In re Laura H. ( 2010 )

Filed 9/28/10 NO. 4-09-0862
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: LAURA H., a Person Found ) Appeal from
Subject to the Administration of ) Circuit Court of
Psychotropic Medication, ) Sangamon County
THE PEOPLE OF THE STATE OF ILLINOIS, ) No. 09MH832
Petitioner-Appellee, )
v. ) Honorable
LAURA H., ) Steven H. Nardulli,
Respondent-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
On November 2, 2009, Dr. Ghassan Bitar filed a petition
for the involuntary administration of psychotropic medications to
respondent, Laura H. After a November 13, 2009, hearing, the
trial court granted the petition.
Respondent appeals, contending the State failed to
prove the following statutory elements necessary for the involun-
tary administration of psychotropic medication: (1) respondent
lacked capacity to make a reasoned decision (405 ILCS
5/2-107.1(a-5)(4)(E) (West 2008)) as she did not receive the
required information about the benefits of the proposed treatment
and its alternatives and (2) all of the proposed medications'
benefits outweighed their harm (405 ILCS 5/2-107.1(a-5)(4)(D)
(West 2008)) because no evidence was presented regarding the side
effects of the nonpsychotropic medications. We reverse.
I. BACKGROUND
Dr. Bitar's petition alleged respondent had a mental
illness and lacked the capacity to give informed consent to the
administration of psychotropic medication, which respondent
needed because she was very paranoid. The petition listed a
first choice medication of olanzapine, and the following list of
alternatives: aripiprazole, quetiapine, risperidone, risperidone
consta, ziprasidone (both by mouth and injection), haloperidol,
haloperidol decanoate, lorazepam, diphenhydramine, and
benztropine. In the common-law record, the petition is preceded
by 33 pages of information regarding the aforementioned medica-
tions.
On November 13, 2009, the trial court held a hearing on
the petition. The testimony relevant to the issues on appeal is
set forth below.
Dr. Bitar testified respondent was court admitted by
the Champaign County circuit court on October 27, 2009. It was
respondent's first admission to McFarland Mental Health Center.
Dr. Bitar was currently treating respondent, who suffered from
schizophrenia. Respondent did not believe she had a mental
illness and refused medication. Dr. Bitar had no prior experi-
ence with respondent and did not know what medications respondent
had taken in the past.
Dr. Bitar explained that all of the medications on the
proposed medication list, except for lorazepam, diphenhydramine,
and benztropine, were in the same class, i.e., antipsychotic
medications. The benefits a patient might realize from
antipsychotic medications included general help with the paranoid
ideas, delusions, and hallucinations. When asked about the side
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effects of such drugs, Dr. Bitar stated the following: "The
symptom might become uncontrolled. The delusion might become--or
resolve; the hallucination would also resolve." As for
lorazepam, Dr. Bitar testified it was an antianxiety drug that he
might use to help with sleep or agitation. Lorazepam could cause
sedation and had a potential for addiction. Dr. Bitar stated the
following about the two other drugs:
"Diphenhydramine and [b]enztropine used
to help with EPS [(extrapyramidal symptoms),]
which is a side effect of anti[]psychotic.
People develop muscle spasm, tremor, [and]
Parkinson sometimes. So most medication help
alleviate side effect. Diphenhydramine is a
little bit sedating so we use it to help with
sleep or in case of agitation."
In Dr. Bitar's opinion, the benefits of the medication outweighed
the risks. He believed the medication would improve respondent's
symptoms. Respondent's symptoms would likely not improve without
the treatment and her condition would continue to deteriorate
without treatment.
Moreover, Dr. Bitar testified he had once tried to talk
with respondent about the side effects of the proposed medica-
tions, and she got angry. Respondent felt Dr. Bitar could not
and should not give her medication. She then left the room.
Respondent had also refused to talk to Dr. Bitar a few other
times. Dr. Bitar testified respondent did receive a written list
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of the side effects. In Dr. Bitar's opinion, medication was the
least-restrictive treatment alternative.
Respondent testified on her own behalf. She stated Dr.
Bitar had approached her about medications one time. During the
meeting, he handed her a bunch of papers and fell asleep.
Respondent stated the bunch was around 20 pages and noted the
involuntary-administration petition looked familiar.
On rebuttal, Dr. Bitar denied ever falling asleep in a
meeting with a patient.
