In re Atul R.

No. 4-07-0703 Filed 6/13/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: Atul R., a Person Found Subject ) Appeal from
to Involuntary Treatment, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Sangamon County
Petitioner-Appellee, ) No. O7MH501
v. )
ATUL R., ) Honorable
Respondent-Appellant. ) George H. Ray,
) Judge Presiding.
_________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

Following a July 2007 hearing, the trial court found

respondent, Atul R., 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, and (2) the trial court's order authoriz-

ing involuntary treatment failed to comply with the Mental Health

and Developmental Disabilities Code (Code) (405 ILCS 5/2-107.1(a-

5)(1) (West 2006)) because his criminal defense attorney was not

notified of the petition. Because we agree with respondent's

second argument, we reverse.

Respondent was found unfit to stand trial on a charge

not specified in the record. He was admitted to the McFarland

Mental Health Center (MMHC). In July 2007, Sreehari Patibandla,

respondent's psychiatrist at MMHC, 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) Geodon (80 to

240 milligrams per day), (2) lithium (600 to 2,100 milligrams per

day), and (3) lorazepam (2 to 8 milligrams per day). The peti-

tion also requested the use of certain blood tests necessary for

the safe and effective administration of the requested medica-

tions.

At the hearing on the petition, which was held later in

July 2007, Patibandla testified that respondent had been diag-

nosed with bipolar disorder. As a result of that mental illness,

respondent developed delusional thoughts and threatening behav-

ior. Patibandla explained that during the previous seven days,

respondent had been involuntarily medicated. Respondent had made

statements that he would "mess up" staff members and "statements

of killing." Respondent told Patibandla that he felt the pres-

ence of "the evil angels" in the hospital and was going to kill

them. Following the medication, respondent experienced improved

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sleep and less "pressured" speech patterns. Patibandla opined

that respondent lacked the capacity to give informed consent as

to his treatment because he did not think he was mentally ill or

needed medication.

Patibandla then testified that in the

involuntary-treatment petition, he had requested (1) Geodon,

lithium, and lorazepam as the first-choice medications and (2)

Zyprexa, Abilify, Seroquel, valproic acid, and Trileptal as

alternative medications. Patibandla opined that the medications

would allow respondent to sleep better and "[h]is energy level

would be more in tune with everyone else." Further, the medica-

tions would "help with the delusional thinking" and allow respon-

dent to "rationally converse."

Patibandla acknowledged that the suggested "mood

stabilizers" had possible side effects. He explained that

respondent previously had received multiple doses of Geodon

without any side effects. Patibandla also stated that respondent

would be monitored for possible side effects through certain

testing and procedures. Patibandla opined that the potential

benefits of the proposed medications clearly outweighed the

potential harm if respondent did not receive them. Patibandla

further stated that other less-invasive treatment was inappropri-

ate 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

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respondent.

Respondent interjected during counsel's cross-examina-

tion of Patibandla that his former guru was "the Devil himself."

Respondent stated that he was "the second coming of Jesus

Christ," a messenger of Christ, and "Nicodemus in my past life."

Respondent was dismissed from medical school "because of Luci-

fer's direct involvement with my life." He believed "Lucifer"

wanted to destroy him because he represented "the truth of the

second coming of Jesus Christ." Further, respondent stated he

did not have a "violent intention" when he committed armed

robbery, explaining that he "deliberately used a BB gun."

On direct examination, respondent testified that the

medications sought to be administered were very dangerous and

"extremely sedative." They caused respondent to function as a

"zombie." He did not believe he was mentally ill. Respondent

would "relish the opportunity of psychotherapy." Respondent

testified that he was not violent and did not threaten anyone.

Based on the evidence, the trial court found "the

treatment requested is needed and would be beneficial to the

patient."

This appeal followed.

As an initial matter, on March 20, 2008, the State

filed a motion to cite supplemental authority, In re Alfred H.H.,

379 Ill. App. 3d 1026 (2008). On March 28, 2008, respondent

responded to the State's motion requesting this court deny the

motion. We ordered respondent's response to the State's motion

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taken with the case and now deny it.

Respondent argues that the trial court's order autho-

rizing involuntary treatment failed to comply with the Code

because his criminal defense attorney was not notified of the

petition. Before considering the merits of this issue, we

address two preliminary matters. Specifically, we consider

whether the issue is moot and whether the respondent waived

review of the issue (more specifically referred to as forfeiture

and procedural default (People v. Corrie, 294 Ill. App. 3d 496,

506, 690 N.E.2d 128, 135 (1998))).

First, the issue is moot. The underlying judgment,

entered by the trial court on July 27, 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.'"' [Citations.]"

Felzak v. Hruby, 226 Ill. 2d 382, 392, 876 N.E.2d 650, 657-58

(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

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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,

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., 379 Ill. App. 3d 1026, 1028, ___

N.E.2d ___, ___ (2008), 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

regard to the type of cases before it, we

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 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."

