In re Shirley M. ( 2006 )

NO. 4-06-0263 Filed: 11/20/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: SHIRLEY M., a Person Found ) Appeal from
Subject to Involuntary Admission, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Sangamon County
Petitioner-Appellee, ) No. 06MH106
v. )
SHIRLEY M., ) Honorable
Respondent-Appellant. ) George H. Ray,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
On February 24, 2006, respondent, Shirley M., was found
to be a person subject to involuntary admission. Respondent was
ordered hospitalized for no more than 90 days. Respondent
appeals. We affirm. We note this court recently reached a
different result, on somewhat different facts, in In re Sharon
L.N., No. 4-06-0045 (November 20, 2006), ___ Ill. App. 3d ___,
___ N.E.2d ___.
I. BACKGROUND
On February 24, 2006, the trial court held an emer-
gency involuntary-admission hearing for respondent. At the
hearing, the court noted that respondent was not present and that
respondent refused to speak with her attorney or attend the
hearing.
Greg Donathan, a social worker assigned to respondent,
testified that he discussed the involuntary-admission hearing
with respondent. Donathan explained to respondent that she was
going to have a hearing regarding whether she would stay or leave
the facility. Donathan told respondent that the attorney who
would represent her wished to speak with her. Respondent stated
that she does not know the attorney and would not speak with him.
Respondent refused to go into the lobby to speak with her attor-
ney. Donathan explained that only staff are allowed past the
lobby at the facility.
Respondent's appointed public defender, William Conroy,
argued that respondent's attendance at the hearing was required
under section 3-806 of the Mental Health and Developmental
Disabilities Code (Code) (405 ILCS 5/3-806 (West 2004)). Fur-
ther, Conroy argued that under section 3-805 of the Code (405
ILCS 5/3-805 (West 2004)), he should be allowed to confer with
his client. Conroy claimed that he could not waive respondent's
presence without speaking to her. Conroy moved to dismiss the
case unless the trial court ordered respondent to appear, ordered
the facility to allow him to speak to respondent in her room, or
reasonably accommodated respondent by going to the residential
hall.
Dr. James Myers testified that he attempted to inter-
view respondent for the hearing but she refused to speak with
him. Dr. Myers stated that he believed ordering the facility to
bring respondent to the hearing against her will could be harmful
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to her physically and/or emotionally. The trial court found
respondent's presence waived and proceeded with the hearing on
the petition for involuntary admission.
After Conroy stipulated to Dr. Myers' qualifications as
an expert in the field of licensed clinical psychology, Dr. Myers
testified that he had only known respondent for one day. Dr.
Myers attempted to examine respondent the day before the hearing
to determine her eligibility for involuntary hospitalization.
Because respondent was uncooperative and did not want to speak
with Dr. Myers, Dr. Myers was unable to inform respondent of the
purpose of the examination and of her rights regarding the
interview. Dr. Myers observed respondent in her bedroom and
noted that she was still in her pajamas in the afternoon and
appeared disheveled. Respondent looked, though, like she had
been bathing and eating. Based on reviewing her records and in
his professional opinion, Dr. Myers determined that respondent
was able, with prompts and direction, to meet her basic physical
needs in a structured supervised environment. If respondent were
discharged, though, she would not be able to meet her basic needs
without substantial help. Specifically, respondent would likely
not take her medication. Dr. Myers relied on the fact that
respondent has had multiple hospitalizations during the last six
months, with the last one being a two-week hospitalization two
months prior to this hearing. Other than respondent's physical
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appearance, Dr. Myers witnessed no other outward signs of mental
illness. As a member of the treatment teams of all of the units
in the hospital, Dr. Myers was on respondent's treatment team.
Dr. Myers diagnosed respondent with bipolar disorder
and stated that, because of this mental illness, respondent is
unable to provide for her basic physical needs so as to guard
herself from serious harm. Dr. Myers further opined that the
least-restrictive treatment plan for respondent would be an
initial period of commitment for 90 days. The comprehensive
physical, psychiatric, and social investigation, outlining
respondent's physical examination, psychiatric evaluation, social
investigation, and treatment plan, was admitted into evidence.
