In re Joseph P. , 406 Ill. App. 3d 341 ( 2010 )

NOS. 4-10-0346, 4-10-0347 cons. Filed 12/22/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: JOSEPH P., a Person Found ) Appeal from
Subject to Involuntary Admission, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Sangamon County
Petitioner-Appellee, ) No. 10MH329
v. (No. 4-10-0346) )
JOSEPH P., )
Respondent-Appellant. )
------------------------------------------)
In re: JOSEPH P., a Person Found ) No. 10MH364
Subject to Administration of )
Psychotropic Medication, )
THE PEOPLE OF THE STATE OF ILLINOIS, )
Petitioner-Appellee, )
v. (No. 4-10-0347) ) Honorable
JOSEPH P., ) Esteban F. Sanchez,
Respondent-Appellant. ) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE KNECHT delivered the opinion of the
court:
Respondent, Joseph P., appeals from his involuntary
admission pursuant to section 3-600 of the Mental Health and
Developmental Disabilities Code (Code) (405 ILCS 5/3-600 (West
2008)) and the order he be involuntarily administered
psychotropic medication pursuant to section 2-107.1 of the Code
(405 ILCS 5/2-107.1 (West 2008). Respondent argues the court's
order should be reversed because (1) the petition to involun-
tarily admit him failed to strictly comply with sections 3-606,
3-610, and 3-611 of the Code; (2) no clear and convincing evi-
dence warranted his involuntary admission; and (3) the State
failed to prove each statutory element of section 2-107.1 of the
Code to justify involuntary administration of psychotropic
medication. We find there was not strict compliance with statu-
tory procedures and reverse.
I. BACKGROUND
On April 16, 2010, the State filed a petition for the
involuntary admission of respondent, age 18, under section 3-600
of the Code (405 ILCS 5/3-600 (West 2008)). The petition alleged
respondent was mentally ill and, by reason of the mental illness,
unable to provide for his basic physical needs so as to guard
himself from serious harm. In support of those allegations, the
petition included a factual basis provided by his mother. His
mother stated, "[respondent] talks continually about how he can
not do anything in life now because the government conspiracies,
the doctor's conspiracies against him and my conspiracies against
him." She also reported he has been found walking down the
highway asking for rides even though he has no money and nowhere
to go. He has become more aggressive with his mother and has
screamed at her she is a "psychotic bitch" and a criminal.
Respondent's mother is afraid he will harm her or his sister. He
stopped taking his medication and has dropped out of school.
Respondent does not sleep well and stays up most of the night.
He paces continuously, rubs his hands together until they are raw
and constantly twirls his hair. He hears noises outside and
thinks they are gunshots. When a police officer came to take him
from his mother's home to the hospital, respondent told the
officer he thinks about harming his mother or his sister.
Respondent arrived at the emergency room of Blessing
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Hospital (Blessing) in Quincy at 2:40 a.m. on Thursday, April 15,
2010. According to the signed affirmation of a registered nurse
at Blessing, she served the petition upon respondent at 3 a.m. on
April 15, 2010. However, the petition was not signed by respon-
dent's mother until 6:30 p.m. that same day. He was not examined
by a physician at Blessing until 8 p.m. on April 15. Sometime
during the night, respondent was transferred to McFarland Mental
Health Center (McFarland), where he was examined by another
physician at 3 a.m. on April 16, 2010.
The petition, when filed in the Sangamon County circuit
court at 10:30 a.m. on Friday morning, April 16, 2010, was
accompanied by the certificates of the two physicians. A psychi-
atrist examined respondent at McFarland at 2:10 p.m. on April 16.
The certificate of the psychiatrist was filed with the court the
following Monday, April 19, 2010.
On Friday, April 23, 2010, the trial court appointed
counsel, set a hearing for that date, and over respondent's
objection, continued the hearing for seven days to April 30. On
April 27, 2010, the State filed a petition for the administration
of authorized involuntary treatment of respondent. On April 30,
respondent was involuntarily committed to a mental-health facil-
ity and ordered he be subjected to involuntary treatment.
