People v. Dorothy J.N. , 373 Ill. App. 3d 332 ( 2007 )

NO. 4-06-0780 Filed 5/11/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: DOROTHY J.N., a Person Found ) Appeal from
Subject to Involuntary Admission of ) Circuit Court of
Psychotropic Medication, ) Sangamon County
THE PEOPLE OF THE STATE OF ILLINOIS, ) No. 06MH561
Petitioner-Appellee, )
v. ) Honorable
DOROTHY J.N., ) George H. Ray,
Respondent-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
On September 8, 2006, the trial court entered an order,
authorizing the involuntary treatment of respondent, Dorothy J.N.
Respondent appeals, arguing (1) the court's decision was against
the manifest weight of the evidence and (2) the court's order
failed to comply with the Mental Health and Developmental Dis-
abilities Code (Mental Health Code) (405 ILCS 5/1-100 through 6-
107 (West 2004)) because it forced the administration of a non-
psychotropic medication. We reverse.
On August 23, 2006, a petition was filed for the
authorized involuntary treatment of respondent, alleging she was
mentally ill, refused to submit to treatment by psychotropic
medication, and lacked the capacity to give informed consent. An
order from the trial court was sought, authorizing the involun-
tary treatment of respondent in the form of psychotropic medica-
tion. Prolixin was requested as the first choice of medication
to be administered to respondent, with alternative medications
being Zyprexa and Celexa. The petition also sought to have
Metoprolol, a blood-pressure medication, administered to respon-
dent.
On September 8, 2006, the trial court conducted a
hearing on the petition. The State presented the testimony of
Dr. Fareed Tabatabai, a psychiatrist. Dr. Tabatabai testified he
treated respondent for schizo-affective disorder, a serious
mental illness. He stated respondent received treatment for her
mental illness for several years, dating back to the 1960s, and
had been admitted to mental-health facilities in the past.
Respondent was stable for several years while on medication;
however, she stopped taking her medication, resulting in her most
recent hospitalization.
Dr. Tabatabai stated respondent's symptoms included
delusions that caused her not to eat or drink for several weeks,
the refusal to take medication, and a general deterioration in
her functioning. More specifically, respondent stated John
Kennedy told her not to eat or take her medication. Dr.
Tabatabai opined respondent's mental illness and symptoms were
continuing and if her symptoms were not stabilized she would
develop medical complications, including malnutrition, hyperten-
sion, and risk of stroke.
Dr. Tabatabai recommended respondent resume taking the
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medications she took previously, which included Prolixin
Decanoate, Celexa, and Zyprexa. He believed those medications
would alleviate her symptoms within a few weeks and would be a
benefit. If respondent did not take them, she risked prolonged
psychosis and eventual physical deterioration to the point that
she would have to be tube fed. Dr. Tabatabai testified that side
effects of the medications included sedation, dizziness, and
extrapyramidal symptoms. Further, he stated he verbally made
respondent aware of the possible side effects of the medications
but did not provide her with any written information.
Dr. Tabatabai opined that, given respondent's past
medical history and her current condition, the potential benefits
of the medications outweighed any potential harm. Based on her
psychiatric illness and her symptoms, he did not believe respon-
dent had the capacity to make a reasoned decision about whether
to take the medications. Additionally, Dr. Tabatabai testified
that respondent really had no other treatment options other than
psychotropic medication and, thus, no less-restrictive form of
treatment was available.
On cross-examination, Dr. Tabatabai acknowledged
respondent was a voluntary patient in a mental-health facility
but was refusing treatment. However, on one or two occasions,
she did take a dose of Zyprexa and the previous night she agreed
to receive a Prolixin Decanoate shot. Dr. Tabatabai testified
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that the medications respondent agreed to take counted as treat-
ment, but treatment was extremely sporadic. Further, he stated
respondent's capacity to give informed consent fluctuated over
time. Finally, Dr. Tabatabai testified that Metoprolol, one of
the medications listed in the petition, was not a psychotropic
medication.
