In re Debra B.

NOTICE
2016 IL App (5th) 130573
Decision filed 05/31/16. The
text of this decision may be NO. 5-13-0573
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
________________________________________________________________________

In re DEBRA B., Alleged to Be a Person ) Appeal from the
Subject to Involuntary Treatment With ) Circuit Court of
Psychotropic Medication ) Madison County.
)
(The People of the State of Illinois, Petitioner- ) No. 13-MH-156
Appellee, v. Debra B., Respondent-Appellant). )
) Honorable Thomas W. Chapman,
) Judge, presiding.
________________________________________________________________________

JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Presiding Justice Schwarm and Justice Stewart concurred in the judgment and
opinion.

OPINION

¶1 The respondent, Debra B., appeals a trial court order authorizing the involuntary

administration of psychotropic medication to her. See 405 ILCS 5/2-107.1 (West 2012).

She argues that the State failed to prove by clear and convincing evidence that (1) she

was suffering as a result of her mental illness; or (2) her ability to function had

deteriorated since the onset of her symptoms. She also argues that the State failed to

prove that she was unable to make a reasoned decision regarding the medications because

the record does not establish that she was informed about alternatives to medication. The

State argues that we should dismiss this appeal because it is moot. We find that review is

1
appropriate under the public-interest exception to the mootness doctrine, and we reverse

the trial court's order.

¶2 Debra B. has a lengthy mental health history. Although the record does not

contain a detailed history, Debra's treating psychiatrist indicated that Debra was

previously admitted for treatment in a mental health facility multiple times, including

both voluntary and involuntary admissions. She was first admitted to a facility in the

mid-1980s. There was some evidence to suggest that she was able to function reasonably

well between hospitalizations, at least some of the time. She testified that she owned her

own home, raised a daughter alone, and cared for her elderly mother and several pets.

¶3 In 2013, Debra B. was found unfit to stand trial on a charge of aggravated battery.

On October 2, 2013, she was admitted to the forensic unit at Alton Mental Health Center

(Alton). Her previous admissions were all to the civil unit. On October 21, Dr.

Jagannath Patil became Debra's treating psychiatrist. On October 25, he filed a document

with the trial court entitled "petition and affidavit for involuntary administration of

psychotropic medication."

¶4 On November 5, 2013, the court held a hearing on the petition. Dr. Patil testified

that Debra B. had been diagnosed with bipolar disorder, manic with psychotic symptoms.

He explained that her symptoms included racing thoughts, pressured speech, increased

psychomotor activity, florid mania, and grandiose delusions. Among her delusions,

Debra believed that she was a home-educated medical doctor, the queen of

Czechoslovakia, and "smarter than anyone around." Dr. Patil testified that Debra had a

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history of asthma, head trauma, and substance abuse. He noted that he did not know her

entire medical history.

¶5 Dr. Patil testified that Debra was sleeping adequately since he began administering

medication to her on an emergency basis. He did not provide any information concerning

how little sleep she was getting prior to being medicated, nor did he provide any

information on how this affected Debra.

¶6 Dr. Patil was asked if he believed that Debra B. had experienced a deterioration in

her ability to function. See 405 ILCS 5/2-107.1(a-5)(4)(B)(i) (West 2012). He

responded, "Yes." Asked to elaborate, Dr. Patil testified that she engaged in intrusive

behavior towards staff and other patients. He explained, "She has been into everyone's

business on the unit." Asked to be more specific about Debra being intrusive and "into

the business" of other patients, Dr. Patil stated, "She always aggravates the peers. Talks

to them." He testified that Debra accused other patients "of phone sex and things." He

noted that these behaviors had improved with the administration of medication on an

emergency basis.

¶7 Dr. Patil was then asked if he believed that Debra B. was suffering. See 405 ILCS

5/2-107.1(a-5)(4)(B)(ii) (West 2012). He replied, "Yes, she is." Asked to explain why

he believed Debra was suffering, he explained, "All the symptoms that she exhibited is a

suffering basically. She cannot function because of the suffering of these symptoms."

Dr. Patil noted that Debra "writes numerous papers" which "indicate that she is

suffering." He stated that she was "incessantly writing." He then described the content

of some of Debra's writings. We note that the writings themselves were not admitted into

3
evidence, and it is not clear from Dr. Patil's testimony whether he was reading from these

writings as he testified or describing them from memory.