Respondent appealed both the involuntary commitment and
the authorization for involuntary treatment. The appeals were
consolidated.
II. ANALYSIS
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On appeal, respondent argues the trial court's order
should be reversed because (1) the petition to involuntarily
admit him failed to strictly comply with section 3-606 of the
Code (405 ILCS 5/3-606 (West 2008)), which provides a police
officer who transports a person to a mental-health facility may
complete an involuntary-admission petition himself or shall
identify himself on the petition as a potential witness with
name, badge number, and employer; (2) the State failed to
strictly comply with section 3-610 of the Code (405 ILCS 5/3-610
(West 2008)), which provides a psychiatrist shall examine a
respondent within 24 hours after admission, otherwise the respon-
dent shall be released; (3) the State failed to strictly comply
with section 3-611 of the Code (405 ILCS 5/3-611 (West 2008)),
which provides a petition for involuntary admission and first
certificate shall be filed with the court within 24 hours after a
respondent's admission in the county where the facility is
located and a hearing shall be set and held within five business
days after the petition and certificate are filed; (4) the trial
court violated his constitutional and statutory rights to liberty
because no clear and convincing evidence warranted his admission
due to the inability to care for his basic physical needs without
assistance; and (5) the order authorizing involuntary medication
violated his liberty interests because the State failed to prove
the required statutory elements for forced medication in viola-
tion of section 2-107.1 of the Code (405 ILCS 5/2-107.1 (West
2008)).
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A. Mootness
Both parties agree the issues raised by respondent are
moot. Respondent's commitment order, entered April 30, 2010, was
limited in duration to 90 days. In this case, as in In re
Barbara H., 183 Ill. 2d 482, 490, 702 N.E.2d 555, 559 (1998),
respondent could be held involuntarily only if a new petition
were filed and a new hearing conducted. Whether the commitment
order was valid or not, it no longer can serve as the basis for
adverse action against respondent. Barbara H., 183 Ill. 2d at
490, 702 N.E.2d at 559. Any decision on the merits would result
in an advisory opinion and Illinois courts of review do not
render advisory opinions or decide moot questions. Barbara H.,
183 Ill. 2d at 491, 702 N.E.2d at 559.
Respondent argues, however, any or all of these three
exceptions to the mootness doctrine apply and, therefore, this
court should hear his appeal: (1) capable of repetition but
avoiding review; (2) collateral consequences; and (3) public
interest. The State has conceded the public-interest exception
applies to respondent's assertions there was no strict compliance
with certain sections of the Code but disagrees this exception
applies to respondent's assertions regarding evidentiary ques-
tions.
1. Capable of Repetition but Avoiding Review
Where a case involves an event of short duration
"capable of repetition, yet evading review," Illinois courts have
held it may qualify for review even if otherwise moot. In re A
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Minor, 127 Ill. 2d 247, 258, 537 N.E.2d 292, 296-97 (1989). Two
criteria must be met in order to receive the benefit of this
exception: "(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." Barbara H., 183 Ill. 2d
at 491, 702 N.E.2d at 559.
As noted earlier, the parties agree there is no ques-
tion the first criterion has been met. As for the second,
respondent argues in analyzing this exception, "same action" has
been interpreted to mean the same party could later be subjected
to cases based on the same statutory provision or similar orders.
In re Suzette D., 388 Ill. App. 3d 978, 983, 904 N.E.2d 1064,
1068-69 (2009). Respondent argues he has raised constitutional
and statutory-interpretation arguments which he contends the
supreme court in In re Alfred H.H. intimates would be sufficient
to overcome the mootness doctrine as "capable of repetition yet
avoiding review." See In re Alfred H.H., 233 Ill. 2d 345, 360,
910 N.E.2d 74, 83 (2009). Respondent argues he has raised issues
that challenge the trial court's compliance with his statutory
rights to proper, timely commitment pleadings, a timely hearing,
and treatment in the least-restrictive environment. He contends
at his young age (18) he could again face civil commitment and
forced medication, having been adjudged mentally ill and subject
to commitment and forced medication by the court and now having a
history of mental illness. He contends his challenges are
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partially statutory and, if not resolved, could confront him
again in the future. The court in Alfred H.H. intimates consti-
tutional and statutory arguments would be sufficient to overcome
the mootness doctrine as "capable of repetition yet avoiding
review." See Alfred H.H., 233 Ill. 2d at 360, 910 N.E.2d at 83.
