In re Donald L. , 4 N.E.3d 1116 ( 2014 )

2014 IL App (2d) 130044No. 2-13-0044
Opinion filed February 5, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re DONALD L., Alleged to be a Person) Appeal from the Circuit Court
Subject to Involuntary Treatment ) of Kane County.
)
) No. 12-MH-126
)
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Donald L., ) Kathryn D. Karayannis,
Respondent-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Justices Jorgensen and Birkett concurred in the judgment and opinion.
OPINION
¶1 Respondent, Donald L., appeals the trial court’s order authorizing the involuntary
administration of psychotropic medication and testing for up to 90 days under section
2-107.1(a-5)(4) of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS
5/2-107.1(a-5)(4) (West 2012)). Respondent contends that the trial court failed to comply with
the Code when it allowed his doctors to administer unspecified tests. He also contends that the
court erred in finding that he lacked capacity to make a reasoned decision about medication.
We agree with respondent’s first contention and reverse on that point.
¶2 I. BACKGROUND
¶3 On November 8, 2012, respondent was involuntarily admitted to the Elgin Mental
Health Center after being adjudicated unfit to stand trial for possession of a weapon. He had
2014 IL App (2d) 130044previously been involuntarily admitted from February 17, 2011, to April 25, 2011. After that,
he was living in the community and receiving mental health treatment.
¶4 On November 21, 2012, respondent’s treating psychiatrist, Dr. Mirella Susnjar, sought an
order authorizing the involuntary administration of psychotropic medication, testing, and medical
procedures. On December 7, 2012, a hearing was held.
¶5 Susnjar testified that respondent was diagnosed with schizophrenia, undifferentiated type,
which is a serious mental illness. She said that respondent heard voices that he perceived as
real. Respondent believed that the Mormon Church was a threat to him and that the voices
were warning him about it. Susnjar said that respondent demonstrated symptoms such as
hallucinations and difficulty socializing with people. In her opinion, respondent displayed
unreasonable fears and false beliefs, which made him unable to appreciate his problems or make
decisions about medication. She opined that his mental illness caused a deterioration of his
ability to function, including making him unfit to stand trial.
¶6 Susnjar stated that respondent did not believe that he had a mental illness. She said that
she spoke with him four times to discuss medication and that he said that he would not take it,
expressing strong beliefs that the medications would hurt him, make him fat, possibly cause him
to transfer birth defects to his future partner, and cause side-effects that he previously
experienced with psychotropic medications.
¶7 Susnjar requested to administer risperidone, olanzapine, quetiapine, and aripiprazole for
psychosis and haloperidol and lorazepam for anxiety. She also requested diphenhydramine
(Benadryl) and benztropine to address side-effects. She testified specifically about each
medication and stated why she selected it. Susnjar said that she chose medications that would
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2014 IL App (2d) 130044be comfortable for respondent to use, but there were also 15 alternate medications she could
offer for respondent to choose from.
¶8 The petition sought to administer the following tests and procedures:
“Physical exam, weight, vitals: blood pressure, pulse, respiration, temperature, blood
work: CBC and differential, BUN and creatine, liver function tests, lipid panel, thyroid
tests, and other tests necessary to evaluate safe administration of medications, level of
medication in blood, EKG if necessary.”
¶9 Susnjar was asked to outline the tests and procedures she requested, and she stated:
“Blood pressure, pulse, temperature, blood work in a sense of monitoring the health of
blood, and it can be CBC and differential, address the function of the kidneys, liver
function test, TSH, thyroid testing, lipid testing, because as I said sometimes people can
start to gain weight and we monitor that very carefully. Any test that is necessary to
assure a safe administration of medications. EKG if necessary, as well as level of
medication in blood.”
There was no further description or explanation of the tests.
¶ 10 Respondent testified about his previous involuntary commitment, during which he was
also diagnosed with schizophrenia, undifferentiated type, and was treated with medications. He
said that he was initially given only risperidone and that he suffered side-effects. Respondent
stated that his “face swelled up like a punching bag,” that he “walked around like a zombie,” and
that his speech was slurred. The next day the doctors adjusted the dose and gave him what he
testified was Benadryl, but was actually benztropine, to address the side-effects. He said that
the side-effects were not alleviated, as his face remained swollen and his speech slurred. He
said that the side-effects were reported daily.
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2014 IL App (2d) 130044¶ 11 Respondent testified that he continued the medications for six months after he was
discharged but saw no changes in his symptoms, while he continued to experience side-effects
such as dizziness, excessive dry mouth, blurred vision, speech impairment, inattentiveness,
disorientation, decreased cognitive performance, swelling of the face and neck, pressure in his
ears, and hearing echoes. He also gained 45 pounds, although his appetite decreased.
