In re BEVERLY B., Alleged to Be a Person Subject to Involuntary Administration of Psychotropic Medication (The People of the State of Illinois, Petitioner-Appellee, v. Beverly B., Respondent-Appellant).
No. 2-16-0327
Appellate Court of Illinois, Second District
September 28, 2017
2017 IL App (2d) 160327
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Zenoff and Birkett concurred in the judgment and opinion.
Appeal from the Circuit Court of Kane County, No. 16-MH-66; the Hon. Divya K. Sarang, Judge, presiding. Judgment Reversed.
Joseph H. McMahon, State‘s Attorney, of St. Charles (Patrick Delfino, Lawrence M. Bauer, and Diane L. Campbell, of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
¶ 1 Respondent, Beverly B., appeals the order of the circuit court of Kane County granting the State‘s petition for the involuntary administration of psychotropic medication to respondent, under
¶ 2 I. BACKGROUND
¶ 3 Respondent was involuntarily admitted to the Center after her April 9, 2015, adjudication of unfitness to stand trial for aggravated battery of a police officer. On April 8, 2016, the State filed a petition seeking the involuntary administration of psychotropic medication to respondent. The State alleged that respondent was delusional and had received a diagnosis of psychosis not otherwise specified (NOS), that her functioning had declined, that she was suffering as a result of her disorder, and that she had exhibited threatening behavior toward Center staff.
¶ 4 At respondent‘s first appearance, she told the court that she had experienced negative contacts with public defenders and that she wanted to represent herself. The court, after questioning respondent, permitted her to do so. However, it appointed the public defender to serve as standby counsel.
¶ 5 The State‘s first witness at the hearing on the petition was Danille Fossie, a social worker at the Center. Fossie said that respondent had granted a friend a power of attorney for health care but had revoked it when the friend exercised it to authorize administration of medication. The public defender attempted to intervene as respondent cross-examined Fossie, and the State successfully objected.
¶ 6 Before the next witness was sworn, the following exchange occurred:
“MS. BLAKE [public defender]: Judge, I‘m sorry, [respondent] is going to allow me to represent her, in which case I would ask that Ms. Fossie come back.
***
THE COURT: I‘m not going to do that ***. You can start your representation with [the next witness] at this point. I need to question her before I take your word for it, as to [respondent]. All right.
MS. BLAKE: Then, I can‘t do that, because all the fertile ground and all the problems that I had seen in this case that were issues as to my client‘s rights not being protected were directly related to Miss Fossie‘s testimony.
THE COURT: *** [A]s of right now I have not appointed you back as counsel. You‘re standby counsel, and [respondent] has not made any request of the Court yet to have her be represented by counsel. So we‘re going to continue. Unless [respondent] makes a request of the Court, I‘m going to honor her request for self-representation under the Constitution. And I‘m certainly obliged to do that by case law. MS. BLAKE: Okay.”
Respondent continued to represent herself for the remainder of the hearing.
¶ 7 Dr. Mohammed Ali, respondent‘s psychiatrist, was the State‘s second and final witness. He opined that respondent‘s serious mental illness precluded her from making a reasoned decision about treatment. He also concluded, on the basis of respondent‘s medical record and his discussions with staff members, that respondent had been delusional for more than a year. He said that he had no way to know exactly when her symptoms had started but that symptoms such as hers would not have begun suddenly. She first had been admitted to the Center in 2014, “on the civil side,” and was “discharged from the hospital involving medication.” Her most prominent symptom was a belief that some device had been implanted in her brain when she was two years old; she believed that this device helped her monitor drug dealers and communicate with the CIA, FBI, and police. Ali further opined that respondent‘s ability to function had declined seriously, an opinion he based largely on comparing respondent‘s current functioning to her previous ability to work as an accountant. Finally, he interpreted several events at the Center as examples of respondent‘s threatening behavior.
