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THIRD DIVISION
Date Filed: December 31, 2003

No. 1-02-2140

 

JUSTICE HALL delivered the opinion of the court:

This case comes before us as a permissive appeal of acertified question pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308). The question certified arose during a dissolution ofmarriage proceeding in which the respondent, Thomas Peters-Farrell (Thomas), served subpoenas on three drugstores seekingprescription records for the petitioner, Jennifer Farrell-Peters(Jennifer). The circuit court denied Jennifer's motion to quashthe subpoenas but certified the following question to this court.

"Are requests for pharmaceutical records from pharmacyprotected under the Illinois Mental Health and DevelopmentalDisabilities [Confidentiality] Act?"

This court allowed the appeal pursuant to Rule 308.

On May 29, 2002, Jennifer filed a motion to quash threesubpoenas issued by Thomas to three drugstores to produce theirprescription records for Jennifer, including the name of themedication, what the medication was used to treat, the dosage,the refill history, a copy of the prescription and any otherrelated records.

On July 18, 2002, the circuit court denied Jennifer's motionto quash the subpoenas but, pursuant to Rule 308, certified thequestion as to whether pharmaceutical records are protected underthe Mental Health and Developmental Disabilities ConfidentialityAct (the Confidentiality Act) (740 ILCS 110/1 et seq. (West2000)).

On September 18, 2002, this court allowed the appeal.

The plaintiff contends that requests for pharmaceuticalrecords from pharmacies are protected under the ConfidentialityAct. This issue has not previously been decided, and itsdetermination requires that this court construe theConfidentiality Act.

Issues as to statutory construction are reviewed de novo. Revolution Portfolio, LLC v. Beale, 332 Ill. App. 3d 595, 600,774 N.E.2d 14, 19 (2002).

The following sections of the Confidentiality Act arepertinent to the issue in this case:

"'Mental health or developmental disabilities services'or 'services' includes but is not limited to examination,diagnosis, evaluation, treatment, training, pharmaceuticals,aftercare, habilitation or rehabilitation." (Emphasisadded.) 740 ILCS 110/2 (West 2000).

"'Recipient' means a person who is receiving or hasreceived mental health or developmental disabilities services." 740 ILCS 110/2 (West 2000).

"'Record' means any record kept by a therapist or by anagency in the course of providing mental health ordevelopmental disabilities service to a recipient concerningthe recipient and the services provided. 'Records' includesall records maintained by a court that have been created inconnection with, in preparation for, or as a result of thefiling of any petition or certificate under Chapter II,Chapter III, or Chapter IV of the Mental Health andDevelopmental Disabilities Code and includes the petitions,certificates, dispositional reports, treatment plans, andreports of diagnostic evaluations and of hearings underArticle VIII of Chapter III or under Article V of Chapter IVof that Code. Record does not include the therapist'spersonal notes, if such notes are kept in the therapist'ssole possession for his own personal use and are notdisclosed to any other person, except the therapist'ssupervisor, consulting therapist or attorney. If at anytime such notes are disclosed, they shall be considered partof the recipient's record for purposes of this Act." (Emphasis added.) 740 ILCS 110/2 (West 2000).

Pursuant to the Confidentiality Act and subject toenumerated exceptions not relevant in this case, Jennifer has theprivilege to refuse to disclose and to prevent disclosure of hermental health records and communications. See 740 ILCS 110/10(West 2000). She argues that her pharmaceutical records aremental health records and therefore are protected from disclosurepursuant to section 10 of the Confidentiality Act.

Thomas responds that pharmacists and their records are notcovered by the Confidentiality Act. He notes that theConfidentiality Act does not refer to pharmacists in itsdefinition of therapists. See 740 ILCS 110/2 (West 2000); seealso Suarez v. Pierard, 278 Ill. App. 3d 767, 663 N.E.2d 1039(1996) (rejecting the argument that a pharmacist is a therapistbecause he dispenses pharmaceuticals).

However, the fact that a pharmacist is not a therapist andtherefore not a provider of mental health services under theConfidentiality Act is not determinative of the issue before us. We must determine if pharmacy records are records kept by anagency, as opposed to a therapist, which provides mental healthservices.

