In re Laura H.

Filed 9/28/10 NO. 4-09-0862

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: LAURA H., a Person Found ) Appeal from
Subject to the Administration of ) Circuit Court of
Psychotropic Medication, ) Sangamon County
THE PEOPLE OF THE STATE OF ILLINOIS, ) No. 09MH832
Petitioner-Appellee, )
v. ) Honorable
LAURA H., ) Steven H. Nardulli,
Respondent-Appellant. ) Judge Presiding.
_________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

On November 2, 2009, Dr. Ghassan Bitar filed a petition

for the involuntary administration of psychotropic medications to

respondent, Laura H. After a November 13, 2009, hearing, the

trial court granted the petition.

Respondent appeals, contending the State failed to

prove the following statutory elements necessary for the involun-

tary administration of psychotropic medication: (1) respondent

lacked capacity to make a reasoned decision (405 ILCS

5/2-107.1(a-5)(4)(E) (West 2008)) as she did not receive the

required information about the benefits of the proposed treatment

and its alternatives and (2) all of the proposed medications'

benefits outweighed their harm (405 ILCS 5/2-107.1(a-5)(4)(D)

(West 2008)) because no evidence was presented regarding the side

effects of the nonpsychotropic medications. We reverse.

I. BACKGROUND

Dr. Bitar's petition alleged respondent had a mental

illness and lacked the capacity to give informed consent to the
administration of psychotropic medication, which respondent

needed because she was very paranoid. The petition listed a

first choice medication of olanzapine, and the following list of

alternatives: aripiprazole, quetiapine, risperidone, risperidone

consta, ziprasidone (both by mouth and injection), haloperidol,

haloperidol decanoate, lorazepam, diphenhydramine, and

benztropine. In the common-law record, the petition is preceded

by 33 pages of information regarding the aforementioned medica-

tions.

On November 13, 2009, the trial court held a hearing on

the petition. The testimony relevant to the issues on appeal is

set forth below.

Dr. Bitar testified respondent was court admitted by

the Champaign County circuit court on October 27, 2009. It was

respondent's first admission to McFarland Mental Health Center.

Dr. Bitar was currently treating respondent, who suffered from

schizophrenia. Respondent did not believe she had a mental

illness and refused medication. Dr. Bitar had no prior experi-

ence with respondent and did not know what medications respondent

had taken in the past.

Dr. Bitar explained that all of the medications on the

proposed medication list, except for lorazepam, diphenhydramine,

and benztropine, were in the same class, i.e., antipsychotic

medications. The benefits a patient might realize from

antipsychotic medications included general help with the paranoid

ideas, delusions, and hallucinations. When asked about the side

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effects of such drugs, Dr. Bitar stated the following: "The

symptom might become uncontrolled. The delusion might become--or

resolve; the hallucination would also resolve." As for

lorazepam, Dr. Bitar testified it was an antianxiety drug that he

might use to help with sleep or agitation. Lorazepam could cause

sedation and had a potential for addiction. Dr. Bitar stated the

following about the two other drugs:

"Diphenhydramine and [b]enztropine used

to help with EPS [(extrapyramidal symptoms),]

which is a side effect of anti[]psychotic.

People develop muscle spasm, tremor, [and]

Parkinson sometimes. So most medication help

alleviate side effect. Diphenhydramine is a

little bit sedating so we use it to help with

sleep or in case of agitation."

In Dr. Bitar's opinion, the benefits of the medication outweighed

the risks. He believed the medication would improve respondent's

symptoms. Respondent's symptoms would likely not improve without

the treatment and her condition would continue to deteriorate

without treatment.

Moreover, Dr. Bitar testified he had once tried to talk

with respondent about the side effects of the proposed medica-

tions, and she got angry. Respondent felt Dr. Bitar could not

and should not give her medication. She then left the room.

Respondent had also refused to talk to Dr. Bitar a few other

times. Dr. Bitar testified respondent did receive a written list

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of the side effects. In Dr. Bitar's opinion, medication was the

least-restrictive treatment alternative.

Respondent testified on her own behalf. She stated Dr.

Bitar had approached her about medications one time. During the

meeting, he handed her a bunch of papers and fell asleep.