¶ 8 The State questioned Ali about the types of information that he or Center staff had given respondent. It first asked whether respondent had been given written materials about the risks and benefits of the medications that Ali sought to prescribe. Ali said that she had and that those materials were in English. It then asked whether respondent had been offered any other kinds of treatments “less restrictive than medication” and, if so, what they were. Ali said that she had, explaining, “We have daily groups and daily fitness groups, and she is selective in attending those kinds of groups.” When the State asked about respondent‘s access to individual therapy, he said that it was “available” but that respondent had been “selective in participating in those therapies too.”
¶ 9 After this series of questions, the court asked the State whether it had asked Ali if respondent “was given in writing the risks and benefits of the less restrictive?” In response, the State asked Ali, “When [respondent] was advised of the less restrictive risks and benefits, were those materials provided to her in writing?” Ali responded, “At the time of her admission, we do give all the group schedule[s], what are the expectation[s], yes.” Thus, although the court‘s question seemed to pertain generally to what information was given, the State asked Ali only whether that information had been in writing, and Ali answered neither question. The State asked Ali whether he had previously testified that respondent did not read the written materials. He indicated that he had been referring only to the written materials about the medications, but he confirmed that the other information was given to respondent on her admission.
¶ 10 Respondent cross-examined Ali, asking him about his sources of information and how much time he had spent talking to her and preparing the petition. She also challenged him on details, such as where she had been when she had allegedly become threatening. She was successful at times in showing that Ali was incorrect about some of these details. The court allowed standby counsel some interjections.
¶ 12 Respondent testified on her own behalf. Her remarks showed that she believed that she had an assignment from the “DMV” to track license plates stolen by drug dealers. The State did not cross-examine respondent or present rebuttal evidence.
¶ 13 The State closed by arguing that respondent exhibited each of the factors under
¶ 14 The court ruled that respondent had a serious mental illness, namely psychosis NOS, and was exhibiting deterioration and suffering but not threatening behavior. On the information that respondent had received about other treatments, the court ruled:
“[T]he doctor testified that other less restrictive services have been explored and been offered to [respondent] for the last year, and they have been found to be inappropriate. Group and individual therapy are not going to make her fully understand the serious mental illness that she suffers from and she does need medication.”
It further stated that the “testimony from the doctor also noted that [respondent] has been advised in writing of the risks and side effects of the medication and the risks and side effects of the less restrictive services.”
¶ 15 The court advised respondent that she could appeal and that she could be represented by appointed counsel on appeal. Respondent asked standby counsel for assistance with the notice of appeal and asked that the notice include a request for appointed counsel.
¶ 16 II. ANALYSIS
¶ 17 On appeal, respondent raises three claims of error, all of which she concedes are moot due to the lapse of the 90-day order for treatment; she asks us to address them under the public-interest or capable-of-repetition-yet-evading-review exception to the mootness doctrine. Her claims of error are as follows: (1) the court violated her right to counsel when it declined standby counsel‘s request to step in following the direct examination of Fossie, (2) the State failed to present clear and convincing evidence of compliance with
¶ 19 Because the order at issue here has expired and because we do not generally decide moot questions, we must consider the extent to which respondent‘s claims fall under any exception to the mootness doctrine before we may address the merits of her claims. See In re Alfred H.H., 233 Ill. 2d 345, 351 (2009). Although we frequently address moot claims in involuntary-medication and other mental-health cases, there is no general mental-health exception to the mootness doctrine. Id. at 351-55. Rather, we address such claims under one of the three traditional mootness exceptions: (1) that resolution of the issue is a matter of public interest, (2) that the issue involves a harm capable of repetition yet evades judicial review, and (3) that the respondent could receive indirect relief, as the order from which the appeal was taken has collateral consequences for him or her. Id. at 354-63. “The public interest exception allows a court to consider an otherwise moot case when (1) the question presented is of a public nature; (2) there is a need for an authoritative determination for the future guidance of public officers; and (3) there is a likelihood of future recurrence of the question.” Id. at 355. The evading-review exception has two elements: (1) the contested order must be too short in duration to permit ordinary judicial review and (2) there is a reasonable expectation that the same party will be subject to the same action in the future. Id. at 358. Thus, “the resolution of the issue in the present case would be likely to affect a future case involving [the] respondent.” Id. at 359. Here, we conclude that both of respondent‘s claims about the merits of the judgment fall under exceptions to the mootness doctrine. However, we also conclude that no exception applies to her claim that the court deprived her of her right to counsel.
