In re Brittany F. , 2024 IL App (4th) 220788 ( 2024 )

2024 IL App (4th) 220788FILED
March 28, 2024
NO. 4-22-0788
Carla Bender
4 th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
In re BRITTANY F., a Person Found Subject to ) Appeal from the
Involuntary Treatment ) Circuit Court of
) Peoria County
(The People of the State of Illinois, ) No. 22MH154
Petitioner-Appellee )
v. )
Brittany F., ) Honorable
Respondent-Appellant). ) Daniel M. Cordis,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices Zenoff and Vancil concurred in the judgment and opinion.
OPINION
¶1 Respondent, Brittany F., appeals from the circuit court’s order finding her subject
to involuntary treatment pursuant to section 2-107.1 of the Mental Health and Developmental
Disabilities Code (Mental Health Code) (405 ILCS 5/2-107.1 (West 2022)). On appeal, respondent
argues the court’s order should be reversed because (1) the State and the treating physician who
filed the petition for involuntary treatment failed to fulfill their pleading obligations related to
respondent having a healthcare power of attorney (POA) and (2) the State failed to prove the
benefits of the treatment plan outweighed its harms and other less restrictive services had been
explored and found inappropriate. For the reasons that follow, we reverse the court’s order.
¶2 I. BACKGROUND
¶3 A. Petition for Involuntary Treatment
¶4 On August 4, 2022, Dr. Maranda Stokes, a psychiatrist at UnityPoint Health
Methodist Hospital (UnityPoint) in Peoria, Illinois, and the treating physician of respondent, filed
a petition seeking authorization for the involuntaiy treatment of respondent. Specifically, the
petition sought authorization for the involuntaiy administration of psychotropic medications and
related testing and imaging to respondent for a period of up to 90 days. The petition noted a good
faith attempt to detennine whether respondent had a healthcai·e POA had been made, and no such
POA was discovered. The petition indicated the "[p]1imaiy medication and dosage range" sought
to be administered was "[l]ithium 450mg- 1800mg per day," and, "[a]ltematively, the following
medications and dosage ranges may be administered: Please see attached list." The attached list is
as follows:
Attadlment A: S.,pplemenllry Ptlldon for A.dmlnbtratlanof Psyd,otroplc Medlcat!Oll!I for up 10 _ day,
'
Xlndlc:11e! Cholce 8r1nd name (Seneri<I RDllte ofAdmlnlstrallGn Ooug• ll•-.e Froquenq,
Oral l90t Intramuscular {IM), IAI
1/. . llaldol (llalcperldolJ {!,Gng,attlng ln)eclable) 1-<IOlrc PO/IM; ZS-~ I.Al PO/IM: d1ily, L>\l: '!'ler'/ 2-4 weets
...;. ProlWn (!upbmzfne HQ) PO; IM;IAI 0.5-40111$ PO; 2.S-10mg IM; J.2.5.SCmg I.Al PO/IM:clally,IAl:eYerY2-<l-ks
Tholllllnt (chlorproma!lne t!Ol PO; IM ~mgPOorlM daily ·
I.
")(
Rllpe~al (fisp51done) .
,.,.. (J)2:'l)e(Jdoae)
~vinxa (olan,aplne)
PO; IAI
PO; LAI
PO;IM
0.S-12mg PO; 12.S.SCmg LAI
LS.12mg PO; 39-234,nglAI
2.S-<!Orr,J PO and IM
PO: dally, IM: Ml'( 2 weeks
. ,o, d,Uy, IM: everyheel:s
dall\<
'I.
"- Ahlllfy (>tlplJn!Ole) PO;.IM;LAI 2.S-30mg PO; 300,Wmg IA! PO: d•:ly IAI: mry 4-aweel:s
Oour9 (cloµpile) PO 12.5-900mg daly
';.
Gtodon (zlprasldonel PO; IM I0-20Cilrc PO; 104) 1M daly
'{..
..;._ Sen,qlltl (quetlaplot fumante) 01'11 2S-1200<ng da.,
la\lld• (MraSfdor.e) Onl 20-160mg daly
'/..