Following Dr. Tabatabai's testimony, respondent moved
for a directed finding, arguing the State failed to prove she
lacked capacity and the trial court did not have jurisdiction to
order involuntary treatment with a nonpsychotropic medication.
The court denied the motion. Respondent then additionally argued
that a violation of section 2-102 of the Mental Health Code (405
ILCS 5/2-102 (West 2004)) occurred because she was not informed
in writing about the medications. The State acknowledged that
written information was not given to respondent but asserted Dr.
Tabatabai or the mental-health facility's staff could provide her
with it "within the next few minutes." The court then directed
staff to provide respondent with written information on the
medications. The record is silent as to whether respondent ever
received any information in writing.
Next, respondent testified on her own behalf. She
stated she did not want to take medicine because "John" did not
want her to and because it made her feel bad. Upon inquiry by
the State, respondent indicated that the John Kennedy she was
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referring to was "John-John." Following respondent's testimony,
the trial court authorized involuntary treatment to be adminis-
tered to her as requested in the petition.
This appeal followed.
Initially, we note, this appeal is moot because the
trial court's order was effective for only 90 days and that time
period has expired. However, review is appropriate under the
public-interest exception to the mootness doctrine, and we will
consider the merits of respondent's appeal. In re Elizabeth
McN., 367 Ill. App. 3d 786, 789, 855 N.E.2d 588, 590 (2006). In
applying the public-interest exception, we are given the opportu-
nity to provide guidance and suggestions with respect to the
implementation of section 2-102(a-5) of the Mental Health Code
(405 ILCS 5/2-102(a-5) (West 2004)).
On appeal, respondent contends the trial court's
judgment is against the manifest weight of the evidence. Specif-
ically, she argues the State failed to show, by clear and con-
vincing evidence, that she lacked the capacity to make a reasoned
decision regarding medication because she was not informed in
writing about the risks and benefits of the proposed medications.
Generally, a trial court's order permitting the invol-
untary administration of psychotropic medication will not be
reversed unless it is against the manifest weight of the evi-
dence. In re Louis S., 361 Ill. App. 3d 774, 779, 838 N.E.2d
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226, 231 (2005). "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.'" 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).
Pursuant to the Mental Health Code, authorized involun-
tary treatment may be administered to an individual where the
State proves the following by clear and convincing evidence:
"(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
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(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 2004).
Section 2-102(a-5) of the Mental Health Code (405 ILCS
5/2-102(a-5) (West 2004)) further provides as follows:
"If the services include the administra-
tion of authorized involuntary treatment, the
physician or the physician's designee shall
advise the recipient, in writing, of the side
effects, risks, and benefits of the treat-
ment, as well as alternatives to the proposed
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treatment, to the extent such advice is con-
sistent with the recipient's ability to un-
derstand the information communicated."
In Louis S., 361 Ill. App. 3d at 780, 838 N.E.2d at
232, this court determined the State failed to present clear and
convincing evidence warranting the authorized involuntary treat-
ment of the respondent because no evidence showed he received the
written notification required by section 2-102(a-5). In so
holding, we relied on John R., 339 Ill. App. 3d at 783, 792
N.E.2d at 355, wherein the Fifth District held that a respondent
is entitled to receive the written notification required by
section 2-102(a-5), even where he or she chose not to take the
proposed medication after being verbally advised of its benefits
and side effects. Louis S., 361 Ill. App. 3d at 780, 838 N.E.2d
at 232-33. We noted verbal notification is insufficient to
ensure a respondent's due-process rights. Louis S., 361 Ill.
App. 3d at 780, 838 N.E.2d at 233.
Additionally, we stated that "the right to written
notification is not subject to a harmless-error analysis" and
that strict compliance with the procedural safeguards of the
Mental Health Code is necessary to protect the liberty interests
involved. Louis S., 361 Ill. App. 3d at 780, 838 N.E.2d at 232,
citing John R., 339 Ill. App. 3d at 783-84, 792 N.E.2d at 355.
