In re MARCUS S., a Person Found Subject to Involuntary Commitment and Involuntary Medication (The People of the State of Illinois, Petitioner-Appellee, v. Marcus S., Respondent-Appellant).
No. 3-17-0014
Appellate Court of Illinois, Third District
January 18, 2022
2022 IL App (3d) 170014
Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois. Circuit No. 16-MH-11. The Honorable H. Chris Ryan, Jr., Judge, Presiding.
OPINION
¶ 1 The trial court ordered the respondent-appellant, Marcus S., subject to involuntary commitment at an inpatient mental health treatment facility and to involuntary treatment through the administration of psychotropic medications. Marcus appeals those judgments, arguing that (1) the State‘s petitions for involuntary commitment and involuntary treatment were untimely, (2) the State failed to present evidence as to certain essential elements of the involuntary commitment and involuntary medication statutes in the Mental Health and Developmental Disabilities Code (Code) (
¶ 2 FACTS
¶ 3 Marcus is also the appellant in In re Marcus S., 2022 IL App (3d) 160710, which had initially been consolidated with this appeal. In that case, Marcus appeals involuntary commitment and treatment orders that were issued by the circuit court of Peoria County shortly before the orders of the circuit court of La Salle County at issue in this case. Pursuant to the Peoria circuit court‘s orders, Marcus was committed to Unity Point Methodist Hospital (Unity Point)
¶ 4 On December 3, 2016, 32 days after the involuntary commitment and medication orders were entered by the circuit court of Peoria County, Marcus S. was involuntarily admitted to OSF St. Elizabeth Medical Center in Ottawa (OSF) for psychiatric care. According to Dr. Joseph Chuprevich, Marcus‘s treating psychiatrist at OSF, Unity Point “let [Marcus] go and a week later he ended up at St. Francis emergency room” in Peoria. Dr. Chuprevich stated that Unity Point did not want Marcus back, so OSF was contacted. Although Dr. Chuprevich acknowledged the possibility that Marcus was still under a court order for ongoing treatment, neither Marcus‘s counsel, nor the State, nor the trial court investigated the issue further or sought to obtain Marcus‘s prior court records.
¶ 5 OSF filed a petition for involuntary commitment under the Code on December 22, 2016, 19 days after Marcus was involuntarily admitted to OSF. Accordingly, the petition was untimely. In addition, the petition did not name any of Marcus‘s relatives, as mandated by the Code. No one testified that Marcus was ever given a copy of the petition, as required by the Code.1 Marcus‘s counsel did not object to the State‘s violations of the Code. He did not argue that the petition was untimely or deficient in any respect. Nor did he suggest that the State had failed to prove that the petition had been given to Marcus or that any other mandatory procedural and substantive requirements of the Act were not satisfied.
¶ 7 The trial court appointed a La Salle County public defender to represent Marcus and ordered the State to provide a typed predisposition report as required by section 3-810 of the Code (
¶ 8 During the commitment hearing, Dr. Chuprevich testified that he began treating Marcus on December 4, 2016. Thereafter, Dr. Chuprevich and a nurse practitioner saw Marcus on an alternative basis. Dr. Chuprevich diagnosed Marcus as suffering from a schizoaffective disorder with delusional thinking. He defined a “delusion” as a “firm, fix[ed], false belief” that evidence to the contrary does not dissuade. Dr. Chuprevich opined that Marcus had “delusional-type thinking” because Marcus was “firmly convinced that his father cuts the vaginas out of deer” that he has killed and “puts them up on a board,” and Marcus could not be dissuaded from these false beliefs. However, Dr. Chuprevich acknowledged that he had not spoken with Marcus‘s family. Dr. Chuprevich further believed that Marcus had “disorganized thinking” because he planned to live with the Amish and work as a mason.