;(_ Saphr1$(1ser0!llne) .Oralwb!lngyalwa/er S.20mg dolly
Ut!,Jvm . or.,1Table~ C.psllle, or Solin!Go ~ISC()ng dilly
Y-
X. Dep1kott (dr,q:roex sodun) Oral ECor 24-+!our EA taliel US-30CQl'.g dally
'j.. T~ tol{<arbamaM!~lne) Oral 100-l200llc c!aly
V T~e?III {oJlcarbazepine) Oral :J00-2400mg c!ally
X. Atlvan (lormpam) IMOJCtal 0.S-20mg dal>,,
~ dally
'< Clonopiri ( ~ l Oral
x ~tin (bendlojllne mes)1aw) IMorOral ~ daily (
M ane( ~ Oral 2.S-1Sn claw
fndend (propm,ofot Oral 10-l2QllJ daly
Pro,ac (flucxetine) ORI IQ.80111g daly
Zolott (seitralln~Y Oral 25-~ dait{
Elrelf« (Venla~ HO) Oral24-!!our and mndardtabftt 37.S.375mg ~-
lll!ltlon (ml!Uzapint} - Oral 7.5-6(q da11'/
B. Disposition Repo1t
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¶6 On August 5, 2022, a “Disposition Report” was filed in the circuit court. The report
indicates it was prepared by a social worker. In pertinent part, the report indicates respondent’s
mother agreed with the “treatment team *** that it would be beneficial for [respondent] to be
ordered for court enforced medications.”
¶7 C. Hearing on the Petition for Involuntary Treatment
¶8 On August 9, 2022, the circuit court conducted a hearing on the petition for
involuntary treatment. Respondent appeared with appointed counsel. She later voluntarily left, and
her presence was waived by her counsel. The State prosecuted the petition. The court heard
testimony from Dr. Stokes. Dr. Stokes was qualified as an expert witness in the field of psychiatry.
She noted it was her first time testifying in court.
¶9 According to Dr. Stokes, on July 29, 2022, respondent appeared at her mother’s
home “disorganized, acting bizarrely, [and] striking her head against the sidewalk.” Days earlier,
there were also instances of respondent exposing herself. Respondent’s mother contacted a Peoria
County crisis unit, and respondent was brought to UnityPoint. Dr. Stokes began treating
respondent on August 1, 2022.
¶ 10 Dr. Stokes reviewed respondent’s medical history. Respondent had been diagnosed
with a psychiatric illness since at least 2013. Her diagnoses included bipolar I disorder, generalized
anxiety disorder, and psychosis. Since 2013, respondent had episodes “consistent with mania,
depression.” In late March 2019, respondent was hospitalized at UnityPoint. At that time, she was
involuntarily administered per court order 600 milligrams of lithium nightly, five milligrams of
olanzapine twice daily, and melatonin. Respondent was “stabilized” on the medications and then
discharged from the hospital in mid-April 2019. Dr. Stokes noted respondent’s records mentioned
“hospitalizations at a hospital called Hartgrove” following the 2019 hospitalization at UnityPoint,
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but Dr. Stokes did not have any records from that hospital and respondent was unable to provide
a related history. Respondent’s records also indicated she had followed up with a nurse practitioner
and was prescribed ziprasidone (or Geodon), methylphenidate, lorazepam, and venlafaxine. Dr.
Stokes noted respondent, as opposed to her provider, chose to discontinue taking those
medications. Dr. Stokes also noted respondent’s medical history indicated she had suffered a side
effect from ziprasidone, involuntary facial movement.
¶ 11 Dr. Stokes testified about respondent’s symptoms and behaviors since being
admitted to UnityPoint. Respondent exhibited delusions. She believed she was (1) the “Messiah,”
(2) “under astral attacks,” (3) being “injected with formaldehyde,” and (4) being poisoned through
food and water. Respondent would voluntarily drop to the ground and violently shake her body
“to shake the evil out or to stop astral attacks from happening to her.” Respondent was barely
eating, drinking, or sleeping, and she was experiencing psychological and physical distress. She
was unable to care for or protect herself.
¶ 12 Dr. Stokes opined respondent’s “symptoms [were] most consistent with [b]ipolar 1
disorder, currently manic with psychotic features.” Dr. Stokes considered partial hospitalization
and outpatient care but concluded those options would not be appropriate. She concluded treatment
with medications was appropriate. Respondent was provided with a written list of medications.
The list addressed the medications’ benefits, risks, and potential side effects. Dr. Stokes testified
respondent was unable “to participate in a meaningful conversation surrounding her diagnosis or
treatment options” and had shown a lack of understanding or insight into her situation due to her
mental illness. Respondent ultimately refused medication.
¶ 13 Dr. Stokes concluded respondent, as a result of her mental illness, lacked the
capacity to make a reasoned decision about her treatment and was in states of suffering and
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deterioration. Dr. Stokes also concluded the involuntary administration of psychotropic
medications and related testing and imaging to respondent for a period of up to 90 days would be
the least restrictive form of treatment. As a result, she directed her staff to file the petition for
involuntary treatment, which she signed. The petition was identified as an exhibit. Dr. Stokes
opined the medications listed in the petition would help return respondent to baseline and alleviate
her symptoms and behaviors.
