*1 S., Subject Involuntary Administration of LOUIS a Person Found (The Illinois, People of the Psychotropic Medication State of Petitioner- S., Appellee, Respondent-Appellant). v. Louis District No. 4 — 05—0131 Fourth Opinion filed October dissenting part. MYERSCOUGH,J., concurring part specially Commission, Anna, and Plesko, Guardianship Advocacy & Jeff M. ap- Commission, Peoria, for Advocacy Guardianship & Tracy, of Cynthia Z. pellant. (Norbert Goetten, Springfield J. Schmidt, Attorney, of P. State’s John Appel- Attorneys Biderman, Dodegge, all of State’s Thomas R.
Robert J. Office, counsel), People. for the late Prosecutor’s of the court: opinion delivered the TURNER JUSTICE *2 the administration filed for January petition a was In a S., alleging he had Louis respondent, as to involuntary treatment The consent. give informed capacity lacked the mental illness and petition. hearing granted a and court conducted trial (1) due-process rights procedural his respondent argues appeal, On (2) convincing set forth clear and the State failed to violated and were reverse. involuntary treatment. We warranting authorized
I. BACKGROUND 21, 2005, involuntarily committed for January respondent was On in 4—05— appealed from that order case No. days. Respondent 25, 2005, Earley of the McFarland January Dr. 0085. On William filed a for administration Mental Health Center lacked petition alleged respondent respondent. treatment as to consent, sought it authorization to give informed capacity January On psychotropic various medications. administer of the Janu- appointed represent respondent and notice counsel was ary hearing was sent. hearing court conducted a January
On psychiatry. Dr. Zhihong Zhang expert Dr. testified as an petition. for his treatment team Zhang part respondent’s stated he was very “was symptoms paranoia, showed bipolar Respondent disorder. Zhang with a knife.” Dr. and “tried to threaten his wife aggressive,” delusions, paranoia, Zyprexa respondent’s had to reduce prescribed exhibited Zhang Dr. stated had aggressive behavior. being “very loud and intrusive” and aggressive behavior help paranoia decrease his and delusions medication would Dr. given, was not If the medication organize thought processes. Zhang Dr. stated, get would worse. Zhang respondent’s situation outweighed the medication potential benefits from the opined sedating a effect. weight gain effects such as potential side respondent, with he discussed the medication Zhang Dr. testified possible to take the written statement but refused medica- what the Respondent did not seem to “understand side effects. not need the medica- him” and stated he did tion would do to affect was not available Zhang a less-restrictive service opined tion. Dr. happen without medication. recovery would Respondent then Zhang. cross-examined Dr. Respondent ques- tioned him about clinical notes finding paranoid. him respon- After dent’s counsel stated she needed questions, to ask the represent stated his intention to himself help with from counsel on “procedural matters.” The following exchange occurred: Well, “THE S.], you COURT: training [Mr. do have in how to *** yourself you
conduct in hearing, just or do argue want to with the doctor? No,
THE arguing; RESPONDENT: I’m not asking questions. I’m THE THE you’re COURT:So far doing too bad. Well, just
RESPONDENT: trying I’m to— —you THE COURT: appointed you, have counsel to assist [Mr. S.].
THE RESPONDENT:She hasn’t helping requested been me. I’ve her help. I’ve tried to contact her phone, on the and she will not talk to me. I public Either need another counsel or I need to handle myself. this you
THE training court, COURT: Do have handle cases [Mr.S.]?
THE RESPONDENT:I’ve never been admitted to the bar. may mean, THE you COURT: You continue I [Mr. S.]. have your you.” counsel at side to assist Respondent Zhang then asked if possible bring Dr. it was the nurses *3 who wrote the notes into court and question them. The court denied the request.
When asked how he manifested his aggression, Dr. Zhang stated Further, had threatened his wife with a knife. respondent was intrusive and spoke “very Respondent loud.” claimed he had not harming wife, been convicted of his but the trial court stated the prior hearing require was sufficient to admittance to hospital. why asked he had not been When able appeal issue, currently that the court stated it was After appeal. appeal process, following the court told about exchange occurred:
“THE guess RESPONDENT: I so I’ve been loud and intrusive here, while I’ve been out is that the bottom line? No, line, you
DR. ZHANG: is not bottom line. Bottom are still you your paranoia threatened a knife and [sic] wife with would dangerous people. be to other
Q. But, I still don’t understand we know for a fact that I how my threatened wife with a knife. do we that for a
How know fact?