¶ 9 Dr. Chuprevich testified that he had spoken with Marcus‘s parole officer, who told Dr. Chuprevich that he went to Marcus‘s house at some unidentified time and found cat feces and things that were not “taken care of.” He also told Dr. Chuprevich that Marcus had some prior trouble with the legal system. Dr. Chuprevich opined that Marcus might get into trouble again if he were not treated on an inpatient basis. He stated that he did not know whether Marcus had the “wherewithal” mentally or financially to provide for his needs. Although Dr. Chuprevich stated that an intermediate care facility for the mentally ill would be a “great stepping stone” to independent living,” Dr. Chuprevich believed it would be inadequate for Marcus because “outpatient has failed repeatedly.” He recommended that Marcus be committed for 90 days to “Environmental Health as part of the Department of Human Services.” The state‘s attorney did not ask Dr. Chuprevich about the one-page treatment plan and did not seek to amend the plan to make it a complete written predisposition report.
¶ 10 Marcus testified on his own behalf. He gave the address of his home in Canton, the correct name of his parole officer, and the name of the master mason for whom he was hoping to work. He explained that he had been hospitalized at Unity Point pursuant to a court order after he was denied permission to sign into that
¶ 11 The trial court found Marcus subject to involuntary commitment at “McFarland Mental Health-DHS” due to his inability to provide for his basic needs and his refusal of treatment.
¶ 12 The involuntary medication hearing commenced immediately thereafter. The State questioned Dr. Chuprevich about the risks and benefits of the three medications he was asking to prescribe (Haldol, Cogentin, and Depakote), whether the benefits of those drugs outweighed their risks, and what tests were necessary for the safe and effective administration of the medications. However, the State did not ask Dr. Chuprevich about Marcus‘s capacity to make a reasoned decision to accept or refuse medication. Nor did it ask him any questions relating to the other required elements of the involuntary medication statute. For example, the State did not ask Dr. Chuprevich whether written medication information had been provided to Marcus. Marcus‘s counsel did not object to the State‘s lack of proof on these issues.
¶ 13 Dr. Chuprevich testified that he knew Marcus had been on Haldol before and he thought that Marcus might have been ordered by a court to take Haldol. However, Dr. Chuprevich stated that he had not investigated Marcus‘s records. Neither Marcus‘s counsel, nor the state‘s attorney, nor the trial court paused the proceedings so that Marcus‘s records could be obtained and examined.
¶ 14 Marcus testified he was concerned about the risks of impotence and death that are associated with Haldol. He stated that he had previously had a bad reaction to Haldol during which he “couldn‘t breathe,” vomited copious amounts of phlegm, and thought he was “dying.” Marcus testified that he took Cogentin in an effort to alleviate these bad side effects but that Cogentin “doesn‘t do a thing” and “just destroys you impotently [sic].” Marcus testified that his experience with Depakote was that “it made you act like a zombie.” Marcus characterized Dr. Chuprevich as a “bully” who had been “strong arming” Marcus the entire time he had been his patient. He stated that Dr. Chuprevich “has not discussed anything with me” and that he had been forcing Marcus to take long-acting Haldol shots and Cogentin even though Haldol was on Marcus‘s allergies list. Neither the State nor Marcus‘s counsel asked Dr. Chuprevich about his basis for administering involuntary medication to Marcus before obtaining a court order.
¶ 15 The trial court found Marcus subject to involuntary medication for a period up to 90 days. It found that the treatments proposed by Dr. Chuprevich were “not unreasonable” and were in Marcus‘s best interest. It further found that the State had proven that Marcus lacked the capacity to make a reasoned decision about his treatment even though Dr. Chuprevich had presented no opinion to that effect. The trial court did not advise Marcus of his right to appeal its involuntary commitment and medication orders as required by section 3-816(b) of the Code, which requires the court to provide such notice both orally and in writing.