¶ 14 Dr. Stokes testified respondent’s treatment would commence with the
administration of lithium and olanzapine, medications which respondent had previously tolerated
well and agreed to take upon an improvement in her symptoms. Dr. Stokes explained lithium was
a mood stabilizer, which would help with respondent’s mania, while olanzapine would help with
respondent’s psychotic symptoms. When asked about potential side effects of the two medications
being administered together, Dr. Stokes testified, “They’re commonly used together and safe to
administer together.”
¶ 15 As for the other medications listed in the petition for involuntary treatment, Dr.
Stokes explained they were selected as alternatives in the event respondent was not tolerating the
primary medications or her mania or psychotic symptoms were not resolving. Dr. Stokes indicated
the medications were generally either mood stabilizers to treat mania or antipsychotics to treat
psychotic symptoms. She explained the antipsychotics had potential metabolic and movement side
effects, while the mood stabilizers had potential metabolic, sedating, and “waking” side effects.
Dr. Stokes testified:
“[T]he reason for the number of medications is not knowing her
history of her other previous medication trials, it gives the
opportunity to adequately treat her with the medication that she
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tolerates. Not that we will go through that many medications, but
that we have the option if we needed to change medications.”
She noted the medications could be changed immediately depending on the response therefrom.
Dr. Stokes opined the benefits of the treatment plan outweighed its risks.
¶ 16 At the conclusion of both the direct and cross-examinations, Dr. Stokes was asked
about respondent having a healthcare POA. On direct examination, Dr. Stokes, upon being asked
if she made a good faith attempt to determine if respondent had a healthcare POA, testified, “I
believe that we discovered recently that she does have a healthcare [POA]. I think it’s her
mother[.]” On cross-examination, Dr. Stokes, upon being asked again if respondent had a
healthcare POA, testified: “I read in the notes that her—I believe it was her mother ***. I have not
seen the document to confirm that.”
¶ 17 In closing, respondent’s counsel argued the State had not proven the benefits of the
treatment outweighed its harm because it had not elicited sufficient testimony about the alternative
medications—“you kind of need to know what [the] specific *** medications do,” “why they are
needed,” and “what their side effects are.” In so arguing, counsel acknowledged Dr. Stokes likely
included several alternatives to avoid having to file additional petitions but maintained the Mental
Health Code required an individualized treatment plan. The State, in response, argued:
“Dr. Stokes *** testified *** [respondent] would be started on the
lithium and [olanzapine] based on the history of these working. And,
you know, this isn’t anything new. I mean, you know, the hospital—
the doctor will—when we do these hearings all the time this is, you
know, doctor—you know, these petitions always list medications,
you know, that are intended to be used for backup purposes. So[,] I
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note that there is a lot of medications listed in the petition, and I
understand that, but when Dr. Stokes testified she is going to start
off with lithium and [olanzapine] and if those don’t work she will
have the option of using other medications if needed.
And I think *** [respondent’s counsel] may have answered
his own question in that if you only mark those two and one of them
doesn’t work, we are going to have to file—a new petition is going
to be filed, and we are going to have to come back and do this all
over again. So[,] I understand [counsel’s] concern about, you know,
kind of the kitchen sink approach and just listing all of them. But I
think if you look back at Dr. Stokes’ testimony, she, you know,
starting off with lithium and [olanzapine] based on [respondent’s]
history, this is an individualized plan and there [are] medications
listed *** as a backup if needed. I don’t think this is anything new.
And so, again, I just think that the benefits of this plan certainly
outweigh the side effects. I think Dr. Stokes’ testimony is pretty
clear on that.”
¶ 18 Based upon the evidence and arguments presented, the circuit court granted the
petition for involuntary treatment and entered an order authorizing Dr. Stokes and her staff to
involuntarily administer the identified medications and related testing and imaging to respondent
for a period not to exceed 90 days. In reaching its decision, the court, in pertinent part,
acknowledged the potential existence of a healthcare POA and noted it should be made part of the
court file following a good faith attempt to receive a copy of it. With respect to the medications
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sought, the court acknowledged it was “an awful lot of medications” and “Dr. Stokes didn’t talk
about each and every one and what they would do.” Even so, the court noted, it was “generally
aware and familiar with the chart and what are the antipsychotics and what are the mood
stabilizers.” It further commented:
“[Respondent’s counsel] is not wrong when he says, yeah, but, you
know, there should be detailed testimony about that list of
medications in each and every single case. And there should be
ideally. But the question is, under the statute is this an individualized
treatment plan? And I think it is. And to create a record, I think it is
because the doctor explained clearly what her likely—you know,
what she is going to do in terms of giving medications and what she
is going to do if [respondent] doesn’t tolerate the medications well
or they are not working.”
