In re Tara S. ( 2017 )

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Appellate Court Date: 2017.10.16
08:53:35 -05'00'
In re Tara S., 2017 IL App (3d) 160357Appellate Court In re TARA S. (The People of the State of Illinois, Petitioner-
Caption Appellee, v. Tara S., Respondent-Appellant).
District & No. Third District
Docket No. 3-16-0357
Rule 23 order filed June 21, 2017
Motion to publish
allowed August 3, 2017
Opinion filed August 3, 2017
Decision Under Appeal from the Circuit Court of Peoria County, No. 16-MH-128; the
Review Hon. Suzanne L. Patton, Judge, presiding.
Judgment Reversed.
Counsel on Veronique Baker and Ann E. Krasuski, of Illinois Guardianship &
Appeal Advocacy Commission, of Hines, for appellant.
Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, Lawrence
M. Bauer, and Richard T. Leonard, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with
opinion.
Presiding Justice Holdridge and Justice Wright concurred in the
judgment.
OPINION
¶1 Respondent, Tara S., appeals from the circuit court’s orders for involuntary admission
and administration of psychotropic medication. Respondent argues that she was denied the
effective assistance of counsel and this issue is subject to review under the capable of
repetition yet avoiding review exception to the mootness doctrine. We reverse the court’s
orders for involuntary admission to a mental health facility and involuntary administration of
psychotropic medication.
¶2 FACTS
¶3 On June 16, 2016, the State filed a petition for the involuntary administration of
psychotropic medication to respondent. The petition was a prepared form that indicated that
respondent had a mental illness and lacked the capacity to give an informed consent to
psychotropic medication. The second page of the petition contained the proposed
psychotropic medication treatment, length of the treatment plan, required pretreatment
medical testing, and treatment alternatives. The petition was signed by psychiatrist Andrew
Lancia.
¶4 On June 17, 2016, the court appointed counsel to represent respondent. On the same date,
the State filed a petition for the involuntary admission of respondent to a mental health
facility. The petition alleged that respondent had a history of psychiatric hospitalizations
related to her bipolar diagnosis and noncompliance with treatment. Respondent exhibited
bouts of mania and psychosis. Respondent told a hospital employee that she had been
physically and sexually assaulted in the past six months. Respondent had no place to live, no
income, and no insight into her illness.
¶5 In a contemporaneously filed inpatient certificate, Lancia attested that he had personally
examined respondent. Lancia opined that respondent was a person with mental illness whom
he reasonably expected to engage in harmful conduct. Respondent refused treatment and was
unable to understand her need for treatment. Respondent’s mental disorder presented with
episodes of mania, paranoia, and respondent’s belief that she had been subject to multiple
incidents of sexual assault in the past six months. Lancia opined that respondent was
vulnerable to such assaults because of her manic state.
¶6 On June 21, 2016, the court held a hearing on the State’s petitions. Psychiatrist Marika
Wrzosek testified that she was assigned to the case one day before the hearing. Wrzosek said
that she had reviewed respondent’s medical records but indicated that she had not personally
examined respondent. At the time of her admission, respondent was paranoid, talked to
herself, believed that her mother was following her, and exhibited disorganized speech that
frequently mentioned sexual assault. While in the psychiatric unit of the hospital, respondent
exhibited hypersexualized behavior and reported feeling excess stress. Respondent had been
mentally ill for nearly 10 years and had two prior hospitalizations since 2013. Respondent
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had no understanding of her mental illness. Respondent refused to take the prescribed
medication and stated that she did not have a mental illness. Wrzosek said respondent had the
working diagnosis of schizoaffective bipolar type. Wrzosek opined that respondent’s
provocative behavior put her at risk for a recurrence of sexual assault. Wrzosek thought that
if respondent were released, she risked being victimized by others due to her disorganized
thoughts and hypersexualized behavior. Wrzosek said that with treatment, respondent’s
disorder could be stabilized and she could be released to continue her independent living.
¶7 On cross-examination, Wrzosek said that her main concern for harm was respondent’s
penchant to engage in frequent sexual intercourse with multiple partners. Wrzosek also
feared that respondent’s paranoia about her family members prevented her from having the
necessary support.