¶ 16 ANALYSIS
¶ 17 1. The State‘s Failure to Comply With the Involuntary Admission Statute
¶ 18 Marcus argues that the State failed to satisfy certain mandatory requirements
¶ 19 Section 3-601(b)(2) of the Code (
¶ 20 Further, the State failed to file a predisposition report as required by section 3-810 of the Code (
¶ 21 This procedural and evidentiary failure requires reversal of the State‘s petition for involuntary commitment. Because we reverse the trial court‘s involuntary commitment order, we must also reverse the involuntary medication order, which was contingent upon the Marcus receiving inpatient care pursuant to the commitment order. In re John N., 364 Ill. App. 3d 996, 998-99 (2006). The State concedes this point.
¶ 22 Accordingly, we could resolve the appeal on this ground alone. However, the State‘s involuntary medication petition was also patently inadequate and riddled with reversible errors, and Marcus‘s trial counsel did little or nothing to address many of them. Because these types of flagrant mistakes, utter disregard of the Code‘s requirements, and dereliction of duty by trial courts and counsel for both parties recur with disturbing regularity, we choose to address the involuntary medication order as well.
¶ 23 2. The State‘s Failure to Comply With the Involuntary Treatment Statute
¶ 24 The trial court erred in ordering the involuntary administration of three drugs because the State failed to comply with several mandatory requirements of the Code‘s involuntary treatment statute (
¶ 25 The administration of involuntary mental health services entails a ” ‘massive curtailment of liberty.’ ” In re Barbara H., 183 Ill. 2d 482, 496 (1998) (quoting Vitek v. Jones, 445 U.S. 480, 491 (1980)); see also In re Torry G., 2014 IL App (1st) 130709, ¶ 31 (“Autonomous decisionmaking in matters affecting the body and mind is one of the most valued liberties in a civilized society.” (Internal quotation marks omitted.)). When the State seeks to forcibly administer psychotropic medication to an individual, the interference with the individual‘s liberty is ” ‘particularly severe.’ ” In re Robert S., 213 Ill. 2d 30, 46 (2004) (quoting Riggins v. Nevada, 504 U.S. 127, 134 (1992)). Under the due process clause of the fourteenth amendment to the United States Constitution (
¶ 26 In 1991, the legislature enacted the involuntary-treatment statute of the Code (Ill. Rev. Stat. 1991, ch. 91½, ¶ 2-701.1 (now codified at
“(A) That the recipient has a serious mental illness or developmental disability.
(B) That because of said mental illness or developmental disability, the recipient currently exhibits any one of the following: (i) deterioration of his or her ability to function, as compared to the recipient‘s ability to function prior to the current onset of symptoms of the mental illness or disability for which treatment is presently sought, (ii) suffering, or (iii) threatening behavior.
(C) That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in item (B) of this subdivision (4) or the repeated episodic occurrence of these symptoms.
(D) That the benefits of the treatment outweigh the harm.
(E) That the recipient lacks the capacity to make a reasoned decision about the treatment.
(F) That other less restrictive services have been explored and found inappropriate.
(G) If the petition seeks authorization for testing and other procedures, that such testing and procedures are essential for the safe and effective administration of the treatment.”
405 ILCS 5/2-107.1(a-5)(4) (West 2016).
Section 2-107.1 serves as the legal standard for balancing an individual‘s liberty interests and the State‘s interest in treating persons with mental illnesses. The Illinois Supreme Court upheld the constitutionality of section 2-107.1, in part, because the statute is “narrowly-tailored” to balance individual liberty against the State‘s interest and because the statute‘s “strict standards” “must be satisfied by clear and convincing evidence before medication can be ordered” on an involuntary basis. C.E., 161 Ill. 2d at 218.