The court acknowledged respondent had experienced a side effect of one of the alternative
medications.
¶ 19 D. Notice of Appeal
¶ 20 On September 1, 2022, respondent’s counsel filed a notice of appeal. Thereafter,
counsel filed in this court an unopposed motion to supplement the record with a copy of
respondent’s healthcare POA, which we granted. The POA indicates it was executed in June 2020
and respondent’s mother is the named agent. The POA provides the named agent with the authority
to, amongst other things, “decid[e] to accept, withdraw, or decline treatment for any physical or
mental health condition of mine, including life-and-death decisions.”
¶ 21 This appeal followed.
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¶ 22 II. ANALYSIS
¶ 23 On appeal, respondent, in a 54-page appellant’s brief, argues the circuit court’s
order finding her subject to involuntary treatment should be reversed because (1) the State and Dr.
Stokes failed to fulfill their pleading obligations related to respondent having a healthcare POA
and (2) the State failed to prove the benefits of the treatment plan outweighed its harms and other
less restrictive services had been explored and found inappropriate. In so arguing, respondent
acknowledges the appeal is moot due to the expiration of the order but asserts her claims are
reviewable under the capable-of-repetition-yet-evading-review and public-interest exceptions to
the mootness doctrine.
¶ 24 In response, the State, in a six-page appellee brief, argues this appeal should be
dismissed as moot or, alternatively, “[a]ssuming that an exception to the mootness doctrine
applies,” the circuit court’s order may be reversed on two independent grounds established by
existing case law: (1) due to Dr. Stokes’s failure to attach respondent’s healthcare POA to the
petition for involuntary treatment and (2) due to the court’s authorization of the involuntary
administration of a medication known to have previously caused an adverse side effect. With
respect to its alternative argument, the State further contends, because the order may be reversed
on either of the identified grounds, this court should not consider the other claims raised by
respondent because any decision would amount to an advisory opinion and dicta.
¶ 25 A. Mootness
¶ 26 It is undisputed this appeal is moot. “An appeal is moot when the issues involved
in the [circuit] court no longer exist because intervening events have made it impossible for the
reviewing court to grant the complaining party effectual relief.” In re Benny M., 2017 IL 120133,
¶ 17, 104 N.E.3d 313. Here, the order authorizing the involuntary treatment of respondent expired
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long ago. As a result, this court cannot grant respondent effectual relief, and the appeal is moot.
See, e.g., In re Mary Ann P., 202 Ill. 2d 393, 401, 781 N.E.2d 237, 242 (2002) (finding the appeal
was moot where the involuntary treatment order had expired).
¶ 27 Despite being moot, respondent invites this court to consider this appeal and the
issues raised herein under the capable-of-repetition-yet-evading-review and public interest
exceptions to the mootness doctrine. The State provides no analysis with respect to the
applicability of these exceptions.
¶ 28 To warrant review under the capable-of-repetition-yet-evading-review exception to
the mootness doctrine, “(1) the challenged action must be too short in duration to be fully litigated
before its end, and (2) there must be a reasonable expectation that the complaining party will be
subject to the same action again.” In re Craig H., 2022 IL 126256, ¶ 20, 215 N.E.3d 143. A clear
showing of each of these elements must be made. In re J.T., 221 Ill. 2d 338, 350, 851 N.E.2d 1, 8
(2006).
¶ 29 The first element of the capable-of-repetition-yet-evading-review exception has
been met because the 90-day duration of the involuntary treatment order was too brief to allow for
appellate review. See, e.g., Craig H., 2022 IL 126256, ¶ 21. The second element of the exception
has also been met because respondent’s medical history and the actions and representations of Dr.
Stokes, the State, and the circuit court establish a reasonable expectation respondent will be subject
to the same actions again.
¶ 30 As to the second element, we recognize challenges to the sufficiency of the
evidence will ordinarily “not suffice because any subsequent case involving the respondent will
involve different evidence and will require an independent determination of the sufficiency of that
evidence.” In re Marcus S., 2022 IL App (3d) 170014, ¶ 45, 191 N.E.3d 1273 (citing In re Alfred
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H.H., 233 Ill. 2d 345, 360, 910 N.E.2d 74, 83 (2009)). The challenges to the sufficiency of the
evidence raised by respondent, however, turn on the type of evidence the State must present to
meet its statutory burden, rather than the weight of the evidence presented. And, again, the actions
and representations of Dr. Stokes, the State, and the circuit court establish a reasonable expectation
respondent will be subject to the same actions again.
