In re Linda K. ( 2011 )

NO. 4-10-0510 Opn Filed 3/18/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: LINDA K., a Person Found ) Appeal from
Subject to Administration of ) Circuit Court of
Psychotropic Medication, ) Sangamon County
THE PEOPLE OF THE STATE OF ILLINOIS, ) No. 10MH503
Petitioner-Appellee, )
v. ) Honorable
LINDA K., ) Robert T. Hall,
Respondent-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the judgment of the court,
with opinion.
Justice Appleton concurred in the judgment and opinion.
Justice Myerscough1 dissented, with opinion.
OPINION
Following a July 2010 hearing, the trial court found
respondent, Linda K., subject to involuntary administration of
psychotropic medication (405 ILCS 5/2-107.1 (West 2008)).
Respondent appeals, arguing that the trial court’s
judgment should be reversed because the State failed to present
evidence that respondent was provided with the statutorily
mandated written information about the side effects, risks,
benefits, and alternatives of the proposed involuntary
administration of psychotropic medication. We agree and reverse.
I. BACKGROUND
In June 2010, Sriehri Patibandla, respondent's
1
Justice Myerscough registered her dissent with this opinion
before she resigned from the Appellate Court of Illinois, Fourth
District, in order to be sworn in as a judge of the United States
District Court, Central District of Illinois.
psychiatrist at McFarland Mental Health Center, filed a petition,
seeking to involuntarily administer psychotropic medication to
respondent. The petition alleged that respondent (1) suffered
from a mental illness--namely, schizophrenia, paranoid type, and
(2) was "noncompliant with medication in the initial days of
hospitalization and also in the community."
At the July 2010 hearing on the petition, Patibandla
testified that respondent had been diagnosed with schizophrenia.
Respondent was initially committed to McFarland because she had
previously been found unfit to stand trial. According to
Patibandla, respondent believed that she had been granted
immunity by the President of the United States, and respondent
had a "very poor comprehension of her legal situation."
Patibandla explained that respondent (1) refused to take
psychotropic medication, (2) lacked insight about her mental
illness, (3) failed to acknowledge her mental illness, and (4)
had suffered from her mental illness for at least 20 years.
Patibandla opined that because respondent showed mild
improvement with court-ordered medication, he requested that the
trial court allow him to involuntarily administer the following
psychotrophic medications: (1) Abilify (10 to 30 milligrams per
day), (2) Abilify injection (9.75 milligrams per day), and (3)
Ativan (2 to 8 milligrams per day). Patibandla further requested
that the court authorize the involuntary administration of the
following alternative psychotrophic medications if respondent did
not show improvement: (1) Risperdal (1 to 10 milligrams per
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day), (2) Risperdal Consta (25 to 50 milligrams every two weeks),
(3) Haldol (5 to 30 milligrams per day), (4) Haldol Decanoate (25
to 100 milligrams one time per month), (5) Seroquel (100 to 800
milligrams per day), and (6) Clozaril (25 to 800 milligrams per
day).
Additionally, Patibandla requested the following
testing and procedures necessary for the safe and effective
administration of the psychotrophic medications: (1) complete
blood count; (2) complete metabolic panel; (3) lipid panels; (4)
an electrocardiogram; (5) tardive dyskinesia monitoring; (6)
physical- and mental-health assessments; and (7) pulse and blood-
pressure assessments. Patibandla acknowledged that the suggested
psychotropic medications had possible side effects, including
weight gain, metabolic syndromes, tardive dyskinesia, white-cell
suppression, and oversedation. Patibandla added that respondent
was currently taking Abilify and Ativan and had not experienced
any adverse side effects.
Patibandla explained that he had discussed the benefits
and side effects of the proposed treatment with respondent.
Thereafter, the following exchange occurred between the prosecu-
tor and Patibandla:
"Q. [STATE:] Has [respondent] been
handed a written list of the side effects?
A. [PATIBANDLA:] Yes, she was.
Q. [STATE:] Did she take them in her hand?
A. [PATIBANDLA:] Yes, she did."
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Patibandla further explained that (1) treatment without medica-
tion was inappropriate for respondent because of her mental
illness, and (2) group or individual therapy without medication
would be an inadequate treatment alternative.
Patibandla based his opinion that respondent had been
mentally ill for at least 20 years on information gained from
respondent’s sister. Patibandla also acknowledged that respon-
dent claimed that (1) she was allergic to all of the recommended
medications and (2) the psychotropic medication caused her to
experience tremors.