¶ 27 Whether there was compliance with a statutory provision presents a question of law, which we review de novo. In re Nicholas L., 407 Ill. App. 3d 1061, 1072 (2011). However, a reviewing court will not
¶ 28 Here, the State did not satisfy several of section 2-107.1‘s mandatory requirements for the involuntary administration of psychotropic medication. As the State concedes, it failed to demonstrate that Marcus lacked the capacity to make a reasoned decision about his treatment. The State never asked Dr. Chuprevich about Marcus‘s incapacity to make a reasoned decision regarding the administration of psychotropic medications, and Dr. Chuprevich did not offer an opinion on that issue. The State could not demonstrate that Marcus lacked such capacity without showing, inter alia, that Marcus had received written notice of the risks and benefits of, and alternatives to, the proposed medications, as required by section 2-102(a-5) of the Code (
¶ 29 Further, there was evidence that Marcus had the capacity to make a reasoned decision about his treatment. During the trial, Marcus testified cogently and showed an awareness of the side effects of Cogentin and Depakote, and he testified about the prior bad experiences he had had on those drugs. A person does not lack the capacity to make treatment decisions merely because he has a mental illness (In re Alaka W., 379 Ill. App. 3d 251, 265 (2008); In re Phyllis P., 182 Ill. 2d 400, 401 (1998)) or because he disagrees with his doctor‘s proposed treatment (In re Nicholas L., 407 Ill. App. 3d at 1076). Marcus‘s testimony and the other evidence presented at trial suggested that Marcus had the capacity to make a reasoned decision about his treatment. See In re Israel, 278 Ill. App. 3d 24, 37 (1996); In re Hatsuye T., 293 Ill. App. 3d 1046, 1052.
¶ 30 In addition, the State failed to prove by clear and convincing evidence that the benefits of Dr. Chuprevich‘s proposed medication treatments outweighed the harm of those treatments, as required by section 2-107.1(a-5)(4)(D) of the Code (
¶ 31 Because these errors and omissions require reversal of the State‘s involuntary treatment petition, we need not address the State‘s alleged failure to satisfy other required elements of the involuntary medication statutes. However, we note, once again, that we find it alarming that these types of fundamental and obvious errors occur. The Code provides that the state‘s attorney “shall ensure that petitions, reports and orders [filed pursuant to the Code] are properly prepared.”
¶ 32 3. Ineffective Assistance of Counsel
¶ 33 Marcus also argues that his trial counsel provided ineffective assistance during the involuntary admission and involuntary medication proceedings. We agree. Respondents facing involuntary commitment or involuntary admission of psychotropic medication have a statutory right to counsel under the Code.
¶ 34 Marcus contends that his counsel provided ineffective assistance in this case by: (1) failing to object to the lack of factual basis for Dr. Chuprevich‘s testimony that Marcus met the statutory criteria for involuntary commitment, (2) failing to object to the State‘s failure to present evidence as to each required element of the involuntary treatment statute, and (3) failing to hold the state to various other procedural and substantive requirements of the Code. We agree that Marcus‘s counsel was ineffective.
¶ 35 The State failed to comply with several mandatory requirements of the Code without meeting any challenge or objection from Marcus‘s counsel. As noted above, section 3-601(b)(2) of the Code (
¶ 36 Further, as noted, the State failed to file a predisposition report as required by section 3-810 of the Code (
¶ 37 In addition, as the State concedes, the State failed to prove that Marcus was provided with all of the statutorily required written information on the side effects, risks, benefits, and alternatives to each of the proposed medications. Marcus‘s
¶ 38 Because these blatant errors were so prejudicial as to render Marcus‘s counsel ineffective, we need not address the several other serious errors allegedly committed by Marcus‘s counsel.
¶ 39 4. Forfeiture
¶ 40 The State argues that each of the errors alleged by Marcus was forfeited because Marcus‘s counsel did not object to any of the errors before the trial court and Marcus does not argue that these errors are reviewable under the plain error doctrine. This argument fails. Forfeiture is a limitation on the parties, not the reviewing court. In re Amanda H., 2017 IL App (3d) 150164, ¶ 43. Finding forfeiture would be inappropriate in this case given the State‘s complete failure to observe the Code‘s mandatory provisions that safeguard the respondent‘s liberty and due process rights. If a respondent fails to object to violations of the Code committed by the State, he may not appeal the State‘s lack of “strict compliance” with the Code; however, he retains the right to appeal the State‘s total noncompliance with those requirements.