Here, Dr. Tabatabai testified he verbally advised
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respondent of the proposed medications' side effects. He did not
provide her with any written notification as required by section
2-102(a-5). Moreover, 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, benefits, and
alternatives to the proposed treatment. Dr. Tabatabai's testi-
mony fails to reflect that he informed respondent of anything
other than the proposed medications' side effects.
The State contends that neither Louis S. nor John R.
stands for the proposition that written notice may not be pro-
vided to the respondent at the time of the hearing. Although in
this instance the State suggested respondent could be provided
with written notification at the hearing and the trial court
directed that to happen, the record fails to indicate any such
action was ever taken.
Additionally, the State argues that section
2-102(a-5)'s requirement that a respondent must be advised in
writing concerning proposed treatment is excused when the treat-
ing physician believes the respondent lacks the capacity to
understand and act upon the information. The State notes section
2-102(a-5) (405 ILCS 5/2-102(a-5) (West 2004)) states a physician
or his designee "shall advise the recipient, in writing, *** to
the extent such advice is consistent with the recipient's ability
to understand the information communicated." We find the State's
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argument unpersuasive and application of its asserted approach to
section 2-102(a-5) would fail to protect the important liberty
interests involved.
As noted by the parties, in In re Steven P., 343 Ill.
App. 3d 455, 460, 797 N.E.2d 1071, 1076 (2003), this court
utilized the State's same argument as a basis for holding that
the respondent did not have to be advised in writing concerning
the proposed involuntary treatment. However, the Illinois
Supreme Court exercised its supervisory authority and vacated
that judgment and directed this court to enter a judgment revers-
ing and vacating the trial court's order granting the petition
for authorized involuntary treatment, and remanding for compli-
ance with the statutory requirements of section 2-102(a-5). In
re Steven P., 207 Ill. 2d 604, 801 N.E.2d 947 (2004)
(nonprecedential supervisory order on denial of petition for
leave to appeal).
Moreover, with respect to this particular case, Dr.
Tabatabai testified respondent's capacity to give informed
consent fluctuated over time, and he acknowledged that she agreed
to take the proposed medication on at least two or three occa-
sions while hospitalized. His testimony, therefore, indicates
respondent had the capacity to understand and act upon the
information she received at various points in time. In Louis S.,
361 Ill. App. 3d at 780-81, 838 N.E.2d at 233, citing In re
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Richard C., 329 Ill. App. 3d 1090, 1095, 769 N.E.2d 1071, 1076
(2002), we noted that written notification provides a respondent
with the opportunity to review the information at a time and in a
manner of his choosing. Providing respondent with written
information would have allowed her the opportunity to review it
at a time when she had the capacity to give informed consent.
In this case, respondent was not advised in writing of
the side effects, risks, benefits, and alternatives to the
proposed medications. The State failed to establish, by clear
and convincing evidence, that respondent lacked the capacity to
make a reasoned decision, and the trial court's decision was
against the manifest weight of the evidence. Given our holding,
it is unnecessary to address respondent's remaining contentions.
For the reasons stated, we reverse the trial court's
judgment.
Reversed.
STEIGMANN, P.J., specially concurs.
MYERSCOUGH, J., dissents.
PRESIDING JUSTICE STEIGMANN, specially concurring:
Although I agree with the majority, I write specially
to suggest some changes regarding how involuntary-admission
proceedings are handled. I do so because (1) we have seen an
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increase in the number of these cases on appeal (this court alone
rendered 50 such decisions last year) and (2) the same issues
tend to arise in case after case.
I. THE NEED FOR A FLOWCHART AND ADDITIONAL TRAINING
First, I suggest that additional training is necessary
for everyone involved in these proceedings, including judges,
prosecutors, and defense counsel. The Illinois State Bar Associ-
ation, the State's Attorneys Appellate Prosecutor, the Guardian-
ship and Advocacy Commission, or the State Appellate Defender (or
some combination of these groups) should prepare a flowchart for
involuntary-admission proceedings to which all involved could
refer. The flowchart should emphasize precisely who should be
doing what--and when--with regard to the respondents in these
proceedings. The preparation of a judicial bench book would also
be very helpful, and it should include such a flowchart.
