In re Robert F.

Filed 11/9/09 NO. 4-08-0810

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: ROBERT F., a Person Found Subject ) Appeal from
to Involuntary Admission, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Sangamon County
Petitioner-Appellee, ) No. 08MH765
v. )
ROBERT F., ) Honorable
Respondent-Appellant. ) Esteban F. Sanchez,
) Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court:

Respondent, Robert F., appeals from the trial court's order finding that he

was a person subject to involuntary admission and ordering him to be treated for his

mental illness for a period not to exceed 90 days at Springfield Terrace Nursing Home

pursuant to an agreement for alternative treatment. Because the court's order complied

with neither the statute governing involuntary admissions (405 ILCS 5/2-107.1 (West

2008)), nor the statute governing agreed orders for alternative treatment (405 ILCS

5/3-801.5 (West 2008)), we vacate the order as void for want of statutory authority.

I. BACKGROUND

Respondent, a 56-year-old man, has had a long history of mental illness

and has been the subject of prior orders of involuntary admission. On October 10, 2008,

respondent's case coordinator filed a petition for continued involuntary admission at

McFarland Mental Health Center (McFarland) pursuant to section 3-813 of the Mental

Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/3-813
(West 2008)). The petitioner alleged respondent was a person subject to continued

involuntary admission because (1) due to his mental illness, he was reasonably expected

to engage in dangerous conduct (405 ILCS 5/1-119(1) (West 2008)) and (2) the nature of

his mental illness prevented him from understanding his need for treatment and, if he

was not treated, he was reasonably expected to suffer or continue to suffer mental

deterioration or emotional deterioration, or both, to the point that he was reasonably

expected to engage in dangerous conduct (405 ILCS 5/1-119(3) (West 2008)). Attached

to the petition were certificates of examination prepared by Dr. A. M. Eberhardt and

McFarland's Clinical Director, Greg Coughlin.

The same day, Coughlin filed a petition for alternative treatment, alleging

that respondent's condition had improved since July 2008, when the last order of

involuntary commitment was entered against him. The petitioner requested that the

trial court consider placement in an intermediate care facility or a 24-hour supervised

group home. Also filed was an agreement for alternative treatment signed by respon-

dent's sister and guardian, a psychiatrist, Coughlin, and the admissions coordinator at

Springfield Terrace Nursing Home. The agreement provided that, in lieu of hospitaliza-

tion, respondent would (1) take his prescribed medications, (2) comply with prescribed

lab work, (3) meet with his psychiatrist, (4) meet with staff for follow-up appointments,

(5) comply with treatment or risk a return to McFarland, and (6) reside at the facility or

another facility approved by his guardian. On the line designated for respondent's

signature, the clinical director noted that "[Respondent] chose not to sign."

On October 17, 2008, the trial court conducted a hearing on the petition

for involuntary admission. The State moved to amend the petition to include the

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allegations that respondent was a person subject to involuntary admission because (1)

due to his mental illness, he was unable to provide for his basic physical needs so as to

guard himself from serious harm without the assistance of family or outside help and (2)

he was in need of immediate hospitalization for the prevention of such harm. Without

objection, the court allowed the amendment.

Respondent's treating psychiatrist at McFarland, Dr. Kasturi Kripakran,

testified as the State's expert witness. She said respondent was diagnosed with schizo-

phrenia and has suffered from delusions and paranoia. Although respondent has

demonstrated some improvement with treatment, he recently reverted to threatening

Dr. Kripakran. According to Dr. Kripakran, respondent does not believe he has a mental

illness or that he needs medication. But, in her opinion, continuing respondent's

treatment would be in his best interest.

The State posed the following question to the doctor:

"Q. Doctor, do you have an opinion within a reason-

able degree of psychiatric certainty whether because of his

mental illness he is reasonably expected to engage in danger-

ous conduct, which may include threatening behavior or

conduct that places that person or another individual in

reasonable expectation of being harmed? Do you have an

opinion as to that?

A. Yes, I do.

Q. And what is your opinion?

A. I do believe that he is a danger if he does not con-

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 tinue treatment.

Q. And what factual basis do you have for your opin-

ion?

A. Based on his past history and his past repeated

hospitalizations for similar other episodes of aggression.