At the conclusion of the hearing, the trial court
granted the petition and allowed the administration of the
medications for 90 days.
That same day, respondent filed a notice of appeal in
substantial compliance with Supreme Court Rule 303 (Official
Reports Advance Sheet No. 15 (July 16, 2008), R. 303, eff. May
30, 2008), and thus this court has jurisdiction under Supreme
Court Rule 301 (155 Ill. 2d R. 301). See In re Steve E., 363
Ill. App. 3d 712, 717, 843 N.E.2d 441, 445 (2006) (proceedings
under the Mental Health and Developmental Disabilities Code (405
ILCS 5/1-100 through 6-107 (West 2004)) are civil matters).
II. ANALYSIS
A. Mootness
Respondent recognizes her case is moot as the order's
90-day period has expired. Generally, Illinois courts do not (1)
address moot questions, (2) render advisory opinions, or (3)
consider issues for which the court's decision will not affect
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the result no matter what the court decides. In re Alfred H.H.,
233 Ill. 2d 345, 351, 910 N.E.2d 74, 78 (2009). However, our
supreme court has recognized exceptions to the mootness doctrine,
including the following: (1) the public-interest exception, (2)
the capable-of-repetition-yet-avoiding-review exception, and (3)
the collateral-consequences exception. See Alfred H.H., 233 Ill.
2d at 355-61, 910 N.E.2d at 80-83. Respondent contends her
arguments fall under the public-interest and collateral-conse-
quences exceptions.
Courts narrowly construe the public-interest exception,
which has the following three criteria: "(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." Alfred H.H., 233 Ill. 2d at 355, 910 N.E.2d at
80.
In her first argument, respondent raises the issue of
compliance with section 2-102(a-5) of the Mental Health and
Developmental Disabilities Code (Mental Health Code) (405 ILCS
5/2-102(a-5) (West 2008)). The important liberty interests
involved in involuntary-treatment cases requires strict compli-
ance with statutory procedures. In re A.W., 381 Ill. App. 3d
950, 955, 887 N.E.2d 831, 836 (2008). Moreover, our supreme
court has recognized "the procedures courts must follow to
authorize the involuntary medication of mental[-]health patients
involve matters of 'substantial public concern.'" In re Robert
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S., 213 Ill. 2d 30, 46, 820 N.E.2d 424, 434 (2004), quoting In re
Mary Ann P., 202 Ill. 2d 393, 402, 781 N.E.2d 237, 243 (2002).
This court has already addressed similar questions regarding
compliance with section 2-102(a-5) (see A.W., 381 Ill. App. 3d at
956-57, 887 N.E.2d at 837; In re Louis S., 361 Ill. App. 3d 774,
780, 838 N.E.2d 226, 232 (2005)), and thus this issue's recur-
rence indicates both (1) a need still exists for guidance in this
area and (2) the likeliness of future recurrence in other mental-
health cases. Respondent's second argument shows a need for
clarification of a prior holding, and thus it too presents a
public matter that needs addressed and is likely to recur in
future mental-health cases.
Accordingly, we find respondent has established the
criteria necessary to satisfy the public-interest exception to
the mootness doctrine, and thus we need not address the capa-
ble-of-repetition exception.
B. Receipt of Written Information
Section 2-102(a-5) of the Mental Health Code (405 ILCS
5/2-102(a-5) (West 2008)) provides, in pertinent part, the
following:
"If the services include the administra-
tion of electroconvulsive therapy or
psychotropic medication, the physician or the
physician's designee shall advise the recipi-
ent, in writing, of the side effects, risks,
and benefits of the treatment, as well as
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alternatives to the proposed treatment, to
the extent such advice is consistent with the
recipient's ability to understand the infor-
mation communicated."
In Louis S., 361 Ill. App. 3d at 779-80, 838 N.E.2d at 231-32,
this court held the State must present clear and convincing
evidence at the hearing on the involuntary-treatment petition of
compliance with the aforementioned statutory provision. We
further noted the following:
"(1) verbal notification is insufficient to
ensure a respondent's due-process rights, (2)
'the right to written notification is not
subject to a harmless-error analysis,' and
(3) strict compliance with the procedural
safeguards of the [Mental Health] Code is
necessary to protect the liberty interests
involved." A.W., 381 Ill. App. 3d at 957,
887 N.E.2d at 837, quoting Louis S., 361 Ill.
App. 3d at 780, 838 N.E.2d at 232-33.
