In re Jonathan P.

No. 2-07-0610 Filed: 4-1-10
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

In re JONATHAN P., Alleged to be a Person
) Appeal from the Circuit Court
Subject to Involuntary Treatment ) of Kane County.
)
) No. 07--MH--32
)
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Jonathan P., ) James C. Hallock,
Respondent-Appellant). ) Judge, Presiding.
______________________________________________________________________________

JUSTICE HUTCHINSON delivered the opinion of the court:

Respondent, Jonathan P., appealed from the trial court's order authorizing the involuntary

administration of psychotropic medication to respondent for up to 90 days pursuant to section

2--107.1 of the Mental Health and Developmental Disabilities Code (the Code) (405 ILCS

5/2--107.1 (West 2006)). Although the order had expired, we found review of the case appropriate

under the capable-of-repetition-yet-evading-review mootness exception, and we reversed the order.

In re Jonathan P., 386 Ill. App. 3d 981 (2008). In the exercise of its supervisory authority, our

supreme court has directed us to vacate our opinion and reconsider the matter in light of its decision

in In re Alfred H.H., 233 Ill. 2d 345 (2009), to determine whether a different result is warranted.

Having done so, we adhere to our prior determination that review of the case is appropriate under

the capable-of-repetition-yet-evading-review mootness exception, and we reverse.

At the hearing on the involuntary treatment petition, Dr. Husain testified that she was

respondent's psychiatrist at the Elgin Mental Health Center. Respondent had been diagnosed with
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"bipolar one disorder, unspecified, with rapid cycling," a serious mental illness. Due to the illness,

respondent suffered from grandiose delusions, his mood was volatile, and he exhibited poor

judgment. Respondent had been hospitalized twice in the past. Respondent was previously ordered

to take psychotropic medication and, as a result, his behavior improved, he was less disruptive, and

he became fit to stand trial. When respondent discontinued the medication, his condition

deteriorated.

In her petition for involuntary treatment, Husain requested to administer four primary

psychotropic medications and two alternative medications. Specifically, Husain petitioned to

administer ziprasidone, orally (80 to 160 milligrams per day), ziprasidone, intramuscularly (10 to

30 milligrams per day), clonazepam (2 to 4 milligrams per day), and valproic acid (1,000 to 2,000

milligrams per day). (Because the petition listed ziprasidone in pill form and in injectable form

separately, we will treat oral ziprasidone and injectable ziprasidone as separate medications for

purposes of this decision.) The petition also listed quetiapine (300 to 800 milligrams per day) and

Prolixin (10 to 25 milligrams per day) as alternative medications if ziprasidone was not effective.

At the hearing, Husain testified that respondent was previously treated with Geodon and

risperidone. (Our research reveals that Geodon is the brand name for ziprasidone.) Respondent

benefited from these medications, but he complained of side effects from risperidone. Thus, Husain

testified that she did not want to administer risperidone, but rather was seeking to administer 300 to

800 milligrams per day of Seroquel and 10 to 25 milligrams per day of Prolixin or fluphenazine.

(Apparently, Seroquel is the brand name for quetiapine, although this was not made clear from the

testimony; Seroquel and quetiapine are used interchangeably throughout.) The State then asked

Husain: "The other two medications prior to this?" Husain responded: "[z]iprasidone, 80 to 60

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milligrams orally and [r]isperidone, two to 16 milligrams per day orally." (Presumably, this refers

to the dosages Husain administered previously to respondent, since Husain specifically testified that

she was not seeking to administer risperidone, due to its side effects.) Husain testified inconsistently

as to which were primary medications and which were alternative medications. Lastly, Husain

testified that she was seeking authorization for blood testing to safely administer the medication.

On cross-examination, Husain testified for the first time that she was also petitioning for

clonazepam, which initially she stated was the generic name for risperidone. She then clarified that

they were two different medications. Clonazepam is an antianxiety medication. Husain also testified

that risperidone was included on the first page of the petition, but she made clear that she was not

seeking to administer risperidone, due to its side effects. Risperidone appears on page two of the

petition, as a medication respondent had received in the past.

Husain gave evidence of what she deemed to be the appropriate maximum and minimum

dosages of two medications, namely Seroquel and Prolixin. She did not testify about valproic acid,

and she did not testify about the appropriate dosages of clonazepam and ziprasidone.

The trial court discussed the specific statutory factors necessary for the involuntary

administration of psychotropic medication and found that the State proved the factors by clear and

convincing evidence. The court further found that "the medication to be administered shall be as

described by the doctor in her testimony and in the range of dosages described by the doctor in her

testimony." The court also stated that the hospital staff "will be allowed to run blood tests to check

the safe administration of the medication."