¶8 Dr. Patil first described a paper Debra wrote which was received by a staff

member on October 17, 2013. In it, Debra wrote, "Respect. Learn the Ten

Commandments. I am the Lord. God will not put any God in front of me." The letter

went on to recite some of the Ten Commandments. It ended, "I am tired of this bullshit.

Get it together. You have been warned." It was signed by "God." Dr. Patil described

another letter from the same date. In it, Debra wrote, "God is love." She went on to

write, "I died for your sins. So did I." The letter was signed, "The Mother of the Holy

Ghost." Dr. Patil next described an October 18 letter in which Debra wrote, "Welcome to

hell or heaven. It is what you make it." This letter was signed, "Signed the Holy Ghost.

Yours truly, Witchpoo."

¶9 Dr. Patil next described an October 23 letter Debra wrote to Prince William and

Kate Middleton congratulating them on the christening of their son. She wrote, "I wish I

could be there to give little George Alexander gifts," and, "Tell Dad hello." She signed

the letter as "Queen Debra of Czechoslovakia." In a postscript, she stated that she hoped

to see Prince George before he learned to walk, that it was difficult for her to keep in

touch because she had no computer, and that her mother had undergone eye surgery the

previous week.

¶ 10 Finally, Dr. Patil described an October 23 letter Debra wrote to the St. Louis

Cardinals. In it, she wrote, "I just want the Cardinals to absolutely know that they are

unconquerable." She also wrote, "Numbers don't lie. Neither does the Bible. *** They

4
will never be able to outrun his love." Dr. Patil indicated that Debra asked staff members

to mail this letter to the Cardinals.

¶ 11 Dr. Patil was asked, "So these letters *** cause you to understand that she is

suffering?" He replied, "She is suffering."

¶ 12 Dr. Patil was next asked about Debra B.'s ability to make a reasoned decision

about whether to take medication. See 405 ILCS 5/2-107.1(a-5)(4)(E) (West 2012). He

testified that she was not able to make a reasoned decision because she did not believe

that she had a mental illness. He acknowledged that, although Debra did not recognize

that she suffers from bipolar disorder, she did recognize that she suffers from

posttraumatic stress disorder and that she had been diagnosed with head trauma. Dr. Patil

indicated that he explained to Debra the benefits and risks of all of the medications he

proposed administering to her. He also provided her with written information about the

medications. He acknowledged that Debra was well-educated and of normal to above

normal intelligence. He further acknowledged that she was capable of reviewing this

information. Dr. Patil noted that Debra had been given several different types of

psychotropic medications in the past. Notably, however, Dr. Patil did not testify either

that he discussed alternative forms of treatment with Debra or that he provided her with

any written information regarding alternative forms of treatment.

¶ 13 Dr. Patil testified that less restrictive forms of treatment–such as therapy,

education, and redirection–had been attempted unsuccessfully. He acknowledged that

Debra willingly participated in these types of treatment. However, he opined that these

treatment options would only be effective if used in conjunction with medication. He

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further noted that counseling in a group setting was not appropriate for Debra because of

the severity of her symptoms.

¶ 14 Dr. Patil testified that Debra B. had not exhibited any threatening behaviors since

being admitted to Alton. See 405 ILCS 5/2-107.1(a-5)(4)(B)(iii) (West 2012). He noted,

however, that she "put her[self] in a dangerous situation because of many behaviors"

involving "getting in the business" of other patients. He further noted that while she was

at the St. Clair County jail prior to her admission, Debra exhibited "suicidal ideations and

manic symptoms" and "threatened the officer and his family."

¶ 15 Debra B. also testified. She stated that she had no desire to harm anyone,

including herself. She was aware that she had been diagnosed with posttraumatic stress

disorder and head trauma. She stated, however, that she was "not suffering from it at this

time." In addition, Debra denied that she suffered from bipolar disorder. She testified

that she was involuntarily admitted to Alton in 1996 only because her husband "made

[her] look bipolar" because he did not want her "to take anything that [she] had worked

for." Debra testified that she was willing to participate in therapy. She further testified

that she considered writing to be a form of therapy, noting that she kept a journal.

