In re A.W.

Filed 4/24/08 NO. 4-07-0489
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: A.W., a Person Found Subject ) Appeal from
to Authorized Involuntary Treatment, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Sangamon County
Petitioner-Appellee, ) No. 07MH309
v. )
A.W., ) Honorable
Respondent-Appellant. ) George H. Ray,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
Following a May 2007 hearing, the trial court found
respondent, A.W., subject to involuntary treatment (405 ILCS 5/2-
107.1 (West 2006)).
Respondent appeals, arguing that (1) the State failed
to prove by clear and convincing evidence that he was subject to
involuntary treatment because no evidence showed that he was
informed, in writing, of the risks and benefits of the recom-
mended treatment, as well as alternatives to the recommended
treatment; (2) the trial court's order authorizing involuntary
treatment failed to comply with the Mental Health and Developmen-
tal Disabilities Code (405 ILCS 5/1-121.1, 1-121.5 (West 2006))
because it authorized specific dosages of psychotropic medication
that were not supported by evidence as to those dosages; and (3)
the court's order failed to comply with the Code (405 ILCS 5/2-
107.1(a-5)(6) (West 2006)) because it authorized the administra-
tion of a nonpsychotropic medication. Because we agree with
respondent's first argument, we reverse.
I. BACKGROUND
In May 2007, Stacey Horstman, respondent's psychiatrist
at McFarland Mental Health Center, filed a petition seeking to
involuntarily administer treatment to respondent. The petition
alleged that (1) respondent (a) had a mental illness, (b) refused
to receive psychotropic medication, and (c) exhibited (i) deteri-
oration of his ability to function, (ii) suffering, or (iii)
threatening behavior; (2) respondent's mental illness had existed
for a period of time marked by the continuing presence of symp-
toms or the repeated episodic occurrence of symptoms; (3) respon-
dent lacked the capacity to make a reasoned decision about the
psychotropic medication; (4) the benefits of the psychotropic
medication clearly outweighed the harm; and (5) other, less-
restrictive services were explored and found inappropriate. The
petition requested the following medications: (1) Olanzapine (5
to 30 milligrams per day), (2) Risperidone "PO" (by mouth) (one
to eight milligrams per day), (3) Risperidone long-lasting
injection (25 to 50 milligrams every 14 days), and (4) Cogentin
(one-half to six milligrams per day). The petition also re-
quested the following testing and procedures necessary for the
safe and effective administration of the requested medications:
(1) "injection for IM [(intramuscular)] administration," and (2)
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certain blood tests.
At the hearing on the petition, which was held later in
May 2007, Horstman testified that respondent had been diagnosed
with schizo-affective disorder, bipolar type. As a result of
that mental illness, respondent developed paranoia, irritability,
auditory hallucinations, and threatening behavior. Horstman
explained that during the previous 10 days, respondent had
"voiced a desire to kill gay people and threatened to kill white
people as well." He also had specifically expressed a desire to
kill his McFarland roommate and some staff members. Horstman
opined that respondent lacked the capacity to give informed
consent as to his treatment. She explained that he (1) had "very
poor insight" into his illness and (2) did not think he was
mentally ill or needed medication.
Horstman then testified that in the involuntary-treat-
ment petition, she had requested (1) Olanzapine as the first-
choice psychotropic medication, (2) Risperidone as an alternative
psychotropic medication, and (3) Cogentin (a nonpsychotropic
medication). Horstman opined that Olanzapine and Risperidone
would "reduce [respondent's] manic and psychotic symptoms, reduce
his paranoia, help him think more clearly, help him have better
insight into his medical illness[,] and to appropriately deal
with his medical conditions." She did not testify as to the
anticipated dosage for either Olanzapine or Risperidone.
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Horstman further opined that Cogentin would be used to reduce the
side effects of the psychotropic medications.
Horstman acknowledged that the suggested psychotropic
medications had possible side effects, including muscle tension,
"restless tremors," weight gain, diabetes, and "tardive
dyskinesia." She explained that respondent previously had
received one dose of Olanzapine without any side effects.