The trial court entered an order allowing Husain to administer the following medications to

respondent for 90 days: "[z]iprasidone 80-160 milligrams po/day, [z]iprasidone 10milligrams-

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30milligrams IM/day, [q]uetiapine 300-800 milligrams po/day, [f]luphenazine 10-25 milligrams po/

IM." The order left blank what testing and lab procedures were authorized.

Soon after, respondent noticed that the petition was missing the page that requested the

testing deemed essential for the safe and effective administration of the psychotropic medications.

Based on this defect in the petition, respondent made an oral motion to dismiss the petition. The trial

court denied the motion to dismiss, granted the State leave to file an amended petition, and continued

the matter for "consideration" of the amendment. The court stayed the involuntary treatment order

and, on the order itself, the court crossed out the authorized medications.

On May 25, 2007, the trial court granted the State's motion to amend the petition, finding that

"the pleadings now conform to the proof." On June 15, 2007, the court denied respondent's motion

to dismiss and motion to reconsider. The court lifted the stay, ruling that the medication order would

take effect immediately. Respondent filed a timely notice of appeal.

On appeal, respondent contends that the trial court's order authorizing the involuntary

administration of psychotropic medication should be reversed because the treatment order is legally

invalid and unsupported by the evidence. Before addressing the merits, we note that the issues are

moot because the 90-day period covered by the trial court's order has expired. See In re Robert S.,

213 Ill. 2d 30, 45 (2004). "An appeal is considered moot where it presents no actual controversy or

where the issues involved in the trial court no longer exist because intervening events have rendered

it impossible for the reviewing court to grant effectual relief to the complaining party." In re J.T.,

221 Ill. 2d 338, 349-50 (2006). Generally, courts of review do not decide moot questions, render

advisory opinions, or consider issues where the result will not be affected regardless of how those

issues are decided. In re Barbara H., 183 Ill. 2d 482, 491 (1998). Reviewing courts, however,

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recognize exceptions to the mootness doctrine, such as the public interest exception, applicable

where the case presents a question of public importance that will likely recur and whose answer will

guide public officers in the performance of their duties, and an exception for cases involving events

of short duration that are capable of repetition, yet evading review. J.T., 221 Ill. 2d at 350.

We determine that this case falls within the capable-of-repetition exception. This exception

has two requirements. "First, the challenged action must be of a duration too short to be fully

litigated prior to its cessation." Alfred H.H., 233 Ill. 2d at 358. "Second, there must be a reasonable

expectation that 'the same complaining party would be subjected to the same action again.' " Alfred

H.H., 233 Ill. 2d at 358, quoting Barbara H., 183 Ill. 2d at 491. "This means that the present action

and a potential future action must have a substantial enough relation that the resolution of the issue

in the present case would have some bearing on a similar issue presented in a future case involving

the respondent." In re Val Q., 396 Ill. App. 3d 155, 160 (2009), citing Alfred H.H., 233 Ill. 2d at

360.

First, the challenged action was obviously too short to be fully litigated during the pendency

of the order. See Alfred H.H., 233 Ill. 2d at 358. Second, the issues presented here, and any

resolution thereof, would bear on a subsequent case involving respondent. In Alfred H.H., our

supreme court found that the capable-of-repetition mootness exception did not apply in that

involuntary commitment case, because the respondent challenged whether the specific facts that were

established during the hearing were sufficient to prove that the respondent was a danger to himself

or to others. Alfred H.H., 233 Ill. 2d at 360. Because the facts would necessarily be different in any

future commitment hearing, the court found that the issues presented in the case before it would have

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no bearing on similar sufficiency-of-the-evidence issues presented in subsequent cases. See Alfred

H.H., 233 Ill. 2d at 360; Val Q., 396 Ill. App. 3d at 160-61.

This case, however, is distinguishable. First, respondent makes two arguments that challenge

the interpretation of the statute by contending that the order violated the Code. See Alfred H.H., 233

Ill. 2d at 360. Second, although respondent's remaining arguments contest the sufficiency of the

evidence, he specifically argues that the treatment order improperly varied from the petition and that

it authorized dosages that were stated in the petition but were not in the testimony. Unlike the issue

in Alfred H.H., it is reasonably likely that the resolution of these issues would affect future cases

involving respondent, because respondent will likely again be subject to involuntary treatment and

the court will likely again commit the same alleged errors. See Val Q., 396 Ill. App. 3d at 161; In

re Robin C., 395 Ill. App. 3d 958, 963-64 (2009) (applying capable-of-repetition exception where

the resolution of the respondent's statutory compliance issue would have some bearing on a

subsequent case involving respondent). Review is, therefore, appropriate.