Respondent stated the bunch was around 20 pages and noted the

involuntary-administration petition looked familiar.

On rebuttal, Dr. Bitar denied ever falling asleep in a

meeting with a patient.

At the conclusion of the hearing, the trial court

granted the petition and allowed the administration of the

medications for 90 days.

That same day, respondent filed a notice of appeal in

substantial compliance with Supreme Court Rule 303 (Official

Reports Advance Sheet No. 15 (July 16, 2008), R. 303, eff. May

30, 2008), and thus this court has jurisdiction under Supreme

Court Rule 301 (155 Ill. 2d R. 301). See In re Steve E., 363

Ill. App. 3d 712, 717, 843 N.E.2d 441, 445 (2006) (proceedings

under the Mental Health and Developmental Disabilities Code (405

ILCS 5/1-100 through 6-107 (West 2004)) are civil matters).

II. ANALYSIS

A. Mootness

Respondent recognizes her case is moot as the order's

90-day period has expired. Generally, Illinois courts do not (1)

address moot questions, (2) render advisory opinions, or (3)

consider issues for which the court's decision will not affect

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the result no matter what the court decides. In re Alfred H.H.,

233 Ill. 2d 345, 351, 910 N.E.2d 74, 78 (2009). However, our

supreme court has recognized exceptions to the mootness doctrine,

including the following: (1) the public-interest exception, (2)

the capable-of-repetition-yet-avoiding-review exception, and (3)

the collateral-consequences exception. See Alfred H.H., 233 Ill.

2d at 355-61, 910 N.E.2d at 80-83. Respondent contends her

arguments fall under the public-interest and collateral-conse-

quences exceptions.

Courts narrowly construe the public-interest exception,

which has the following three criteria: "(1) the question

presented is of a public nature; (2) there is a need for an

authoritative determination for the future guidance of public

officers; and (3) there is a likelihood of future recurrence of

the question." Alfred H.H., 233 Ill. 2d at 355, 910 N.E.2d at

80.

In her first argument, respondent raises the issue of

compliance with section 2-102(a-5) of the Mental Health and

Developmental Disabilities Code (Mental Health Code) (405 ILCS

5/2-102(a-5) (West 2008)). The important liberty interests

involved in involuntary-treatment cases requires strict compli-

ance with statutory procedures. In re A.W., 381 Ill. App. 3d

950, 955, 887 N.E.2d 831, 836 (2008). Moreover, our supreme

court has recognized "the procedures courts must follow to

authorize the involuntary medication of mental[-]health patients

involve matters of 'substantial public concern.'" In re Robert

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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).

This court has already addressed similar questions regarding

compliance with section 2-102(a-5) (see A.W., 381 Ill. App. 3d at

956-57, 887 N.E.2d at 837; In re Louis S., 361 Ill. App. 3d 774,

780, 838 N.E.2d 226, 232 (2005)), and thus this issue's recur-

rence indicates both (1) a need still exists for guidance in this

area and (2) the likeliness of future recurrence in other mental-

health cases. Respondent's second argument shows a need for

clarification of a prior holding, and thus it too presents a

public matter that needs addressed and is likely to recur in

future mental-health cases.

Accordingly, we find respondent has established the

criteria necessary to satisfy the public-interest exception to

the mootness doctrine, and thus we need not address the capa-

ble-of-repetition exception.

B. Receipt of Written Information

Section 2-102(a-5) of the Mental Health Code (405 ILCS

5/2-102(a-5) (West 2008)) provides, in pertinent part, the

following:

"If the services include the administra-

tion of electroconvulsive therapy or

psychotropic medication, the physician or the

physician's designee shall advise the recipi-

ent, in writing, of the side effects, risks,

and benefits of the treatment, as well as

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 alternatives to the proposed treatment, to

the extent such advice is consistent with the

recipient's ability to understand the infor-

mation communicated."

In Louis S., 361 Ill. App. 3d at 779-80, 838 N.E.2d at 231-32,

this court held the State must present clear and convincing

evidence at the hearing on the involuntary-treatment petition of

compliance with the aforementioned statutory provision. We

further noted the following:

"(1) verbal notification is insufficient 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

safeguards of the [Mental Health] Code is

necessary to protect the liberty interests

involved." A.W., 381 Ill. App. 3d at 957,

887 N.E.2d at 837, quoting Louis S., 361 Ill.

App. 3d at 780, 838 N.E.2d at 232-33.