Horstman then testified as follows:
"Q. [PROSECUTOR:] Has he been made
aware of the side effects of these medica-
tions?
A. He's been given written information
but did not allow any verbal discussion and I
don't know that he looked at that informa-
tion.
Q. Did you try to talk with him about
it?
A. Yes.
Q. And did he receive the list of side
effects in writing, is that correct?
A. Yes, they were put in his box for
him."
Horstman also stated that respondent would be monitored for
possible side effects through certain testing and procedures.
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Horstman opined that the potential benefits of the proposed
medications clearly outweighed the potential harm if respondent
did not receive them. She explained that it was likely that the
proposed treatment would provide respondent "some recovery from
his illness." Horstman further stated that other less-invasive
treatment was inappropriate for respondent.
The trial court admitted in evidence the State's
exhibit No. 1, which was a list of medical and nursing staff who
were authorized to administer the requested medications to
respondent.
Respondent testified that prior to his current hospi-
talization, he had lived in a motel and "in the wilderness."
When asked if he was aware that Horstman had filed a petition
seeking to involuntarily administer treatment, respondent testi-
fied as follows: "All they are doing is issuing a--the lawsuit.
It seems like everything is political. I'm a democrat. It
doesn't get any better when the leader was killed. They--I hate
drugs."
Based on the evidence, the trial court found respondent
subject, for a period not to exceed 90 days, to involuntary
administration of the following psychotropic medications: (1)
Olanzapine (5 to 30 milligrams per day), (2) Risperidone "PO"
(one to eight milligrams per day), and (3) Risperidone long-
lasting injection (25 to 50 milligrams every 14 days). The court
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also authorized the administration of Cogentin (one-half to six
milligrams per day), as well as the blood tests and other proce-
dures Horstman requested.
This appeal followed.
II. ANALYSIS
A. The Mootness Doctrine in General
This appeal is moot. The underlying judgment, entered
by the trial court on May 11, 2007, was limited to 90 days, which
have passed.
An issue raised in an otherwise moot appeal may be
addressed when (1) the immediacy or magnitude of the interests
involved in the case warrants the reviewing court's action or (2)
"the issue is '"likely to recur but unlikely to last long enough
to allow appellate review to take place because of the intrinsi-
cally short-lived nature of the controversies."'[Citation.]"
Felzak v. Hruby, 226 Ill. 2d 382, 392, 876 N.E.2d 650, 657
(2007).
The first exception to the mootness doctrine, known as
the public-interest exception, applies only if a clear showing
exists that (1) the question at issue is of "a substantial public
nature," (2) an authoritative determination is needed to guide
public officers in the performance of their duties, and (3) the
circumstances are likely to recur in other cases. Felzak, 226
Ill. 2d at 393, 876 N.E.2d at 658; In re J.T., 221 Ill. 2d 338,
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350, 851 N.E.2d 1, 8 (2006). The public-interest exception must
be "narrowly construed and requires a clear showing of each
criterion." Felzak, 226 Ill. 2d at 393, 876 N.E.2d at 658.
The second exception to the mootness doctrine (the
capable-of-repetition exception) applies only if (1) the chal-
lenged action is of such short duration that it cannot be fully
litigated prior to its cessation and (2) the same complaining
party may reasonably be expected to be subject to the same action
again. Like the public-interest exception, the capable-of-
repetition exception must be narrowly construed and requires a
clear showing of each criterion. J.T., 221 Ill. 2d at 350, 851
N.E.2d at 8.
In In re Alfred H.H., 4-07-0491, slip op. at 3-4 (March
11, 2008), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___, this
court recently discussed the mootness doctrine in mental-health
cases, as follows:
"For the last several years, this court
has rather routinely recognized an exception
to the mootness doctrine in cases involving
involuntary mental-health admission and in-
voluntary mental-health treatment. However,
given the supreme court's clear, consistent,
and recent adherence to the established ex-
ceptions to the mootness doctrine without
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regard to the type of cases before it, we
conclude that Supreme Court of Illinois doc-
trine requires us to determine whether an
otherwise moot appeal comes within an estab-
lished exception to the mootness doctrine."