¶ 20 We may address respondent‘s challenges to the circuit court‘s application of the Code under the public-interest exception. The sections at issue—
¶ 21 By contrast, the matter of whether respondent was deprived of her right to counsel falls into neither the public-interest nor the evading-review exceptions—and respondent does not suggest that the collateral-consequences exception applies either. Although questions of when standby counsel should take over for respondent might be expected to arise in any future proceedings in which she may be involved, little likelihood exists that any such question would arise with facts similar to those here. Respondent states that “everything hinge[d]” on a peculiar point in the hearing when standby counsel told the court that respondent wanted counsel to take over; the court told counsel that respondent would have to say that herself, and counsel announced that she could not take over unless she were allowed to recall Fossie. Thus, any disposition of this claim would not resolve any particular legal question but would simply apply largely undisputed principles to one incredibly idiosyncratic interaction. These circumstances are unlikely to recur in proceedings involving respondent or anyone else; thus, we are precluded from addressing the matter under either the public-interest or the evading-review exceptions. See Alfred H.H., 233 Ill. 2d at 355, 359.
¶ 23 With the matter of mootness resolved, we address the merits of respondent‘s remaining claims, beginning with the relevant standards of review. Respondent claims a failure to comply with
¶ 24 C. Compliance With the Section 2-102(a-5) Mandate for Information Concerning Alternatives to the Proposed Treatment
¶ 25 Respondent claims that she did not receive information that satisfied
¶ 26 It is error for a court to grant a petition for the involuntary administration of psychotropic medication absent evidence of compliance with
¶ 27 Before addressing the core of respondent‘s claim—which is a question of law—we resolve one issue of fact. The State argues that the evidence supports the circuit court‘s finding that “[t]he testimony from [Ali] *** [was that respondent] has been advised in writing of *** the risks and side effects of the less restrictive services.” But the court‘s finding was contrary to the evidence. Ali said that respondent had received information about the risks and benefits of the proposed medications. However, the only evidence relating to alternative treatments is Ali‘s testimony that, “[a]t the time of her admission, we do give all the group schedule[s], what are the expectation[s].”
¶ 28 We now address why the information respondent received—general information about the treatments available at the Center—did not satisfy
¶ 29 First,
¶ 30 Second,
¶ 31 Third,
¶ 32 This discussion shows that sections
¶ 33 Recognizing this, we have a standard by which we can decide whether the information respondent received was adequate. To make a reasoned decision, an individual should have a general idea of the advantages and disadvantages of his or her realistic choices. General information about mental-health treatments that might or might not be of use to a recipient does not help a recipient understand his or her choices. Indeed, information about treatments of no value to the recipient will be only a source of confusion and so reduce the chance of a reasoned decision. Moreover, the relevance of the information needs to be apparent. That is, merely advising a recipient that a treatment exists without advising him or her of how it is relevant is not likely to help.