Q. When you describe his past history, does he have a

long history of violence?

A. Yes."

Dr. Kripakran testified that on September 19, 2008, respondent told her

"he had a KPO order against [her], which means kill to protect order." He also told the

doctor he had "people who could carry out his order." In her opinion, respondent's

mental illness prevented him from caring for his basic physical needs without assistance.

She said in the last several years, respondent has resided only in nursing homes or

McFarland. She said, to a reasonable degree of psychiatric certainty, she believes

respondent is unable to understand his need for treatment and without treatment, he

will suffer or continue to suffer mental or emotional deterioration. If he deteriorates, he

will be reasonably expected to engage in dangerous conduct. Dr. Kripakran said she

considers respondent in need of continued treatment for the prevention of harm to

himself or others.

The prosecutor introduced the written agreement for alternative treat-

ment, which was marked and introduced into evidence as exhibit No. 1. Dr. Kripakran

described Springfield Terrace as the least-restrictive environment for respondent's

treatment.

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 On cross-examination, Dr. Kripakran said respondent had lived in an

apartment on his own several years ago, but that "failed because of his delusional

beliefs." He had collected feces and urine in the apartment and was evicted.

Dr. Kripakran recommended for respondent a nursing home rather than

McFarland because "he has not shown any dangerous behavior, and he has been able to

take care of his ADLs [(activities of daily living)] with supervision." She opined that if he

did well in the nursing home and continued his treatment and medication, he had a

good chance of succeeding in an independent environment in the community.

Respondent testified on his own behalf as follows:

"Q. There's a proposal today to have you live at

Springfield Terrace Nursing Home--

A. Uh-huh.

Q. --for a period of not to exceed 90 days.

A. Uh-huh.

Q. What do you think about that?

A. Well, the ADLs that they spoke of, I can take care

of myself. I take showers on my own, and I can eat on my

own. I can cook for myself. I have done it before.

The--evidently, I was in the apartment in 2004, and I

was having fun walking across the street. I was acting like

(indicating), you know, a little curtsy, having fun and going

across the street, and somebody saw me doing that. I was

just having a good time.

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 Q. So is it your belief that–

A. I wasn't doing anything.

Q. --you could live in an apartment right now?

A. Yes. But somebody saw me doing it, and they

didn't like it, so they filed a petition to admit me. That's how

I ended up here in '04. And I have been going in and out of

nursing homes since October '04.

Q. Has that been helpful to you?

A. No, not at all. It's a strain. It's stressful. I give

other people freedom. I don't understand why people don't

give me freedom.

Q. Do you have an apartment you would go live in if

you left here today?

A. Not that I know of, not right now. It would have to

be arranged.

***

Q. Bob, if you were to be in the nursing home and did

well, would you--do you think it would be possible for you to

live in the community?

A. Well, what--what the doctor said was--and Scott

said was about mental deterioration. That happens with the

Haldol over a period of time when someone doesn't need it.

And the stress and the brain, I want my own freedom. Plus

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 the Haldol Decanoate, it can cause a little bit of deteriora-

tion. Yes, it can.

Q. So you believe the medications are harming you at

this particular time?

A. Yes, I do. Right now they are. I have my--I don't

have anything in the city–

Q. Would you agree to live at Springfield Terrace–

A. Yeah.

Q. --for a little while?

A. Yeah. I can go for a little while. They need to

correct what they did to me because they filed a wrong com-

plaint against me and put me in here."

Both parties rested. After considering the evidence and arguments of

counsel, the trial court found as follows:

"The [c]ourt finds that the petition has been proved by

clear and convincing evidence.

In particular, the [c]ourt finds that [respondent] is a

person who is suffering from mental illness, and as a result

of his illness, he is unable to provide for his basic physical

needs so as to guard himself from serious harm without the

assistance of his family or outside help.

Moreover, I find that he--as a result of his illness, he's

unable to understand the need for treatment as testified. He

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 doesn't believe that he needs medication. And if not treated,

he's reasonably expected to suffer or continue to suffer men-

tal deterioration or emotional deterioration or both to the

point that he is reasonably expected to engage in dangerous

conduct.