B. The Public-Interest Exception to the
Mootness Doctrine as Applied in This Case
1. Respondent's Claims That the Involuntary-Treatment
Order Failed To Comply with the Code
In this case, respondent argues, in part, that the
trial court's involuntary-treatment order failed to comply with
the Code (405 ILCS 5/1-121.1, 1-121.5, 2-107.1(a-5)(6) (West
2006)) because it authorized (1) the administration of a
nonpsychotropic medication and (2) specific dosages of
psychotropic medication that were not supported by evidence as to
those dosages. Given that (1) strict compliance with statutory
procedures is required based on the important liberty interests
involved in involuntary-treatment cases (In re Lisa G.C., 373
Ill. App. 3d 586, 590, 871 N.E.2d 794, 798 (2007)) and (2) our
supreme court has stated that "the procedures courts must follow
to authorize the involuntary medication of mental[-]health
patients involve matters of 'substantial public concern'" (In re
Robert S., 213 Ill. 2d 30, 46, 820 N.E.2d 424, 434 (2004),
quoting In re Mary Ann P., 202 Ill. 2d 393, 402, 781 N.E.2d 237,
243 (2002)), respondent's arguments regarding the involuntary-
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treatment order's compliance with the Code constitute questions
of public importance. In addition, answers to respondent's
arguments will provide an authoritative determination to guide
public officers in the performance of their duties in mental-
health cases. Finally, the circumstances in this case are likely
to recur in other involuntary-treatment cases. Accordingly, we
conclude that respondent clearly established the criteria neces-
sary to satisfy the public-interest exception to the mootness
doctrine. Because we so conclude, we need not address whether
respondent also established the criteria necessary to satisfy the
capable-of-repetition exception to the mootness doctrine.
2. Respondent's Claim That the Involuntary-Treatment
Order Was Not Supported by Sufficient Evidence
Respondent also argues that the State failed to prove
by clear and convincing evidence that he was subject to involun-
tary treatment. In Alfred H.H., slip op. at 4-6, ___ Ill. App.
3d at ___, ___ N.E.2d at ___, this court concluded that a routine
sufficiency-of-the-evidence argument in a mental-health case did
not come within either exception to the mootness doctrine.
Nonetheless, because we are addressing the merits of respondent's
statutory-compliance arguments under the public-interest excep-
tion, we also will consider the merits of respondent's
sufficiency-of-the-evidence argument.
C. Respondent's Arguments on the Merits
1. Sufficiency of the Evidence To Support the Involuntary
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Administration of Psychotropic Medication
Respondent first argues that the trial court's finding
that he was subject to involuntary administration of psychotropic
medication was against the manifest weight of the evidence.
Specifically, he contends that the State failed to show, by clear
and convincing evidence, that he lacked the capacity to make a
reasoned decision about the requested medications because no
evidence showed that he was informed, in writing, of the risks
and benefits of the recommended treatment, as well as alterna-
tives to the recommended treatment. We agree.
Pursuant to section 2-107.1(a)(4) of the Code (405 ILCS
5/2-107.1(a)(4) (West 2006)), the involuntary administration of
psychotropic medication may be ordered if the State proves, by
clear and convincing evidence, the presence of the following
factors: (1) the respondent has a serious mental illness; (2)
because of that mental illness, the respondent exhibits any one
of the following: (a) deterioration of his ability to function,
(b) suffering, or (c) threatening behavior; (3) the illness has
persisted for a period marked by the continuing presence of
symptoms or the repeated episodic occurrence of these symptoms;
(4) the benefits of the treatment outweigh the harm; (5) the
respondent lacks the capacity to make a reasoned decision about
the treatment; and (6) other, less-restrictive services have been
explored and found inappropriate. In addition, section 2-102(a-
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5) of the Code (405 ILCS 5/2-102(a-5) (West 2006)) 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
treatment, to the extent such advice is con-
sistent with the recipient's ability to un-
derstand the information communicated."
In In re Louis S., 361 Ill. App. 3d 774, 780, 838
N.E.2d 226, 232 (2005), this court held that the State must
present clear and convincing evidence that the respondent re-
ceived written notification of the side effects, risks, and
benefits of the treatment, as well as alternatives to the pro-
posed treatment, as required by section 2-102(a-5) of the Code.