¶ 16 Debra B. explained her unwillingness to take medication as follows: "I don't feel

like I need medication. I'm a psychologist. I've got my Ph.D. I feel like I do not deserve

to have to take this medication. I've had cancer. I've got glaucoma. I've got

osteoarthritis. I don't need these medications to make my illnesses worse." She further

explained that the medication being administered to her on an emergency basis made her

so tired that she was "sleeping around the clock." She stated that before being medicated,

6
she slept six to eight hours per night. As a result, she testified, she was often too tired to

eat or take a shower.

¶ 17 Debra's attorney asked her if she was refusing to take medication because she

believed it would cause her to suffer. In response, Debra testified that she was suffering

because she was at Alton. She explained that she missed her 20-year-old daughter and

worried that her daughter would not be able to handle taking care of Debra's three-story

house, 75-year-old mother, four dogs, and two cats. Debra testified that she believed the

medication would cause her to suffer more.

¶ 18 Following the hearing, the court entered an order authorizing the involuntary

administration of psychotropic medications to Debra B. The court found that the State

had not proved that Debra exhibited threatening behavior. However, the court found by

clear and convincing evidence that she was suffering, that her ability to function had

deteriorated, and that she lacked the capacity to make a reasoned decision regarding her

treatment. Debra B. timely filed the instant appeal challenging that order.

¶ 19 Before addressing the merits of Debra's arguments, we must first address the

State's argument that we should dismiss this appeal. As the State correctly contends, this

appeal is technically moot. The order authorizing the involuntary administration of

medication to Debra B. was entered on November 5, 2013, and expired 90 days later.

See 405 ILCS 5/2-107.1(a-5)(5) (West 2012). It is therefore impossible for this court to

grant her effective relief from that order. See In re Joseph M., 398 Ill. App. 3d 1086,

1087 (2010). This fact means that our decision in this matter is "essentially an advisory

opinion." In re Evelyn S., 337 Ill. App. 3d 1096, 1101 (2003). This court does not have

7
jurisdiction to decide a moot question or render an advisory opinion unless the case falls

within an exception to the mootness doctrine. In re Alfred H.H., 233 Ill. 2d 345, 351

(2009). Mental health cases "usually fall within one of the established exceptions to the

mootness doctrine." Id. at 355. However, "there is no per se exception" applicable to all

mental health cases. Id. Instead, we must decide on a case-by-case basis whether one of

the recognized exceptions applies. Id.

¶ 20 One such exception is the public-interest exception. Under the public-interest

exception, we may consider an otherwise moot appeal if (1) the case presents a question

of a public nature; (2) there is a need for an authoritative determination to guide public

officials; and (3) it is likely that the question will recur. Id. All three of these criteria

must be met for the exception to apply. Id. at 355-56.

¶ 21 We find that the instant case meets all three criteria. First, we have long

recognized that the procedures a court must follow before it may "authorize the

involuntary medication of mental health patients are a matter of 'substantial public

concern.' " In re Evelyn S., 337 Ill. App. 3d at 1102 (quoting In re Mary Ann P., 202 Ill.

2d 393, 402 (2002)). This does not mean that all mental health cases raise questions of a

public nature. As our supreme court has explained, cases challenging the sufficiency of

the evidence "are inherently case-specific," as a result of which such cases usually "do

not present the kinds of broad public[-]interest issues" presented by most other mental

health cases. In re Alfred H.H., 233 Ill. 2d at 356-57. It is important to emphasize that

the court did not hold that a sufficiency-of-the-evidence claim will never involve the type

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of public concerns necessary to bring it within the public-interest exception. See In re

Joseph M., 405 Ill. App. 3d 1167, 1173 (2010).

¶ 22 Although the instant case involves a challenge to the sufficiency of the evidence,

we believe that the questions raised by Debra B. have "broader implications than most

sufficiency-of-the-evidence claims" (id.). As we will discuss, Debra does not merely ask

us to assess the strength of the particular evidence presented here. Instead, she argues

that the court's order was flawed because Dr. Patil's testimony addressed the fact that she

was "suffering from" symptoms of a mental illness without addressing how she was

"suffering" as a result. She also argues that the State was required to prove that there was

some physical manifestation to her suffering. Similarly, she argues that the State must

demonstrate that her symptoms are adversely impacting her ability to take care of her

health or safety before a court may find that her ability to function has deteriorated.

These questions relate to the substance of what the State must demonstrate in order to

prove that involuntary medication is warranted. We find this to be a matter of great

public concern. Thus, the first criterion is met in this case.