In light of the doctor's testimony that he has not been

dangerous in the recent weeks, I find that as of today there is

insufficient evidence to establish by clear and convincing

evidence that he is expected to engage in dangerous conduct

at the present time.

I find that he's subject to hospitalization or to treat-

ment at a facility. In this particular case, I'm going to honor

that agreement of all the parties and order that he be hospi-

talized in the care of Springfield Terrace here in Springfield,

Illinois, under the agreement. And the agreement is incorpo-

rated as part of this order, and that that stay at Springfield

Terrace shall not exceed 90 days."

The court entered a written order consistent with his oral pronouncement. This appeal

followed.

II. ANALYSIS

Respondent claims section 1-119(3) of the amended Mental Health Code

(405 ILCS 5/1-119(3) (West 2008)), which provides one definition of a person subject to

involuntary admission, is unconstitutional as violative of the due-process clause and is

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impermissibly vague. Before delving into the constitutional standards of who qualifies

as a person subject to involuntary admission under the Mental Health Code, we are

mindful of the supreme court's admonition regarding constitutional questions. The

court has repeatedly stated that "cases should be decided on nonconstitutional grounds

whenever possible, reaching constitutional issues only as a last resort." In re E.H., 224

Ill. 2d 172, 178, 863 N.E.2d 231, 234 (2006). Finding that this requirement "seem[ed] to

fall not infrequently on deaf ears," the court added specific requirements within the

supreme court rules to address the court's admonition. E.H., 224 Ill. 2d at 178, 863

N.E.2d at 234; 210 Ill. 2d R. 18(c)(4) (eff. September 1, 2006). Complying with the

supreme court's admonition and the dictates of Rule 18, we have found the issues

presented here can be resolved on nonconstitutional grounds. Therefore, we will not

discuss, in the context of this case, the constitutionality of section 1-119(3) (405 ILCS

5/1-119(3) (West 2008)).

We note this case, like the majority of involuntary-admission cases where

the orders extend for only 90 days, is moot. Ordinarily, we are precluded from review-

ing moot issues because we are unable to provide any meaningful relief. However, we

may review moot issues if they qualify for review under the public-interest exception to

the mootness doctrine. We find this case falls within the exception due to the following

criteria: "(1) the public nature of the question; (2) the desirability of an authoritative

determination for the purpose of guiding public officers; and (3) the likelihood that the

question will recur." In re Mary Ann P., 202 Ill. 2d 393, 402, 781 N.E.2d 237, 242-43

(2002).

The procedures that must be followed before an individual, who is

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suffering from a mental illness, is ordered to be involuntarily admitted for treatment is a

matter of public concern. Mary Ann P., 202 Ill. 2d at 402, 781 N.E.2d at 243. That

concern, coupled with the nature of the order entered in this case, satisfies this court

that the requirements for review are appropriate as an exception to the mootness

doctrine. This is not simply a case reviewing the sufficiency of the evidence. Instead,

this case presents an issue of statutory interpretation that affects the procedural

requirements of a respondent's admission for treatment under the Mental Health Code.

See In re Alfred H.H., 233 Ill. 2d 345, 356, 910 N.E.2d 74, 81 (2009). The statute at

issue is a relatively new piece of legislation and has been discussed in only one published

opinion (see In re Michael H., 392 Ill. App. 3d 965, 975-79, 912 N.E.2d 703, 711-14

(2009)). Therefore, an authoritative determination regarding the interpretation of this

statute will be helpful in the future guidance of public officers. See In re Phillip E., 385

Ill. App. 3d 278, 282, 895 N.E.2d 33, 39 (2008). And, due to the short duration of an

order for an involuntary admission, the issues raised here are likely to recur without an

opportunity for appellate review.

For the reasons that follow, we find the trial court lacked the statutory

authority to enter the type of order entered in this case. In its order, the trial court (1)

found respondent subject to involuntary admission, and (2) incorporated an agreement

for alternative treatment. These two remedies are mutually exclusive and possess their

own procedural requirements within the Mental Health Code. We will review the

procedural requirements for each remedy below, keeping in mind the following:

"The procedural safeguards enacted by the legislature are not

mere technicalities. Rather, they are intended to safeguard

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 the important liberty interests of the respondent which are

involved in mental[-]health cases. ***

***

*** The total disregard for the legislatively estab-

lished procedures is contrary to the balancing of interests

established by the [Mental Health] Code and should not be

condoned." In re Luttrell, 261 Ill. App. 3d 221, 230, 633

N.E.2d 74, 81-82 (1994).