¶ 31 Accordingly, we conclude respondent has shown this appeal and the issues raised
herein warrant review under the capable-of-repetition-yet-evading-review exception to the
mootness doctrine.
¶ 32 We also conclude respondent has shown this appeal and the issues raised herein
warrant review under the public-interest exception to the mootness doctrine. “The criteria for the
public interest exception are (1) the public nature of the question, (2) the desirability of an
authoritative determination for the purpose of guiding public officers, and (3) the likelihood that
the question will recur.” McHenry Township v. County of McHenry, 2022 IL 127258, ¶ 50, 201
N.E.3d 550. A clear showing of each of these elements must be made. Id.¶ 33 The first element of the public-interest exception has been met because the
questions raised in this appeal are matters of public concern. See In re Robert S., 213 Ill. 2d 30,
46, 820 N.E.2d 424, 434 (2004) (“[T]he procedures courts must follow to authorize the involuntary
medication of mental health patients involve matters of ‘substantial public concern.’ ” (quoting
Mary Ann P., 202 Ill. 2d at 402)). The second element of the exception has also been met because
rulings on the issues presented will aid lower courts and those involved with petitions for
involuntary treatment. Last, the third and final element of the exception has been met because the
circumstances in this case are likely to recur in other involuntary-treatment cases. See, e.g., In re
A.W., 381 Ill. App. 3d 950, 955, 887 N.E.2d 831, 836 (2008).
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¶ 34 Because we conclude this appeal and the issues raised herein warrant review under
both the capable-of-repetition-yet-evading-review and public interest exceptions to the mootness
doctrine, we reject the State’s argument that this appeal should be dismissed as moot.
¶ 35 We also reject the State’s contention that, because it has identified two independent
grounds upon which it believes this court may reverse, we should not consider the other claims
raised by respondent. The State does not cite any authority supporting its contention, thereby
forfeiting it. Country Preferred Insurance Co. v. Groen, 2017 IL App (4th) 160028, ¶ 12, 69
N.E.3d 911; Ill. S. Ct. R. 341(h)(7), (i) (eff. Oct. 1, 2020). Moreover, the State’s rationale for its
contention—that any decision on the other claims would amount to an advisory opinion and
dicta—seems circular; any decision rendered under an exception to the mootness doctrine “is
essentially an advisory one.” Mary Ann P., 202 Ill. 2d at 401-02.
¶ 36 B. Compliance With the Pleading Requirements
¶ 37 We now turn to the issues raised by respondent in this appeal. We begin with
respondent’s argument that the State and Dr. Stokes failed to fulfill their pleading obligations
related to respondent having a healthcare POA. The State’s only response to this argument is that,
in accordance with In re Denetra P., 382 Ill. App. 3d 538, 904 N.E.2d 44 (2008), reversal is
warranted due to Dr. Stokes’s failure to attach the healthcare POA to the petition.
¶ 38 As an initial matter, respondent did not raise the alleged pleading errors before the
circuit court. She nevertheless suggests the alleged errors should be reviewed on the merits or as a
matter of ineffective assistance of counsel. The State, in response, does not assert forfeiture, nor
does it address respondent’s claim of ineffective assistance. Instead, the State addresses the alleged
errors, at least in part, on the merits and concedes error warranting reversal. Based upon the
response of the State and the fact any forfeiture is a limitation on the parties and not this court, we
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will proceed with a review on the merits. See, e.g., In re Amanda H., 2017 IL App (3d) 150164,
¶ 33, 79 N.E.3d 215.
¶ 39 Respondent’s argument that the State and Dr. Stokes failed to fulfill their pleading
obligations related to respondent having a healthcare POA presents questions of law, subject to
de novo review. Marcus S., 2022 IL App (3d) 170014, ¶ 27. Specifically, respondent’s argument
presents questions as to the requirements under the statute and the impact of the failure to comply
with those requirements.
¶ 40 In this case, Dr. Stokes filed a petition seeking authorization for the involuntary
treatment of respondent pursuant to section 2-107.1 of the Mental Health Code (405 ILCS 5/2-
107.1 (West 2022)), which the State then prosecuted. Section 2-107.1(a-5)(1) states, in pertinent
part, as follows:
“Any person 18 years of age or older, including any guardian, may
petition the circuit court for an order authorizing the administration
of psychotropic medication and electroconvulsive therapy to a
recipient of services. The petition shall state that the petitioner has
made a good faith attempt to determine whether the recipient has
executed a power of attorney for health care under the Powers of
Attorney for Health Care Law or a declaration for mental health
treatment under the Mental Health Treatment Preference
Declaration Act and to obtain copies of these instruments if they
exist. If either of the above-named instruments is available to the
petitioner, the instrument or a copy of the instrument shall be
attached to the petition as an exhibit. The petitioner shall deliver a
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copy of the petition, and notice of the time and place of the hearing,
to the respondent, his or her attorney, any known agent or attorney-
in-fact, if any, and the guardian, if any, no later than 3 days prior to
the date of the hearing. Service of the petition and notice of the time
and place of the hearing may be made by transmitting them via
facsimile machine to the respondent or other party. Upon receipt of
the petition and notice, the party served, or the person delivering the
petition and notice to the party served, shall acknowledge service. If
the party sending the petition and notice does not receive
acknowledgement of service within 24 hours, service must be made
by personal service.” Id. § 2-107.1(a-5)(1).