The trial court found that respondent was subject to
involuntary admission for at least 90 days and that involuntary
admission is the least-restrictive alternative. This appeal
followed.
II. ANALYSIS
Respondent argues that her procedural due process
rights were violated when the involuntary-admission hearing was
held without her presence and without her having consulted with
her attorney. Further, respondent claims that the State failed
to prove by clear and convincing evidence that involuntary
admission was warranted.
A. Procedural Due-Process Violation
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We review de novo the issue of whether respondent's
procedural due process rights were violated as the allegations
involve only questions of law. In re George O., 314 Ill. App. 3d
1044, 1046, 734 N.E.2d 13, 15 (2000).
1. Section 3-805
Respondent first points to that fact that she did not
confer with counsel before the involuntary-admission hearing.
Section 3-805 of the Code provides that those subject to involun-
tary admissions are entitled to be represented by counsel and
counsel shall be allowed time for adequate preparation and shall
not be prevented from conferring with his client at reasonable
times. 405 ILCS 5/3-805 (West 2004).
In this case, respondent argues Conroy was prevented
from conferring with her in violation of section 3-805 of the
Code. Respondent argues section 3-805 of the Code required that
Conroy be allowed further into the facility to speak with respon-
dent after she refused to go into the lobby to speak with Conroy.
Respondent, though, mischaracterizes the testimony at the hear-
ing. According to Donathan's testimony, respondent refused to
speak with Conroy outright. She did not simply refuse to go to
the lobby. The testimony indicates that even if Conroy had been
allowed further into the facility, respondent would have contin-
ued to refuse to speak with him. Conroy was not prevented from
conferring with his client by the facility. Section 3-805 of the
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Code was not violated.
Respondent, though, cites In re Barbara H., 183 Ill. 2d
482, 702 N.E.2d 555 (1998), to support her position. In Barbara
H., the respondent was appointed a public defender. At the
hearing on her involuntary admission, the public defender in-
formed the trial court that the respondent told him that she had
other representation, that the public defender does not represent
her, and that she would not go to the hearing. Barbara H., 183
Ill. 2d at 494, 702 N.E.2d at 561. Instead of determining who
actually represented the respondent, the court stated that the
public defender's office had been assigned and asked the public
defender if he waived the respondent's presence at the hearing.
Barbara H., 183 Ill. 2d at 494-95, 702 N.E.2d at 561. The public
defender waived the respondent's presence.
The Illinois Supreme Court held that the respondent was
entitled to representation of her choice and that the attorney
the respondent explicitly rejected could not waive her presence
at the hearing. Barbara H., 183 Ill. 2d at 495-96, 702 N.E.2d at
561. The supreme court stated that when the trial court was
informed that the respondent had secured alternative representa-
tion and rejected the public defender's representation, the court
should have first determined who represented the respondent
before holding the hearing.
In this case, respondent did not reject Conroy's
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representation in favor of a different attorney. Respondent
simply stated she did not want to speak to Conroy under any
circumstances and did not want to attend the hearing under any
circumstances.
2. Section 3-806
Respondent also points to section 3-806 of the Code,
which mandates a respondent's attendance at an involuntary-
admission hearing unless the respondent's attorney waives her
appearance and the trial court is satisfied by a clear showing
that the respondent's attendance would subject her to substantial
risk of serious physical or emotional harm. 405 ILCS 5/3-806(a)
(West 2004). At the respondent's attorney's request, the court
shall make reasonable accommodation concerning the location of
the hearing, and if the respondent's attorney advises the court
of respondent's refusal to attend the hearing, the hearing may
proceed in her absence. 405 ILCS 5/3-806(b) (West 2004).
In this case, Conroy refused to waive respondent's
presence at the hearing because he had not had a chance to speak
with respondent. Dr. Myers testified that forcing respondent to
attend the hearing would subject her to risk of physical or
emotional harm. The trial court was informed at the beginning of
the hearing that respondent refused to come to the hearing.