¶ 23 Second, we believe that a definitive decision is needed to provide guidance. As

Debra points out, only two appellate decisions squarely address the question of what

constitutes "suffering" sufficient to warrant involuntary medication–In re Wendy T., 406

Ill. App. 3d 185 (2010), overruled on other grounds by In re Rita P., 2014 IL 115798, ¶¶

33-34; In re Lisa P., 381 Ill. App. 3d 1087 (2008). Third, because of the short duration of

orders authorizing the involuntary administration of psychotropic medication, the

questions presented in this appeal are likely to recur without the opportunity to be fully

9
litigated before becoming moot. See In re Mary Ann P., 202 Ill. 2d at 402-03; In re

Evelyn S., 337 Ill. App. 3d at 1102. We will therefore consider Debra B.'s arguments

under the public-interest exception.

¶ 24 In order for a respondent to be subject to the involuntary administration of

psychotropic medication, the State must show by clear and convincing evidence that (1)

the respondent suffers from a serious mental illness (405 ILCS 5/2-107.1(a-5)(4)(A)

(West 2012)); (2) the benefit of the medication outweighs the harm (405 ILCS 5/2-

107.1(a-5)(4)(D) (West 2012)); and (3) other less restrictive types of treatment have been

explored and found to be inappropriate (405 ILCS 5/2-107.1(a-5)(4)(F) (West 2012)). In

addition, the State must show that, as a result of the respondent's mental illness, at least

one of the following is true: (1) she is suffering; (2) there has been a deterioration in her

ability to function; or (3) she is exhibiting threatening behavior. 405 ILCS 5/2-107.1(a-

5)(4)(B) (West 2012). Finally, the State must also prove that the respondent lacks the

capacity to make a reasoned decision about whether to take the medication. 405 ILCS

5/2-107.1(a-5)(4)(E) (West 2012). In this case, the only questions are whether the State

proved that Debra B. lacked the capacity to make a reasoned decision and whether it

proved either that she was suffering or that her ability to function had deteriorated. We

review the court's factual findings to determine whether they were against the manifest

weight of the evidence. In re Wendy T., 406 Ill. App. 3d at 192.

¶ 25 Debra's first contention is that the State failed to demonstrate that she lacked the

capacity to make a reasoned decision regarding the medications because it failed to prove

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she was provided with written information regarding reasonable alternatives to

medication. See 405 ILCS 5/2-102(a-5) (West 2012). We agree.

¶ 26 Proof that a respondent has been advised and given written information about

alternatives to medication is crucial for two reasons. First, this is explicitly required

under the Mental Health and Developmental Disabilities Code (Mental Health Code).

405 ILCS 5/2-102(a-5) (West 2012). Strict compliance with the procedural safeguards

found in the Mental Health Code is essential in order to protect the rights of patients. In

re John R., 339 Ill. App. 3d 778, 785 (2003). Failure to comply with this requirement is a

sufficient basis to reverse an order authorizing involuntary treatment. In re Bobby F.,

2012 IL App (5th) 110214, ¶ 20; In re Nicholas L., 407 Ill. App. 3d 1061, 1073 (2011).

¶ 27 Second, adequate proof that a respondent has been provided with all of the

information necessary to make a reasoned decision is crucial to a determination

concerning the respondent's capacity to make such a decision. In re Bobby F., 2012 IL

App (5th) 110214, ¶ 18 (quoting In re John R., 339 Ill. App. 3d at 783). Respondents in

mental health cases are presumed to be competent to make decisions regarding their care.

In re Michael H., 392 Ill. App. 3d 965, 974 (2009) (citing 405 ILCS 5/2-101 (West

2006)). If the respondent has the capacity to make decisions regarding her care, she has

the right to refuse to be medicated even if the medication is "clearly in that individual's

best interests." In re John R., 339 Ill. App. 3d at 782-83. A respondent has the capacity

to make reasoned decisions regarding her treatment if, "based upon the conveyed

information concerning the side effects, risks, benefits, and reasonable alternatives to the

proposed treatment, [she] makes a reasoned choice to either accept or refuse the

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treatment." (Emphases added.) In re Bobby F., 2012 IL App (5th) 110214, ¶ 18. It

would be at odds with these principles to allow a court to find that a respondent lacks the

capacity to make a reasoned decision without evidence that the respondent has all the

information necessary to make such a decision. See In re Steven T., 2014 IL App (5th)

130328, ¶ 14; In re John R., 339 Ill. App. 3d at 783.