Respondent argues the capable-of-repetition exception applies to
both appeals.
As noted in Alfred H.H., the respondent's burden when
arguing the capable-of-repetition-but-avoiding-review exception
is to show a substantial likelihood the issue presented by him,
and resolution thereof, would have some bearing on a similar
issue in a later case. Alfred H.H., 233 Ill. 2d at 360, 910
N.E.2d at 83. Respondent has not met that burden. The issues of
whether respondent was unable to care for his basic physical
needs without assistance and whether his liberty interests were
violated by authorizing involuntary treatment are clearly fact-
based determinations by the trial court. The orders entered in
this case were based on respondent's condition at the time of the
orders. Any future proceedings would entail a fresh evaluation
of his particular condition existing at that time. See Alfred
H.H., 233 Ill. 2d at 358, 910 N.E.2d at 82. Any determinations
as to the sufficiency of the evidence would not be likely to have
any impact on future litigation.
2. Collateral Consequences
This exception applies where the respondent could be
plagued in the future by the adjudication at issue. Alfred H.H.,
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233 Ill. 2d at 361, 910 N.E.2d at 83. Respondent argues if faced
with civil commitment again, having once been judged mentally ill
and in need of commitment, he would now have a history of mental
illness that would work against him. See In re Val Q., 396 Ill.
App. 3d 155, 159, 919 N.E.2d 976, 980 (2009) (Second District).
He notes the supreme court recognized in Alfred H.H. "a host of
potential legal benefits" accrue if his commitment is reversed.
Alfred H.H., 233 Ill. 2d at 362, 910 N.E.2d at 84. "For in-
stance, a reversal could provide a basis for a motion in limine
that would prohibit any mention of the hospitalization during the
course of another proceeding." Alfred H.H., 233 Ill. 2d at 362,
910 N.E.2d at 84.
The collateral-consequences exception applies to a
first involuntary-treatment order. Val Q., 396 Ill. App. 3d at
159, 919 N.E.2d at 980. If a respondent had previous involuntary
commitments or felony convictions, collateral consequences would
have already attached and are not attributable to the commitment
at issue. Thus, the collateral-consequences exception would not
apply. See Alfred H.H., 233 Ill. 2d at 362-63, 910 N.E.2d at 84.
Respondent's comprehensive psychiatric evaluation
references a previous hospitalization at Blessing which was
"dropped" during the hospitalization. The record does not show
whether this hospitalization was voluntary or involuntary and
what diagnosis of respondent may have been made. The record
fails to show respondent was previously subject to an order for
involuntary administration of medication.
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As in In re Daryll C., 401 Ill. App. 3d 748, 753, 930
N.E.2d 1048, 1053 (2010), where respondent was never previously
involuntarily committed, forcibly medicated, or convicted of a
felony, collateral consequences have never previously attached.
If the commitment and medication orders stand, adverse conse-
quences will attach and can be used against Joseph P. in future
proceedings. Even greater adverse consequences may result for a
youthful respondent. Therefore, the collateral-consequences
exception to the mootness doctrine applies in this case to all
issues on review.
B. Strict Compliance With Sections of the Code
As the State points out, a respondent subject to
involuntary commitment should not be allowed to participate in a
hearing on the merits only to obtain a new hearing by complaining
of a procedural defect. Such a respondent forfeits any objection
when not made at trial. See In re Nau, 153 Ill. 2d 406, 419, 607
N.E.2d 134, 140 (1992). However, the forfeiture rule is a
limitation on the parties, not on the reviewing court. People v.
