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Laurent v. Brelji





APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.


This appeal was taken from an order of the circuit court directing the defendant, Dr. Terry Brelji, as Superintendent of the Chester Mental Health Center, to comply with an administrative subpoena duces tecum. This subpoena ordered Dr. Brelji to testify and produce for inspection the records of a former patient of the Chester facility.

Although somewhat sketchy because of the incompleteness of the record, the factual background for this order begins with a Civil Service Commission discharge proceeding brought against the plaintiff, James Laurent. Laurent, as part of his defense to the discharge proceeding, sought, and had issued by the administrative hearing officer, the subpoena duces tecum which was served on Dr. Brelji. The records sought to be produced concerned a patient who is hereinafter referred to as L.S. At the Commission hearing, L.S. had testified concerning an incident wherein he was allegedly subjected to harassment and abuse by Laurent, an employee at the Chester facility.

Following the issuance of the administrative subpoena, Dr. Brelji filed a motion to quash the subpoena, which was denied by the hearing officer. On March 2, 1979, Laurent and the Commission filed a petition in circuit court for enforcement of the subpoena contending that Dr. Brelji and the Department of Mental Health and Developmental Disabilities (DMHDD) had refused to comply with the administrative order. The circuit court entered an order directing Dr. Brelji to:

"* * * appear to testify before a Hearing Officer of the Civil Service Commission and to bring with him for inspection all books and records in the possession of DMHDD pertaining to [L.S.] at the next scheduled hearing.

3. Said records will be subjected to an in camera inspection of counsel and said Hearing Officer and any such documents which are determined to be probative shall be allowed as evidence provided they are copied so that all reference to the identity of any patient is removed."

The propriety of that order, which Dr. Brelji contends requires the production of privileged information, is the subject of this appeal.

• 1 Before proceeding to the merits of the case, we initially address the question of our jurisdiction over the controversy. Generally, an order allowing discovery or directing disclosure of information is considered interlocutory and, therefore, not appealable. A party could, nevertheless, test the validity of such an order by refusing to obey and defending in a contempt proceeding. An order of contempt is clearly appealable. Moffat Coal Co. v. Industrial Com. (1947), 397 Ill. 196, 73 N.E.2d 423; Firebaugh v. Traff (1933), 353 Ill. 82, 186 N.E. 526.

• 2 The absence of an order of contempt in this case, however, does not deprive us of jurisdiction over the matter, since we conclude the order of the circuit court was final and not interlocutory. An order which in substance finally adjudicates the rights of the parties and terminates the litigation is final and appealable. (Myers v. Myers (1977), 51 Ill. App.3d 830, 366 N.E.2d 1114.) Here, the proceeding before the circuit court was a separate, independent action. (See Ill. Rev. Stat. 1977, ch. 127, par. 63b116.) After the court ordered the recusant witness to testify and produce the records, the proceeding before it was terminated. In that sense it was distinguishable from other discovery orders entered in a cause pending in the same court. The order of the court finally determined the rights of the parties before it and terminated the litigation. (See Ellis v. Interstate Commerce Com. (1915), 237 U.S. 434, 59 L.Ed. 1036, 35 S.Ct. 645; Durkin v. Hey (1941), 376 Ill. 292, 33 N.E.2d 463.) Finally, we note that section 10(b) of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat., 1978 Supp., ch. 91 1/2, par. 810) purports to grant parties a right of interlocutory appeal from orders to disclose confidential records or communications. Because we have determined that the order here is final and appealable, section 10(b) is not apropos and we, therefore, do not reach the issue of the validity of that provision. See generally, In re Marriage of Lentz (1979), 73 Ill. App.3d 93, 391 N.E.2d 582.

We begin our discussion of the merits with the observation that the Mental Health and Developmental Disabilities Confidentiality Act represents a comprehensive revision and repeal of previous acts dealing with psychotherapeutic communications. (Ill. Rev. Stat. 1977, ch. 51, par. 5.2 (repealed by P.A. 80-1508, art. II, § 5, eff. Jan. 9, 1979); Ill. Rev. Stat. 1977, ch. 111, par. 5306 (amended by P.A. 80-1508, art. II, § 3, eff. Jan. 1, 1979).) To meet the avowed purpose of protecting the confidentiality of the records and communications of those receiving mental health services ("recipients"), the Act is premised on a general prohibition against the disclosure of such information except where specifically provided for in the Act. Ill. Rev. Stat., 1978 Supp., ch. 91 1/2, par. 803(a).

It is contended on behalf of Dr. Brelji that the Commission discharge proceeding does not fall within any of the designated exceptions wherein disclosure of confidential information is permitted. In response, it is argued by the Commission and Laurent that the Commission has absolute statutory power to compel disclosure of records which in its opinion are pertinent and relevant to hearings held before it. Because in their opinion the records pertaining to L.S. are relevant, they argue that the information must necessarily be produced.

It is unquestioned that the Personnel Code provides the Commission with broad, and seemingly unqualified, investigatory powers. (See, e.g., Ill. Rev. Stat. 1977, ch. 127, pars. 63b110(6), 63b111, 63b115.) However, the power to hold hearings, subpoena witnesses and compel the production of documents does not exist in a vacuum. As we noted in In re Westland (1976), 48 Ill. App.3d 172, 362 N.E.2d 1153, the creation of a statutory privilege is a legislative balance between the encouragement and protection of confidential relationships and the interest of disclosure of relevant information before an investigatory body. The inquiry of whether given information is subject to disclosure does not end with the determination that it is relevant. Implicit in every testimonial privilege is the assumption that the privileged matter may indeed be highly probative of the issues in dispute. Despite any relevance, however, the promotion and protection of certain relationships is deemed to be of greater value than the unqualified disclosure of pertinent information incident to individual disputes.

Presumably, the patient in psychotherapeutic treatment reveals the most private and secret aspects of his mind and soul. To casually allow public disclosure of such would desecrate any notion of an individual's right to privacy. At the same time, confidentiality is essential to the treatment process itself, which can be truly effective only when there is complete candor and revelation by the patient. Finally, confidentiality provides proper assurances and inducement for persons who need treatment to seek it. See generally Note, Psychiatrists' Duty to the Public: Protection from Dangerous Patients, 1976 U. Ill. L.F. 1103 (1976); Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 Wayne L. Rev. 175 (1960).

• 3 These, undoubtedly, were some of the considerations weighed by the legislature in enacting the general prohibition against disclosure of recipient records and communications. However, legislative recognition of a testimonial privilege does not afford absolute protection against disclosure. Thus, the legislature acknowledged the countervailing societal needs which demand disclosure in certain instances by creating exceptions to the no-disclosure mandate. In proceeding with our analysis, we are cognizant that the expression of statutory exceptions is generally construed as an intention by the ...

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