THE she I COURT:Because told us that and believed her. So, hearsay.
THE RESPONDENT: that’s a fact. That’s No, hearsay. right THE COURT: it wasn’t sat there and told She week, done, [Mr. me that last [Mr. You’re SJ. SJ. going argue you day today I’m not hap- with all what about pened happen. or didn’t I heard happened. evidence about what *** today you opinion [is] issue the doctor of the that need your situation, chronic, to take improve medication to that this is many years, gone you medication, it’s on for will take the they’re asking you an [for] order from me for to take the medication and that is the [o]rder.”
The court petition. appeal allowed the State’s This followed.
II. ANALYSIS
A. Mootness
l(a 5)(5)
Initially, we note this case is moot. Section 2—107.
—
(Code) (405
the Mental
Developmental
Health and
Disabilities Code
107.1(a—5)(5)(West 2004))
ILCS
provides that an order for the
5/2 —
administration of
involuntary
authorized
treatment shall in no event
Here,
be effective for more than 90 days.
grant
court’s order
ing the petition
for
treatment was
January 28,
entered on
2005. Since
days
passed
the 90
have
and the court’s order
longer
no
any
effect,
force or
it
impossible
is
for
grant any
this court to
ef
any party. Thus,
fectual relief to
any decision rendered
merely
would
advisory,
be
“[generally,
a court of review will not consider moot
or
questions
abstract
advisory
render
S.,
decisions.” In re Robert
(2004).
213 Ill. 2d
may
Moot issues
be
reviewed, however, under
public-interest
exception to the moot
S.,
ness
doctrine. Robert
213 Ill. 2d at
“The criteria
(1)
application
for
of the public[-]interest exception are:
(2)
public
question;
nature of the
desirability
of an
authoritative determination for
purpose
guiding public
offic
(3)
ers; and
the likelihood
question
S.,
that the
will recur.” Robert
medication of patients mental-health is a matter of ‘substantial ” public S., concern.’ Robert 213 Ill. 2d at 820 N.E.2d at quot ing P, Ann Mary 202 Ill. 2d
Also, the short duration authorizing of an order involuntary treat ment it likely renders that similar litigation again would be mooted expiration S., order. Robert 820 N.E.2d at Thus, we find appropriate. review *4 Statutory
B. Compliance Respondent argues he did days’ not receive at least three notice prior hearing to a petition on the for authorized involuntary treat- ment required by agree. as the Code. We 107.1(a—5)(1) (405 107.1(a— Section of the Code ILCS 2— 5/2 —
5)(1) (West 2004)) provides, part, as follows: copy a and petitioner petition, “The shall deliver the notice of to or place hearing, respondent, the time of the agent the his her at- torney, any attorney-in-fact, any, the guard- known if ian, any, days if no to prior hearing.” later than 3 the date of the “ procedural safeguards by This court has stated enacted the ‘[t]he Rather, they are not mere technicalities. are intended to legislature important liberty respondent the interests of which safeguard the are ” O.C., App. 292, In re mental[-]health involved in cases.’ 338 Ill. 3d 1163, (2003), 298, quoting Luttrell, 261 Ill. App. 788 N.E.2d 230, 74, 221, January sub was judice, petition In the case the filed on 2005. respondent A to copy petition given for forced was medications petition notify respondent the copy the same date. did not hearing not been set hearing by the date of because had setting hearing January The order on the for court. Thus, respondent. filed to January was mailed days’ did not three to the respondent prior hearing receive notice by the Code. required C.E., 200, 226-27, (1994),
In In re 161 Ill. 2d 2—107.1 peti our court held formal notice under a section supreme if necessary respondent attorney tion and his were aware of is given respond argu to the ample opportunity proceedings Instead, prejudiced respondent must establish he was ments made. C.E., 227, by notice. 161 Ill. 2d at N.E.2d at the absence formal case, days’ sufficiently we whether notice question In this two “[sjhort Although respondent’s prepare. counsel time afforded (In Jones, prejudice se” re per is insufficient to constitute notice alone (1996)), respondent find we by timely During hearing, notice. the lack of prejudiced was occasions, Dr. two began cross-examining Zhang. On respondent to be respondent supposed defender told she was public assistant then he tried to contact asking questions. Respondent stated one whether would return his calls. Counsel then asked counsel but she himself, answered represent wanted “procedural and asked that counsel be available for the affirmative had not appointed counsel been Respondent claimed matters.” him to contact her and would not talk to when he tried him helping to consult opportunity unclear had an phone. It is whether Further, hearing his defense. attorney prior prepare with his nurses as wit- request produce respondent’s court denied