In so holding, we noted that (1) verbal notification is insuffi-
cient to ensure a respondent's due-process rights, (2) "the right
to written notification is not subject to a harmless-error
analysis," and (3) strict compliance with the procedural safe-
guards of the Code is necessary to protect the liberty interests
involved. Louis S., 361 Ill. App. 3d at 780, 838 N.E.2d at 232-
33. In In re Dorothy J.N., 373 Ill. App. 3d 332, 336, 869 N.E.2d
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413, 416 (2007), this court reaffirmed our holding in Louis S.
We adhere to our holdings in Louis S. and Dorothy J.N.
The trial court must find evidence of each statutory
element to authorize the involuntary administration of
psychotropic medication. Louis S., 361 Ill. App. 3d at 779, 838
N.E.2d at 231. We will not reverse the trial court's determina-
tion as to the involuntary administration of psychotropic medica-
tion unless it was against the manifest weight of the evidence.
In re Gail F., 365 Ill. App. 3d 439, 446, 849 N.E.2d 448, 454
(2006). "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, arbi-
trary, 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).
Although Horstman's petition seeking to involuntarily
treat respondent indicated that she had advised respondent, in
writing, of the risks and benefits of the proposed treatment, she
did not testify to that effect. Nor did Horstman testify that
respondent was provided with written notification of alternatives
to the proposed treatment. Instead, she testified only that she
provided respondent with written notification of the side effects
of the proposed treatment by placing the information in respon-
dent's "box." Because the State failed to present any evidence
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that respondent was informed of the risks and benefits of the
proposed treatment, as well as alternatives to the proposed
treatment, we conclude that the trial court's involuntary-treat-
ment order was against the manifest weight of the evidence.
Accordingly, we reverse the court's order.
In so concluding, we note that respondent does not
contend that the State failed to provide written notification of
the side effects of the proposed treatment, apparently conceding
that Horstman's placing the written information in his "box" was
sufficient. Contrary to respondent's concession, simply placing
the written notification in a respondent's "box" (or anywhere
other than in the respondent's hands--or at least an attempt to
place the notification in his hands) is not sufficient. Instead,
we urge the psychiatrist or her designee to follow the procedure
suggested by Justice Steigmann in his special concurrence in
Dorothy J.N. See Dorothy J.N., 373 Ill. App. 3d at 337-39, 869
N.E.2d at 418 (Steigmann, J., specially concurring). In particu-
lar, (1) the psychiatrist or her designee who comes into contact
with the respondent should have prepared, in advance, a written
list of the side effects, risks, and benefits of the proposed
treatment, as well as alternatives to the proposed treatment; (2)
during the psychiatrist's examination of the respondent, she
should present a copy of the list to the respondent, thus comply-
ing with the requirement that the respondent be advised, in
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writing, of that information "to the extent such advice is
consistent with the recipient's ability to understand the infor-
mation communicated" (405 ILCS 5/2-102(a-5) (West 2006)); and (3)
the psychiatrist or her designee should attempt to explain the
list's contents to the respondent.
Although we reverse the trial court's involuntary-
treatment order, we address respondent's remaining arguments
because their resolution will provide an authoritative determina-
tion to guide public officers in the performance of their duties
in mental-health cases.
2. Respondent's Claim That the Involuntary-Treatment
Order Was Not Supported by Evidence as to
Specific Dosages of Psychotropic Medication
Respondent argues that the trial court's order autho-
rizing involuntary treatment failed to comply with the Code (405
ILCS 5/1-121.1, 1-121.5 (West 2006)) because it authorized
specific dosages of psychotropic medications that were not
supported by evidence as to those dosages. We agree.
