People v. 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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