Respondent testified that she discussed the medications
that Patibandla was seeking to involuntarily administer with him,
and she informed him that she was allergic to "medications that
are mind altering." Respondent added that she was not asked
whether she had received any written notification regarding the
side effects, risks, benefits, and alternatives of the proposed
treatment. Respondent further testified that it was illegal to
administer the proposed medications because they had previously
been "pulled off the shelf." Respondent then (1) requested
"immunity" because she believed her case had been dismissed five
times, (2) claimed "double jeopardy" because she was being tried
more than once for the same crime, and (3) expressed concern
regarding her constitutional rights. Because respondent believed
that she was going to be sentenced by the trial court, she
requested "probation, misdemeanor, time[-]served court supervi-
sion for employment reasons for a suspension first time offense."
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Based on this evidence, the trial court found respon-
dent subject to involuntary administration of the psychotropic
medications for a period not to exceed 90 days as requested by
Patibandla.
This appeal followed.
II. ANALYSIS
A. The Mootness Doctrine and This Case
Initially, we note that the trial court entered the
involuntary-treatment order on July 2, 2010, and limited the
enforceability of the order for a period not to exceed 90 days.
The 90-day period has passed. As a result, this case is moot.
Therefore, before we can address the merits of respondent’s
appeal, we must first determine whether any exception to the
mootness doctrine applies.
An issue raised in an otherwise moot appeal may be
reviewed when (1) addressing the issues involved is in the public
interest, (2) the case is capable of repetition, yet evades
review, or (3) the petitioner will potentially suffer collateral
consequences as a result of the trial court's judgment. In re
Alfred H.H., 233 Ill. 2d 345, 355-61, 910 N.E.2d 74, 80-83
(2009).
The collateral-consequences exception to the mootness
doctrine allows a reviewing court to consider an otherwise moot
case because a respondent has suffered, or is threatened with, an
actual injury traceable to the petitioner and will likely be
redressed by a favorable judicial decision. Alfred H.H., 233
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Ill. 2d at 361, 910 N.E.2d at 83. "The collateral-consequences
exception applies to a first involuntary-treatment order." In re
Joseph P., Nos. 4-10-0346, 4-10-0347, cons., slip op. at 8 (Ill.
App. Dec. 22, 2010). The collateral-consequences exception
applies where (1) the record does not indicate that the respon-
dent has previously been subject to an involuntary-treatment
order and (2) it appears that the respondent will likely be
subject to future proceedings that would be adversely impacted by
her involuntary treatment. In re Wendy T., No. 2-09-0595, slip
op. at 5 (Ill. App. Dec. 8, 2010), 940 N.E.2d 237, 241-42.
In this case, our review of respondent’s particular
medical history does not indicate that she has ever properly been
subjected to an order for involuntary administration of medica-
tion. Further, respondent’s condition indicates that she would
very likely be subject to future proceedings that would be
adversely impacted by past involuntary treatment. Thus, we
conclude that the collateral-consequences exception applies.
B. Respondent’s Claim That the State Failed To Prove
That She Was Provided with Certain Statutorily
Mandated Information in Writing
Respondent argues that the State failed to prove by
clear and convincing evidence that she lacked capacity to make a
reasoned decision about the proposed treatment because she was
not provided the statutorily mandated written information about
the side effects, risks, benefits, and alternatives of the
proposed treatment. We agree.
Generally, we review a trial court's order permitting
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the involuntary administration of psychotropic medication under
the manifest-weight-of-the-evidence standard. In re Louis S.,
361 Ill. App. 3d 774, 779, 838 N.E.2d 226, 231 (2005). Under
this standard, we will reverse a court's judgment only when the
opposite conclusion is apparent or the court's findings are
unreasonable, arbitrary, or not based on the evidence. Louis S.,
361 Ill. App. 3d at 779, 838 N.E.2d at 231.
Pursuant to section 2-107.1 of the Mental Health and
Developmental Disabilities Code (Mental Health Code), psychotro-
pic medication may be administered when the trial court has
determined by clear and convincing evidence that each of the
following factors are present:
"(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
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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 capac-
ity to make a reasoned decision about the
treatment.
(F) That other less[-]restrictive ser-
vices have been explored and found inappro-
priate.
(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)(A)
through (a-5)(4)(G) (West 2008).