Respondent said that the excess weight affected preexisting hip and sciatic pain. He needed
hip-replacement surgery and estimated that he needed to lose 15 to 20 pounds to decrease the
pressure on his sciatic nerve. Respondent met with a psychiatrist who gave him Geodon, but
the side-effects still remained except for the swelling of the face and neck. He also saw a
general practitioner because of a stomach ulcer and was told that it was caused by the
medications. Respondent quit taking the medications before his arrest on July 24, 2012. He
said that the medications never helped his symptoms of schizophrenia and that the side-effects
went away when he stopped taking the medications.
¶ 12 Respondent said that, because of the side-effects he previously experienced, he did not
consent to taking medications. He said that he would take part in other forms of treatment.
However, he admitted that he attended group therapy only 5 times in 30 days, although Susnjar
told him that he should attend every day. He did not attend many groups because he believed
that Susnjar knew he could answer questions when asked.
¶ 13 Susnjar was not aware of the numerous side-effects that respondent reported. No
medical records showed that respondent experienced side-effects other than those after the initial
dose of risperidone. According to Susnjar, the discharge records showed that, after he was
given benztropine, no debilitating side-effects were reported. She also noted that the dose of
risperidone had been decreased and that respondent previously told her that his swelling was
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2014 IL App (2d) 130044reduced after he took Benadryl. She stated that side-effects are possible, especially with high
doses, but she was not aware of patients gaining weight while having less appetite. She agreed
that more weight on respondent’s joints would be a problem. Susnjar stated that she would
suggest different dosages or medications if side-effects occurred. However, she said that
side-effects can also be associated with other medications. In her opinion, respondent was
suffering, the benefits of psychotropic medication would outweigh the harm, and respondent did
not have the capacity to make a reasoned decision about medication.
¶ 14 Susnjar stated that respondent was receptive to groups and was able to answer a lot of
fitness questions in them. However, she believed that group therapy would not change
respondent’s opinion of the world and would not stabilize him unless accompanied by
medication.
¶ 15 The court found that Susnjar provided clear and convincing evidence that there was a
need to administer psychotropic medication against respondent’s will and that the benefits
outweighed the harm. In regard to the side-effects, the court expressed concern but also noted
that the side-effects were self-reported. It then found that, although respondent believed that
there were risks, he lacked the capacity to make a decision on the matter. The court found that
respondent did not understand the advantages and disadvantages of medications and did not
understand how they previously restored him to fitness and how he became unfit again when not
taking them. The court granted the petition, authorizing the involuntary administration of
psychotropic medications for up to 90 days. In regard to tests, it quoted the petition in its order,
allowing certain specified tests but also “other tests necessary to evaluate safe administration of
medications.” Respondent appeals.
¶ 16 II. ANALYSIS
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2014 IL App (2d) 130044¶ 17 Relying on the Fifth District case of In re Larry B., 394 Ill. App. 3d 470 (2009), respondent
first contends that the trial court failed to comply with section 2-107.1(a-5)(4)(G) of the Code
(405 ILCS 5/2-107.1(a-5)(4)(G) (West 2012)) when it allowed his doctors to administer
unspecified tests. Respondent recognizes that the matter is moot because the order for
administration of medication was for 90 days, which time has passed. However, he argues that
exceptions to the mootness doctrine apply. The State agrees that exceptions apply.
¶ 18 “An appeal is considered moot where it presents no actual controversy or where the issues
involved in the trial court no longer exist because intervening events have rendered it impossible
for the reviewing court to grant effectual relief to the complaining party.” In re J.T., 221 Ill. 2d
338, 349-50 (2006). Generally, courts of review do not decide moot questions, render advisory
opinions, or consider issues where the result will not be affected regardless of how those issues are
decided. In re Barbara H., 183 Ill. 2d 482, 491 (1998).
¶ 19 Reviewing courts, however, recognize 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 order could have consequences for a party in some future proceedings. See
In re Alfred H.H., 233 Ill. 2d 345, 355-62 (2009). There is no per se exception to mootness that
universally applies to mental health cases; however, most appeals in mental health cases will fall
within one of the established exceptions. Id. at 355. Whether a case falls within an established
exception is a case-by-case determination. Id.-6-
2014 IL App (2d) 130044¶ 20 “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. “The ‘public interest’ exception is ‘narrowly construed and requires a clear
showing of each criterion.’ ” Id. at 355-56 (quoting In re Marriage of Peters-Farrell, 216 Ill. 2d
287, 292 (2003). Questions about compliance with the Code involve matters of substantial public
interest. In re Nicholas L., 407 Ill. App. 3d 1061, 1071 (2011).
