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COP WINS GO-AHEAD FOR LAWSUIT ALLEGING PRIVACY VIOLATION
June 17, 2004
Steven P. Garmisa
Hoey & Farina Attorney
Distinguishing an Illinois Appellate Court case, the 7th U.S. Circuit Court of Appeals ruled that a police officer who is ordered to sign a consent form and submit to a psychological evaluation may sue for alleged violations of the Illinois Mental Health and Developmental Disabilities Confidentiality Act. McGreal v. Ostrov, 2004 WL 1041520 (7th Cir., May 10).
James. T. McGreal, an Alsip police officer, narrowly lost an election campaign against the incumbent mayor. Filing a civil rights claim in the U.S. District Court, McGreal alleged that he was subjected to retaliation for challenging the mayor's reelection, and for conducting or instigating several investigations (involving such things as suspected gambling at the local Elk's Club, rumors of payoffs to the mayor and a possible ownership interest by a felon in an Alsip bar).
The civil rights case involves a lengthy list of charges and countercharges generated over years of skirmishes. But as Judge Ilana Diamond Rovner recounted, in an opinion reversing summary judgment for the defendants, McGreal submitted evidence -- which was assumed to be true solely for purposes of deciding the appeal -- that when the mayor learned McGreal "had instigated an investigation into the mayor's possible receipt of gambling kickbacks from the Elk's Club," the mayor allegedly responded by "hiring a lawyer [Thomas McGuire] who specialized in discharging police officers."
A few weeks after the mayor met with McGuire, the Alsip police chief "ordered McGreal to report to Dr. Eric Ostrov, a psychologist (who also happens to be a lawyer), for a psychological evaluation to assess McGreal's fitness for duty. Dr. Ostrov had provided expert testimony many times over the years for clients of Thomas McGuire seeking to terminate police officers."
Also, Rovner recounted, "McGreal was ordered (under threat of termination) to sign a waiver of his right to privacy, confidentiality and/or privilege with Dr. Ostrov before submitting to the examination. When McGreal signed the document, he noted that he was waiving his rights 'under duress.' McGreal subsequently submitted to three sessions with Dr. Ostrov as well as a number of psychological tests."
Ostrov submitted a 21-page report after three sessions with McGreal. According to Rovner, the report "contained a great deal of personal information about McGreal's family life, some of it very sensitive. Ostrov produced the report to Wood [the police chief], Snooks [an Alsip police lieutenant] and the village attorney, neglecting to label the report 'confidential.'
"After this lawsuit was filed, Wood forwarded the report to McGreal's colleagues at the [Fraternal Order of Police], ostensibly in response to a grievance filed by McGreal. McGreal objected to the disclosure of the report, questioning the validity of his consent and also the scope of the information disclosed in the report.
"The defendants moved to dismiss McGreal's claim for breach of the Mental Health Confidentiality Act, and the court granted the motion. The court found that McGreal was not a 'recipient' of mental health services as that term is defined by the Confidentiality Act because he met with Ostrov only to facilitate Alsip's ability to evaluate McGreal's fitness for duty.
"On appeal, McGreal contends that he is a 'recipient' under the plain language of the statute, that his consent was invalid and in any case was later withdrawn, and that the disclosure far exceeded what was necessary to determine his fitness for duty.
"The defendants maintain that McGreal was not a recipient of mental health services, that his consent vitiates any claim he has regarding disclosure of information obtained by Ostrov, and that public policy requires an exception be made in the case of police officers being tested for fitness for duty."
Here are some highlights of Rovner's analysis of the confidentiality issue (with various omissions not noted in the quoted text):
"The Confidentiality Act prohibits disclosure of mental health records and communications except as provided by the act. 740 ILCS 110/3(a). The records covered by the Confidentiality Act include 'any record kept by a therapist or by an agency in the course of providing mental health ... service to a recipient concerning the recipient and the services provided.' 740 ILCS 110/2.
"Mental health services include but are not limited to 'examination, diagnosis, evaluation, treatment, training, pharmaceuticals, aftercare, habilitation or rehabilitation.' A recipient is a person who is receiving or has received mental health services. The term 'therapist' includes psychologists, among others.
"Under the straightforward terms of the act, Dr. Ostrov, who is a psychologist, qualifies as a therapist; his examination, evaluation and diagnosis of McGreal constitute mental health services; McGreal is a recipient under the plain language; and Ostrov's resulting report is a covered record.
"The Confidentiality Act contains no disclosure exception for police departments performing mental health examinations to determine fitness for duty. It does allow for disclosure on consent, but the consent form used here does not meet the standards set forth by Illinois law. See 740 ILCS 110/5(b) (listing what is required for valid consent).
"The Illinois Supreme Court notes that the 'Confidentiality Act is carefully drawn to maintain the confidentiality of mental health records except in the specific circumstances explicitly enumerated.' Norskog v. Pfiel, 197 Ill.2d 60 (2001) (quoting Sassali v. Rockford Memorial Hospital, 296 Ill.App.3d 80 (2d Dist. 1998)).