¶8 Respondent testified that she was homeless. Prior to her hospital admission, she stayed
with a man named “Bill.” Bill asked respondent to leave after respondent left the door open
to Bill’s house and his dog ran out. On June 13, 2016, respondent voluntarily sought
admission to the hospital. Respondent said that she was “stressed out” and had no place to
live. Respondent also explained that she needed to gather evidence in order to procure an
order of protection against a woman that she thought was following her. Respondent said that
she was “tired of being abused.” She previously took the medications risperidone and
lithium. Respondent thought that she did not need medication but acknowledged that she
needed counseling.
¶9 The court found that respondent suffered from schizoaffective disorder, she was the
victim of sexual abuse and sexual assault, her testimony exhibited disorganized thoughts and
paranoia, and respondent’s hypersexualized activities subjected her to potential harm. The
court ordered respondent to be placed in a restrictive environment for up to 90 days for
treatment. The court then proceeded to a hearing on the State’s petition for involuntary
treatment.
¶ 10 Wrzosek testified that respondent had previously taken psychotropic medications
risperidone and lithium. Based on Wrzosek’s review of respondent’s medical chart, these
medications had restored respondent’s functioning. Wrzosek proposed a list of medications
to stabilize respondent’s mood and decrease her paranoia and delusions. The list included
risperidone and lithium. Wrzosek opined that the benefits of the proposed treatment
outweighed the potential side effects and noted that there were no less restrictive options
available. Wrzosek asked the court to order the medications to be administered for a period
of up to 90 days.
¶ 11 Respondent testified that she was familiar with some of the psychotropic medications
proposed by Wrzosek. Respondent previously received treatment at the Human Resource
Center. However, in January 2015, the psychiatrist at the center discontinued respondent’s
treatment. Respondent recalled that the treatment “slowed [her] down.” After the psychiatrist
discontinued respondent’s psychotropic medication, he prescribed an antidepressant.
Respondent asserted that she only needed pain medication and that she did not need inpatient
treatment because she came to the hospital because she was “stressed out and *** a rape
victim.”
¶ 12 The court found that respondent suffered from a psychiatric condition that required
treatment, the benefits of the treatment outweighed the harm, respondent lacked the capacity
to make a decision about her treatment, and the proposed inpatient treatment plan was the
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least restrictive service that was appropriate at the time. The court ordered the treatment to be
administered for a period of up to 90 days. Respondent appeals.
¶ 13 ANALYSIS
¶ 14 Respondent argues that the case must be reversed because she received ineffective
assistance of counsel. Specifically, defense counsel failed to (1) object to Wrzosek’s
testimony, which was not based on a personal examination, and (2) argue that the State did
not comply with the written medication information requirement. The State solely argues that
the issue is rendered moot by the expiration of the 90-day deadline in the order. We find that
this issue is moot but is subject to review under the capable of repetition yet evading review
exception. We further find that respondent received ineffective assistance of counsel.
¶ 15 I. Mootness
¶ 16 Generally, courts of review do not decide moot questions. In re Alfred H.H., 233 Ill. 2d
345, 351 (2009). However, the “capable of repetition yet avoiding review” exception permits
review of an otherwise moot issue. Id. at 358. This exception has two elements: (1) the
challenged action is of a duration too short to be fully litigated prior to its cessation and (2)
there is a reasonable expectation that the complaining party will be subject to the same action
again. Id. The parties agree that the present issue satisfies the first prong. However, the State
argues that there is not a reasonable expectation that respondent will be subject to the same
action again. To satisfy the second prong, “there must be a substantial likelihood that the
issue presented in the instant case, and any resolution thereof, would have some bearing on a
similar issue presented in a subsequent case.” Id. at 360.
¶ 17 Respondent’s ineffective assistance of counsel issue satisfies the second prong. The
record establishes that respondent is a person with a 10-year history of mental illness. This
history included two prior hospitalizations. No evidence was presented that the proposed
treatment plan would alleviate respondent’s mental illness entirely. Rather, the evidence
showed that her cognitive function would be stabilized once the treatment was in full effect.
However, respondent had received and discontinued treatment in the past. Therefore, it is
very likely that respondent will face future involuntary hospital admissions or involuntary
administration of psychotropic medication proceedings. As respondent is statutorily entitled
to counsel during these proceedings (405 ILCS 5/3-805 (West 2016)), ineffective assistance
of counsel issues are likely to recur. Absent ineffective assistance of counsel review, the
statutory guarantee of counsel is rendered a “ ‘hollow gesture serving only superficially to
satisfy due process requirements.’ ” In re Carmody, 274 Ill. App. 3d 46, 55 (1995) (quoting
In re Commitment of Hutchinson, 421 A.2d 261, 264 (Pa. Super. Ct. 1980)). Counsel’s
actions protect respondent’s constitutionally protected liberty interest to refuse the
administration of psychotropic drugs. U.S. Const., amend. XIV; see also In re C.E., 161 Ill.