779 Ac- his defense. difficulty presenting nesses, indicating thereby notice provided with sufficient respondent was not cordingly, we hold by required the Code. as the of Evidence Sufficiency
C. to clear and convinc present the failed Respondent argues State agree. treatment. warranting involuntary We ing evidence authorized involving the in a case reviewing sufficiency the of When medication, of psychotropic a court involuntary the administration of it is the ruling against the court’s unless review will not overturn trial C., weight App. re 329 Ill. of the evidence. In Richard manifest (2002). judgment A be will “only an against weight of the evidence when considered the manifest apparent findings appear to be opposite conclusion is or when the unreasonable, R., or arbitrary, not based evidence.” John App. Ill. treatment shall not be provides Code authorized by following the the clear and proves
administered unless State convincing evidence:
“(A) recipient develop- That the has a serious mental illness or disability. mental
(B) developmental That because of mental illness or dis- said (i) ability, currently any exhibits recipient following: one of function, ability compared of his or her deterioration recipient’s ability prior of function to the current onset disability symptoms of the mental illness or for which treatment is (ii) (iii) presently sought, suffering, threatening behavior. (C) disability period That the illness or has existed for a marked (B) continuing presence symptoms of the set forth item (4) repeated episodic this or the occurrence of these subdivision symptoms.
(D) outweighthe That the benefits of the treatment harm. (E) recipient capacity to make a reasoned That lacks decisionabout the treatment.
(F) explored less[-]restrictive services have been That other inappropriate. found
(G) testing other If the seeks authorization for procedures, procedures such are essential for testing safe of the treatment.” 405 and effectiveadministration ILCS 5/2— (West2004). 107.l(a 5)(4)(A) (a 5)(4)(G) through — — The trial court must find evidence of each the elements authorize Jones, forced psychotropic administration medication. 3d at App. prove capacity lacked the
Respondent argues State failed he to make a reasoned decision about the requested treatment. See 405 107.1(a—5)(4)(E)(West 2004). ILCS 102(a—5) Section 5/2 — 2— requires Code treating physician recipient, “advise the in writ- ing, effects, risks, the side treatment, benefits of the as well as alternatives to the proposed treatment, to the extent such advice is consistent with the recipient’s ability to understand the information 102(a—5)(West 2004). communicated.” 405 ILCS 5/2 — patient Before a can make a reasoned decision medication, about “it is necessary first to be informed about the risks and benefits of the proposed course R., of medicine.” John 3d at N.E.2d at 354.
“Even where the physician
verbally
has
advised the patient of
the benefits and side effects of the
patient
medication and the
*6
physician
informed the
that he chooses
medication,
not to take the
patient
is still entitled to receive the written notification
(405
required by
(West
section 2—102 of the Code
ILCS 5/2—102
2000)). [Citation.] Verbal notification
enough
is not
to ensure a
respondent’s due[-]process rights.
R.,
[Citation.]” John
339 Ill.
783,
App. 3d at
In this
while testifying to the
possible
benefits and
ef
side
fects
Zyprexa,
Dr. Zhang stated he
opportunity
had an
to discuss
respondent.
medication with
Zhang
Dr.
respondent
indicated
refused to take a written
possible
statement of the
side effects and did
not feel he needed the
Zhang
medication. Dr.
did not state he discussed
remaining
three medications proposed to be administered to
attempted
or
to give him a written statement of their
possible
benefits or
side
Although
Earley’s
effects.
Dr.
petition stated
he advised respondent,
in writing, of the risks and benefits of the
proposed treatment,
the trial court did not make such a finding and
heard no such evidence from Zhang.
Dr.
As the State
present
failed to
evidence that respondent was informed of the risks and
of the
benefits
medication,
proposed
the trial court’s order must be reversed. See
R.,
John
App.
783,
339 Ill.
3d at
We also note the
to written notification
subject
is not
to a
analysis.