A. Procedural Requirements for Involuntary Admission

Involuntary admission into a mental-health facility involves a "'massive

curtailment of liberty.'" In re Barbara H., 183 Ill. 2d 482, 496, 702 N.E.2d 555, 561

(1998), quoting Vitek v. Jones, 445 U.S. 480, 491, 63 L. Ed. 2d 552, 564, 100 S. Ct. 1254,

1263 (1980). In this vein, the legislature enacted the Mental Health Code, which sets

forth specific procedures that will serve to protect the respondent's interests in order to

"ensure that Illinois citizens are not subjected to such services improperly." Barbara H.,

183 Ill. 2d at 496, 702 N.E.2d at 561-62. A petition for involuntary admission must

assert that the respondent is suffering from a condition that requires immediate

hospitalization in order to protect himself or others from harm. 405 ILCS 5/3-601(a)

(West 2008). The petition must be supported by two certificates of examination. 405

ILCS 5/3-703 (West 2008). The trial court must conduct a hearing within five days of

the petition being filed. 405 ILCS 5/3-611 (West 2008). At the hearing, the respondent

has a right to counsel (405 ILCS 5/3-805 (West 2008)), the right to be present (405

ILCS 5/3-806(a) (West 2008)), and the right to a jury trial (405 ILCS 5/3-802 (West

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2008)). The State must prove the allegations in the petition by clear and convincing

evidence. 405 ILCS 5/3-808 (West 2008).

An initial order for involuntary admission is of short duration; it is valid

for only 90 days. 405 ILCS 5/3-813(a) (West 2008). Despite the short duration, an

order for involuntary admission into a hospital is a serious deprivation of the respon-

dent's liberty in that it (1) subjects him to psychiatric care that he presumably does not

want to receive, and (2) restricts his ability to come and go as he wishes. Michael H.,

392 Ill. App. 3d at 972, 912 N.E.2d at 709. "Thus, the procedures set forth in the Code

are a legislative recognition that civil commitment is a deprivation of personal liberty.

The purpose of the procedures is to provide adequate safeguards against unreasonable

commitment." In re James, 191 Ill. App. 3d 352, 356, 547 N.E.2d 759, 761 (1989).

B. Procedural Requirements for Agreed Orders for Treatment

On the other hand, a respondent who agrees to admission at an outpatient-

alternative-treatment facility cannot be subject to involuntary admission. See 405 ILCS

5/3-801.5(d) (West 2008). There is an inherent inconsistency in the concept of agreeing

to something that is involuntary. See Michael H., 392 Ill. App. 3d at 973, 912 N.E.2d at

710. In 2006, our legislature enacted section 3-801.5 (405 ILCS 5/3-801.5 (West 2008))

to address agreed orders for outpatient treatment. The statute provides that (1) the trial

court must be satisfied that the agreement is in the respondent's and the public's best

interests (405 ILCS 5/3-801.5(a)(1) (West 2008)), (2) the court must advise respondent

of the conditions and be satisfied that the respondent understands and agrees to the

conditions (405 ILCS 5/3-801.5(a)(2) (West 2008)), (3) the court must advise the

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proposed custodian and ensure his agreement (405 ILCS 5/3-801.5(a)(3) (West 2008)),

(4) generally speaking, the agreed order may not include a requirement that the

respondent be hospitalized (405 ILCS 5/3-801.5(a)(4) (West 2008)), and (5) no order

may include the administration of psychotropic medication (405 ILCS 5/3-801.5(a)(5)

(West 2008)).

As a limited exception to the no-hospitalization requirement set forth

above, the statute does provide that a custodian may have the authority to admit a

respondent to a hospital if he fails to comply with the conditions of the agreed order.

405 ILCS 5/3-801.5(b) (West 2008). However, if the respondent is admitted pursuant

to such a provision, he must be treated as a voluntary admittee and be immediately

advised of his right to request a discharge. 405 ILCS 5/3-801.5(b) (West 2008). Finally,

and most importantly, such an agreed order cannot be construed as a finding that the

respondent is subject to involuntary admission. 405 ILCS 5/3-801.5(d) (West 2008).