Donathan's testimony indicated that respondent refused to attend
the hearing no matter where the hearing was held. Respondent
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simply did not wish to participate in her hearing in any way and
was not prevented from participating. The court was permitted
under section 3-806(b) to hold the hearing in respondent's
absence after the testimony showed that respondent refused to
attend the hearing no matter the location or circumstances and
forcing her to attend could harm her.
3. Section 3-807
Respondent argues section 3-807 of the Code was also
violated. Under section 3-807, in order to involuntarily admit
someone, at least one psychiatrist, clinical social worker, or
clinical psychologist who has examined the person subject to the
involuntary admission must testify at the hearing. 405 ILCS 5/3-
807 (West 2004). If such a qualified witness's testimony is not
presented, the State cannot meet its burden.
Respondent cites In re Michelle J., 209 Ill. 2d 428,
808 N.E.2d 987 (2004), to support her argument that no qualified
witness testified at her hearing because Dr. Myers did not
personally examine her. In Michelle J., the supreme court held
that the involuntary admission of Sam S. could not be sustained
because the requirements of section 3-807 were not satisfied.
The testifying psychologist was not able to examine Sam S.
personally because he was restrained and not in a position to be
interviewed when her schedule allowed. "It was not because he
was incapable of being interviewed prior to the hearing."
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Michelle J., 209 Ill. 2d at 436, 808 N.E.2d at 991. In fact,
three other workers were able to examine Sam S. prior to the
hearing. They were apparently not called because of administra-
tive convenience; the testifying psychologist worked in the
county where the hearing was held, the others did not. "Under
these circumstances, there is no legitimate basis for deviating
from section 3-807's explicit requirements." Michelle J., 209
Ill. 2d at 436, 808 N.E.2d at 991.
Michelle J.'s case involved different circumstances.
The testifying psychologist was unable to interview Michelle the
day before the hearing because Michelle did not appear capable of
making "'an informed decision on whether or not to waive her
rights.'" Michelle J., 209 Ill. 2d at 433, 808 N.E.2d at 989.
"Unlike the expert in Sam's case, however, [the testifying
psychologist] was directly involved in the respondent's care."
Michelle J., 209 Ill. 2d at 439, 808 N.E.2d at 993. She served
as a consultant to Michelle's treatment team and was able to meet
with Michelle personally in a group session, apparently within 72
hours of the hearing. Accordingly, the supreme court could not
say the requirements of section 3-807 were not satisfied.
Michelle J., 209 Ill. 2d at 439, 808 N.E.2d at 993.
As to Sam S., the supreme court refused to read its
previous decision, in Barbara H., "to permit recognition of an
exception to the personal[-]examination requirement based on the
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expert's inability to conduct a personal interview." Michelle
J., 209 Ill. 2d at 436, 808 N.E.2d at 991. The court also noted
that in any event such an exception would be inapplicable to Sam
S.'s situation. Sam S. was capable of being interviewed prior to
the hearing. Michelle J., 209 Ill. 2d at 436, 808 N.E.2d at 991.
Although not detailed in Barbara H., the reason the expert there
was unable to conduct a personal interview was that the respon-
dent refused to talk to the expert. Michelle J., 209 Ill. 2d at
435, 808 N.E.2d at 991. Justice Thomas, specially concurring,
questioned the holding in Barbara H.: "Is the majority holding
that a respondent can avoid involuntary commitment simply by
refusing to speak with the doctor assigned to examine him or
her?" Michelle J., 209 Ill. 2d at 441, 808 N.E.2d at 994
(Thomas, J., specially concurring). Justice Thomas also noted
that the testifying doctor in Barbara H. had personally treated
the respondent for six months. Justice Thomas questioned the
majority's reliance on the fact that Michelle J.'s personal
interview occurred within 72 hours of the hearing: "[H]ow can we
write a 72-hour time limit into the statute?" Michelle J., 209
Ill. 2d at 442, 808 N.E.2d at 995 (Thomas, J., specially concur-
ring).