Section 3-101(a), in turn, requires the State to “ensure that petitions, reports[,] and orders are
properly prepared” in proceedings under section 2-107.1. Id. § 3-101(a); see In re Marcus S., 2022
IL App (3d) 160710, ¶ 32 (finding the State failed to fulfill its obligation under section 3-101(a)).
¶ 41 As it applies to this case, the plain language of the Mental Health Code required
Dr. Stokes to plead that she had made a good faith attempt to determine whether respondent had a
healthcare POA and to obtain a copy of the instrument if it existed. Dr. Stokes was further required
to (1) attach the healthcare POA or a copy thereof to the petition as an exhibit if it was available
to her and (2) deliver a copy of the petition and notice of the hearing to “any known agent or
attorney-in-fact.” The State, in turn, was required to ensure the petition filed by Dr. Stokes was
properly prepared. These are, as respondent argues and the State does not dispute, continuing
obligations under the plain language of the Mental Health Code.
¶ 42 Dr. Stokes pleaded she had made a good faith attempt to determine whether
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respondent had a healthcare POA, and no such POA was discovered. At the hearing on the petition
for involuntary treatment, the State inquired about this matter at the conclusion of its direct
examination of Dr. Stokes, presumably believing she would testify consistently with the averment
in the pleading. Dr. Stokes testified, “I believe that we discovered recently that she does have a
healthcare [POA]. I think it’s her mother[.]” On cross-examination, Dr. Stokes further explained:
“I read in the notes that her—I believe it was her mother ***. I have not seen the document to
confirm that.” There was no further inquiry of Dr. Stokes on the matter, and the petition for
involuntary treatment was not amended.
¶ 43 Under the circumstances presented, we find both Dr. Stokes and the State failed to
fulfill their pleading obligations. Sometime after the filing of the petition for involuntary treatment
but prior to the hearing on the petition, Dr. Stokes learned of new information about respondent
potentially having a healthcare POA naming her mother as the healthcare agent. The State also
became aware of this information, albeit that may not have occurred until the hearing on the
petition. Despite the new information, neither Dr. Stokes nor the State moved to amend the
allegations in the petition concerning the efforts made to determine whether respondent had a
healthcare POA and to obtain a copy of it if it existed.
¶ 44 We further find the failure of Dr. Stokes and the State to fulfill their pleading
obligations in this case cannot be said to be harmless. As our supreme court has explained,
evidence of a respondent’s wishes as expressed through a healthcare agent is “often highly relevant
to the determination of whether psychotropic medications should be administered under section 2-
107.1.” Craig H., 2022 IL 126256, ¶ 45. In this case, there were no proffers about any discussions
with respondent’s mother, the then-presumed and now-known healthcare agent of respondent. At
best, we have a statement in a report indicating respondent’s mother agreed with the “treatment
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team *** that it would be beneficial for [respondent] to be ordered for court enforced medications.”
We are not convinced this statement, by itself, is sufficient to find the failure to fulfill the pleading
obligations to be harmless.
¶ 45 Accordingly, we conclude the failure to fulfill the pleading obligations in this case
warrants a reversal of the circuit court’s order. We note this court reached a similar result in
Denetra P., 382 Ill. App. 3d at 540, where (1) the petition for involuntary treatment failed to allege
the petitioner had made a good faith attempt to determine whether the respondent had executed a
healthcare POA and (2) the respondent made averments at both trial and on appeal about the
existence of a healthcare POA. In finding for reversal, we emphasized information about the
healthcare POA was “essential” to a correct application of section 2-107.1. Id. at 545.
¶ 46 While we conclude a reversal is warranted by addressing the issue on the merits
and, thereby, obviating the need to address it as a matter of ineffective assistance, we nevertheless
emphasize it is of “paramount importance” that counsel for respondents in these type of
proceedings—as well as the circuit court—ensure all pleading obligations are met. In re Sharon
H., 2016 IL App (3d) 140980, ¶ 42, 52 N.E.3d 698.