¶ 41 5. Mootness
¶ 42 The State further argues that we should dismiss this appeal as moot. The 90-day commitment order that is the subject of this appeal has already expired, and Marcus has been discharged from treatment. Accordingly, this appeal is moot. Robert S., 213 Ill. 2d at 45; see also In re J.T., 221 Ill. 2d 338, 349-50 (2006) (an appeal is moot where it presents no actual controversy or where the issues raised in the trial court no longer exist, rendering it “impossible for the reviewing court to grant effectual relief to the complaining party“).
¶ 43 Generally, courts of review do not decide moot questions, render advisory opinions, or consider issues where the result will not be affected by the court‘s decision. In re Alfred H.H., 233 Ill. 2d 345, 351 (2009). However, there are three established exceptions to the mootness doctrine: (1) the “public interest” exception, applicable where the case presents a question of public importance that will likely recur and whose answer will guide public officers in the performance of their duties; (2) the “capable of repetition” exception, applicable to cases involving events of short duration that are capable of repetition, yet evading review; and (3) the “collateral consequences exception,” applicable where the involuntary treatment order could return to plague the respondent in some future proceedings or affect other aspects of the respondent‘s life.
¶ 44 We find that the “capable of repetition” exception applies in this case. That exception has two elements. First, the challenged action “must be of a duration too short to be fully litigated prior to its cessation.” Alfred H.H., 233 Ill. 2d at 358. Second, “there must be a reasonable expectation that ‘the same complaining party would be subjected to the same action again.’ ”
¶ 45 Thus, the only question is whether there is a reasonable expectation that the respondent will be subject to the same action again. That occurs when the resolution of the issue raised in the present case, and any resolution thereof, would be likely to “affect a future case involving [the] respondent” or to “have some bearing on a similar issue presented in a subsequent case” involving the respondent.
¶ 46 Because of Marcus‘s history of mental illness and involuntary hospitalizations and treatments, it reasonably likely
¶ 47 As Marcus correctly notes, the State and the trial court failed to comply with certain procedural and substantive requirements of the Code. Specifically, the trial court erred by granting the involuntary medication petition even though (1) the State failed to present evidence that Marcus had received written notice of the risks and benefits of, and alternatives to, the proposed medications, as required by section 2-102(a-5) of the Code (
¶ 48 The State argues that the “capable of repetition” exception does not apply here because Marcus is arguing only that the evidence was insufficient to support the involuntary admission and medication orders in this case. The State and the dissent are correct that fact-specific arguments (such as an argument addressing the sufficiency of the evidence in a given case) are not subject to the “capable of repetition” exception because such issues are unlikely to recur in future cases and the resolution of such issues will not impact future cases. Alfred H.H., 233 Ill. 2d at 359-61. Contrary to the State‘s and the dissent‘s assertions, however, the instant appeal does not merely involve challenges to the sufficiency of the evidence or any other fact-specific issue. Rather, it involves the State‘s complete failure to observe several mandatory procedural and substantive requirements of the Code, the trial court‘s entry of involuntary commitment and medication orders despite these statutory violations, and Marcus‘s counsel‘s ineffectiveness for failing to object to the State‘s errors and omissions. Our appellate court had repeatedly recognized that the “capable of repetition” exception applies under these circumstances. See, e.g., Val Q., 396 Ill. App. 3d at 161 (applying the “capable of repetition” exception where respondent contended that the trial court erred by delegating to physicians its duty of assessing the risks of the treatment and it was reasonably likely that the resolution of that issue “would affect future cases involving respondent, because respondent will likely again be subject to involuntary treatment and the court will likely again commit the same alleged error“); Tara S., 2017 IL App (3d) 160357, ¶ 17 (applying the “capable of repetition” exception to claim of ineffective assistance of counsel in proceedings under the Code).
