dissenting:
I dissent. Section 10 of the Mental Health and Developmental Disabilities Confidentiality Act (Mental Health Act) (740 ILCS 110/10 (West 1992)) provides that a recipient of mental health services has a privilege to refuse to disclose and to prevent the disclosure of his records and communications, except where the recipient introduces his condition as an element of his claim or defense. The majority treats this privilege as absolute and concludes that plaintiff's records are privileged even though they may indicate that the incident which gave rise to the lawsuit could have been caused by plaintiff’s failed attempt to commit suicide. I cannot agree.
"The cardinal rule of statutory construction is to give effect to the language and intent of the legislature. *** In considering legislative intent, courts 'must presume that the legislature did not intend absurdity, inconvenience or injustice, and select an interpretation of the statute which leads to logical results and avoids that which would be absurd.’ ” People v. Acevedo, 275 Ill. App. 3d 420, 425-26, 656 N.E.2d 118, 122-23 (1995), quoting People v. Liberman, 228 Ill. App. 3d 639, 647, 592 N.E.2d 575, 581 (1992). "Moreover, a court may properly consider not only the language used in the statute but also the reason and necessity for the law, the evil sought to be remedied, and the purpose to be achieved.” Acevedo, 275 Ill. App. 3d at 425, 656 N.E.2d at 122-23.
Section 10 of the Mental Health Act serves the noble purpose of protecting the confidential records and communications of mental health patients. Unfortunately, today the majority has invited the legislature to narrow the parameters of section 10:
"The result in this case may be perceived in some quarters as an affront to justice and common sense. *** [O]ur holding is compelled by the plain language of section 10 of the Mental Health Act ***.” 283 Ill. App. 3d at 699-700.
While I agree that the majority has reached a result that is "an affront to justice and common sense,” I do not agree that this result was "compelled” by the language of the statute.
By their very nature, privileges inhibit the fact-finding process. Nevertheless, they serve other important functions, such as protecting interests and relationships regarded to be of "sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice.” 1 J. Strong, McCormick on Evidence § 72, at 269 (4th ed. 1992).
Yet, no privilege is absolute. Even the attorney-client privilege— one of the oldest privileges of confidentiality known to the common law, often described as essential to the functioning of the adversary system — is inapplicable where a client seeks or obtains the services of an attorney in furtherance of criminal or fraudulent activities. In re Marriage of Decker, 153 Ill. 2d 298, 312-13, 606 N.E.2d 1094, 1101 (1992). Recently, while recognizing the psychotherapist privilege for litigation in federal courts, the United States Supreme Court indicated that there are "limits on confidentiality” (Jaffee v. Redmond, 518 U.S. 1, 13 n.12, 135 L. Ed. 2d 337, 347 n.12, 116 S. Ct. 1923, 1930 n.12 (1996)) and "situations in which the privilege must give way” (Jaffee, 518 U.S. at 18 n.19, 135 L. Ed. 2d at 349 n.19, 116 S. Ct. at 1932 n.19).
This case presents one situation where the principles of due process and fundamental fairness mandate that the privilege must give way. Since plaintiff’s records may reveal that this lawsuit could be a fraudulent scheme to profit from plaintiff’s own failed suicide attempt, I believe that such information must be revealed even though it might otherwise be deemed confidential.1
In Prink v. Rockefeller Center, Inc., 48 N.Y.2d 309, 398 N.E.2d 517, 422 N.Y.S.2d 911 (1979), Robert Prink fell from his thirty-sixth-floor office, and his widow filed suit alleging that the building’s owners and architects were negligent in the design and installation of a window alcove desk. The death certificate noted that, according to Prink’s psychiatrist, decedent had been tense and depressed. The court of appeals concluded that, under such circumstances, the unfairness of permitting the plaintiff to succeed by hiding behind the privilege could not be tolerated. "To hold otherwise is to ignore the realities of the factual situation and to come perilously close to a taking of defendants’ property without due process of law.” Prink, 48 N.Y.2d at 317, 398 N.E.2d at 522, 422 N.Y.S.2d at 916.
The majority ignores these concerns, instead holding that "[i]t is for the legislature, and not the courts, to determine whether the Mental Health Act has tilted the balance.” 283 Ill. App. 3d at 700. I cannot believe that the absurd outcome of this appeal reflects the intent of the Illinois legislature. But, even assuming that the legislature intended these results, I do not believe that the judiciary can so easily wash its hands of responsibility. Certainly, civil defendants are entitled to due process before their property is taken (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2) and the right to find remedies and justice in the law (Ill. Const. 1970, art. I, § 12).
This is a landmark case. The majority departs from the longstanding practice of the courts of prohibiting litigants from using the "shield” of a privilege as a "sword” against opponents. See United States v. Rylander, 460 U.S. 752, 758, 75 L. Ed. 2d 521, 529, 103 S. Ct. 1548, 1553 (1983) (privilege against self-incrimination is not a sword); MacGreal v. Taylor, 167 U.S. 688, 701, 42 L. Ed. 326, 333, 17 S. Ct. 961, 966 (1897) (privilege of infancy is intended to be used "simply as a shield to protect” and not "a sword to be used to the injury of others”). This is not a situation wherein the courts are deferring to the legislature’s determination to merely shield certain information from involuntary disclosure. Here, the majority may be allowing plaintiff to abuse the psychotherapist-patient privilege by using it as a sword against the defendants.2
Unless the majority’s decision is reversed by a higher court, the judicial system may unwittingly become a coparticipant in plaintiffs apparent scheme to harass and defraud the defendants. I cannot concur in such a result.
In light of the majority’s ruling, I will refrain from disclosing the precise contents of plaintiff’s records. Suffice to say, the records purport to contain the plaintiff’s own words in quotes. While this case is presently at the discovery stage, and the issue of causation has not yet been reached, the importance of these records is beyond dispute. Medical records are considered "inherently reliable” (People v. Trotter, 178 Ill. App. 3d 292, 297, 533 N.E.2d 89, 92 (1988)), and hospital records enjoy a "high degree of reliability” (Wilson v. Clark, 84 Ill. 2d 186, 194, 417 N.E.2d 1322, 1326 (1981)).
On the other hand, defendants should not be permitted access to plaintiffs’ psychiatric records by simply alleging that injuries were caused by an attempted suicide. Discovery should not be permitted on the basis of mere conjecture or speculation; rather, in order to discover confidential communications between the recipient and his psychiatrist, the defendant must make a prima facie showing in support of its position. Grey v. Los Angeles Superior Court, 62 Cal. App. 3d 698, 703-04, 133 Cal. Rptr. 318, 320-21 (1976).