¶1dissenting:
¶2I respectfully dissent. I believe that plaintiff has stated a valid cause of action pursuant to the Mental Health and Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/1 et seq. (West 1992)).
¶3The issue presented is not whether "a pharmacist [becomes] a provider of mental health services simply by filling a prescription for drugs used to treat a mental condition.” 278 Ill. App. 3d at 771. The function of this court is not to answer abstract issues of law. Instead, the issue is whether plaintiff will be able to prove any set of facts that would entitle her to relief. Under the circumstances in this case, plaintiff could "reasonably believe” that defendant was performing the services of a therapist.
¶4The focus of the Act is the confidentiality of a recipient’s records and communications, not the occupational label applied to the provider of services. See House v. SwedishAmerican Hospital, 206 Ill. App. 3d 437, 442, 564 N.E.2d 922, 926 (1990); Johnson v. Lincoln Christian College, 150 Ill. App. 3d 733, 741-42, 501 N.E.2d 1380, 1385 (1986), quoting Martino v. Family Service Agency, 112 Ill. App. 3d 593, 599-600, 445 N.E.2d 6, 11 (1982); see also People v. Doe, 103 Ill. App. 3d 56, 58, 430 N.E.2d 696, 698 (1981). The Act protects "any communication made by a recipient” of mental health services. 740 ILCS 110/2(1) (West 1992). "Mental health services” include but are "not limited to … pharmaceuticals.” (Emphasis added.) 740 ILCS 110/2(3) (West 1992). A "pharmaceutical” is defined as "of or relating to pharmacy or pharmacists.” Webster’s Third New International Dictionary 1694 (1986). The statute does not restrict the scope of this term to the act of prescribing drugs. Under the Pharmacy Practice Act, the practice of pharmacy includes "advising or counseling patients on the use of drugs or devices,” "providing health information related to drugs and medical devices,” "assisting the user … in keeping personal medication records and complying with prescribed therapy,” and "recommending or advising” concerning contents and therapeutic values and uses. (Emphasis added.) 225 ILCS 85/3(d)(2), (d)(6), (d)(8), (d)(9) (West 1992). The majority completely ignores this statute and stubbornly refuses to acknowledge that it explicitly extends the role of modern pharmacists beyond the "mere dispensing” of drugs. Even the special concurrence admits that pharmacists sometimes "do much more” than fill prescriptions.
¶5The Pharmacy Practice Act and the Confidentiality Act should be read together. The majority’s cramped view in this case slices up the statutory pie instead of looking at the whole; apparently, the majority is unable to digest this particular combination of complementary legislation.
¶6The broad language of the Act indicates that the legislature intended to embrace a wide range of persons and services. A duty of confidentiality is imposed on anyone acting as a "therapist,” which includes "any other person not prohibited by law from providing [mental health] services … if the recipient reasonably believes that such person is permitted to do so.” (Emphasis added.) 740 ILCS 110/ 2(9) (West 1992). The majority contends that "[w]arning about potential side effects is not therapy.” 278 Ill. App. 3d at 771. Perhaps, but this is not the question before the court, and plaintiff does not allege that it is. In this case, plaintiff has alleged that, in addition to filling her prescription, the defendant pharmacist also questioned her about her treatment and condition. In doing so, the pharmacist conducted activities similar to those of a therapist. Surely a jury should be allowed to determine whether Suarez "reasonably believe[d]” that Pierard was permitted to, and in fact did, provide therapeutic services within the meaning of these statutes. See 740 ILCS 110/2(9) (West 1992).
¶7A motion to dismiss cannot be granted unless no set of facts could be proved to support the plaintiff’s claim for relief. Commerce Bank v. Plotkin, 255 Ill. App. 3d 870, 872, 627 N.E.2d 746, 748 (1994). Here, a question of fact remains as to whether Suarez "reasonably believe[d]” that Pierard’s actions created a therapeutic relationship. The finder of fact must be allowed to decide this issue after all the evidence regarding the interaction between the parties has been presented at trial.
¶8Because I cannot agree with its narrow analysis, I dissent from the majority opinion. The language, of the Act is broad enough to include a pharmacist who consults with a recipient prior to providing drugs that were prescribed for treatment of a mental health disorder.
¶9For the foregoing reasons, I would reverse the trial court’s dismissal of count I of Suarez’s complaint, alleging a violation of the Mental Health and Developmental Disabilities Confidentiality Act, and remand for further proceedings.