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FOURTH DIVISION
JUNE 26, 2003

1-02-1045

JUSTICE HARTMAN delivered the opinion of the court:

On August 8, 2001, the circuit court issued a preliminaryinjunction barring defendants, Illinois Department of ProfessionalRegulation, Aurelia Pucinski, Director, Illinois Department ofProfessional Regulation, and Lucia Kubiatowski, Chief ALJ, IllinoisDepartment of Professional Regulation (collectively "theDepartment"), from disclosing at any hearing any documents, recordsor testimony pertaining to plaintiff, John Doe, without firstobtaining a confidentiality release from him. On March 14, 2002,the court denied the Department's motion to vacate entry of theinjunction. The Department appeals from the circuit court's March14, 2002 order.

On appeal, the Department argues that the court erred infinding that plaintiff had a right to nondisclosure of his mentalhealth records because section 38 of the Medical Practice Act of1987 (Medical Practice Act) (225 ILCS 60/38 (West 2000) (section38)) and section 7(a) of the Illinois Mental Health andDevelopmental Disabilities Confidentiality Act (the ConfidentialityAct) (740 ILCS 110/7(a) (West 2000)), authorized the use of apatient's redacted mental health records without his consent in adisciplinary proceeding against the patient's psychiatrist.

In 1999 the Department filed an administrative complaintagainst Dr. Marc Hugh Slutsky, a psychiatrist, alleging variousviolations of the Medical Practice Act with regard to his treatmentof plaintiff. Specifically, the Department alleged that Dr.Slutsky failed to keep "contemporaneous and retrievable records ofhis treatment and evaluation" of "Patient X" and that Dr. Slutskyhad prescribed controlled substances to "Patient X," includingvicodin.

On August 8, 2001, plaintiff filed a complaint for injunctiverelief and an emergency motion for injunctive relief against theDepartment. Plaintiff alleged that he had been Dr. Slutsky'spatient for eleven years and was the subject matter of thedisciplinary proceeding against Dr. Slutsky. Plaintiff had notconsented to allow any information regarding his identity ormedical treatment to be the subject of testimony or evidence at Dr.Slutsky's disciplinary hearing. On August 8, 2001, during thecourse of Dr. Slutsky's disciplinary hearing, the Department askedquestions regarding plaintiff and provided the administrative lawjudge (ALJ) and a member of the Illinois Medical Disciplinary Boarda document from plaintiff's insurer without having redactedplaintiff's signature on the document. The Department intended tocall as witnesses an insurance investigator and two Departmentinvestigators to testify regarding plaintiff's medical records. Plaintiff alleged that the Department breached his right toconfidentiality in violation of the Confidentiality Act and theMedical Practice Act. Plaintiff also alleged that he would sufferirreparable harm unless the Department was enjoined from revealingany information regarding him without his consent; he had noadequate remedy at law; and he raised more than a fair question asto the existence of a right to a hearing.

Attached to the complaint was the affidavit of LillianWalanka, in which she stated that during the August 8 disciplinaryhearing regarding Dr. Slutsky, the Department's attorney referredto "Patient X" (plaintiff) during his opening statement; referredto medical records for "Patient X" which had been turned over toplaintiff's insurance provider; stated that Dr. Slutsky had failedto maintain controlled substance prescription records for "PatientX"; and stated that the Department intended to call an insuranceinvestigator and two Department investigators to testify regarding"Patient X's" medical records. Walanka further averred that,during the hearing, the Department provided the ALJ and a medicaldisciplinary board member with an insurance authorization formcontaining the unredacted signature of "Patient X."

On August 8, 2001, following hearing on the emergency motion,the circuit court found, as part of its order, that plaintiff: (1)"has an ascertainable right in need of protection"; (2) "has aright to non-disclosure of his mental health records"; (3) "doesnot have an adequate remedy at law"; and (4) "has a likelihood ofsuccess on the merits." The court ordered that "defendants areprohibited from disclosing in any hearing any documents, records ortestimony pertaining to John Doe without a confidentiality releasefrom John Doe" and "all records, evidence or transcript of thecurrent proceedings related to John Doe shall be impounded untilsuch time as it can be ascertained how to safely dispose of them." The order was to "remain in effect until further order of thecourt." The court then set the case for a status date, giving theDepartment the opportunity to fully review the material and file a responsive pleading.