¶ 34 The information respondent received about alternatives to psychotropic medication does not meet this standard. According to the testimony, when she was admitted, she, like everyone who is admitted, apparently received group schedules and a statement of expectations or rules. However, there is no evidence that, when psychotropic medication was proposed, respondent received an explanation of how any treatment referred to in the schedules was an alternative to the medication. Nor is there evidence that, when she received the schedules, she was told that she would need to refer to them later if medication were proposed. More critically, no
¶ 35 The State argues that
¶ 36 The State implies that, because respondent was offered “less restrictive” treatments, she must have received the information required by
¶ 37 The State argues in the alternative that, even if the information did not satisfy
¶ 38 D. Sufficiency of the Evidence of Respondent‘s Deterioration or Suffering
¶ 39 Finally, we hold that the court erred in finding that respondent was subject to the involuntary administration of psychotropic medication based on her exhibiting deterioration in her ability to function and suffering. We conclude that, regardless of the persuasiveness of the evidence of deterioration and suffering, the evidence linking that deterioration and suffering to respondent‘s mental illness was insufficient. A court may grant an order for the involuntary administration of psychotropic medication “if and only if it has been determined by clear and convincing evidence” that “the recipient has a serious mental illness or developmental
¶ 40 This conclusion is part of what prevents
¶ 41 The direct evidence of the effect of respondent‘s illness on her functioning was weak. We do know that respondent‘s delusions on a single occasion brought her into conflict with the Batavia police. However, although Fossie in particular seemed to imply that respondent‘s illness had cost respondent her job and her family relationships, the record does not tell us whether it did so directly or through the cascading effects of that single encounter. Similarly, even assuming adequate evidence of respondent‘s homelessness, that evidence would still fail to show deterioration in respondent‘s functioning, as the loss of her home might have been a further consequence of her arrest and subsequent job loss.
¶ 42 The State concedes that nothing in the evidence shows a direct link between respondent‘s losses and her illness, but it suggests that this is of no consequence. Indeed, it goes so far as to argue that, given the length of respondent‘s incarceration and commitment, we can reasonably infer that respondent is homeless and unemployed and thus has experienced a deterioration in her functioning. We reject the State‘s reasoning out of hand; the legislature cannot have intended that we countenance the involuntary medication of respondent on the basis of economic harm from her incarceration and commitment.
¶ 43 The evidence that respondent was suffering was similarly insufficiently linked to her illness; the court relied only on respondent‘s unhappiness with her commitment. The parties agree that, in this context, “suffering” means “experiencing distress or anguish“; it is thus not here a synonym for “experiencing a specific condition.” Thus, to show suffering, the State must do more than meet the
¶ 44 The evidence here showed predominately that respondent‘s suffering was the result of her dislike of her confinement. Ali testified as much:
“Q. [Assistant State‘s Attorney:] *** Does it upset [respondent] to be here?
A. Yes.
Q. Okay. Do you ever observe her appearing to be sad?
A. Yes. On occasion when I was trying to talk to her about treatment plan, she was not happy.”
Further, the court found that respondent was suffering, but it discussed her distress largely in terms of her desire to leave the Center. That said, we note the evidence of unpleasant-sounding delusions. In particular, there was evidence that respondent had reported that Center staff members had been replaced by their twins. However, the evidence does not show how respondent reacted to those delusions. Thus, although one could infer that those delusions were distressing, the inference is not clear and convincing.
¶ 45 Before concluding, we take a moment to, again, point out that the forcible administration of antipsychotic medication into a nonconsenting person‘s body is a significant intrusion on that person‘s liberty. See Washington v. Harper, 494 U.S. 210, 229 (1990). Antipsychotic drugs “alter the chemical balance in a patient‘s brain, leading to changes, intended to be beneficial, in his or her cognitive processes.” Id. But they also can have “serious, even fatal, side effects.” Id. In addition, the involuntary administration of antipsychotic drugs necessarily alters a person‘s brain functioning against his or her will—and this intrusion “could engender fear that the government was trying to brainwash its citizens.” Johnson v. Tinwalla, 855 F.3d 747, 749 (7th Cir. 2017). These fundamental liberty interests, therefore, can give way only if the State can establish both the need for mental-health treatment and compliance with the Code‘s procedural safeguards. Here, the State‘s evidence did not clear those hurdles. The State failed to show that respondent required forcible treatment; and the State failed to show that respondent had received sufficient information to enable her to make a reasoned decision regarding her treatment.
¶ 46 III. CONCLUSION
¶ 47 For the reasons stated, we reverse the judgment of the circuit court of Kane County.
¶ 48 Reversed.