2d 200, 214 (1994) (holding that “mentally ill or developmentally disabled [persons] have a
Federal constitutionally protected liberty interest to refuse the administration of psychotropic
drugs”); In re Benny M., 2015 IL App (2d) 141075, ¶ 24 (noting “like defense counsel in a
criminal proceeding, the respondent’s counsel in a mental health proceeding plays an
essential role in ensuring a fair trial”). Accordingly, we find that the ineffective assistance of
counsel issue presented in this case is reviewable under the capable of repetition yet avoiding
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review exception to mootness.
¶ 18 II. Ineffective Assistance of Counsel
¶ 19 A respondent that is subject to an involuntary hospital admission or involuntary
administration of psychotropic medication has a statutory right to counsel. 405 ILCS 5/3-805
(West 2016); In re Barbara H., 183 Ill. 2d 482, 493-94 (1998). The Strickland standard
applies where a respondent argues that she received ineffective assistance of counsel. In re
Daryll C., 401 Ill. App. 3d 748, 754 (2010). Under Strickland, respondent must prove that
“(1) counsel’s performance was deficient, such that the errors were so serious that counsel
was not functioning as the ‘counsel’ contemplated by the Code; and (2) counsel’s errors were
so prejudicial as to deprive her of a fair proceeding.” Carmody, 274 Ill. App. 3d at 57 (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). Upon review, we find two instances of
ineffective assistance.
¶ 20 A. Examination of Medical Expert
¶ 21 Section 3-807 of the Mental Health and Developmental Disabilities Code (Code)
provides:
“No respondent may be found subject to involuntary admission on an inpatient or
outpatient basis unless at least one psychiatrist, clinical social worker, clinical
psychologist, or qualified examiner who has examined the respondent testifies in
person at the hearing. The respondent may waive the requirement of the testimony
subject to the approval of the court.” (Emphasis added.) 405 ILCS 5/3-807 (West
2016).
¶ 22 We note that the State has confessed error with regard to this issue. For the following
reasons, we accept the State’s confession.
¶ 23 In this case, Wrzosek’s testimony established that she had not personally examined
respondent before the hearing. The pleadings indicate that only Lancia had personally
examined respondent, and the State did not call Lancia to testify. Respondent also did not
waive the testimony of an examining expert, and Wrzosek’s review of respondent’s medical
records did not satisfy this statutory requirement. In re Michelle J., 209 Ill. 2d 428, 437
(2004) (reviewing a respondent’s medical records does not satisfy the statutory requirement
that the expert examine the respondent prior to the hearing). Therefore, counsel’s
performance was deficient for not objecting to the State’s omission of testimony of an expert
who had not examined respondent. Counsel’s omission prejudiced the outcome of the
proceeding as respondent could not be subject to involuntary admission without the
testimony of an expert examiner who actually examined respondent. 405 ILCS 5/3-807
(West 2016).
¶ 24 B. Written Medication Requirement
¶ 25 Section 2-102 of the Code requires the State to notify the recipient of involuntarily
administered psychotropic medication with written notice of the “side effects, risks, and
benefits of the treatment, as well as alternatives to the proposed treatment.” 405 ILCS
5/2-102(a-5) (West 2016). Information regarding the risks and benefits of the psychotropic
medications is required for a respondent to make an informed decision on treatment. In re
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Vanessa K., 2011 IL App (3d) 100545, ¶ 20. Verbal advice on the medication does not
satisfy this statutory requirement. Id.¶ 26 The State concedes that the treating psychiatrists proposed treating respondent with
lithium but the record did not contain any written information on this medication.1 After
reviewing the record, we accept the State’s confession and find that there is no indication that
respondent received written notice of the side effects, risks, benefits, and alternative
treatments to lithium. Therefore, counsel’s performance was deficient for not raising this
omission in the circuit court. As respondent could not be compelled to take lithium without
receiving the statutorily required written information, counsel’s performance was deficient
for failing to raise this issue. 405 ILCS 5/2-102(a-5) (West 2016).
¶ 27 CONCLUSION
¶ 28 The judgment of the circuit court of Peoria County is reversed.
¶ 29 Reversed.
1
The common law record contains written information forms for risperidone and several other
alternative psychotropic medications that were proposed in the petition that was signed by Lancia.
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