Here, respondent frames her section 2-102(a-5) issue as

both an insufficiency-of-the-evidence claim and a lack-of-

statutory-compliance claim. As to the sufficiency of the evi-

dence, this court will not reverse the trial court's determina-

tion unless it was against the manifest weight of the evidence.

A.W., 381 Ill. App. 3d at 957, 887 N.E.2d at 838. "A judgment

will be considered against the manifest weight of the evidence

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'only when an opposite conclusion is apparent or when the find-

ings 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). Whether substantial compliance with a statutory

provision has taken place presents a question of law, which we

review de novo. Behl v. Gingerich, 396 Ill. App. 3d 1078, 1086,

920 N.E.2d 665, 671 (2009).

Dr. Bitar only testified respondent received a written

list of the side effects. Respondent only testified she received

a stack of papers from Dr. Bitar. No evidence at trial showed

respondent received written notice of the risks and benefits of

the treatment as well as alternatives to the proposed treatment.

This court has emphasized "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, bene-

fits, and alternatives to the proposed treatment." In re Dorothy

J.N., 373 Ill. App. 3d 332, 336, 869 N.E.2d 413, 416 (2007). The

State notes the stack of papers in the common-law record regard-

ing the medications that were the subject of the involuntary-

treatment petition. However, those papers were not admitted into

evidence at the involuntary-treatment hearing. A reviewing court

must determine sufficiency of the evidence at the hearing based

upon the evidence presented to the trial court. See In re

Schaap, 274 Ill. App. 3d 497, 501, 654 N.E.2d 1084, 1086 (1995)

(noting a reviewing court "must determine the issues before it

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based upon the evidence presented to the trial court"). Since

the State failed to present any evidence respondent was informed

in writing of the risks and benefits of the proposed treatment,

as well as alternatives to the proposed treatment, the trial

court's involuntary-treatment order was against the manifest

weight of the evidence. See A.W., 381 Ill. App. 3d at 957, 887

N.E.2d at 838.

Since the important public issue here is actual compli-

ance with section 2-102(a-5) of the Mental Health Code (405 ILCS

5/2-102(a-5) (West 2008)), we next address that issue. As noted,

the State indicates Dr. Bitar personally gave respondent the

stack of documents in the common-law record regarding the medica-

tions stated in the involuntary-treatment petition, and asserts

those papers complied with the requirements of section 2-102(a-

5). We disagree the documents constitute compliance with section

2-102(a-5) of the Mental Health Code (405 ILCS 5/2-102(a-5) (West

2008)).

At the hearing, Dr. Bitar testified the general benefit

of an antipsychotic medication is to help with the paranoid

ideas, delusions, and hallucinations. He also testified the

benefits of lorazepam, an antianxiety drug, is to help with sleep

or agitation. The benefit of both diphenhydramine and

benztropine is to address the extrapyramidal symptoms that are

side effects of an antipsychotic drug. Other benefits of

diphenhydramine are helping with sleep or agitation. However,

the documents in the common-law record state the name of the

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drug, what conditions it treats, how to take and store the drug,

warnings, and side effects. For example, the olanzapine pages

state it treats psychotic disorders, such as schizophrenia or

bipolar disorder. The page does not state it helps address

paranoid ideas, delusions, and hallucinations. The sheets for

lorazepam state it treats anxiety, anxiety with depression, and

insomnia (trouble sleeping). Agitation is not mentioned at all.

For diphenhydramine, the sheets say it treats symptoms caused by

hay fever, allergies, or the common cold and may be used as a

nighttime sleep aid. Last, the benztropine documents state it

treats Parkinson's disease or the side effects of other drugs.

Nowhere in the document does it explain what side effects it

addresses. Importantly, none of the aforementioned documents

indicate how the specific drug will be used to benefit respon-

dent's mental-health issues as they are either vague, e.g.,

benztropine, or treat multiple conditions, e.g., diphenhydramine.