However, the Mental Health Code goes further, imposing
additional requirements. Section 2-102(a-5) of the Mental Health
Code also provides as follows:
"If the services include the administration
of *** psychotropic medication, the physician
or the physician’s designee shall advise the
recipient, in writing, of [(1)] the side
effects, [(2)] risks, and [(3)] benefits of
the treatment, as well as [(4)] alternatives
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to the proposed treatment, to the extent such
advice is consistent with the recipient’s
ability to understand the information commu-
nicated." (Emphasis added.) 405 ILCS 5/2-
102(a-5) (West 2008).
In In re Dorothy J.N., 373 Ill. App. 3d 332, 336, 869
N.E.2d 413, 416 (2007), this court explained that strict compli-
ance with all of section 2-102(a-5) is necessary to protect the
liberty interests of the mental-health treatment recipient. In
Dorothy J.N., we held that verbally advising the recipient of the
side effects of the proposed medication was insufficient to
satisfy section 2-102(a-5). Dorothy J.N., 373 Ill. App. 3d at
336, 869 N.E.2d at 416. The Second District Appellate Court
recently agreed, concluding that a failure to provide a patient
with written notification of alternatives to proposed treatment
pursuant to the Mental Health Code compelled reversal. In re
Nicholas L., No. 2-09-1181, slip op. at 15 (Ill. App. Feb. 16,
2011).
Here, the State points to Patibandla's petition for
involuntary administration of psychotropic medication to argue
that respondent was provided with written notification that
other, less-restrictive treatment alternatives were inappropri-
ate. The petition states "[o]ther less[-]restrictive treatment
services, such as counseling, therapy, education, activities and
rehabilitation, have been explored," and these treatment alterna-
tives were found inappropriate for respondent without the use of
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psychotropic medications. Although the petition stated that
other, less-restrictive treatment alternatives were considered,
this "notice" is not sufficient to comply with the Mental Health
Code because, as we previously explained, the State must present
evidence that respondent received written notification of the
alternatives (Louis S., 361 Ill. App. 3d at 780-81, 838 N.E.2d at
232-33).
Additionally, the State suggests that Patibandla's
testimony regarding his recommendations of alternative medica-
tions was sufficient to comply with the requirements of the
Mental Health Code. Because, as we explained in Dorothy J.N.,
strict compliance with all of the Mental Health Code is required,
including the section 2-102(a-5) mandate that the list of alter-
natives be in writing, we disagree.
Further, the State's claim that its questioning of
Patibandla regarding respondent being handed a written list of
the side effects was sufficient for the trial court to conclude
the State proved that respondent received written information on
the side effects of the proposed treatment. However, the record
before us shows that the State failed to present any evidence to
prove respondent was provided with the statutorily mandated
written information on the risks, benefits, and alternatives of
the proposed treatment.
In closing, we note that the prosecutors could assist
the attending physicians by preparing, in advance, a written-
description form regarding the involuntarily administered medi-
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cine that would comply with section 2-102(a-5) of the Mental
Health Code. Then, to comply with the statute, all that the
physician need do would be to hand that description to the
patient. For more detail on this procedure, see Dorothy J.N.,
373 Ill. App. 3d at 338-39, 869 N.E.2d at 418 (Steigmann, P.J.,
specially concurring) (outlining the procedure for complying with
section 2-102(a-5) of the Mental Health Code). Additionally, to
prove the State’s case by clear and convincing evidence, the
prosecutor must ask questions to fulfill the statutory require-
ments that respondent was advised in writing on the four mandated
matters: side effects, risks, benefits, and alternatives to the
proposed treatment.
Because the State failed to prove, by clear and
convincing evidence, that respondent was provided with the
statutorily mandated written information--that is, the risks,
benefits, and alternatives of the proposed treatment--we conclude
that the trial court’s judgment must be reversed. See Dorothy
J.N., 373 Ill. App. 3d at 336, 869 N.E.2d at 416 ("'the right to
written notification is not subject to a harmless-error analysis'
and *** strict compliance with the procedural safeguards of the
Mental Health Code is necessary to protect the liberty interests
involved" (quoting Louis S., 361 Ill. App. 3d at 780, 838 N.E.2d
at 232)).
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment.
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Reversed.
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JUSTICE MYERSCOUGH, dissenting:
I once again respectfully dissent. As in Dorothy J.N.,
I would affirm because the trial court did not abuse its discre-
tion in authorizing administration of involuntary treatment. The
common-law record includes the signed petition for administration
of authorized involuntary treatment and a treatment plan that
states respondent had been delivered a written notice of the
risks and benefits of the proposed treatment. That petition
includes the following language of affirmation:
"I have read and understood this
[p]etition and affirm that the statements
made by me are true to the best of my knowl-
edge. I affirm that I advised the individ-
ual, in writing, of the risks and benefits of
the proposed treatment."