In this case, respondent argues that the trial court's

involuntary-treatment order failed to comply with the Code (405

ILCS 5/2-107.1(a-5)(1) (West 2006)) because his criminal defense

attorney was not notified of the petition. 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, 799 (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 'sub-

stantial 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-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 estab-

lished the criteria necessary to satisfy the public-interest

exception to the mootness doctrine. Because we so conclude, we

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need not address whether respondent also established the criteria

necessary to satisfy the capable-of-repetition exception to the

mootness doctrine.

Second, we consider whether the issue is waived.

Citing In re Splett, 143 Ill. 2d 225, 572 N.E.2d 883 (1991), the

State contends that the respondent waived review of whether

notice of the petition should have been served on his criminal

defense attorney because he did not raise that issue in the trial

court. In Splett, our supreme court held that proof of formal

notice of the proceeding may be excused when circumstances

demonstrate that actual notice is sufficient. Splett, 143 Ill.

2d at 231-32, 572 N.E.2d at 886. In finding that formal notice

is not necessary if the respondent receives actual notice of the

petition, our supreme court noted that reversal of an order

granting a petition for involuntary commitment is not required if

(1) the respondent and his attorney took part in the proceedings

on the merits and never challenged a procedural defect to which

an objection could and should have been immediately made; (2) the

procedural defect could have been cured easily if a timely

objection had been made; and (3) the procedural defect made no

difference in the end result. Splett, 143 Ill. 2d at 230-31, 572

N.E.2d at 886.

In this case, the result of the proceedings could

indeed affect the respondent's criminal case. See Robert S., 213

Ill. 2d at 57, 820 N.E.2d at 440. Moreover, waiver is a limita-

tion on the parties and not the courts. "[A] reviewing court may

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ignore waiver in order to achieve a just result." In re Janet

S., 305 Ill. App. 3d 318, 320, 712 N.E.2d 422, 423-24 (1999).

Thus, we choose to address the merits of this issue.

Section 2-107.1(a-5)(1) of the Code (405 ILCS

5/2-107.1(a-5)(1) (West 2006)) provides in part:

"The petitioner shall deliver a 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 [three] days prior to

the date of the hearing."

In Robert S., the respondent was found unfit to stand

trial on unknown charges. Robert S., 213 Ill. 2d at 32, 820

N.E.2d at 426. He was subsequently admitted to a mental-health

facility and during his stay there, his treating psychiatrist

petitioned to involuntarily administer psychotropic medication.

Notice of the petition was never served on the respondent's

criminal defense attorney. Following a hearing, the trial court

granted the petition to involuntarily administer psychotropic

medication.

On appeal, our supreme court considered whether pursu-

ant to section 2-107.1(a-5)(1) of the Code, the respondent's

criminal defense attorney was entitled to notice of the petition

to administer psychotropic medication. The court determined that

the respondent's criminal defense attorney was due such notice

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because, at the very least, that attorney was the respondent's

agent, and as such, the plain language of section 2-107.1(a-5)(1)

required that notice be served on him or her. Robert S., 213

Ill. 2d at 57, 820 N.E.2d at 440. In reaching that conclusion,

the court noted:

"Respondent came to be in a mental[-]

health facility because he was found unfit to

stand trial in a criminal proceeding. In

that proceeding, he was represented by an

attorney. All of the parties to this action

were aware of that proceeding. Although the

purpose of the instant proceeding was to

determine whether psychotropic medication

should be forced upon respondent for his own

benefit and/or the safety of those around

him, ultimately, there may be consequences

pertinent to the pending criminal matter.

We note that the language concerning

notification in section 2-107.1(a-5)(1) of

the Code is very broad and general. It re-

fers to notification of, inter alios, a re-

spondent's 'attorney' and 'any known agent,'

without qualification or limitation. We have

previously construed this section to require

notification of 'any other interested parties

to the proceeding.' See In re C.E., 161 Ill.

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 2d [200, 226, 641 N.E.2d 345, 357 (1994)].

In the absence of any restrictive language in

the statute, we believe respondent's criminal

defense attorney qualifies as a party to whom

notice is due. In the very least, criminal

counsel was a 'known agent,' and thus should

have been given notice of this proceeding."

Robert S., 213 Ill. 2d at 56-57, 820 N.E.2d

at 440.

Here, respondent came to be in a mental-health facility

because he was found unfit to stand trial in a criminal proceed-

ing. In that proceeding, he was represented by an attorney. All

of the parties to this action were aware of that proceeding.

Section 2-107.1(a-5)(1) of the Code mandates that an agent for

the respondent must be given notice of a petition seeking to

involuntarily administer psychotropic medication, and our supreme

court has determined that a respondent's criminal defense attor-

ney falls into this category. Thus, the respondent's criminal

defense attorney was entitled to notice of the petition.

Because we reverse the trial court's involuntary-

treatment order, we do not address respondent's remaining argu-

ment.

For the reasons stated, we reverse the trial court's

judgment.

Reversed.

KNECHT and STEIGMANN, JJ., concur.

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