship with the pharmacy’s customer, it was not subject to liability under the
Confidentiality Act after it disclosed the customer’s prescription to her husband during divorce
and custody proceedings).
In addition, the Confidentiality Act specifically exempts records and communications made
to or by a therapist in the course of examination ordered by the circuit court when the individual
examined was informed that such records and communications would not be considered
confidential. See 740 ILCS 110/10(a)(4) (West 2006); People v. Summers, 353 Ill. App. 3d 367,
376 (2004) (defendant’s evaluation and treatment following his conviction for aggravated sexual
abuse were not privileged under the Confidentiality Act where the evaluation and treatment were
pursuant to court order). Section 10(a) of the Confidentiality Act provides, in relevant part:
“Records and communications made to or by a therapist in the course of
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examination ordered by the 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.” 740 ILCS 110/10(a)(4) (West 2006).
Here, there was no dispute that Dr. Amabile informed plaintiffs that their communications were
not confidential and that her findings would be presented to the circuit court, the parties and their
attorneys, pursuant to the court’s order. Accordingly, the communications to Dr. Amabile, as a
court-appointed section 604(b) witness, could not be deemed confidential under the
Confidentiality Act.
Moreover, our supreme court has recognized that four conditions are necessary for the
establishment of a privilege against the disclosure of communications:
“ ‘(1) The communications must originate in a confidence that they will not be
disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be
sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the correct
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disposal of litigation.’ ” (Emphasis in original.) In re October 1985 Grand Jury
No. 746, 124 Ill. 2d 466, 475 (1988), quoting 8 J. Wigmore, Evidence §2285, at
527 (rev. ed. 1961).
Here, plaintiffs are unable to establish even the first condition to assert a privilege. The parties do
not dispute that Dr. Amabile informed plaintiffs that their conversations and the information
obtained would be shared with the court, the parties and their attorneys. Thus, plaintiffs cannot
establish that the communications “originat[ed] in a confidence that they [would] not be
disclosed” to establish a privilege against the disclosure of the communications at issue.
Plaintiffs, nonetheless, rely on Norskog v. Pfiel, 197 Ill. 2d 60 (2001), in support of their
argument that the communications and information obtained by Dr. Amabile, as a section 604(b)
expert witness, are confidential. However, we find plaintiffs’ reliance on this case unavailing.
In Norskog, the parents and a patient, who received mental health services as a minor,
appealed from contempt citations issued by the circuit court for failing to comply with discovery
orders directing them to identify the mental health services providers seen by the patient and to
disclose information regarding the patient’s diagnosis and treatment. Norskog, 197 Ill. 2d at 62-
63. Our supreme court held that the circuit court erred when it held the parties in contempt
because the information was privileged under the Confidentiality Act and no exception allowed
for its disclosure in that case. Norskog, 197 Ill. 2d at 86-87.
Specifically, our supreme court determined, in Norskog, that the patient’s participation in
a court-ordered fitness examination in prior criminal proceedings arising from the murder he
committed when he was a minor did not result in waiver of his privilege under section 10(a)(4) of
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the Confidentiality Act (740 ILCS 110/10(a)(4) (West 2000)) against disclosure of his mental
health information in the subsequent civil wrongful death action arising from the same murder.
Norskog, 197 Ill. 2d at 76-78. Our supreme court noted that there are strict rules governing the
use of information revealed to an examiner in a fitness exam. Under section 104-14(a) of the
Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/104-14(a) (West 2000)), such
information “shall not be admissible against the defendant unless he raises the defense of insanity
***, in which case they shall be admissible only on the issue of whether he was insane.”
Subsection (b) of section 104-14 of the Criminal Code provided that any further use of statements
made in the course of a fitness examination, beyond what is allowed in subsection (a), must be
with the defendant’s informed written consent. Norskog, 197 Ill. 2d at 77. Our supreme court
explained that the examining psychiatrist admonished the patient prior to the examination that any
information the patient provided may be contained in reports submitted to the court but did not
mention anything about the disclosure of information in any subsequent civil proceedings.
Norskog, 197 Ill. 2d at 77. Our supreme court therefore determined that by participating in the
court-ordered fitness examination, the patient agreed to waive his confidentiality privilege only to
the extent provided by the strict procedural rules contained in the Criminal Code. Norskog, 197
Ill. 2d at 78. Our supreme court concluded that the patient was not notified, under section
10(a)(4) of the Confidentiality Act, “as adequately and as effectively as possible *** that such
records and communications would not be considered confidential or privileged.” (740 ILCS
110/10(a)(4) (West 2000)). Consequently the admonishments given to the patient at the fitness
examination were insufficient to allow disclosure of the patient’s mental health information in the
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civil proceedings. Norskog, 197 Ill. 2d at 78.