¶ 21 Here, respondent raises an issue of statutory compliance that is a matter of a public nature.
The only case addressing respondent’s argument is from another appellate district, showing a need
for an authoritative determination of the matter. Further, without an authoritative determination
of the matter from this district, it is likely to recur. Accordingly, the public-interest exception
applies.
¶ 22 The involuntary administration of psychotropic medication to an individual alleged to be
mentally ill implicates substantial liberty interests. In re C.E., 161 Ill. 2d 200, 213-17 (1994).
However, these liberty interests must be balanced against the State’s legitimate interests in
furthering the treatment of mentally ill individuals by forcibly administering psychotropic
medication where an individual lacks the capacity to make reasoned decisions concerning his or
her need for such medication. Id. at 217. In 1991, the General Assembly enacted section
2-107.1 as a mechanism for determining when psychotropic medication may be administered over
an individual’s objections. Id. Section 2-107.1 serves as a guide for balancing the liberty of the
individual and the State’s interest in treating its mentally ill citizens. Id.¶ 23 Section 2-107.1(a-5)(4) directs that the forced administration of psychotropic medication
is authorized only if the court finds each of the following elements, by clear and convincing proof:
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2014 IL App (2d) 130044“(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 2012).
¶ 24 We have not previously addressed a trial court order that broadly allowed “other tests
necessary to evaluate safe administration of medications.” However, In re Larry B. from the
Fifth District provides guidance.
¶ 25 There, a petition was filed seeking the involuntary administration of medication and
testing. The petition stated that the respondent would need periodic blood tests to monitor the
level of drugs in his system and to prevent side-effects. At the hearing, the respondent’s
psychiatrist did not testify about the nature of the tests that he sought to administer. Instead, he
was asked if he wanted the court to allow him to “ ‘do the testing and procedures necessary to
make sure [that the administration of psychotropic medication was] safely and effectively done,’ ”
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2014 IL App (2d) 130044and he replied “ ‘Yes.’ ” In re Larry B., 394 Ill. App. 3d at 478. Medication and testing were
ordered, and the respondent appealed. The Fifth District held that there was a lack of compliance
with section 2-107.1(a-5)(4)(G). Noting that the State was required to prove by clear and
convincing evidence that the testing and procedures requested in the petition were “ ‘essential for
the safe and effective administration of the treatment,’ ” the court held that the evidence was
insufficient. Id. (quoting 405 ILCS 5/2-107.1(a-5)(4)(G) (West 2008)). The court found that it
“fell far short of clear and convincing specific expert testimony in support of a request for testing”
and that the trial court’s grant of permission to perform the tests “was made in an informational
limbo, not a fully informed state, warranting the reversal of the trial court’s order.” Id.
¶ 26 Our approach to the sufficiency of the evidence for the administration of medication is also
instructive. In that context, section 2-107.1 establishes strict standards that must be satisfied
before medication may be ordered over the objection of a patient. 405 ILCS 5/2-107.1(a-5)(4)
(West 2012); In re C.E., 161 Ill. 2d at 218. The Code requires specific evidence of the benefits
and risks of each medication so that the trial court can determine whether the State has
demonstrated by clear and convincing evidence that the benefits of the proposed treatment
outweigh the potential harm. In re Suzette D., 388 Ill. App. 3d 978, 985 (2009). “Thus, the State
must produce evidence of the benefits of each drug sought to be administered as well as the
potential side effects of each drug.” Id. The trial court may not “delegate[] its duty of assessing
the risks and benefits of the medication to respondent’s treating physicians.” In re Val Q., 396 Ill.
App. 3d 155, 163 (2009). The same logic applies to the administration of tests. Without specific
evidence, a court is unable to determine which tests are essential to the safe and effective
administration of treatment as required by the Code. The court may not delegate that
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2014 IL App (2d) 130044determination to the respondent’s doctors by allowing them to administer unspecified tests as they
see fit.
¶ 27 Here, the court authorized “other tests necessary to evaluate safe administration of
medications” without any evidence of what those tests might be. By doing so, the court allowed
unknown tests to be administered absent clear and convincing evidence that they were “essential
for the safe and effective administration of the treatment.” 405 ILCS 5/2-107.1(a-5)(4)(G) (West
2012). That is, the court delegated its duty to Susnjar, allowing her to administer any test that she
deemed essential. That is contrary to section 2-107.1(a-5)(4)(G). Accordingly, we reverse.