It is not clear what the rule would be if the respon-
dent simply refused to speak with the doctor assigned to examine
him or her. That situation was not presented in Michelle J.,
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where Sam S. was not incapable of being interviewed prior to the
hearing, and workers who had personally interviewed Sam S. prior
to the hearing were not called purely because of "administrative
convenience." Nor was refusal to speak the focus of In re
Barbara H., where that fact was not even mentioned in the opin-
ion. It seems likely that in a case where the respondent simply
refused to speak to the testifying worker, the court would follow
Justice Thomas's special concurrence.
In this case, Dr. Myers falls between the two witnesses
in Michelle J.. Like the two witnesses, Dr. Myers did not
personally examine respondent. Unlike the unqualified witness,
though, Dr. Myers did work at the facility where respondent was
held and no testimony suggested that other potentially qualified
witnesses were able to interview respondent before the hearing.
Like the qualified witness, Dr. Myers was a member of respon-
dent's treatment team, he was able to personally observe her, and
he was able to review her records.
Because Dr. Myers attempted to interview respondent and
respondent refused to be interviewed by anyone for the hearing,
Dr. Myers was a member of respondent's treatment team, Dr. Myers
personally observed respondent, and Dr. Myers reviewed respon-
dent's records, we find that the requirements of section 3-807
were met.
Because respondent was afforded all of the procedural
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safeguards contemplated by the statute, respondent's due-process
rights were not violated.
B. Clear and Convincing Evidence of Involuntary Admission
A person may be involuntarily admitted if it is estab-
lished by clear and convincing evidence (405 ILCS 5/3-808 (West
2004)) that the person has a mental illness and "because of his
or her illness is unable to provide for his or her basic physical
needs so as to guard himself or herself from serious harm" (405
ILCS 5/1-119(2) (West 2004)). The standard of review for an
involuntary-commitment proceeding is whether the judgment is
against the manifest weight of the evidence. In re Knapp, 231
Ill. App. 3d 917, 919, 596 N.E.2d 1171, 1172 (1992). The trial
court's decision is given great deference, and absent a showing
that it is against the manifest weight of the evidence, it "'will
not be set aside at the appellate level, even if the reviewing
court, after applying the clear[-]and[-]convincing standard,
would have ruled differently.'" In re Bennett, 251 Ill. App. 3d
887, 888, 623 N.E.2d 942, 944 (1993), quoting In re Orr, 176 Ill.
App. 3d 498, 505, 531 N.E.2d 64, 69 (1988).
The trial court's finding that respondent was mentally
ill is not in dispute. Dr. Myers' testimony that respondent was
suffering from the mental illness bipolar disorder was consistent
with respondent's treating physician's diagnosis. On appeal,
respondent does not dispute that she was suffering from this
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mental illness. Respondent claims, though, that the State did
not prove that her mental illness rendered her incapable of
providing for her own basic needs.
In determining whether respondent's mental illness
renders her incapable to provide for her basic physical needs,
this court has held that a court should consider whether that
person "(1) can obtain her own food, shelter, or necessary
medical care; (2) has a place to live or a family to assist her;
(3) is able to function in society; and (4) has an understanding
of money or a concern for money as a means of sustenance." In re
Jakush, 311 Ill. App. 3d 940, 944, 725 N.E.2d 785, 788 (2000).
Because the trial court is in a superior position to determine
witness credibility and to weigh evidence, we give great defer-
ence to the trial court's findings. Knapp, 231 Ill. App. 3d at
919, 596 N.E.2d at 1172. The court does not have to wait until
respondent hurts herself or someone else before involuntarily
committing her. In re Manis, 213 Ill. App. 3d 1075, 1077, 572
N.E.2d 1213, 1214 (1991).