Dr. Patibandla, the treating psychiatrist who testified at the
petition-for-administration-of-involuntary-treatment hearing,
signed that petition..
That notice alone is sufficient compliance with section
102(a-5) (405 ILCS 5/2-102(a-5) (West 2008)). See In re Jill R.,
336 Ill. App. 3d 956, 964, 785 N.E.2d 46, 52 (2003) (petition and
treatment plan indicated written notice given was sufficient
compliance).
The majority disregards the written-notice affirmation,
the oral notice testified to, as well as the contents of the
petition, which again reiterate:
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"13. I have explained the risk and the
intended benefits of the treatment to the
patient/respondent and also have provided
that information in written or printed form
to the patient/respondent.
YES
14. The patient/respondent objects to
the administration of the requested
psychotropic medication(s) and/or the range
of dosages. However, the patient/respondent
lack[s] the capacity to make a reasoned deci-
sion about the treatment for the following
reasons:
She relates that she does not have a
mental illness and does not need medication.
She claims 'I don't want to be hooked onto a
medication.'
15. Other less restrictive treatment
services, such as counseling, therapy, educa-
tion, activities, and rehabilitation, have
been explored.
YES
However, such treatment services have
been found to be inappropriate to treat the
patient/respondent without use of
psychotropic medication for the following
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reasons:
She is unable to participate in any non-
pharmacological treatments that are available
due to her disorganized thought processes."
Further, the majority ignores the language in the
Mental Health Code that requires written notice only "to the
extent such advice is consistent with the recipient's ability to
understand the information communicated" (405 ILCS 5/2-102(a-5)
(West 2004)). Respondent clearly exhibited an inability to
understand the information communicated.
Concededly, the supreme court reversed this court on
the written-notice requirement in In re Steven P., 207 Ill. 2d
604, 801 N.E.2d 947 (2004) (nonprecedential supervisory order),
in a terse supervisory order. However, this appellate court had
based its decision on the respondent's forfeiture of the written-
notice requirement. The record was silent on any written or oral
attempts to notify the respondent of the medication's side
effects. Moreover, the supervisory order specifically exercised
its supervisory authority "in light of the People's factual and
legal concessions," to which this court is not privy. Steven P.,
207 Ill. 2d at 604, 801 N.E.2d at 947. Moreover, supervisory
orders are not precedential. "As the State pointed out, supervi-
sory orders are unpublished, recite no facts, and provide no
rationale upon which the principles of stare decisis may attach."
People v. Jackson, 154 Ill. App. 3d 320, 324, 507 N.E.2d 89, 91
(1987).
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Our record is not so silent. Not only was the written
notice pleaded and affirmed in the petition, but Dr. Patibandla
also testified he had verbally notified respondent of the poten-
tial side effects:
"Q. Have you had occasion to discuss
with Miss [K.] the benefits and side effects
of the treatment that you're seeking in this
Petition?
A. Yes, I have.
Q. What does she say?
A. She did not believe that she would
need medication and said, 'I don't want to be
hooked onto medicine.'
Q. Has she been handed a written list
of the side effects?
A. Yes, she was.
Q. Did she take them in her hand?
A. Yes, she did.
Q. Did she have any questions for you,
Doctor, about the side effects?
A. She did not."
The doctor was very specific about the side effects:
"Patients may gain weight, there is
metabolic syndromes to be concerned about,
and there is tardive dyskinesia with Haldol
medication and white cell suppression with
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Clozapine."
Further, the majority's strict compliance with written
notice is not mandated by the statute or in Steven P. where, as
here, the respondent exhibited an inability to understand the
written information. She clearly lacked the capacity to give
informed consent. Dr. Patibandla testified:
"She has a lot of fixed false beliefs,
which are delusional thoughts she possesses.
She's charged with two counts of forgery from
Madison County, and she was sent to us as
unfit to stand trial because of this fixed
and false beliefs. She believes that she
went through some sort of appeal process."
In addition, the following exchange occurred:
"Q. Does she have the capacity to give
informed consent?
A. She does not.
Q. Does she acknowledge having a mental
illness?
A. She does not.
Q. Does she have any understanding of
her mental illness?
A. She does not.
Q. Does she have any insight at all into
her illness?
A. She does not."
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For these reasons, I would affirm the trial court.
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