Mental Health Disclosure and the 2015 Illinois Power of Attorney for Healthcare

There was a time when certain illnesses were kept secret and hidden from others. Hard to believe now, but in the early 20th Century, it was common to state “after a long illness” when someone died of cancer and it was often not disclosed even to neighbors (or sometimes the patient). Whether it was a matter of stigma or privacy, people would choose not to disclose.
Today, we are far past that stigma, and far past the stigma of AIDS and HIV status.

However, mental health remains an area of great privacy, for many reasons. For some people, it is stigma, for others a matter of privacy, and some fear the impact disclosure might have on their job, leadership positions or authority in their personal lives or other areas. And frankly, it is often just not something others need to know.

If someone uses the State Provided Statutory Power of Attorney for Healthcare in Illinois, they may not realize that they are not only authorizing their Agent to have access to all their health records, including mental health records; but they are also authorizing this person to disclose these health and mental health records broadly.

The form reads:
“My agent shall have the same access to my medical records that I have, including the right to disclose the contents to others.”
Reads pretty broadly, doesn’t it. This means just what it says – disclose to your doctor but also to your family, your neighbors, anyone. It doesn’t even limit the power to disclose to those who have a need to know. This is far broader than the confidentiality in Mental Health Records under Illinois Law (740 ILCS 110/) Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1), which places these records are beyond the reach of most parties, even attorneys in a law suit.

A better option is to have your attorney draft a clause that limits this disclosure on Mental Health history to those with a need to know, such as doctors, providers, etc. Moylan-Law can assist you in drafting a clause that reflects what you would wish to have happen and who you would wish to have informed of any Mental Health records.