R.,
harmless-error
John
The State must also clear and evidence that outweigh benefits of treatment the harm. 405 ILCS 5/2— 107.1(a 5)(4)(D) (West 2004). type “The of medication to used is a be — necessary component P., element.” re Len 3d this In (1999). required have “generally Courts P., some of the Ill. App. medications to be used.” Len 107.1(a—5)(6)(West at 2004). 108; also 405 see ILCS 5/2 — patient If a is informed risks and benefits of the proposed medication, court’s order for the of that S., administration medication must be reversed. In re Edward 298 Ill. App. case, petition
In Earley’s this Dr. dosage listed Geodon and its range as the first choice of psychotropic given medication to be respondent. Haldol, Proloxin, also listed Zyprexa, along with the dosage ranges, recommended At alternatives. hearing petition, Zhang Dr. he prescribing testified was 20 mil- ligrams per of Zyprexa day. He stated Zyprexa respon- would reduce paranoia, delusions, dent’s aggressive behavior. He also indicated Zyprexa possible cause could side effects as weight gain such and seda- tion. He potential stated the outweighed benefits of the medication potential Zhang harm. Dr. testified pos- to neither the benefits or sible side Geodon, Haldol, Proloxin, effects of dosages nor to the Zhang Yet, would be used. Dr. never drugs. even mentioned these *7 the trial order dosage court’s lists Geodon and the range its as first choice given respondent, to be to followed the alternatives of Haldol, Zyprexa, Proloxin dosage and and ranges. their Mary case, The rebanee misplaced. State’s on Ann B is In that the respondent’s treating psychiatrist testified to the six medications listed in the petition involuntary to authorize the administration of Mary P., 396-98, Ann Ill. 781 medication. 202 2d at N.E.2d at 240-41. The question in that jury “selectively case was whether the could only authorize” the administration of those medications it P., deemed appropriate. Mary Ann 202 Ill. at 781 N.E.2d at permit 239. The court the not supreme found Code did the fact finder parse “to selectively only the recommended treatment and authorize P., requested certain medications.” Mary Ann Ill. 2d at N.E.2d at 246. present
The
before us does not
an issue of selective authoriza
case
E,
presented physi
In
tion of certain medications.
Ann
the State
Mary
dosage ranges sought
to
testimony regarding
cian
six medications
P.,
396-98,
Ann
Ill. 2d
781 N.E.2d at
(Mary
be administered
240-41),
(Mary
and the trial court’s order listed those six medications
242).
P.,
contrast,
Ann
Based Dr. the State failed to clear Zhang’s on outweighed convincing that the of the treatment evidence benefits Kness, App. harm. the See (1996) (without as physician to which medication the administer, way to the proposed to “there is no determine whether it outweigh administering the harm in benefits of such medication Here, singular testimony the risks respondent”). Zhang’s Dr. the trial to order Zyprexa and benefits of did then authorize court testimony. Thus, the court’s order must drugs other without similar be reversed. issues, preceding our need not
Because of resolution we allegations regarding self-representation error respondent’s consider Instead, thoughts right present a defense. we second participants in by the Fifth District in John R. to the articulated under the proceedings Code: pro Fundamen proceedingsshould not be conducted “These forma. liberty proceedings under the Code.
tal interests are involved procedural safeguards not mere The are [Citation.] Code’s safeguard liberty these interests. technicalities but essential tools safeguards are construed Accordingly, procedural [Citation.] those strictly complied and must be strictly in favor of proof petitioner bears substantial burden [Citation.] with. real, petitioner to meet with judge should force an order clear, convincing evidence before the court enters liberty We respondent’s important interests. infringing on the has the best every party proceedings involved these believe that Nevertheless, in mind. patient/respondents interests of abused, be, been, no doubt system and mistakes have can in these Accordingly, parties we remind the involved been made. protect rights proceedings vigilant ever be R., 3d at in the John reflected Code.” respondents 356-57. 792 N.E.2d at *8 involved abundantly clear to those may have been It psychotropic of the administration assistance and professional needed proceed- to conduct However, imperative it remains medication. trial court and The of the Code. requirements ings pursuant peruse be well-advised proceedings would in these counsel involved the administration dealing with of cases large number with affording respondents goal with the involuntary treatment Continued they are entitled. they deserve and which rights only foster will of the Code principles the stated adherence to who need those will also ensure judicial system in but confidence our it. help will receive