Turning to the merits, respondent first argues that the trial court's order violated the Code for

failing to include the testing authorized to monitor administration of the medications and for crossing

out the approved medications. Whether the order complied with the Code presents a question of law,

which we review de novo. See In re Leslie H., 369 Ill. App. 3d 854, 856 (2006).

Section 2--107.1(a--5)(6) of the Code, which dictates the content of involuntary treatment

orders, states as follows:

"(6) An order issued under this subsection (a--5) shall designate the persons

authorized to administer the authorized involuntary treatment under the standards and

procedures of this subsection (a--5). Those persons shall have complete discretion not to

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administer any treatment authorized under this Section. The order shall also specify the

medications and the anticipated range of dosages that have been authorized ***." 405 ILCS

5/2--107.1(a--5)(6) (West 2006).

Section (a--5)(6) does not require that an order include the testing authorized to monitor

administration of the medication (see In re Barry B., 295 Ill. App. 3d 1080, 1088 (1998)), although

the "petition may include a request that that court authorize such testing and procedures as may be

essential for the safe and effective administration of the authorized involuntary treatment sought to

be administered" (emphasis added) (405 ILCS 5/2--107.1(a--5)(1) (West 2006)). Thus, the order

entered here was not legally insufficient for failure to specify the precise tests to be administered.

See Barry B., 295 Ill. App. 3d at 1088. We note, however, that the better practice would be to

include in the order the tests to be administered to monitor medication levels. This would ensure

that the provider of medical care has strict guidance for the treatment of a patient receiving

psychotropic medication involuntarily. Barry B., 295 Ill. App. 3d at 1088.

The parties' cited authority is not on point, because the cited cases address the court's

authority to order blood tests. See In re Jill R., 336 Ill. App. 3d 956, 964 (2003) (trial court had

authority to order medical testing even though not requested in the petition for involuntary

administration of psychotropic medication); In re Floyd, 274 Ill. App. 3d 855, 860 (1995)

("Respondent *** contends that the order authorizing the involuntary withdrawal of blood is void

for want of statutory authority"). Here, the issue is whether, after the court authorized blood testing,

it was reversible error to omit this information from the treatment order. We have determined that

it was not.

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Next, respondent argues that the order violated the statute because the authorized medications

are crossed out. Respondent likens the crossing out of the approved medications to the failure to

include this information in the first place. See In re Gwendolyn N., 326 Ill. App. 3d 427, 429 (2001)

(noncompliance with the Code provision requiring the order to specify the approved medications and

dosages mandated reversal). The cross-out on the treatment order is troublesome, as the crossing

out of material would generally indicate a deletion or correction. See Geiser v. Geiser, 115 A.D.2d

373, 375, 495 N.Y.S.2d 401, 403 (1985) (where a paragraph is crossed out, it is to be read as the

deliberate deletion of the paragraph). But, under the unique circumstances of this case, it appears

that the cross-out was meant to indicate a stay of the order. The subsequent order lifted the stay and

clarified that the treatment order was to take effect immediately. Thus, the treatment order was not

legally insufficient on this basis.

Respondent's remaining two arguments raise issues regarding the sufficiency of the evidence.

Respondent complains of Husain's failure to testify regarding all petitioned-for medications and

failure to testify to the appropriate dosages for several medications. Whether there was sufficient

evidence regarding the type of medications sought to be administered and their anticipated dosages

goes to the issue of whether the State proved by clear and convincing evidence that the benefits of

the treatment outweigh the harm. See 405 ILCS 5/2--107.1(a--5)(4)(D) (West 2006); see also In re

A.W., 381 Ill. App. 3d 950, 958 (2008) (to prove by clear and convincing evidence that the benefits

of the treatment outweigh the harm, the State must present evidence as to the anticipated range of

dosages of the proposed psychotropic medication); In re Gail F., 365 Ill. App. 3d 439, 446 (2006)

(where doctor failed to testify to all requested medications, evidence was insufficient to determine

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whether the benefits of the treatment outweighed the harm). To these questions, we apply the

manifest-weight-of-the-evidence standard. Gail F., 365 Ill. App. 3d at 446.