Here, respondent frames her section 2-102(a-5) issue as
both an insufficiency-of-the-evidence claim and a lack-of-
statutory-compliance claim. As to the sufficiency of the evi-
dence, this court will not reverse the trial court's determina-
tion unless it was against the manifest weight of the evidence.
A.W., 381 Ill. App. 3d at 957, 887 N.E.2d at 838. "A judgment
will be considered against the manifest weight of the evidence
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'only when an opposite conclusion is apparent or when the find-
ings appear to be unreasonable, arbitrary, or not based on
evidence.'" Louis S., 361 Ill. App. 3d at 779, 838 N.E.2d at
231, quoting In re John R., 339 Ill. App. 3d 778, 781, 792 N.E.2d
350, 353 (2003). Whether substantial compliance with a statutory
provision has taken place presents a question of law, which we
review de novo. Behl v. Gingerich, 396 Ill. App. 3d 1078, 1086,
920 N.E.2d 665, 671 (2009).
Dr. Bitar only testified respondent received a written
list of the side effects. Respondent only testified she received
a stack of papers from Dr. Bitar. No evidence at trial showed
respondent received written notice of the risks and benefits of
the treatment as well as alternatives to the proposed treatment.
This court has emphasized "not only does section 2-102(a-5)
require written notification of the proposed treatment's side
effects, it also requires written notification of risks, bene-
fits, and alternatives to the proposed treatment." In re Dorothy
J.N., 373 Ill. App. 3d 332, 336, 869 N.E.2d 413, 416 (2007). The
State notes the stack of papers in the common-law record regard-
ing the medications that were the subject of the involuntary-
treatment petition. However, those papers were not admitted into
evidence at the involuntary-treatment hearing. A reviewing court
must determine sufficiency of the evidence at the hearing based
upon the evidence presented to the trial court. See In re
Schaap, 274 Ill. App. 3d 497, 501, 654 N.E.2d 1084, 1086 (1995)
(noting a reviewing court "must determine the issues before it
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based upon the evidence presented to the trial court"). Since
the State failed to present any evidence respondent was informed
in writing of the risks and benefits of the proposed treatment,
as well as alternatives to the proposed treatment, the trial
court's involuntary-treatment order was against the manifest
weight of the evidence. See A.W., 381 Ill. App. 3d at 957, 887
N.E.2d at 838.
Since the important public issue here is actual compli-
ance with section 2-102(a-5) of the Mental Health Code (405 ILCS
5/2-102(a-5) (West 2008)), we next address that issue. As noted,
the State indicates Dr. Bitar personally gave respondent the
stack of documents in the common-law record regarding the medica-
tions stated in the involuntary-treatment petition, and asserts
those papers complied with the requirements of section 2-102(a-
5). We disagree the documents constitute compliance with section
2-102(a-5) of the Mental Health Code (405 ILCS 5/2-102(a-5) (West
2008)).
At the hearing, Dr. Bitar testified the general benefit
of an antipsychotic medication is to help with the paranoid
ideas, delusions, and hallucinations. He also testified the
benefits of lorazepam, an antianxiety drug, is to help with sleep
or agitation. The benefit of both diphenhydramine and
benztropine is to address the extrapyramidal symptoms that are
side effects of an antipsychotic drug. Other benefits of
diphenhydramine are helping with sleep or agitation. However,
the documents in the common-law record state the name of the
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drug, what conditions it treats, how to take and store the drug,
warnings, and side effects. For example, the olanzapine pages
state it treats psychotic disorders, such as schizophrenia or
bipolar disorder. The page does not state it helps address
paranoid ideas, delusions, and hallucinations. The sheets for
lorazepam state it treats anxiety, anxiety with depression, and
insomnia (trouble sleeping). Agitation is not mentioned at all.
For diphenhydramine, the sheets say it treats symptoms caused by
hay fever, allergies, or the common cold and may be used as a
nighttime sleep aid. Last, the benztropine documents state it
treats Parkinson's disease or the side effects of other drugs.