Lowe, 153 Ill. 2d 195, 199, 606 N.E.2d 1167, 1170 (1992).
When a bevy of procedural irregularities occur, as in
this case, the State should not always be allowed to prevail with
the argument respondent failed to raise objections to these
irregularities in the trial court. Errors and irregularities
that would not be tolerated in other civil proceedings and
criminal cases are too often overlooked in mental-health proceed-
ings. When the State subjects an individual to the potential
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loss of liberty inherent in involuntary-commitment proceedings,
it should be required to follow the rules.
We will review the procedural irregularities here under
a theory analogous to the plain-error exception to forfeiture.
See In re Franklin, 186 Ill. App. 3d 245, 248, 541 N.E.2d 168,
170 (1989). Courts may address an otherwise forfeited issue
under the plain-error exception to the forfeiture rule when the
evidence is closely balanced or when an error is so fundamental a
defendant may have been deprived of a fair hearing. People v.
Nesbit, 398 Ill. App. 3d 200, 212, 924 N.E.2d 517, 527 (2010).
An accumulation of procedural irregularities in an involuntary-
commitment proceeding affects the integrity of the judicial
process and satisfies the second prong of the plain-error rule.
Instead of being sidestepped, procedural technicalities in the
Code should be strictly construed to protect individuals from
deprivation of their liberty interests. In re Demir, 322 Ill.
App. 3d 989, 992, 996, 751 N.E.2d 616, 618, 621 (2001).
1. Failure To Comply With Section 3-606
This emergency commitment proceeding began when uniden-
tified police officers transported respondent to Blessing Hospi-
tal in Quincy. Section 3-606 of the Code authorizes a peace
officer to take someone into custody and transport him to a
mental-health facility when he reasonably believes the person is
subject to involuntary admission and in need of immediate hospi-
talization to protect himself or others from physical harm. The
officer then may either complete an involuntary-admission peti-
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tion himself or, if not, shall identify himself on the petition
as a potential witness by name, badge number, and employer. 405
ILCS 5/3-606 (West 2008).
Liberty interests are involved, and strict compliance
with statutory procedures is required. In re Robin C., 385 Ill.
App. 3d 523, 527, 898 N.E.2d 689, 692 (2008). In determining
whether a respondent's statutory and constitutional rights have
been violated, review is de novo. In re Shirley M., 368 Ill.
App. 3d 1187, 1190, 860 N.E.2d 353, 356 (2006).
The State contends although strict compliance is
generally required in involuntary-commitment proceedings, rever-
sal is not required for failure to strictly comply with statutory
procedures unless a respondent suffered prejudice. In re Louis
S., 361 Ill. App. 3d 763, 768, 838 N.E.2d 218, 222 (2005). In
this case, the petition was filed by respondent's mother.
The State argues the fact the officer's name, badge
number, and employer were not on the petition as section 3-606
requires, as a potential witness, was not prejudicial to respon-
dent. The petition was based on the knowledge of respondent's
mother. No information from police officers was relied on or
included in the petition or the comprehensive physical, psychiat-
ric, and social investigation presented to the court. Thus, the
absence of the officer's information caused no prejudice to
respondent and should be deemed harmless error. See Robin C.,
385 Ill. App. 3d at 527-28, 898 N.E.2d at 693.
The State may not have relied on any evidence from the
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police officer involved. Failing to provide contact information
about the officer in the petition as required by section 3-606
deprived respondent of using testimony by the officer that may
have been beneficial to him. The failure to comply with section
3-606 resulted in potential prejudice to respondent.
2. Failure To Comply With Section 3-610
Section 3-610 of the Code requires a psychiatrist to
examine a respondent within 24 hours after admission. Otherwise,
the respondent shall be released. 405 ILCS 5/3-610 (West 2008).
Respondent contends he was admitted to Blessing at 2:40
a.m. on April 15, 2010. On April 16 at 2:10 p.m., Dr. Aura
Eberhardt, a psychiatrist, examined him at McFarland and com-
pleted a medical certificate. This was the first such certifi-
cate by a psychiatrist. This was more than 35 hours after his
"detention" began.