III. CONCLUSION stated, judgment. trial court’s we reverse the For the reasons Reversed.
STEIGMANN, J., concurs. MYERSCOUGH, concurring part in and dis- specially JUSTICE in senting part: I part. dissent in concur respectfully specially part
I concur and timely requires that lack of notice majority’s finding in all but the peti- First, filed and received petition reversal. was 2005, January entered January tion on 2005. The order was County January 28, Sangamon because setting hearing for (absent holiday). a hearings Friday on sets all of the mental-health involuntary medica- a for hearing The statute mandates a days filing petition. of the 405 ILCS tions within seven 5/2—(cid:127) (West 2004). 107.l(a 5)(2) case, excluding weekends In this — Friday, Janu- calculation, hearing had to be held holidays from the Friday, February call fell on ary 2005. The next mental-health calculation, the from the holidays If weekends are excluded 2005. February Thursday, held on hearing would have had to be holidays and However, note, explains 19 locations the Code in The of time. computation in the are not to be included weekends for three-day requirements notice seven-day hearing (West language. not include that 405 ILCS medication do 5/2—107.1 2004). counting clearly defined the method legislature then, seven-day the three- Presumptively, in this Code. elsewhere weekends, which means holidays include requirements here do not rule February 1, using the Tuesday, held hearing had to be 2004)). (5 (West on Statutes ILCS set forth in the Statute 70/1.11 “The Supreme Illinois Court has general followed the rule in counting days statutory provision Sundays for notice that holidays intervening day between the of posting and the date stated for the proceedings commencement of should [Cita be counted. *9 Sundays holidays tions.] will statutory be excluded from the computation only day when the final doing for the of an action falls days. on such If legislature [Citations.] the had provide intended to working days 10 within which to file complaints before the Board Appeals or had intended to holidays light excludeweekends or specific provisions 1.11, specifically section it would have provided.” Application County so County Collector, In re the Treasurer & ex officio 753, 764-65, 26 Ill. App. 3d 326 N.E.2d 128 (1975). comply seven-day deadline, To with this the court had to violate three-day Otherwise, the requirement. notice the court would be forced to daily conduct near hearings Friday hearings rather than the three Sangamon mental-health facilities in County, comply to with the three-day notice and seven-day hearing requirements. ruling This will force the court to hearings conduct the at the courthouse —to the patients detriment of and cost to the facilities. majority
The recognizes short notice alone is insufficient to prejudice Moreover, constitute per three-day se. service does not have to be met if the respondent proceedings is aware of the and given ample opportunity respond C.E., to the arguments made. In re (1994). 200, 226-27, Ill. 2d Respondent was not prejudiced by the short hearings notice. Counsel was well aware were Fridays held on by demonstrated the record. So was respondent. Further, preparation a short time contemplated by is statute. Ad ditionally, counsel did request prepare. a continuance to majority apparently
The holds respondent received insufficient (1) prejudiced notice and was respondent spoken because had not (2) attorney by telephone, the record respondent does reflect opportunity attorney prior hearing, had an to consult with his to the (3) respondent’s request produce the trial court denied nurses as witnesses.
The actually great patience respondent. trial court showed with respondent certainly hearing, While ranted about counsel at the these by rants respondent’s were observed the court and own counsel. court, Respondent’s complaints by about counsel were heard respondent participate was allowed to in his own defense.
Respondent involuntarily was committed because he suffered from hallucinations and a mental illness. We should not reverse on the lack weighed was the trier of fact who of notice as the trial court and the of his credibility quality representation on respondent’s deference gives great This court need witnesses. for additional to see opportunity trial court had the findings trial because the court’s credibility, witnesses, testimony, their determine their hear weigh Carmody, the evidence. (1995). here, not abuse its discretion trial court did trial
respondent prejudiced by not shown how he was court’s allege evidence he Respondent does not even what additional actions. nurses would have testified. presented would have to what the Moreover, the absence in the record that of evidence hearing is attorney prior was consult with his due to unable to appellant’s disregarded, the fault of and to be as it is appeal job to us with a record. When the record is supply complete entered reviewing presume “the will that the order inadequate, court conformity court was with law and had a sufficient trial Midstate & Window v. Siding Rogers, factual basis.” Co. It is court’s appellate not the
obligation rights upon an absence hypothesize deprivation based of evidence in the record. reasons, I
For these find had sufficient notice of would *10 the hearing. WITTLAND, Petitioner-Appellee,
In re MARRIAGE OF ROGER D. WITTLAND, Johnson, Respondent-Appellant. S. Rhonda S. RHONDA n/k/a
Fourth No. District 4 — 05—0142 Argued August Opinion filed 2005. November