¶ 47 C. Proof of the Statutory Factors
¶ 48 We turn next to respondent’s argument that the State failed to prove the benefits of
the treatment plan outweighed its harms and other less restrictive services had been explored and
found inappropriate. In support of her argument, respondent emphasizes (1) the absence of
information about her healthcare POA, (2) the absence of information about all of the psychotropic
medications for which authorization to administer was sought, (3) the information about one of
the medications having previously caused an adverse side effect, and (4) the information about a
limited medication regimen having previously been administered with positive results. The State’s
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only response to this argument is that, in accordance with In re C.S., 383 Ill. App. 3d 449, 890
N.E.2d 1007 (2008), reversal is warranted due to the authorization of the involuntary
administration of a medication known to have previously caused an adverse side effect.
¶ 49 Respondent’s argument presents challenges to the sufficiency of the evidence.
However, as previously indicated, her challenges turn on the type of evidence the State must
present to meet its statutory burden, rather than the weight of the evidence presented. Under these
circumstances, the questions for review are ones of law, which we review de novo. In re Robert
M., 2020 IL App (5th) 170015, ¶ 37, 145 N.E.3d 767.
¶ 50 The Mental Health code requires “[a] recipient of services *** be provided with
adequate and humane care and services in the least restrictive environment, pursuant to an
individual services plan.” 405 ILCS 5/2-102(a) (West 2022). Section 2-102(a-5) states, in pertinent
part, as follows:
“If the services include the administration of electroconvulsive
therapy or psychotropic medication, the physician or the physician’s
designee shall advise the recipient, in writing, of the side effects,
risks, and benefits of the treatment, as well as alternatives to the
proposed treatment, to the extent such advice is consistent with the
recipient’s ability to understand the information communicated. The
physician shall determine and state in writing whether the recipient
has the capacity to make a reasoned decision about the treatment.
The physician or the physician’s designee shall provide to the
recipient’s substitute decision maker, if any, the same written
information that is required to be presented to the recipient in
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writing. If the recipient lacks the capacity to make a reasoned
decision about the treatment, the treatment may be administered
only (i) pursuant to the provisions of Section 2-107 or 2-107.1 or
(ii) pursuant to a power of attorney for health care under the Powers
of Attorney for Health Care Law or a declaration for mental health
treatment under the Mental Health Treatment Preference
Declaration Act.” Id. § 2-102(a-5).
¶ 51 As it applies to this case, the plain language of the Mental Health Code provided
Dr. Stokes with two alternative routes to administer psychotropic medications to respondent upon
determining respondent lacked the capacity to make a reasoned decision about said treatment:
(1) with the consent of an agent named in a healthcare POA or (2) involuntarily pursuant to a court
order under section 2-107.1. See Craig H., 2022 IL 126256, ¶ 28. Dr. Stokes pursued the latter, a
pursuit that was continued by both Dr. Stokes and the State even after receiving information about
respondent having a healthcare POA.
¶ 52 As our supreme court has explained, section 2-107.1 of the Mental Health Code
(405 ILCS 5/2-107.1 (West 2022)) has been “narrowly tailored” to balance an individual’s liberty
interests with the State’s parens patriae interest in treating persons with mental illness. In re C.E.,
161 Ill. 2d 200, 218, 641 N.E.2d 345, 353 (1994). It sets forth several “factors” which must
established by “clear and convincing evidence” before any order of involuntary treatment may be
issued. 405 ILCS 5/2-107.1(a-5)(4) (West 2022). In pertinent part, the following factors must be
established: (1) “[t]hat the benefits of the treatment outweigh the harm” and (2) “[t]hat other less
restrictive services have been explored and found inappropriate.” Id. § 2-107.1(a-5)(4)(D), (F).
¶ 53 Respondent asserts the State could not prove by clear and convincing evidence that
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the benefits of the treatment outweighed the harm or that other less restrictive services had been
explored and found inappropriate without first exploring information about her healthcare POA.
We agree. As previously indicated, our supreme court has explained that evidence of a
respondent’s wishes as expressed through a healthcare agent is “often highly relevant to the
determination of whether psychotropic medications should be administered under section 2-
107.1.” Craig H., 2022 IL 126256, ¶ 45. In fact, our supreme court has specifically found the
wishes of the respondent “will often be highly pertinent to proof of these two factors.” C.E., 161
Ill. 2d at 220. Where, as here, evidence is introduced of a healthcare POA, including evidence of
the named healthcare agent, we find the State cannot prove that the benefits of the treatment
outweigh the harm or that other less restrictive services have been explored and found
inappropriate without first exploring information about the healthcare POA.