"Before a patient can make a reasoned decision about

medication, 'it is first necessary to be informed about the risks

and benefits of the proposed course of medicine.'" Louis S., 361

Ill. App. 3d at 780, 838 N.E.2d at 232, quoting John R., 339 Ill.

App. 3d at 783, 792 N.E.2d at 354. As in this case, it is common

for the respondent to decline to talk with the physician about

the proposed treatment. Thus, it is important for the written

information to specifically address the benefits for the respon-

dent.

Additionally, the documents are just a stack of drug

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handouts. The documents do not explain the treatment alterna-

tives available to respondent. Here, Dr. Bitar sought to admin-

ister olanzapine used to address paranoid ideas, delusions, and

hallucinations. First, the olanzapine sheets do not state it is

the first-choice medication, and the other medications documents

do not indicate they are alternative medications. Respondent had

to reference the petition to determine what was the first choice

and what were the alternatives. Second, none of the other drugs

proposed as alternatives stated they were for the same purpose as

the olanzapine, and some indicate they were clearly for the

treatment of other issues such as agitation and trouble sleeping.

A stack of papers that includes the first-choice medication and

its proposed alternative medications without any explanation as

to how they were alternatives to the medication sought to be

administered does not adequately explain alternative treatments

as required by section 2-102(a-5). Moreover, we note that, if

nonmedication treatment alternatives were appropriate for respon-

dent, the written information should also have included them

since "treatment" includes more than medication (see 405 ILCS

5/1-128 (West 2008) (defining "treatment")).

Accordingly, we find the written documents provided to

respondent did not state the benefits and treatment alternatives

as required by section 2-102(a-5) of the Mental Health Code (405

ILCS 5/2-102(a-5) (West 2008)). While it was likely clear

respondent needed the administration of psychotropic medication,

it still remains imperative to conduct the proceedings and the

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administration of such medication pursuant to the requirements of

the Mental Health Code (405 ILCS 5/1-100 through 5/6-107 (West

2008)). See Louis S., 361 Ill. App. 3d at 783, 838 N.E.2d at

234.

C. Nonpsychotropic Medications

Respondent also alleges the State failed to present

evidence of the side effects of diphenhydramine and benztropine,

which are both nonpsychotropic medications. The State does not

deny respondent's allegation but asserts it did not have to

produce such evidence at the hearing since the medications are

nonpsychotropic. Whether the State has to present evidence as to

the side effects of nonpsychotropic medication is a question of

law, and thus our review is de novo. See Behl, 396 Ill. App. 3d

at 1086, 920 N.E.2d at 671.

In A.W., 381 Ill. App. 3d at 959, 887 N.E.2d at 839,

this court rejected the argument a trial court's order authoriz-

ing involuntary treatment failed to comply with the Mental Health

Code (405 ILCS 5/2-107.1(a-5)(6) (West 2006)) because it autho-

rized the administration of a nonpsychotropic medication. In

doing so, we stated the psychiatrist has sole discretion in

determining whether to list in the petition a nonpsychotropic

medication used to counteract side effects of the psychotropic

medication. A.W., 381 Ill. App. 3d at 960, 887 N.E.2d at 840.

We further stated "[i]f the psychiatrist chooses to do so and

testifies as to the nonpsychotropic medication--as happened

here--nothing prohibits the trial court from including the

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nonpsychotropic medication in its order." A.W., 381 Ill. App. 3d

at 960, 887 N.E.2d at 840.

In finding it was proper for the trial court to include

a nonpsychotropic medication in its involuntary-treatment order,

we made a point of requiring the psychiatrist to testify about

the nonpsychotropic medication. By including the medication in

an involuntary-treatment order, the trial court has granted its

approval of the psychiatrist's proposed use of the medication.

Thus, the court should have information about the nonpsychotropic

medication before granting its approval. Clearly, such informa-

tion should include both the benefits and potential side effects

of the medication.

Accordingly, diphenhydramine and benztropine should not

have been included in the involuntary-treatment order for respon-

dent because the State failed to present evidence of any poten-

tial side effects of those drugs.

III. CONCLUSION

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

judgment.

Reversed.

STEIGMANN and POPE, JJ., concur.

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