In this case, Dr. Myers testified that respondent could
only meet her basic physical needs in a structured, supervised
environment where she would receive substantial help. "Expert
opinion regarding mental illness and inability to guard oneself
from harm must be in the form of explicit medical testimony,
based upon a clear and convincing factual basis." Bennett, 251
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Ill. App. 3d at 888, 623 N.E.2d at 943. While Dr. Myers was not
able to interview respondent, he was able to review her records.
Respondent's comprehensive psychiatric evaluation, authored by
Dr. G. Midathala, showed that respondent had multiple hospital-
izations in the past six months. Further, last summer, respon-
dent had a serious overdose that resulted in hospitalization in
the intensive-care unit. The incident that prompted the most
recent hospitalization was a call from respondent to the sher-
iff's department reporting that there were "midgets" at her home
and that they needed to be killed. Respondent believed that her
son was in danger from the "midgets." Respondent reported that
her son cared for her, but she filed a report stating her son has
been abusive to her. Sometime before this incident, respondent
took her son's car in the middle of the night without permission.
Respondent was eventually found at her daughter's home, beating
on the door and claiming her daughter was dead. Respondent
reported that she does not take her medication because they
"crippled her." Dr. Midathala noted that the community reported
that respondent does not bathe for days and always looks dishev-
eled and unkempt. Based on his review of the reports, Dr. Myers
opined to a reasonable degree of psychiatric certainty that,
because of respondent's bipolar disorder, she was unable to
provide for her basic physical needs so as to prevent her from
harm. Based on Dr. Myers' testimony, the trial court's finding
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that respondent was subject to involuntary admission for no more
than 90 days was not against the manifest weight of the evidence.
Respondent argues, though, that the State presented
insufficient evidence to show that involuntary admission was the
least-restrictive alternative. Dr. Myers' treatment plan was
admitted into evidence. The plan outlined the incident that led
to respondent's current hospitalization and stated that the
hospital's staff reported that respondent has become more impul-
sive, more dangerous, and more erratic. The plan stated that
respondent's symptoms of mental illness have become exacerbated
to the extent that they are interfering with her ability to
remain appropriate in a community setting as evidenced by her
bizarre behavior and delusional statements. Based on the infor-
mation in the treatment plan and Dr. Myers' opinion that involun-
tary admission was the least-restrictive alternative, the trial
court's finding that respondent is a person who is mentally ill
and who because of her illness is unable to provide for her basic
physical needs so as to guard herself from serious harm is not
against the manifest weight of the evidence.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's
judgment.
Affirmed.
STEIGMANN, J., concurs.
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KNECHT, J., dissents.
JUSTICE KNECHT, dissenting:
Shirley M. was absent from the hearing where the trial
court approved her involuntary admission. The lawyer who repre-
sented her at the hearing never saw or spoke to her. A clinical
psychologist testified it would be harmful to order the facility
to bring Shirley M. to the hearing against her will. The same
clinical psychologist diagnosed her and opined as to her need for
involuntary treatment even though he did not examine her, inform
her of the purpose of the examination, or inform her as to her
rights.
The majority concludes Shirley M. was uncooperative,
refused to attend the hearing, refused to see or talk to her
attorney, did not want to speak to the clinical psychologist, and
was afforded all the procedural safeguards afforded by the
statute. I disagree.
Shirley M. cannot thwart the court process by refusing
to cooperate, but the State cannot prevail by presenting scant
evidence of her lack of cooperation and making no effort to
accommodate her right to counsel. No evidence supports the
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clinical psychologist's opinion it would be harmful to require
her to attend the hearing against her will. Her attorney asked
to be allowed to see and speak with his client in her room or
within her residential hall. The facility, the prosecutor, and
the trial court made no effort to accommodate her right to
counsel. The clinical psychologist's single failed attempt to
examine or interview Shirley M. and advise her of her rights does
not constitute a good-faith effort to comply with the statute.
Shirley M.'s liberty was at stake. The right to
counsel is fundamental. Her lack of cooperation does not trump
her right to due process or the responsibility of those who seek
to confine her to make a reasonable and measured effort to
accommodate that right. I would reverse.
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