On September 7, 2001, the Department filed a "Motion to Vacateor Reconsider Entry of Injunction" (motion to vacate). On March14, 2002, following argument, the circuit court denied theDepartment's motion. On April 12, 2002, the Department filed anotice of interlocutory appeal, appealing the orders of August 8,2001, and March 14, 2002.

On May 1, 2002, an order dismissing the appeal for lack ofjurisdiction was improvidently entered and the Department's motionto vacate the May 1, 2002 order was granted on May 17, 2002. Inits motion to vacate the May 1, 2002 order, the Department admittedthat the notice of interlocutory appeal was untimely as to thecircuit court's August 8, 2001 order. Only the March 14, 2002order is at issue in this appeal.

The parties first dispute whether or not this court hasjurisdiction to consider this appeal. In its jurisdictionalstatement, the Department claims that this court has jurisdiction pursuant to Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)(Rule 307(a))) which provides:

"An appeal may be taken to the Appellate Courtfrom an interlocutory order of court:

(1) granting, modifying, refusing, dissolving,or refusing to dissolve or modify aninjunction;

Except as provided in paragraph (b), the appealmust be perfected within 30 days from the entryof the interlocutory order by filing a noticeof appeal designated 'Notice of InterlocutoryAppeal' conforming substantially to the noticeof appeal in other cases."

The Department characterizes its motion to vacate as a motionto dissolve the preliminary injunction and the circuit court'sMarch 14, 2002 order as one which refused to dissolve thepreliminary injunction and, therefore, is appealable under Rule307(a)(1). See Stoller v. Village of Northbrook, 162 Ill. App. 3d1001, 516 N.E.2d 355 (1987) (Stoller) (appeal filed within 30 daysfrom entry of order refusing to dissolve temporary restrainingorder was timely); Wise v. City of Chicago, 36 Ill. App. 2d 196,183 N.E.2d 538 (1962).

Plaintiff rejects the Department's argument that its motion tovacate was, in substance, a motion to dissolve the preliminaryinjunction. Relying on Trophytime, Inc. v. Graham, 73 Ill. App. 3d335, 391 N.E.2d 1074 (1979) (Trophytime), plaintiff argues thatbecause the notice of interlocutory appeal was not filed within 30days from the date of entry of the interlocutory order, August 8,2001, and the running of the 30-day period was not tolled by thefiling of the Department's motion to vacate the August 8, 2001order, this appeal must be dismissed for lack of jurisdiction. Trophytime is distinguishable.

In Trophytime, plaintiff sought an injunction againstdefendant to prohibit him from competing. An interlocutory orderdenying plaintiff's request was entered on August 30, 1978. OnSeptember 13, 1978, plaintiff filed a motion to vacate the August30 order in which it sought a rehearing or, in the alternative,leave to amend its complaint. The motion was denied on November30, 1978, and on December 27, 1978, plaintiff filed a notice ofinterlocutory appeal. Finding that the notice of interlocutoryappeal was filed almost four months after the entry of the orderbeing appealed, i.e. the August 30, 1978 order, the appellate courtconcluded that it lacked jurisdiction.

Unlike Trophytime, the substance of the Department's motion inthe present case sought either vacatur or reconsideration of thecourt's prior ruling. Whether the motion was entitled "Motion toVacate or Reconsider Entry of Injunction" or motion to dissolve isof no significance; whether termed a motion to vacate or a motionto dissolve, in substance part of the relief requested wasdissolution of the preliminary injunction.⁽¹⁾ The supreme court hasheld that the character of a pleading is to be determined from itscontent not its label. Kemner v. Monsanto Co., 112 Ill. 2d 223,492 N.E.2d 1327 (1986) (Kemner). In its motion to vacate, theDepartment argued that there was no basis for injunctive reliefbecause plaintiff's rights under the Confidentiality Act were notviolated where the underlying disciplinary action against Dr.Slutsky involved only the existence of medical records forplaintiff and not the efficacy of the treatment plaintiff received. The Department further argued that section 38 enabled it to referto plaintiff's medical records in an administrative proceedingprovided that all information indicating plaintiff's identity wasremoved.