The legislative intent of a statute is best determined fromthe plain and ordinary meaning of the statutory language. Redav. Advocate Health Care, 199 Ill. 2d 47, 55, 765 N.E.2d 1002,1007 (2002). If the legislative intent is clear from thestatutory language, the court must confine its inquiry to aconsideration of that language and must not look to extrinsicaids. Reda, 199 Ill. 2d at 55, 765 N.E.2d at 1007. However, ifthe statutory language is susceptible of more than oneinterpretation, the court may look beyond the language toconsider the purposes of the statute. Reda, 199 Ill. 2d at 55,765 N.E.2d at 1007. In that event, the court may look beyond thelanguage to consider the purpose of the statute. Reda, 199 Ill.2d at 55, 765 N.E.2d at 1007. The court may ascertainlegislative intent by considering the objects of the law and theevils it seeks to remedy. People v. Gemeny, 313 Ill. App. 3d902, 907, 731 N.E.2d 844, 849 (2000).

Under the definitions in the Act, "record" includes anyrecord kept, not just by a therapist, but also by "an agency inthe course of providing mental health *** service to a recipientconcerning the recipient and the services provided." 740 ILCS110/2 (West 2000). Such "services" include "pharmaceuticals." 740 ILCS 110/2 (West 2000).

The term "agency" is not defined by the Act. "Agency" isdefined as "an establishment engaged in doing business foranother <an advertizing> <an employment>." Webster's Third NewInternational Dictionary 40 (1993).

The Pharmacy Practice Act of 1987 (the Pharmacy Act) (225ILCS 85/1 et seq. (West 2000)) defines a pharmacy as meaning andincluding "every store, shop, pharmacy department, or other placewhere pharmaceutical care is provided by a pharmacist *** or (2)where prescriptions of physicians, dentists, veterinarians,podiatrists, or therapeutically certified optometrists, withinthe limits of their licenses, are compounded, filled, ordispensed." 225 ILCS 85/3(a) (West 2000). Section 18 of thePharmacy Act requires pharmacies to keep a "suitable book, file,or electronic record keeping system in which shall be preservedfor a period of not less than 5 years the original of everywritten prescription and the original transcript or copy of everyverbal prescription filled, compounded, or dispensed, in suchpharmacy." 225 ILCS 85/18 (West 2000).

A "pharmacy" fits the definition of an agency because it isengaged in doing business for another, i.e., preparing prescriptions ordered by physicians for their patients. As an"agency" it keeps records of the prescriptions it fills,including those filled for mental health recipients for thetreatment of mental health problems. Unlike Suarez, the presentcase concerns the records, not the relationship of the pharmacistto the mental health recipient.

While the Confidentiality Act does not specially refer topharmacies, we conclude that a pharmacy is an "agency" whichprovides pharmaceutical services to a mental health recipient andthat the pharmacy's records of the prescriptions issued to amental health recipient are therefore protected from disclosureunder the Confidentiality Act.

While we are of the opinion that the clear language of theConfidentiality Act protects the pharmaceutical records of amental health recipient from disclosure, nevertheless, at thevery least, the language of the Confidentiality Act defining"record" is ambiguous, since the above definition renders"records kept by an agency" susceptible to differentinterpretations, either including or excluding records kept by apharmacist.

A finding of ambiguity in statutory language permits thiscourt to look to the purpose of a statute in construing itsmeaning. Reda, 199 Ill. 2d at 55, 765 N.E.2d at 1007. In thiscase, the purpose of the statute provides ample support for ourdetermination that a mental health recipient's pharmacy recordsare protected from disclosure under the Confidentiality Act.