The flowchart (and other professional training) should
make clear to prosecutors what they need to elicit from the
medical professionals whom they call to testify. Neither the
trial court nor this court should be required to infer what these
professional witnesses, when testifying in support of a State's
involuntary-admission petition, know about the respondent or his
background.
Further, defense counsel similarly should be aware of
what the State needs to prove so that if the State fails to do
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so, a timely, specific objection can be made. All too often
defense counsel fail to object at the hearing to the prosecutor's
missteps, leaving this court to wrestle with issues of forfei-
ture, plain error, and defense counsel ineffectiveness.
Last, of course, the trial court should also be alert
to what the State must prove, and courts should rule against the
State when it has failed to meet its burden of proof or to
otherwise comply with the Code's requirements (assuming, of
course, that defense counsel has pointed out any such noncompli-
ance).
II. A PROCEDURE FOR COMPLYING WITH SECTION 2-102(a-5) OF THE CODE
Second, I suggest that the physician or his designee
who comes into contact with the respondent be prepared to meet
the requirements of section 2-102(a-5) of the Code (405 ILCS 5/2-
102(a-5) (West 2004)) by having prepared, in advance, a written
list of the side effects, risks, and benefits of any proposed
treatment of the respondent, as well as any alternatives to the
proposed treatment. Then, during the physician's examination of
the respondent, the physician could present a copy of the list to
the respondent, thereby complying with the statutory requirement
that the respondent be advised, in writing, of that information
"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). Of course, I suggest that the physi-
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cian or the physician's designee further attempt to explain the
list's contents. If these steps are followed, whether the
respondent actually read the list would not be relevant to
finding compliance with section 2-102(a-5) of the Code.
III. THE SUPREME COURT'S SUPERVISORY ORDER IN STEVEN P.
Finally, I agree with the majority's reference to the
supreme court's supervisory order in Steven P., 207 Ill. 2d 604,
801 N.E.2d 947. Normally, supreme court supervisory orders are
nonprecedential and affect only the case that is the subject of
the order. See People v. Phillips, 217 Ill. 2d 270, 280, 840
N.E.2d 1194, 1200 (2005). However, the supervisory order the
supreme court entered in Steven P. appears to be rather more than
that. In its entirety, that order reads as follows:
"In the exercise of this court's super-
visory authority, and in light of the Peo-
ple's factual and legal concessions, the
Appellate Court, Fourth District, is directed
to vacate its judgment in People v. Steven
P., 343 Ill. App. 3d 455[, 797 N.E.2d 1071].
The appellate court is further directed to
enter a judgment reversing and vacating the
Champaign County circuit court order granting
the People's petition for authorization of
electroconvulsive therapy and involuntary
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administration of medication, and remanding
for compliance with the statutory require-
ments of section 2-102(a-5) of the Mental
Health and Developmental Disabilities Code
(405 ILCS 5/2-102(a-5) (West 2002))." Steven
P. 207 Ill. 2d at 604, 801 N.E.2d at 947.
In my judgment, the above supervisory order sounds like
a substantive determination by the supreme court that this
court's earlier judgment in Steven P. was wrong, especially given
that this court was further directed to vacate the trial court's
order that was before us on appeal.
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JUSTICE MYERSCOUGH, dissenting:
I respectfully dissent. I would affirm because the
trial court did not abuse its discretion in authorizing adminis-
tration 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.
"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."
That notice alone is sufficient compliance with section
2-102(a-5) (405 ILCS 5/2-102(a-5) (West 2004)). See In re Jill
R., 336 Ill. App. 3d 956, 964, 785 N.E.2d 47, 52 (2003) (petition
and treatment plan indicated written notice given was sufficient
compliance).