Plaintiff argues that the motion to vacate contained no citation to any authority regarding motions to dissolve injunctionsand no argument claiming that the standards for dissolution weremet in this case. Citing United States v. Swift & Co., 286 U.S.106, 76 L. Ed. 999, 525 S. Ct. 460 (1932); United States v. UnitedShoe Machinery Corp., 391 U.S. 244, 20 L. Ed. 2d 562, 88 S. Ct.1496 (1968); and United States v. City of Chicago, 663 F.2d 1354(1981), plaintiff argues that the standards for dissolution includehardship to the enjoined party or a change of circumstancesobviating the need for the injunction. Plaintiff's cases areinapposite as they involve permanent injunctions.

Courts have the inherent power to review, modify, or vacate aninterlocutory order at any time before final judgment. Catlett v.Novak, 116 Ill. 2d 63, 506 N.E.2d 586 (1987); Towns v. Yellow CabCo., 73 Ill. 2d 113, 382 N.E.2d 1217 (1978). See also Doe v. Doe,282 Ill. App. 3d 1078, 668 N.E.2d 1160 (1996); Patrick Media Group,Inc. v. City of Chicago, 252 Ill. App. 3d 942, 626 N.E.2d 1062(1993); Kraft v. Solon, 32 Ill. App. 3d 557, 336 N.E.2d 577 (1975)(Kraft). The court may dissolve a preliminary injunction absent achange in facts or law from the time of issuance to the time ofdissolution, provided a sufficient basis exists to supportdissolution (Kraft, 32 Ill. App. 3d at 561) and regardless of theorder's immediate appealability. Kemner, 112 Ill. 2d at 240-42;Lake County Riverboat L.P. v. Illinois Gaming Board, 313 Ill. App.3d 943, 730 N.E.2d 524 (2000). There is no language in Rule 307(a)prohibiting a post-preliminary injunction motion to vacate.

In summary, the Department's motion to vacate was, in part andin effect, a motion to dissolve the preliminary injunction, thedenial of which was appealable under Rule 307(a)(1). This courthas jurisdiction over the instant appeal because the Department'snotice of interlocutory appeal was filed within 30 days of theMarch 14, 2002 order.

The parties also dispute whether this court should apply anabuse of discretion or de novo standard of review. As plaintiffpoints out, and the Department concedes, in an interlocutoryappeal, the scope of review normally is limited to an examinationof whether or not the circuit court abused its discretion ingranting or denying the requested interlocutory relief. Battagliav. Battaglia, 231 Ill. App. 3d 607, 596 N.E.2d 712 (1992); Stoller,162 Ill. App. 3d at 1008.

In the present case, the circuit court's order was made in theabsence of any findings as to factual issues; it was based on theconclusion that, as a matter of law, plaintiff had a right tonondisclosure of his mental health records under theConfidentiality Act. The court's ruling construing the statutewill be reviewed de novo. See Peregrine Financials and Securitiesv. Hakakha, No. 1-02-1626 (March 31, 2003); People v. Studio 20,Inc., 314 Ill. App. 3d 1000, 733 N.E.2d 451 (2000).

The Department contends that the circuit court's March 14,2002 order should be reversed and the case remanded with directionsto dissolve the preliminary injunction. Specifically, theDepartment argues that the court erred in finding that plaintiffhad a right to nondisclosure of his mental health records becausesection 38 of the Medical Practice Act and section 7(a) of theConfidentiality Act authorized the use of plaintiff's mental healthrecords in the disciplinary proceeding against Dr. Slutsky,provided that the Department removed information indicatingplaintiff's identity.

In interpreting a statute, the court must ascertain and giveeffect to the intent of the legislature. Board of Education ofRockford School District No. 205 v. Illinois Educational LaborRelations Board, 165 Ill. 2d 80, 649 N.E.2d 369 (1995). Thelanguage of the statute provides the best evidence of that intent.Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 561 N.E.2d 656 (1990).Statutes should be evaluated in their entireties and each provisionshould be construed in connection with every other section. Newland v. Budget Rent-A-Car Systems, Inc., 319 Ill. App. 3d 453,744 N.E.2d 902 (2001).