Section 2-107.1(a-5)(6) of the Code provides that an
involuntary-treatment order shall "specify the medications and
the anticipated range of dosages that have been authorized." 405
ILCS 5/2-107.1(a-5)(6) (West 2006). Although the Code does not
explicitly require the State to establish by clear and convincing
evidence the proposed medications and the anticipated range of
dosages, section 2-107.1(a-5)(4)(D) (405 ILCS 5/2-107.1(a-
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5)(4)(D) (West 2006)) provides that the State must prove by clear
and convincing evidence that the benefits of the treatment
outweigh the harm. In Louis S., 361 Ill. App. 3d at 781, 838
N.E.2d at 233, quoting In re Len P., 302 Ill. App. 3d 281, 286,
285, 706 N.E.2d 104, 109, 108 (1999), this court noted that (1)
the "'type of medication used is a necessary component of'"
section 2-107.1(a-5)(4)(D) and (2) courts have "'generally
required some evidence of the medications used.'" We adhere to
Louis S. and further hold that the State must present evidence as
to the anticipated range of dosages of the proposed psychotropic
medication. To hold otherwise would mean that--as here--an
involuntary-treatment order could be entered even though no
evidence was presented to support the ordered dosages.
In so holding, we reject the State's contention that it
is sufficient if the petition for involuntary treatment lists the
specific requested dosages. Absent (1) the trial court's (a)
taking judicial notice of the anticipated dosages listed in the
petition or (b) admitting in evidence the petition for the
purpose of establishing the anticipated dosages or (2) testimony
that the proposed psychotropic medications are requested in the
dosages as they are listed in the petition, the petition's
listing of anticipated dosages of the proposed psychotropic
medication does not suffice.
3. Respondent's Claim That the Involuntary-Treatment
Order Improperly Authorized the Administration
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of a NonPsychotropic Medication
Respondent also argues that the trial court's order
authorizing involuntary treatment failed to comply with the Code
(405 ILCS 5/2-107.1(a-5)(6) (West 2006)) because it authorized
the administration of Cogentin, a nonpsychotropic, side-effect-
relieving medication. Specifically, he contends that (1) the
Code authorizes the involuntary administration of psychotropic
medications and (2) Cogention is not a psychotropic medication.
We disagree.
In In re M.T., 371 Ill. App. 3d 318, 324-25, 862 N.E.2d
1079, 1084-85 (2007), the First District rejected the converse
argument--that is, that an involuntary-treatment order should be
reversed because the counteracting, side-effect-relieving medica-
tion was not requested in the petition or authorized by the trial
court. We agree with M.T. that nothing in the Code requires that
an involuntary-treatment petition or an involuntary-treatment
order set forth proposed nonpsychotropic medications.
In addition, nothing in the Code prohibits (1) the
petitioner from listing proposed nonpsychotropic medications in
the involuntary-treatment petition or (2) the trial court from
including such medications in its involuntary-treatment order,
provided that testimony is presented regarding such medications.
Simply put, in enacting the portions of the Code addressing
involuntary treatment, the legislature was concerned with proce-
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dures related to the involuntary administration of (1)
psychotropic medications, (2) electroconvulsive therapy, and (3)
"testing and procedures" related to the safe administration of
psychotropic medications or electroconvulsive therapy. 405 ILCS
5/1-121.5 (West 2006). The legislature was not attempting to
interject itself into the practice of medicine by dictating when
a treating psychiatrist can administer medications to relieve
side effects of psychotropic medications. See generally Mary Ann
P., 202 Ill. 2d at 406, 781 N.E.2d at 245 (noting that "the
diagnosis and treatment of mental health disorders is a '"highly
specialized area of medicine which is better left to the ex-
perts."' [Citation.]"). Thus, we hold that it is within the
psychiatrist's sole discretion whether to list the counteracting,
side-effect-relieving, nonpsychotropic medications in the peti-
tion. If the psychiatrist chooses to do so and testifies as to
the nonpsychotropic medication--as happened here--nothing prohib-
its the trial court from including the nonpsychotropic medication
in its order.
In so holding, we reject respondent's contention that
if a proposed psychotropic medication causes side effects, the
only recourse under the Code is to discontinue the administration
of that medication. Accepting respondent's contention would (1)
severely restrict the psychotropic medications that are available
to treat mental-health patients and (2) interfere with psychia-
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trists' practice of medicine.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment.
Reversed.
APPLETON, P.J., and COOK, J., concur.
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