The time element of section 3-610 only becomes signifi-
cant after a respondent is admitted to a mental-health facility,
either freestanding or a unit in a general hospital, not when he
is taken to an emergency room of a general hospital. In re
Moore, 301 Ill. App. 3d 759, 765-66, 704 N.E.2d 442, 445-46
(1998). The State argues respondent was admitted to McFarland at
least by 3 a.m. on April 16 and the psychiatric exam was con-
ducted at 2:10 p.m., well within 24 hours of his admission to a
mental-health facility.
The procedural history of respondent's confinement
begins with his admission to Blessing at 2:40 a.m. on April 15
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and service upon him at 3 a.m. with a petition, apparently
unsigned as his mother did not sign the petition until 6:30 p.m.
that same day. He was examined in the Blessing emergency depart-
ment by a physician at 8 p.m., 17 hours after service of the
petition, if not admission to Blessing. Approximately 24 hours
after service with the petition, he was moved to McFarland, where
he was again examined by a physician at 3 a.m. on April 16, 2010.
He was not examined by a psychiatrist until 2:10 p.m. on April
16.
Respondent contends the nurse who signed a form at
Blessing that stated "within 12 hours of admission to the facil-
ity under this status I gave the respondent a copy of this
Petition," also stated it was at 2:40 a.m. on April 15, starting
the time running under section 3-610. The same nurse signed a
"Proof of Service for Involuntary Admission," which stated
"Patient was admitted 4/15/10 at 0240." Thus, Dr. Eberhardt's
examination occurred over 35 hours after his admission.
We cannot tell from this record whether respondent was
admitted to the section of Blessing, a licensed private hospital,
which treated persons with mental illness. If he was not so
admitted, was he "admitted" to the emergency room of the hospi-
tal, where he remained there for 17 hours after he was brought to
Blessing by the police officer?
3. Failure To Comply With Section 3-611
Section 3-611 of the Code mandates an emergency
involuntary-admission petition and first certificate be filed
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within 24 hours after respondent's admission in the county where
the facility is located. A hearing on the petition shall be set
and held within five business days after petition and certificate
are filed. 405 ILCS 5/3-611 (West 2008).
Respondent was admitted to Blessing at 2:40 a.m. on
April 15, 2010. At 6:30 p.m. his mother signed the petition.
The petition, along with both physicians' medical certificates,
was filed with the court at 10:30 a.m. on April 16. Respondent
argues the petition and both physicians' certificates were filed
in Sangamon County more than 24 hours after his admission to
Blessing in Adams County.
Disregarding the filing requirement of the Code should
not be condoned. In re O.C., 338 Ill. App. 3d 292, 298, 788
N.E.2d 1163, 1168 (2003). Respondent contends the timeliness of
the mandate's filing cannot be forfeited or considered harmless.
Failure to file these documents within 24 hours is error. Demir,
322 Ill. App. 3d at 994-96, 751 N.E.2d at 620-21. These filing
defects cannot be easily cured even with prompt objections since
the statutory mandate has already has been abused. In re Stone,
249 Ill. App. 3d 861, 866, 619 N.E.2d 1345, 1348 (1993).
Respondent's argument presumes his admission began at
Blessing at 2:40 a.m. on April 15, 2010. We cannot be sure from
this record whether this is a correct calculation. We cannot be
sure whether the petition in this case was timely filed. We
decline to hold this lack of clarity against respondent.
Another provision of section 3-611 requires a hearing
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shall be set and held on a timely petition within five business
days after the petition and first certificate have been filed.
405 ILCS 5/3-611 (West 2008). A trial court's failure to hold a
hearing within five days as required by section 3-611 renders the
commitment order erroneous. In re Lanter, 216 Ill. App. 3d 972,
974, 576 N.E.2d 1219, 1220 (1991).