Section 38 authorizes the Department to subpoena the medicalor hospital records for individual patients of physicians licensedunder the Medical Practice Act and to use those records in adisciplinary hearing against such a physician, as long as allinformation indicating the identity of the patient is removed.⁽²⁾ The Medical Practice Act regulates the practice of medicine in allits branches, including psychiatry. See 225 ILCS 60/2 (West 2000)(defining "physician" as "a person licensed under the MedicalPractice Act to practice medicine in all of its branches"); 225 ILCS60/3 (West 2000) ("No person shall practice medicine, or any of itsbranches" without a valid, existing license.) Therefore, section38 applies to disciplinary proceedings against psychiatrists.

Section 7(a) provides in pertinent part:

"When a therapist or agency which providesservices is being reviewed for purposes oflicensure, statistical compilation, research,evaluation, or other similar purpose, arecipient's record may be used by the personconducting the review to the extent that thisis necessary to accomplish the purpose of thereview, provided that personally identifiabledata is removed from the record before use. Personally identifiable data may be disclosedonly with the consent obtained under Section 5of this Act." 740 ILCS 110/7(a) (West 2000).

Section 7(a) applied to the disciplinary proceeding againstDr. Slutsky because such proceedings fall under the ambit of the"other similar purpose" language. As a psychiatrist, Dr. Slutskyis a "therapist" for purposes of the Confidentiality Act. See 740ILCS 110/2 (West 2000) (defining "therapist" as inter alia apsychiatrist.) Dr. Slutsky was being reviewed for possible licenserevocation or suspension. This type of review is similar to alicensure review as both involve a determination of whether atherapist should possess a license in the future. Without merit isplaintiff's argument that section 7(a)'s reference to "statisticalcompilation," "research," and "evaluation" indicates that thelegislature enacted section 7(a) "for situations involving analysisof mass data (e.g. developmentally disabled nursing home recordreview, licensure of mental health facilities), where a massredaction of patient names sufficiently serves the patients'privacy interest." Section 7(a) clearly states that "when atherapist *** is being reviewed for purposes of licensure, ***, orother similar purpose, a recipient's record may be used." 740 ILCS110/7(a) (West 2000).

Plaintiff argues that the Confidentiality Act, not the MedicalPractice Act, governs disclosure of mental health records. Section3(a) of the Confidentiality Act (740 ILCS 110/3(a) (West 2000)),provides that "[a]ll records and communications shall beconfidential and shall not be disclosed except as provided in thisAct." The privilege against disclosure is not absolute, however,and the Confidentiality Act provides several exceptions. Section10 of the Confidentiality Act (740 ILCS 110/10 (West 2000) (section10)), provides that "[e]xcept as provided herein, in any civil,criminal, administrative, or legislative proceeding, or in anyproceeding preliminary thereto, a recipient, and a therapist onbehalf and in the interest of a recipient, has the privilege torefuse to disclose and to prevent the disclosure of the recipient'srecord or communications." Section 10 sets forth elevenexceptions, none of which apply in this case. Nevertheless, theparties agree that section 10 does not contain an exhaustive listof the exceptions to a patient's privilege against the disclosureof his mental health records. The Department argues that section7(a) constitutes another exception to section 10. Plaintiffrejects this argument, contending that section 10, not section7(a), applies to administrative disciplinary proceedings and barsthe Department's use of plaintiff's records in the disciplinaryproceeding against Dr. Slutsky.

When the Confidentiality Act is read as a whole it is clearthat the legislature contemplated the use of mental health recordsfor which no consent has been secured in certain judicialproceedings. See 740 ILCS 110/9.3 (West 2000) (providing for non-consenting disclosures by therapists in civil commitmentproceedings under the Sexually Violent Persons Commitment Act (725ILCS 207/1 et seq. (West 2000))); 740 ILCS 110/11(ii) (West 2000)(providing for non-consenting disclosure when a therapist"determines that disclosure is necessary to initiate or continuecivil commitment proceedings under the laws of this State"); 740ILCS 110/11(vi) (West 2000) (providing for non-consentingdisclosure of mental health records in certain judicial proceedingsunder the Mental Health and Developmental Disabilities Code (405ILCS 5/1-101 et seq. (West 2000))). The "except as providedherein" language in section 10 therefore refers to the statute asa whole and not solely to the eleven exceptions listed in section10. Section 7(a) must be construed as an additional exception tosection 10.

