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Posted in Law on November 3, 2016   |  by Gary Burger

Discoverability of Psychiatric Records in Illinois and Missouri

When you have a party whose psychiatric records could reveal valuable information which is pertinent to your case, it is important to know whether you can discover this private information or not. Here is the law in Illinois and Missouri:

Under longstanding Illinois law, the statutory privilege which protects mental health records from disclosure is largely more broad than the traditional physician-patient privilege. See People v. Kaiser, 239 Ill. App. 3d 295, 301 (Ill. App. 2 nd Dist. 1992). The Illinois Mental Health and Developmental Disabilities Confidentiality Act can be found in 740 ILCS 110/1. Section 4 of the Act provides which persons are entitled to access mental health records without a court order or consent of the patient. However, in order for an attorney to compel discovery of a party’s mental health records, the party must have introduced their mental condition “as an element of his claim or defense.” And even when a party has introduced his or her mental condition “as an element of his claim or defense,” the court must conduct an in camera examination of the evidence and find that the records: 1) are relevant, 2) probative, 3) not unduly prejudicial or inflammatory, 4) are otherwise admissible, 5) other evidence demonstrably unsatisfactory, and 6) that disclosure is more important to the interests of justice than harming the recipient or the therapist-recipient relationship. 740 ILCS 110/10(a)(1). Additionally, Illinois courts have ruled that merely filing a suit based on negligence is insufficient to place mental condition in issue. See D.C. v. S.A., 178 Ill. 2d at 570.

Similarly, under Missouri law, “where a party has not alleged psychological injury (beyond “garden variety” emotional distress), the party's psychological records are not relevant to the issue of damages and are not discoverable.” State ex rel. Phillips v. Hackett, 469 S.W.3d 506, 510 (Mo. App., 2015).