In Norskog, our supreme court also rejected the plaintiff’s argument that the patient
waived the confidentiality privilege in the civil proceedings where the patient placed his mental
health at issue by raising an insanity defense in the prior criminal trial. Our supreme court
explained that the defense of insanity was never raised because the patient never went to trial, but,
instead, entered a plea of guilty. Norskog, 197 Ill. 2d at 75. In addition, no psychiatrist or mental
health therapist ever made a public disclosure of the patient’s mental health records or testified in
open court regarding the mental health treatment that the patient had received. Norskog, 197 Ill.
2d at 76.
Unlike Norskog, where our supreme court found that records and communications
concerning the mental health treatment that a patient received were subject to the Confidentiality
Act and considered whether any exception to the privilege applied, here, plaintiffs were not
patients receiving mental health treatment under the Confidentiality Act. Rather, as previously
explained, plaintiffs participated in an evaluation performed by a court-appointed section 604(b)
evaluator. There was no therapeutic relationship involved in the present case. Further, unlike
Norskog, in this case, there was no dispute that Dr. Amabile informed plaintiffs that their
communications were not confidential and that her findings would be presented to the circuit
court, the parties and their attorneys, pursuant to the court’s order. Therefore, the
communications to Dr. Amabile are not privileged where plaintiffs were informed “as adequately
and as effectively as possible *** that such records and communications would not be considered
confidential or privileged.” 740 ILCS 110/10(a)(4) (West 2006).
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Plaintiffs lastly argue that reports issued by a psychiatrist include psychological testing
results for parents and children, educational information regarding children, collateral mental
health and physical health information and comments from collateral family members that are
“simply not meant for public consumption, but lack of candor regarding those topics can severely
impact the ultimate course of action the court takes, to the detriment of the children the court
seeks to protect.” However, there is no allegation that any of the communications at issue were
ever disclosed for “public consumption.” Rather, the parties involved in one of plaintiff Johnson’s
divorce proceedings made an inquiry into the relevance of the 604(b) expert’s report ordered in
another of plaintiff Johnson’s divorce proceedings.
Further, we note that section 13.4(a)(i)(h) of the Rules of the Circuit Court of Cook
County, which was recently amended, provides that the circuit court “may” issue a protective
order with respect to a section 604(b) expert’s report. Section 13.4(a)(i)(h) provides:
“At the time of the appointment of an evaluation pursuant to 750 ILCS 5/604,
the court may issue a protective order prohibiting the parties or their attorneys
from disseminating the contents of said report for purposes other than the litigation
or to the minor children or to anyone who is not a party to the litigation.” Cook
Co. Cir. Ct. R.13.4(a)(i)(h) (eff. April 1, 2009).
While this provision was recently enacted, the circuit court’s rule addresses plaintiffs’ public
policy concern that if the Confidentiality Act does not apply, the reports from a section 604(b)
expert would routinely be disseminated to the public.
We recognize that significant public and private interests are served by preserving the
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confidentiality of information pertaining to child custody and visitation issues. Accordingly, while
we find that plaintiffs may not invoke the protections of the Confidentiality Act to maintain a
cause of action with respect to the evaluations, communications, reports and information obtained
pursuant to section 604(b) of Marriage Act, we note that other causes of action may be available
to preserve the privacy and confidentiality of the communications at issue particularly when a
protective order is involved. See, e.g., Bagent v. Blessing Care Corp., 224 Ill. 2d 154 (2007)
(patient filed a complaint against hospital and its employee, who revealed patient’s pregnancy
results to patient’s sister at a public tavern, alleging, inter alia, invasion of privacy and negligent
infliction of emotional distress); Cordts v. Chicago Tribune Co., 369 Ill. App. 3d 601 (2006)
(employee brought invasion of privacy and defamation claims against his employer and a company
hired by the employer to evaluate his disability claim, alleging that the company wrongfully
disclosed to plaintiff’s ex-wife that he was receiving treatment for depression after learning of the
fact while evaluating his disability claim). However, we have no cause to consider whether
alternative remedies may be available to plaintiffs under the narrow question presented in this case
pursuant to Supreme Court Rule 308. See Brookbank v. Olson, 389 Ill. App. 3d 683, 685 (2009)
(this court’s review is generally limited to the question certified by the trial court).
III. CONCLUSION
For the above reasons, we find that plaintiffs may not invoke the protections of the
Confidentiality Act with respect to communications made by plaintiffs to the section 604(b) court-
appointed psychiatrist in the course of the custody and visitation evaluation. Accordingly, we
answer the certified question in the negative.
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Certified question answered.
STEELE, and COLEMAN, JJ., concur.
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