C. Trial Court's Order

The order in this case found respondent subject to involuntary commit-

ment and, at the same time, incorporated an agreement for voluntary treatment at an

alternative treatment facility. The Mental Health Code does not authorize such an

order. In fact, the order "flies in the face of this entire statutory scheme." Michael H.,

392 Ill. App. 3d at 979, 912 N.E.2d at 714. "If the respondent agrees to be admitted, he

must be admitted on a voluntary basis." Michael H., 392 Ill. App. 3d at 979, 912 N.E.2d

at 714. A trial court cannot find respondent subject to involuntary admission while, at

the same time, setting forth conditions pursuant to an agreement for alternative

treatment, conditions that are statutorily prohibited in involuntary-admission proceed-

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ings.

The only provision in the Mental Health Code that addresses both an

involuntary and voluntary status is section 3-801 (405 ILCS 5/3-801 (West 2008)).

There, if a respondent requests voluntary admission at the time a petition for involun-

tary admission is pending, the trial court may dismiss the petition for involuntary

admission upon proof that dismissal would be in the respondent's and the public's best

interests. 405 ILCS 5/3-801 (West 2008). If the court determines that the petition

should not be dismissed, the case proceeds subject to all procedural safeguards applica-

ble to involuntary-admission cases. See Michael H., 392 Ill. App. 3d at 978-79, 912

N.E.2d at 714. Both proceedings cannot move forward at the same time.

The trial court's order did not satisfy the statutory requirements for

involuntary-admission orders. For example, one of the conditions set forth in the

agreement incorporated into the order required respondent to "take all his medications

as prescribed." This condition is strictly prohibited in involuntary-admission orders.

See 405 ILCS 5/2-107 (West 2008) (a respondent has the right to refuse medications).

In order to involuntarily administer medications, the court must conduct a separate

hearing with separate procedural safeguards. See 405 ILCS 5/2-107.1 (West 2008). No

such hearing was conducted in this case. Thus, respondent cannot be ordered to "take

all his medications as prescribed" without further inquiry.

Likewise, the trial court's order incorporating an agreement for alternative

treatment did not satisfy the statutory requirements for agreed orders. Nothing in the

record suggests that respondent agreed to comply with, or was even aware, of the

conditions set forth in the order. See 405 ILCS 5/3-801.5(a)(2) (West 2008). Respon-

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dent did not sign the document nor was he advised of the specific conditions set forth in

the agreement. Respondent agreed to live at Springfield Terrace for "a little while" but

that was the extent of his agreement.

Because the trial court's order did not comply with the statutory require-

ments for either an involuntary-admission order or an agreed order, the order is void for

want of statutory authority. In re Weimer, 219 Ill. App. 3d 1005, 1009, 580 N.E.2d 182,

184 (1991). The Mental Health Code makes clear that a respondent cannot be treated as

both an involuntary and voluntary patient in the same proceedings. The State argues

that this court should simply strike the portions of the agreement that do not comply

with orders for involuntary admission. Due to the fundamental liberty interests at stake

in involuntary-admission proceedings, we will not pick and choose which of the trial

court's requirements implicate respondent's due-process rights and which do not. For

the reasons stated, we reverse the order finding respondent to be subject to both

involuntary admission and the conditions of the agreement for alternative treatment. In

light of this conclusion, we need not consider respondent's additional arguments.

III. CONCLUSION

For the foregoing reasons, we vacate the trial court's judgment as void.

Vacated.

POPE, J., concurs.

MYERSCOUGH, J., specially concurs in part and dissents in part.

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 MYERSCOUGH, J., specially concurring in part and dissenting in part:

I specially concur in part and respectfully dissent in part. I agree the trial

court should not have adopted the "agreed" order for alternative treatment because the

court had ordered involuntary commitment and respondent had not agreed to or been

advised of a voluntary commitment and the terms set forth in that "agreed" order.

However, the court's order is not void in full. The court's involuntary commitment was

correct and should stand. This matter should, therefore, be remanded for further

hearing on placement.

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