"'The Confidentiality Act is carefully drawn to maintain theconfidentiality of mental health records except in specificcircumstances explicitly enumerated.'" Norskog v. Pfiel, 197Ill. 2d 60, 71, 755 N.E.2d 1, 9 (2001), quoting Sassali v.Rockford Memorial Hospital, 296 Ill. App. 3d 80, 84-85, 693N.E.2d 1287, 1290 (1998). When viewed as a whole, the Actconstitutes a "'strong statement'" about the importance ofkeeping mental health records confidential. Norskog, 197 Ill. 2dat 71-72, 755 N.E.2d at 10, quoting Mandziara v. Canulli, 299Ill. App. 3d 593, 599, 701 N.E.2d 127, 131 (1998). Consequently,anyone seeking the nonconsensual release of mental healthinformation faces a formidable challenge and must show thatdisclosure is authorized by the Confidentiality Act. Norskog,197 Ill. 2d at 72, 755 N.E.2d at 10.

In Gemeny, the court held that a mental health recipient'staped telephone messages to his therapist were "communications"and protected by the general privilege created by theConfidentiality Act. Gemeny, 313 Ill. App. 3d at 908-09, 731N.E.2d at 849. The court recognized that the "statutoryprivilege exists to encourage complete candor between patient andtherapist and to provide motivation for persons who needtreatment to seek it." Gemeny, 313 Ill. App. 3d at 908, 731N.E.2d at 849.

It is not disputed that, under the Confidentiality Act,Jennifer's prescription records from a therapist, who wasrendering her mental health services, are protected fromdisclosure. If Thomas were able to obtain the same records fromthe pharmacy where Jennifer filled a prescription for medicationprescribed by a therapist, Jennifer might be reluctant to fillsuch a prescription and might not receive necessary treatment. Thus, if pharmacy records are not protected by the privilege, thepurpose of the Confidentiality Act would be defeated.

Thomas notes that where there is a conflict between thePharmacy Act and the Confidentiality Act, the Pharmacy Actcontrols. See 225 ILCS 85/37 (West 2000). He points out thatunder section 3(p) of the Pharmacy Act, a pharmacist may releaseconfidential information to a person authorized by law to receivesuch information and that a person serving a subpoena isauthorized by law to receive the information. See 225 ILCS85/3(p) (West 2000); 735 ILCS 5/2-1101 (West 2000).⁽¹⁾ "Confidential information" is defined as "information maintainedby the pharmacist in the patient's records." 225 ILCS 85/3(p)(West 2000).

If the pharmacy records are protected under theConfidentiality Act, then Thomas violated the Confidentiality Actby issuing a subpoena without the written order issued by ajudge, authorizing the disclosure of the record or the issuanceof the subpoena. See 740 ILCS 110/10(d) (West 2000). Thus, thesubpoenas in this case did not serve to authorize the release ofJennifer's prescription records under the Pharmacy Act. See 225ILCS 85/3(p) (West 2000). Therefore, no conflict exists betweenthe Pharmacy Act and the Confidentiality Act.

Jennifer also contends that she has not placed her mentalcondition at issue in this case. See 740 ILCS 110/10(a)(1) (West2000). However, in Levy v. Markal Sales Corp., 311 Ill. App. 3d552, 724 N.E.2d 1008 (2000), this division held that review of anappeal under Rule 308 was strictly limited to the questionidentified by the circuit court's order and would not be expandedon appeal to encompass other matters that could have beenincluded but were not. Levy, 311 Ill. App. 3d at 554, 724 N.E.2dat 1009; but see Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460,472, 693 N.E.2d 358, 365 (1998) (court may go beyond the limitsof a certified question in the interests of judicial economy);Arriola v. Time Insurance Co., 323 Ill. App. 3d 138, 142, 751N.E.2d 221, 224 (2001) (another division of this court holds thatthe appellate court is not limited to reviewing the questionpresented but may also consider the appropriateness of the ordergiving rise to the appeal).

In answering the certified question, we conclude that pharmacy records are included in those records protected fromdisclosure under the Confidentiality Act.

Certified question answered and case remanded.

SOUTH and KARNEZIS, JJ., concur.

1. Section 18 of the Pharmacy Act provides that the recordskept by the pharmacist "shall *** be open to inspection to thepharmacy coordinator and the duly authorized agents or employeesof the Department." 225 ILCS 85/18 (West 2000).