dissenting:
I agree with Justice Freeman’s analysis of the regulation requiring a “general designation of the program or person” and reject the majority’s interpretation of this provision. See 42 C.F.R. § 2.31(a)(1) (2000). In addition, I note that the comments to the amendments emphasize the flexibility for patients in defining the scope of their consent. Under the amendments, patients may now use a single form to consent to the disclosure of records from a single named program or from only certain kinds of programs. 52 Fed. Reg. 21,796, 21,799 (June 9, 1987). ■“ ‘This change will permit a patient to consent to disclosure from a category of facilities or from a single specified program. For example, a patient who chooses to authorize disclosure of all his or her records *** would consent to disclosure from all programs in which the patient has been enrolled as an alcohol or drug abuse patient.’ ” (Emphasis added.) 198 Ill. 2d at 259, quoting 52 Fed. Reg. 21,796, 21,799 (June 9, 1987). This example clarifies the proper interpretation of the “general designation” requirement by recognizing that patients may now identify either a “category of facilities” or “a single specified program” in their consent. (Emphasis added.) 52 Fed. Reg. 21,796, 21,799 (June 9, 1987). Thus, a consent could validly authorize the disclosure of records from all programs falling within the category of “alcohol or drug abuse programs” by explicitly identifying that type of program.
In the instant case, however, the consent did not designate any specific program category. Instead, it broadly claimed to authorize disclosure of all types of medical records. The excessive breadth of this consent contradicts the language in the comments and undermines the strong confidentiality protections secured by the Public Health Services Act (federal Act) (42 U.S.C. § 201 et seq. (1994)). See also Chapa v. Adams, 168 F.3d 1036, 1038 (7th Cir. 1999) (noting that the purpose of the federal regulations is to fight the country’s drug problem, primarily by encouraging voluntary treatment, and recognizing that addicts are more likely to seek treatment if it is provided confidentially). Thus, I join the portion of Justice Freeman’s special concurrence rejecting the majority’s interpretation of the “general designation” language in the regulations. I do not adopt the special concurrence in its entirety, however, because I believe it is inappropriate at this time to decide whether a private cause of action may be maintained here since that issue was not briefed or argued by the parties.
Moreover, I disagree with the majority’s treatment of a second issue. The majority summarily disregards the plaintiffs argument that the scope of his authorization did not include medical records created after he signed the consent form. Rather than address this issue on its merits, the majority perfunctorily concludes that the plaintiff failed to provide sufficient supporting authority for his argument. 198 Ill. 2d at 264-65. Yet, an examination of the majority’s own extensive recitation of the comments to the amendments supports the plaintiff’s argument. See 198 Ill. 2d at 259.
The comments explain that the changes allow patients the choice of authorizing, on a single form, disclosure of records “ ‘from all programs in which the patient has been enrolled as an alcohol or drug abuse patient.’ ” (Emphasis added.) 198 Ill. 2d at 259, quoting 52 Fed. Reg. 21,796, 21,799 (June 9, 1987). The past tense of this language clearly and explicitly directs it at patient records created prior to the signing of the consent, not those generated months later.
This interpretation is further supported by the comments’ statement that the amendments seek to maintain “the potential for a patient’s making an informed consent to disclose patient identifying information” since “ ‘[t]he patient is in [a] position to be informed of any programs in which he or she was previously enrolled.’ ” (Emphasis added.) 198 Ill. 2d at 259, quoting 52 Fed. Reg. 21,796, 21,799 (June 9, 1987). Again, the language clearly limits disclosure to existing records of past programs. Moreover, it is well established that the alleged waiver of a right will not be upheld unless the waiver was knowing and voluntary. Vaughn v. Speaker, 126 Ill. 2d 150, 161 (1988). Waiver is consensual and consists of the intentional relinquishment of a known right. Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d 486, 499 (1985). It would defy logic to conclude that a patient may validly waive the right of confidentiality in records that do not even exist at the time, thereby giving informed consent to their disclosure. See Vaughn, 126 Ill. 2d at 161; see also Schiff v. Prados, 92 Cal. App. 4th 692, 706, 112 Cal. Rptr. 2d 171, 182 (2001) (“meaningful choice is at the heart of the informed consent doctrine”).
Thus, I believe that the comments to the amendments support the plaintiff’s contention that a valid consent must be limited to the disclosure of existing records and it excludes records subsequently generated. Since the scope of the consent signed by the plaintiff is impermissibly broad and violates the protective purpose of the regulations and the federal Act, I dissent from the majority opinion.