¶ 49 Because we hold that the “capable of repetition” exception applies, we do not need to address the Marcus‘s argument that the “public interest exception” also applies.
¶ 50 We close by admonishing the state‘s attorney and all counsel serving in the state‘s attorney‘s office, the trial courts, and all attorneys who represent respondents in involuntary admission and treatment proceedings to follow the law and discharge their responsibilities in civil commitment cases. Involuntary admission and involuntary medication proceedings pose a grave threat to an individual‘s liberty interests. In re George O., 314 Ill. App. 3d 1044, 1046 (2000). Accordingly, the Code‘s
¶ 51 The State, Marcus‘s counsel, and the trial court casually ignored these vital and mandatory procedural safeguards. The multiple violations of the Code‘s requirements in this case were patent and flagrant. Counsel for both parties acted as if several of the Code‘s requirements did not exist. As a result, despite the gravity of the proceedings, Marcus received no meaningful representation and no meaningful hearing.
¶ 52 This is far from the first time we have encountered such a brazen disregard for the law in civil commitment cases. Our appellate court has repeatedly stressed the need for strict compliance with the legislatively established procedural safeguards for involuntary commitment proceedings. See, e.g., Alaka W., 379 Ill. App. 3d at 271-72; In re Daniel M., 387 Ill. App. 3d 418, 422-23 (2008); Amanda H., 2017 IL App (3d) 150164, ¶ 46. Nevertheless, our admonitions continue to go unheeded. We hope that our supreme court will act to stop to the continuing, egregious violations of respondents’ constitutional and statutory rights in these cases. Our supreme court could, for example, require that all trial courts presiding over these cases, attorneys in the state‘s attorney‘s office, attorneys in the legal advocacy service, and any other counsel representing respondents in these cases receive adequate training as to the Code‘s requirements in order to ensure that such requirements are fully observed and strictly enforced.
¶ 53 CONCLUSION
¶ 54 For the foregoing reasons, we reverse the judgment of the circuit court of La Salle County.
¶ 55 Reversed.
¶ 56 JUSTICE SCHMIDT, dissenting:
¶ 57 While the majority‘s concerns are well founded, we are bound by our supreme court‘s admonishment not to decide moot questions. Alfred H.H., 233 Ill. 2d at 351. The majority finds that this case falls within the “capable of repetition, yet evading review” exception to the mootness doctrine. Supra ¶ 44. This exception has two elements: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. In re A Minor, 127 Ill. 2d 247, 258 (1989).
¶ 58 The first element is satisfied. However, the second element is not. The fact that respondent may face involuntary admission and involuntary medication in the future is not a sufficient basis to satisfy the second element of this exception to the mootness doctrine. Alfred H.H., 233 Ill. 2d at 358-61. Respondent is not
¶ 59 The majority finds the above exception to the mootness doctrine is satisfied and does not address the alternative mootness exception raised by respondent on appeal. Specifically, respondent argues that the public interest exception to the mootness doctrine is also satisfied. This argument should be rejected as well.
¶ 60 The public interest exception is applicable only if there is a clear showing that (1) the question is of a substantial public nature, (2) an authoritative determination is needed for future guidance, and (3) the circumstances are likely to recur. In re J.B., 204 Ill. 2d 382, 387 (2003). The exception is narrowly construed and requires a clear showing of each criterion. In re India B., 202 Ill. 2d 522, 543 (2002). The second element is not satisfied in this case. This exception does not apply when there are no conflicting precedents requiring an authoritative resolution. The majority does not resolve any conflicting issues in the law. Rather, it applies existing case law to the specific facts of this case. Therefore, an authoritative determination is not necessary as required by this exception.
¶ 61 This appeal should be dismissed as moot.