Unfortunately, in the case sub judice, the signature is
illegible, but the individual's address is listed as Vine Street
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Clinic. Perhaps this affirmation was signed by Dr. Tabatabai,
perhaps not. Regardless, the facts of this case show sufficient
compliance with section 2-102(a-5) (405 ILCS 5/2-102(a-5) (West
2004)).
The majority and special concurrence not only disregard
the written-notice affirmation but also the court-ordered written
notice and the repeated oral notices; and they effectively
emasculate the language in the Act that requires written notice
only "to the extent such advice is consistent with the recipi-
ent'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 Steven P., 207 Ill. 2d 604, 801
N.E.2d 947, in a terse supervisory order. However, this appel-
late 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 medica-
tion's side effects. Moreover, the supervisory order specifi-
cally exercised its supervisory authority "in light of the
People's factual and legal concessions," to which this court is
not privy. In re Steven P., 207 Ill. 2d at 604, 801 N.E.2d at
947. Moreover, supervisory orders are not precedential. "As the
State pointed out, supervisory orders are unpublished, recite no
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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).
Our record is not so silent. Not only was the written
notice affirmed, but Dr. Tabatabai also testified he and his
staff had verbally notified respondent of the potential side
effects on numerous occasions.
"Q. To your knowledge, have they been
given to her in writing?
A. No. I have given these to her ver-
bally on numerous occasions during this
stay."
(Certainly, if the affirmation of written notice was actually
signed by Dr. Tabatabai, he contradicted that affirmation here.)
Dr. Tabatabai further indicated respondent had a general under-
standing of what was being discussed but respondent replied
"John-John" (Kennedy, Jr.) did not want her to take the medica-
tion. (Respondent also interjected John Kennedy, Jr., had her
power of attorney for health care and that he was still alive.)
Respondent did indeed on occasion consent to take her
medications. But Dr. Tabatabai also testified respondent's
capacity fluctuates over time. However, both Dr. Tabatabai and
respondent agree respondent lacked the capacity to give informed
consent.
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"Q. When you had a discussion of the
possible side effects, did she show an under-
standing of what you were discussing?
A. General understanding, yes.
Q. Was she able to provide input con-
cerning the medication?
A. Simply that she prefers not to take
any medicine because John doesn't want her
to.
Q. In your opinion, Doctor, does the
patient have the capacity to make a reasoned
decision regarding whether or not to take the
medication?
A. No."
And, once again, respondent was advised about the risks and
benefits of the medications by staff.
"Q. Did she have capacity yesterday
when she gave you informed consent?
A. She didn't give the informed con-
sent. We have a standing order with the
staff to approach her with medication, and if
she agrees to take the medication with the
understanding of the risks of and benefits,
that she can take it.
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Q. And that has been a standing order
ever since she's been here?
A. Yes, correct.
Q. So, it's up to her to make the deci-
sion whether to take the medications or not,
correct?
A. Correct.
Q. And you've allowed that to happen?
That's been the status quo since she's been
here?
A. Yes."
Moreover, the trial court here directed staff to give
respondent written notice in open court. Perhaps the court
should have duly noted on the record compliance with that direc-
tive, but the court based its opinion on its observations of
respondent and her apparent absence of the capacity to make a
reasoned decision, rendering that written notice superfluous.
Further, the majority's and special concurrence'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.
Finally, I must comment on the majority's and special
concurrence's unrealistic view of mental-health commitment
proceedings. Having prosecuted mental-health commitment proceed-
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ings and presided over them for a period of 12 years, I find the
criticism of all the public servants involved in these emotional
proceedings unwarranted. The proceedings are conducted at the
mental-health facilities under crowded, hurried conditions for
the benefit of the patient. All involved are concerned with the
best interests of a very fragile patient. The continued strict
statutory construction--stricter than that required by statute in
fact--is a detriment to both the patient and the medical and
legal establishments.
For these reasons, I would affirm the trial court and
commend all involved for their public service in the treatment of
the mentally ill.
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