dissenting:
The certified question requires this court to construe the Mental Health and Developmental Disabilities 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. 241 Ill. 2d at 183.
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 Confidentiality Act constitutes a “strong statement” by the legislature about the importance of keeping mental health records confidential. 241 Ill. 2d at 187 (citing Reda v Advocate Health Care, 199 1ll. 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
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 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 court-ordered 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. 241 Ill. 2d at 186-87. 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 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 “[rjecords 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 Norskog was 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 requirement that 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 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 court-ordered 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.