Nowhere in the document does it explain what side effects it
addresses. Importantly, none of the aforementioned documents
indicate how the specific drug will be used to benefit respon-
dent's mental-health issues as they are either vague, e.g.,
benztropine, or treat multiple conditions, e.g., diphenhydramine.
"Before a patient can make a reasoned decision about
medication, 'it is first necessary to be informed about the risks
and benefits of the proposed course of medicine.'" Louis S., 361
Ill. App. 3d at 780, 838 N.E.2d at 232, quoting John R., 339 Ill.
App. 3d at 783, 792 N.E.2d at 354. As in this case, it is common
for the respondent to decline to talk with the physician about
the proposed treatment. Thus, it is important for the written
information to specifically address the benefits for the respon-
dent.
Additionally, the documents are just a stack of drug
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handouts. The documents do not explain the treatment alterna-
tives available to respondent. Here, Dr. Bitar sought to admin-
ister olanzapine used to address paranoid ideas, delusions, and
hallucinations. First, the olanzapine sheets do not state it is
the first-choice medication, and the other medications documents
do not indicate they are alternative medications. Respondent had
to reference the petition to determine what was the first choice
and what were the alternatives. Second, none of the other drugs
proposed as alternatives stated they were for the same purpose as
the olanzapine, and some indicate they were clearly for the
treatment of other issues such as agitation and trouble sleeping.
A stack of papers that includes the first-choice medication and
its proposed alternative medications without any explanation as
to how they were alternatives to the medication sought to be
administered does not adequately explain alternative treatments
as required by section 2-102(a-5). Moreover, we note that, if
nonmedication treatment alternatives were appropriate for respon-
dent, the written information should also have included them
since "treatment" includes more than medication (see 405 ILCS
5/1-128 (West 2008) (defining "treatment")).
Accordingly, we find the written documents provided to
respondent did not state the benefits and treatment alternatives
as required by section 2-102(a-5) of the Mental Health Code (405
ILCS 5/2-102(a-5) (West 2008)). While it was likely clear
respondent needed the administration of psychotropic medication,
it still remains imperative to conduct the proceedings and the
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administration of such medication pursuant to the requirements of
the Mental Health Code (405 ILCS 5/1-100 through 5/6-107 (West
2008)). See Louis S., 361 Ill. App. 3d at 783, 838 N.E.2d at
234.
C. Nonpsychotropic Medications
Respondent also alleges the State failed to present
evidence of the side effects of diphenhydramine and benztropine,
which are both nonpsychotropic medications. The State does not
deny respondent's allegation but asserts it did not have to
produce such evidence at the hearing since the medications are
nonpsychotropic. Whether the State has to present evidence as to
the side effects of nonpsychotropic medication is a question of
law, and thus our review is de novo. See Behl, 396 Ill. App. 3d
at 1086, 920 N.E.2d at 671.
In A.W., 381 Ill. App. 3d at 959, 887 N.E.2d at 839,
this court rejected the argument a trial court's order authoriz-
ing involuntary treatment failed to comply with the Mental Health
Code (405 ILCS 5/2-107.1(a-5)(6) (West 2006)) because it autho-
rized the administration of a nonpsychotropic medication. In
doing so, we stated the psychiatrist has sole discretion in
determining whether to list in the petition a nonpsychotropic
medication used to counteract side effects of the psychotropic
medication. A.W., 381 Ill. App. 3d at 960, 887 N.E.2d at 840.
We further stated "[i]f the psychiatrist chooses to do so and
testifies as to the nonpsychotropic medication--as happened
here--nothing prohibits the trial court from including the
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nonpsychotropic medication in its order." A.W., 381 Ill. App. 3d
at 960, 887 N.E.2d at 840.
In finding it was proper for the trial court to include
a nonpsychotropic medication in its involuntary-treatment order,
we made a point of requiring the psychiatrist to testify about
the nonpsychotropic medication. By including the medication in
an involuntary-treatment order, the trial court has granted its
approval of the psychiatrist's proposed use of the medication.
Thus, the court should have information about the nonpsychotropic
medication before granting its approval. Clearly, such informa-
tion should include both the benefits and potential side effects
of the medication.
Accordingly, diphenhydramine and benztropine should not
have been included in the involuntary-treatment order for respon-
dent because the State failed to present evidence of any poten-
tial side effects of those drugs.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment.
Reversed.
STEIGMANN and POPE, JJ., concur.
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