¶ 54 Respondent asserts the State could not prove by clear and convincing evidence that
the benefits of the treatment outweighed the harm without first eliciting testimony about the
benefits and potential side effects of each of the medications for which authorization to administer
was sought, as well as the benefits and potential side effects of multiple of those medications being
administered together. We agree. This court has repeatedly found “the State must produce evidence
of the benefits of each drug sought to be administered as well as the potential side effects of each
drug” in order to prove the benefits of the treatment outweigh the harm. In re Alaka W., 379 Ill.
App. 3d 251, 263, 884 N.E.2d 241, 250 (2008) (citing In re Louis S., 361 Ill. App. 3d 774, 782,
838 N.E.2d 226, 234 (2005)). Similarly, this court has also found, if the petitioner intends to
administer, or anticipates the potential administration of, medications in combination, the State
must present evidence about the benefits and potential side effects of those medications being
administered together. In re H.P., 2019 IL App (5th) 150302, ¶ 34, 130 N.E.3d 382. Contrary to
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the circuit court’s ruling in this case, producing said evidence is not just ideal, but rather, required.
Where, as here, the State fails to produce evidence of the benefits and potential side effects of each
medication sought to be administered, as well as evidence of the benefits and potential side effects
of multiple of those medications being administered together, we find the State cannot prove that
the benefits of the treatment outweighed the harm.
¶ 55 Respondent asserts, and the State concedes, the State could not prove by clear and
convincing evidence that the benefits of the treatment outweigh the harm where a medication for
which authorization to administer is sought is known to have previously caused an adverse side
effect to the recipient. We disagree. C.S., upon which both respondent and the State rely, does not
stand for such a broad proposition. In that case, the order was reversed because there was evidence
of prior adverse side effects from a medication and no evidence of its benefits. C.S., 383 Ill. App.
3d at 453. While we agree the State cannot satisfy its burden where a medication is known to have
previously caused an adverse side effect and there is no evidence of its benefits, we reject the
assertion that the State cannot prove that the benefits of the treatment outweigh the harm based
simply upon evidence of a medication having an adverse effect on the recipient.
¶ 56 Respondent asserts the State could not prove by clear and convincing evidence that
other less restrictive services had been explored and found inappropriate where there was
information about a limited medication regimen previously administered with positive results. We
disagree. It is beyond dispute the repeated administration of the same medication regimen does not
guarantee the same results. It is also beyond dispute medicine is constantly evolving. It follows
that information about a limited medication regimen previously administered with positive results
does not preclude deviation from that medication regimen. Indeed, in this case, setting aside the
other deficiencies, Dr. Stokes indicated treatment would commence with the medication regimen
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previously administered to respondent, and she would then turn to the alternative medications in
the event respondent was not tolerating the primary medications or her mania or psychotic
symptoms were not resolving.
¶ 57 With respect to respondent’s final assertion, we agree with respondent that the
State’s characterization of the approach taken by Dr. Stokes to selecting the medications for which
she sought authorization to administer—the “kitchen sink approach”—is concerning, especially if
it is true. See 405 ILCS 5/2-102(a) (West 2022) (requiring a recipient of services “be provided
with adequate and humane care and services in the least restrictive environment, pursuant to an
individual services plan”). We also agree the sheer number of medications for which authorization
to administer was sought, even if they were alternative medications, is suspect. In any event, we
cannot definitively say the State could not have carried its burden had it presented testimony about
all of the medications for which authorization was sought. We ultimately remain confident a proper
application of the statute will prevent orders authorizing the administration of a cascade of
psychotropic medications. See Mary Ann P., 202 Ill. 2d at 412 (noting the statute’s requirements
militate against courts issuing orders permitting an unlimited number of medications to be
administered).
¶ 58 Accordingly, we conclude a reversal of the circuit court’s order is also warranted
due to the failure to prove the benefits of the treatment plan outweighed its harms and other less
restrictive services had been explored and found inappropriate.
¶ 59 III. CONCLUSION
¶ 60 For the reasons stated, we reverse the circuit court’s order.
¶ 61 Reversed.
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In re Brittany F., 2024 IL App (4th) 220788Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 22-MH-154;
the Hon. Daniel M. Cordis, Judge, presiding.
Attorneys Veronique Baker, Vincent Cail, Ann Krasuski, and Laurel Spahn,
for of Illinois Guardianship and Advocacy Commission, of Hines, for
Appellant: appellant.
Attorneys Jodi M. Hoos, State’s Attorney, of Peoria (Patrick Delfino, David
for J. Robinson, and James Ryan Williams, of State’s Attorney’s
Appellee: Appellate Prosecutor’s Office, of Springfield, for the People.
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