This construction of section 10 and section 7(a) of theConfidentiality Act and section 38 of the Medical Practice Actpromotes the goals of both Acts. Patients remain anonymous,thereby preserving a sufficient level of privacy necessary toencourage other people to seek mental health treatment, which isthe goal of the Confidentiality Act. See Norskog v. Pfiel, 197Ill. 2d 60, 755 N.E.2d 1 (2001) (Norskog) (the reason for accordingconfidentiality to mental health records is that "people willincreasingly avail themselves of needed treatment if they areconfident that their privacy will be protected"); House v.SwedishAmerican Hospital, 206 Ill. App. 3d 437, 564 N.E.2d 922(1990) (noting that the Confidentiality Act was enacted to protectpatient's privacy rights and to provide an inducement to seekingmental health treatment.) At the same time, it enables theDepartment to enforce standards of practice for the psychiatricprofession and protect the public from those not qualified topractice medicine, which is the goal of the Medical Practice Act. See Metz v. Department of Professional Regulation, 332 Ill. App. 3d1033, 773 N.E.2d 1234 (2002).

Plaintiff provides several arguments to support his positionthat section 10 rather than section 7(a) applies to administrativedisciplinary hearings. They are without merit. First, plaintiffargues that Illinois courts consistently have applied section 10 toadministrative disciplinary hearings. Plaintiff cites Goldberg v.Davis, 151 Ill. 2d 267, 277, 602 N.E.2d 812 (1992) (Goldberg), inwhich the supreme court stated that "[i]t is section 10 thatprovides for unconsented disclosure in administrative proceedings." In Goldberg, a psychiatrist, who was a defendant in a disciplinaryproceeding, sought to compel production of certain medical recordsfrom the patient's current treating psychiatrist. Relying onsection 10(a)(1), the court held that the medical records should bedisclosed for an in camera inspection because the patient hadintroduced her mental condition as well as services received aspart of the Department's complaint. Goldberg did not involve anattempt by the Department to rely on its subpoena power undersection 38, nor did it involve a claim by the Department that itwas entitled to a patient's mental health records under section7(a).⁽³⁾

Plaintiff next argues that the Department overtly and tacitlyhas adopted section 10 for use in disciplinary proceedings. Plaintiff points out that in the underlying disciplinary proceedingagainst Dr. Slutsky, an ALJ rejected the Department's attempt torely on section 7(a). Such rulings are not binding on this court. Plaintiff claims that the Department has incorporated the consentrequirement in numerous provisions of the Clinical PsychologyLicensing Act and Rules. See 225 ILCS 15/5, 15/15(7) (West 2000);68 Ill. Admin. Code 1400.80(b) (2002).⁽⁴⁾ That administrative codesection does not adopt section 10 of the Confidentiality Act, noris it limited to section 10. It provides that a clinicalpsychologist's license may be revoked if the psychologist revealeddata or information relating to a client "except as allowed ***under the Mental Health and Developmental DisabilitiesConfidentiality Act."⁽⁵⁾ 68 Ill. Admin. Code 1400.80(b) (2002).

Plaintiff maintains that section 10 rather than section 7(a)applies to disciplinary proceedings and protects patientconfidentiality, however, it also inhibits the Department's abilityto ensure that psychiatrists comply with the Medical Practice Act. Moreover, plaintiff's argument that psychiatric patients must givetheir consent before their records may be used in a disciplinaryproceeding against a psychiatrist assumes that all such patientshave the legal capacity to consent. Section 7(a) is an exceptionto section 10 and section 7(a) and section 38 of the MedicalPractice Act allow the Department to utilize plaintiff's mentalhealth records in the disciplinary proceeding against Dr. Slutsky"provided that personally identifiable data is removed from therecords before such use."

