People v. Dorothy J.N.

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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