Here, Husain did not testify to the appropriate dosages for clonazepam and injectable

ziprasidone.1 Respondent appears to believe that Husain's testimony was adequate as to the

appropriate dosage for oral ziprasidone, but we do not find that to be the case. While discussing the

requested medications, the State asked Husain an ambiguous question: "The other two medications

prior to this?" Husain responded: "[z]iprasidone, 80 to 60 milligrams orally and [r]isperidone, two

to 16 milligrams per day orally." Because Husain testified that she previously administered

ziprasidone and risperidone to respondent, and she stated numerous times that she was not seeking

to administer risperidone, the above testimony logically refers to the dosages previously administered

to respondent. In any event, Husain never testified to the appropriate dosage for injectable

ziprasidone, although the court authorized 10 to 25 milligrams in injectable form. Because of these

omissions, Husain's testimony did not support the treatment order. See A.W., 381 Ill. App. 3d at 958

1
We note that the Code does not require that an involuntary-treatment petition or an

involuntary-treatment order set forth proposed nonpsychotropic medications (A.W., 381 Ill. App.

3d at 959-60), but the petition identifies clonazepam and valproic acid as psychotropic medications

and our research has revealed the same. See Davis v. Hubbard, 506 F. Supp. 915, 927 (N.D. Ohio

1980) ("The term psychotropic, or 'mood altering' drug describes several categories of major

tranquilizers (also called antipsychotic or neuroleptic drugs), antianxiety drugs (minor tranquilizers),

antidepressants, sedatives (e.g., barbiturates), and hypnotics").

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(involuntary treatment order reversed because, inter alia, it authorized specific dosages of

psychotropic medications that were not supported by evidence).

Last, Husain failed to offer any testimony regarding the petitioned-for valproic acid, and,

although Husain testified regarding her request for clonazepam, the trial court failed to authorize it.

Respondent notes this error but fails to develop an argument or cite sufficient supporting authority.

However, our research has revealed the case of Gail F., 365 Ill. App. 3d at 447, where this court

concluded that the trial court cannot approve fewer than all the medications listed on the petition

unless the treating physician is seeking authorization for fewer than all.

In Gail F., the State petitioned for the administration of 12 medications. The treating

psychiatrist offered testimony regarding only 10 of those medications. The court, however,

authorized the administration of all 12 medications. On appeal, both parties agreed that this was

error. The State, however, argued that the lack of evidence affected only the approval of the 2

medications and that the order could be modified to authorize the 10 medications that were

supported by testimony. We rejected that argument. The lack of evidence on all petitioned-for

medications was fatal to the entire petition. See Gail F., 365 Ill. App. 3d at 447. We reasoned that

a modification of the treatment plan embodied in the petition must be a matter of medical judgment,

not legal:

" 'As this court has recognized, *** the diagnosis and treatment of mental health disorders

is a " 'highly specialized area of medicine which is better left to the experts.' " [Citation.]

Indeed, section 2--107.1 vests the physician authorized to administer the involuntary

treatment "complete discretion" not to administer the treatment. [Citation.] It is thus not for

the trial court or the jury to "develop a course of treatment and then dictate that course to the

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treating physician. That would constitute role reversal." [Citation.] In the words of amici

curiae, allowing the layperson jury to determine which of the various medications should be

involuntarily administered "dangerously approaches the practice of medicine." ' " (Emphasis

in original.) Gail F., 365 Ill. App. 3d at 447, quoting In re Mary Ann P., 202 Ill. 2d 393, 406

(2002).

The Code does not permit the fact finder "to parse the recommended treatment and

selectively authorize only certain requested medications." Mary Ann P., 202 Ill. 2d at 407. "[W]here

*** the recommended treatment consists of multiple medications--some to be administered

alternatively, some to be administered in combination, and some to be administered only as needed

to counter side effects--it is only this treatment, in its entirety, that may be authorized." Mary Ann

P., 202 Ill. 2d at 405-06.

While the rule in Mary Ann P. does not create an absolute bar on a court's approval of fewer

than all of the medications listed in a petition, it requires that any variance from the petition be made

at the behest of the treating physician. Gail F., 365 Ill. App. 3d at 447. However, "[w]e do not deem

a simple failure to testify about a medication to suggest the treating physician's judgment, as failure

to present evidence may reflect legal error rather than medical judgment." Gail F., 365 Ill. App. 3d

at 447.

Here, the petition requested six psychotropic medications. Husain testified in regard to five

medications. And the trial court's order ultimately approved four medications. Specifically, the

order did not approve valproic acid, likely because Husain neglected to testify to it, and, despite her

testimony regarding clonazepam, the order did not approve it. Because Husain did not request these

variances from the petition, selective authorization by the court was improper. See Gail F., 365 Ill.

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App. 3d at 447. Thus, the order must be reversed. See In re Richard C., 329 Ill. App. 3d 1090, 1094

(2002). A remand is not necessary, since the administration of the medications has been terminated

according to the terms of the court's order. See Richard C., 329 Ill. App. 3d at 1094.

For the foregoing reasons, we reverse the judgment of the circuit court of Kane County.

Reversed.

BOWMAN and BURKE, JJ., concur.

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