Plaintiff insists that the supreme court's recent decision inPeople ex rel. Department of Professional Regulation v. Manos, 202Ill. 2d 563, 782 N.E.2d 237 (2002) (Manos), is dispositive. InManos, the Department issued subpoenas to two dentists, who weresubjects of an administrative investigation by the Department,requesting, inter alia, complete dental records for two patients. The court rejected the Department's argument that its broadinvestigatory powers under the Civil Administrative Code ofIllinois (20 ILCS 2105/60 et seq. (West 2000)), and the IllinoisDental Practice Act (225 ILCS 25/1 et seq. (West 2000)), prevailedover the statutorily enacted physician-patient privilege (735 ILCS5/8-802 (West 2000)). The court noted that the legislaturespecifically delineated 10 exceptions to the physician-patientprivilege, none of which refer to the investigatory powers of theDepartment. See 735 ILCS 5/8-802 (West 2000). Because none of thestatutory exceptions to the privilege applied, the court concludedthat the physician-patient privilege prevented defendants fromproducing any confidential patient dental records.

Manos is not in point, however, since there a different typeof disciplinary proceeding and different types of records wereinvolved. Therefore, the source of the claimed privilege and thesource of the Department's authority here to overcome the claimedprivilege differ from those at issue in Manos. Moreover, in Manos,the Department did not rely on a statutory exception to theprivilege at issue as it does here. In the present case theDepartment does not argue, as it did in Manos, that its statutorypower to subpoena medical records under section 38 prevails overplaintiff's statutory privilege to keep those records confidential. Rather, the Department contends that a specific provision of theConfidentiality Act, namely section 7(a), supports the Department'sauthority under section 38 to subpoena and use medical records ina disciplinary proceeding. Unlike Manos, where the Departmentargued that one statute prevailed over the other, in the case subjudice the Department posits that both section 38 of the MedicalPractice Act and section 7(a) of the Confidentiality Act allow theDepartment to use plaintiff's mental health records in thedisciplinary proceeding against Dr. Slutsky, "provided thatpersonally identifiable data is removed from the record before suchuse."

For the reasons set forth above, the judgment of the circuitcourt of Cook County is reversed, and remanded with directions todissolve the preliminary injunction entered on August 8, 2002.

Reversed and remanded with directions.

THEIS, P.J. and KARNEZIS, J., concur.

1. Although the word "dissolve" is more specific, when a court"vacates" an order, the effect is "[t]o nullify or cancel; makevoid; invalidate." Black's Law Dictionary 1546 (7th ed. 1999). The effect would be the same as dissolution under thesecircumstances.

2. Section 38 provides in pertinent part:

"The Disciplinary Board, upon a determination that probable causeexists that a violation of one or more of the grounds fordiscipline listed in Section 22 has occurred or is occurring, maysubpoena the medical and hospital records of individual patients ofphysicians licensed under this Act, provided, that prior to thesubmission of such records to the Disciplinary Board, allinformation indicating the identity of the patient shall be removedand deleted. *** All medical records and other information receivedpursuant to subpoena shall be confidential ***. The use of suchrecords shall be restricted to members of the Disciplinary Board,the medical coordinators, and appropriate staff of the Departmentof Professional Regulation designated by the Disciplinary Board forthe purpose of determining the existence of one or more grounds fordiscipline of the physician as provided for by Section 22 of thisAct. Any such review of individual patients' records shall beconducted by the Disciplinary Board in strict confidentiality,provided that such patient records shall be admissible in adisciplinary hearing, before the Disciplinary Board, when necessaryto substantiate the grounds for discipline alleged against thephysician licensed under this Act." 225 ILCS 60/38 (West 2000).

3. Plaintiff also cites Bland v. Department of Children & FamilyServices, 141 Ill. App. 3d 818, 490 N.E.2d 1327 (1986); ChicagoHousing Authority v. Human Rights Commission, 325 Ill. App. 3d1115, 759 N.E.2d 37 (2001) and Norskog. All are inapposite as they do not involve disciplinary proceedings before the Department or anattempt by the Department to subpoena and use mental health recordspursuant to section 38 and section 7(a).

4. It should be noted that the Clinical Psychology Licensing Actdoes not apply to Dr. Slutsky, a psychiatrist.

5. Plaintiff also claims that the Department's own medicalrecords release forms follow the consent provision in section 10. The record on appeal does not contain copies of any of thesemedical records release forms.