The petition here was filed on April 16, 2010, a
Friday. On Friday, April 23, the trial court appointed counsel,
set a hearing for that date, and over respondent's objection,
continued the hearing for seven days to April 30. On April 30,
respondent was involuntarily committed to a mental-health facil-
ity.
Although section 3-611 requires a hearing within five
days of the filing of a petition, under section 3-800(b), the
trial court may grant a continuance on its own motion or of one
of the parties not to exceed 15 days. 405 ILCS 5/3-800(b) (West
2008). The continuance granted to the State in this case of
seven days is within the time frame provided in the statute.
Thus, respondent cannot complain about the granting of the
continuance, if the petition was timely filed.
4. Service of Unsigned Petition
A petition for involuntary commitment must be served
upon a respondent within 12 hours of his admission. 405 ILCS
5/3-609 (West 2008). According to the record, respondent was
served with the petition within 20 minutes of his admission to
Blessing, 3 a.m. on April 15, 2010. On the face of the petition,
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however, respondent's mother did not sign the petition until 6:30
p.m. on April 15. Because respondent was handed an unsigned
petition at 3 a.m., we do not know if the petition was blank or
whether it included the factual statement provided to support his
mother's assertions he was a mentally ill person unable to
provide for his basic needs so as to guard himself from serious
harm without assistance of another. It is doubtful his mother
filled out the paragraph on the petition and the full-page
attachment within 20 minutes of respondent's arrival at Blessing.
This is an important procedural irregularity as the record does
not indicate respondent received a copy of the petition after it
was signed and filed until it was later served upon him on April
23, 2010.
Each of the enumerated procedural irregularities by
itself would not necessarily support reversal of respondent's
commitment. However, taken together, they show the statutory
purpose of the Code was violated.
"Involuntary admission procedures repre-
sent the legislature's attempt to balance the
individual's interest in liberty against
society's dual interests in protecting itself
from dangerous mentally ill persons and car-
ing for those who are unable to care for
themselves. [Citation.] The Code's proce-
dural safeguard's are not mere technicali-
ties. [Citation.] Rather, they are essen-
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tial tools to safeguard the liberty interests
of respondents in mental health cases." In
re Robert D., 345 Ill. App. 3d 769, 770-71,
803 N.E.2d 1067, 1069 (2004).
A total disregard for the requisite procedures should not be
condoned.
We find the totality of the procedural irregularities
in this case requires reversal of respondent's involuntary
commitment. Because he was wrongly committed, he was also
wrongly ordered to submit to involuntary treatment, and we
reverse that order also.
Because we have found the procedural violations alleged
by respondent require reversal, we do not address respondent's
remaining issues.
This case is another in a series of mental-health cases
from Sangamon County where procedural deficiencies permeate the
record. This reversal should not be viewed as criticism of the
trial judge, the assistant State's Attorney, or the respondent's
attorney. It is commentary on the failure of a system. Mental-
health services in Illinois are underfunded or unavailable.
There are fewer state-run facilities. The caseload in Sangamon
County continues to rise as respondents are transferred to
McFarland for hearings and treatment. The assistant State's
Attorneys and public defenders assigned to mental-health cases
are often inexperienced. Some of the errors and deficiencies
occur before the case ever reaches Sangamon County. The capable
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and diligent trial judge has an impossible caseload given the
procedural requirements of the Code, the number of cases, the
inexperience of counsel, and the behavior of the respondents.
We once again point to the special concurrence in In re
Dorothy J.N., 373 Ill. App. 3d 332, 338, 869 N.E.2d 413, 418
(2007) (Steigmann, P.J., specially concurring). See generally In
re Andrew B., 237 Ill. 2d 340, 354-55, 930 N.E.2d 934, 942-43
(2010) (citing Presiding Justice Steigmann's special concurrence
and collecting other cases). We conclude the Sangamon County
State's Attorney, the public defender, and the Guardianship and
Advocacy Commission should work collaboratively to provide
training, develop a flowchart, and improve the process.
III. CONCLUSION
For the foregoing reasons, we reverse the trial court's
judgment.
Reversed.
STEIGMANN and POPE, JJ., concur.
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