¶ 28 Although our holding with respect to compliance with the Code is dispositive, we
nonetheless address respondent’s next argument, that the trial court’s determination that he lacked
the capacity to make a reasoned decision was against the manifest weight of the evidence. See In
re Nicholas L., 407 Ill. App. 3d at 1074 (noting that resolution of the first issue was dispositive but
nonetheless addressing respondent’s remaining sufficiency-of-the-evidence argument).
¶ 29 Respondent’s argument falls under the exception to the mootness doctrine for matters
capable of repetition yet evading review. “This exception has two elements. First, the
challenged action must be of a duration too short to be fully litigated prior to its cessation.
Second, there must be a reasonable expectation that ‘the same complaining party would be
subjected to the same action again.’ ” In re Alfred H.H., 233 Ill. 2d at 358 (quoting In re Barbara
H., 183 Ill. 2d 482, 491 (1998)). “This means that the present action and a potential future action
must have a substantial enough relation that the resolution of the issue in the present case would
have some bearing on a similar issue presented in a future case involving the respondent.” In re
Val Q., 396 Ill. App. 3d at 160 (citing In re Alfred H.H., 233 Ill. 2d at 360).
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2014 IL App (2d) 130044¶ 30 Here, respondent had received similar psychotropic medications in the recent past and is
suffering from a chronic mental illness that can inhibit his ability to make a reasoned decision
about treatment. Thus, it is reasonably likely that he will be subjected to similar involuntary
treatment orders in the future. See In re Suzette D., 388 Ill. App. 3d at 983. “Also, the
challenged action is obviously too short to be fully litigated during the pendency of the order.” Id.
at 983-84. Accordingly, the capable-of-repetition exception is applicable to respondent’s claim.
See id. at 984.
¶ 31 “An individual has the capacity to make treatment decisions for himself when, based upon
conveyed information concerning the risks and benefits of the proposed treatment and reasonable
alternatives to treatment, he makes a rational choice to either accept or refuse the treatment.” In
re Israel, 278 Ill. App. 3d 24, 36 (1996). When determining whether an individual has the
capacity to make a reasoned decision whether to take psychotropic medication, the trial court
should consider the following factors:
“(1) The person’s knowledge that he has a choice to make;
(2) The person’s ability to understand the available options, their advantages and
disadvantages;
(3) Whether the commitment is voluntary or involuntary;
(4) Whether the person has previously received the type of medication or treatment at
issue;
(5) If the person has received similar treatment in the past, whether he can describe what
happened as a result and how the effects were beneficial or harmful; and
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2014 IL App (2d) 130044(6) The absence of any interfering pathologic perceptions or beliefs or interfering
emotional states which might prevent an understanding of legitimate risks and benefits.” Id.
at 37.
None of these factors is dispositive, and other factors that are relevant should be considered. Id.
¶ 32 As a reviewing court, we give great deference to the trial court’s factual findings, but will
reverse an order allowing the involuntary administration of psychotropic medication when the trial
court’s findings are against the manifest weight of the evidence. In re Val Q., 396 Ill. App. 3d at
162. A judgment will be considered against the manifest weight of the evidence “only when an
opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not
based on evidence.” In re John R., 339 Ill. App. 3d 778, 781 (2003).
¶ 33 Here, the trial court’s finding was not against the manifest weight of the evidence.
Although the evidence showed that respondent knew that he had a choice about medication,
Susnjar testified that he was unable to understand the advantages and disadvantages of medication
because his fears and false beliefs made him unable to appreciate his problems. Supporting that
view were the facts that respondent was involuntarily admitted, he did not believe that he had a
mental illness, and he did not attend group treatment as suggested. Further, although he
previously received several of the medications prescribed, there was a conflict of evidence on how
he tolerated those. Respondent reported numerous side-effects, while Susnjar noted medical
reports that were inconsistent with his testimony and showed that he responded to treatments for
side-effects. The trial court, as the finder of fact, was entitled to credit Susnjar’s testimony based
on medical records over respondent’s testimony.
¶ 34 Based on the evidence as a whole, it was reasonable to conclude that respondent lacked the
ability to understand the risks and benefits of taking medication. Accordingly, the trial court’s
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2014 IL App (2d) 130044finding that respondent lacked the capacity to make a reasoned decision was not against the
manifest weight of the evidence.
¶ 35 III. CONCLUSION
¶ 36 The evidence was sufficient to prove that respondent lacked the capacity to make a
reasoned decision about medication. However, the trial court failed to comply with the Code
when it allowed respondent’s doctors to administer unspecified tests. Accordingly, the
judgment of the circuit court of Kane County is reversed.
¶ 37 Reversed.
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