" 'In each instance where disclosure is allowed under the act, the legislature has been careful to restrict disclosure to that which is necessary to accomplish a particular purpose. Exceptions to the act are narrowly crafted. When viewed as whole, the act constitutes a 'strong statement' by the General Assembly about the importance of keeping mental health records confidential. That a high value is placed on privacy is evidenced by the fact that the privilege afforded a recipient of mental health treatment continues even after the recipient's death.' Norskog, 755 N.E.2d at 10.
"The court also noted that it was in the public interest to zealously guard against erosion of the confidentiality provision. Therefore, 'anyone seeking the non-consensual release of mental health information faces a formidable challenge and must show that disclosure is authorized by the act.'
"Consent to disclose, as we have noted, is one of the exceptions to strict confidentiality under the act. 'Section 5 of the act makes it clear that a recipient may consent to disclosure of information for a limited purpose and that any agency or person who obtains confidential and privileged information may not re-disclose the information without the recipient's specific consent.' Norskog, 755 N.E.2d at 14.
"The release of information for a limited purpose under the consent provision does not operate as a general waiver of the confidentiality privilege. The court in Norskog strictly construed the statutory exceptions to confidentiality and refused to recognize a 'fundamental fairness' exception under the circumstances of that case.
"In tension with the Illinois Supreme Court's ruling is Sangirardi v. Village of Stickney, 342 Ill.App.3d 1 (1st Dist. 2003). Sangirardi was discharged from his duties as a Stickney police officer when he refused to obey an order requiring him to consent to the release of the results of a mental health 'fitness for duty' exam.
"The chief of police had ordered the fitness exam based on reports from a detective, a citizen, a police officer and a sergeant complaining about Sangirardi's conduct. Sangirardi first resisted the exam and then refused to allow the release of the results to the police chief.
"After he was fired for insubordination, he brought an administrative action challenging his discharge. The Village [of Stickney] Board of Fire and Police Commissioners found that the police chief had reasonable cause to order the fitness exam and that there was a strong public interest in the department assuring that officers have the psychological stability to perform their duties as police officers. The board upheld the discharge, and Sangirardi appealed through the Illinois courts.
"The [Appellate Court] noted that, under Illinois law, a police chief has the authority to order an officer to submit to a fitness exam: 'The authority to order fitness exams is justified by the unique, almost paramilitary nature of police departments and the critical importance of police officers to public health and safety. By necessary implication, the police department must have access to the ultimate fitness determination of such exams in order to determine whether officers are capable of performing their duties.' Sangirardi, 793 N.E.2d at 798.
"The court found that the chief's order that Sangirardi submit to a fitness exam was based on multiple complaints about the officer's conduct. As such, it was a reasonable order. Because the order to take the exam was reasonable, then logically, the police chief was entitled to view the results of the exam. The court distinguished a number of confidentiality cases on the ground that none involved the disclosure of officers' fitness exams to their superiors.
"Ultimately, the court ruled, the recipient's expectation of privacy is dispositive in determining the disclosure of mental health information. The court rejected Sangirardi's claim that he retained an expectation of privacy because he refused to sign the consent form. The court found that, as a police officer, Sangirardi had no reasonable expectation that the results of his fitness exam would be kept confidential from the police chief because 'fitness exams are part and parcel of the process officers must undergo in order to be hired and retained.'
"The court ruled that the act was not applicable to the facts presented, where the police chief's testimony and order established that he did not compel the release of Sangirardi's mental health records, but only the ultimate fitness for duty recommendation.
"We believe this ruling is in tension with the Illinois Supreme Court's holding in Norskog, which allows for disclosures only under the narrow exceptions defined by the statute, but we need not resolve that tension here. The crux of McGreal's complaint is that the department had no valid reason to order him to submit to the fitness exam in the first place. He maintains they were simply trying to manufacture a reason to fire him in retaliation for his exercise of his First Amendment rights.
"Even under Sangirardi the department would not be entitled to require a mental health exam for this purpose. Moreover, under Sangirardi, the defendants were not entitled to disclosure of anything other than the fitness for duty determination. They were not entitled under any Illinois law to force the disclosure of the intimate and irrelevant details of McGreal's home life. Finally, McGreal claims that dissemination of the report was broader than necessary to determine his fitness for duty and also that the defendants republished the information without his further consent as required by the Confidentiality Act.
"Under these circumstances, McGreal is entitled to have a jury hear his claim and determine whether the defendants reasonably ordered the exam and whether the disclosure and republication exceeded the scope necessary to determine fitness for duty. Such a claim would be consistent with both Norskog and Sangirardi.
"We therefore reverse the District Court's judgment in favor of the defendants on the Confidentiality Act claim and remand for a trial on the merits."