¶ 28 As we stated earlier, Dr. Patil testified that he gave Debra B. the required written

information about the medications he proposed giving her. He also testified that he gave

her written information about the medications he proposed administering to her if his

preferred medications were ineffective or produced serious side effects. He did not,

however, testify that he discussed with Debra or provided her with any written

information regarding alternatives to medication. Thus, there was no information in the

record to allow the court to conclude that Debra had been provided with this information.

¶ 29 The State calls our attention to the petition and affidavit filed by Dr. Patil. That

document appears to be a preprinted form. One provision states, "I have explained the

risks and the intended benefits of the treatment, as well as alternative forms of the

treatment, to the recipient." Dr. Patil checked a box marked "Yes" after this statement.

The next provision states, "And I also have provided that information in written or

printed form to the recipient." Again, Dr. Patil checked the box marked "Yes" after the

statement. The document was filed with the court, but it was not entered into evidence.

The State argues that the petition and affidavit provided sufficient proof to rebut any

claim that Dr. Patil did not provide Debra B. with the requisite information. We disagree.

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¶ 30 Although the State cites no authority in support of its contention, we acknowledge

that the Third District found that a supporting affidavit filed with the petition constituted

"uncontroverted evidence" that the treating psychiatrist provided the necessary

information to the respondent regarding the risks and benefits of the proposed

medication. In re E.F., 2014 IL App (3d) 130814, ¶ 59. (We note parenthetically that the

In re E.F. court nevertheless reversed the order because it found no indication that the

State had provided the respondent with written information about alternatives to

medication. Id. ¶ 60.) However, this court has repeatedly held that allegations in a

petition and information in supporting documents are not sufficient to support an order

authorizing involuntary treatment if they are not admitted into evidence. See In re Bobby

F., 2012 IL App (5th) 110214, ¶¶ 22-23; In re Phillip E., 385 Ill. App. 3d 278, 284

(2008). We note that the Fourth District has consistently reached the same conclusion.

See In re A.W., 381 Ill. App. 3d 950, 957 (2008); In re Louis S., 361 Ill. App. 3d 774, 780

(2005). This is because we must decide the sufficiency of the evidence based solely on

the evidence presented at the hearing. In re Bobby F., 2012 IL App (5th) 110214, ¶ 23

(quoting In re Laura H., 404 Ill. App. 3d 286, 291 (2010)). Here, evidence that Debra

received the necessary information may well have existed, but it was not admitted into

evidence at the hearing.

¶ 31 The State also argues that because Dr. Patil testified that alternative forms of

therapy were not effective, "there were no appropriate alternatives" about which to

inform Debra B. In support of this contention, the State cites In re Vanessa K., 2011 IL

13
App (3d) 100545. We find In re Vanessa K. distinguishable because it did not address

the precise issue before us in this case.

¶ 32 There, Vanessa K.'s treating psychiatrist filed a petition to involuntarily administer

psychotropic medication to Vanessa. Specifically, he sought authority to administer

Risperdal, an antipsychotic. He listed 20 different medications as alternatives. Id. ¶ 3.

Among the 20 alternative medications he proposed was Prolixin (id.), an antipsychotic

medication that Vanessa had taken in the past which had been effective (id. ¶ 23). At a

hearing on the petition, the psychiatrist testified that subsequent to filing the petition, he

determined that Prolixin would be a better drug for Vanessa than Risperdal. Id. He

explained that when he filed the petition, he was not aware that Vanessa had used

Prolixin in the past. Id. ¶ 8.

¶ 33 Based on this testimony, the trial court determined that the petition should be

amended to substitute Prolixin as the primary medication. Id. ¶ 9. Both parties objected.

The court adjourned for 10 minutes, advising the parties to decide whether they wanted to

amend the petition. Id. During the 10-minute break, the psychiatrist provided both oral

and written information to Vanessa about the benefits, risks, and possible side effects of

Prolixin, and he testified to this fact when court reconvened. Id. Prior to the break, he

acknowledged that he had not previously given Vanessa the required written information.

Id. ¶ 8.

¶ 34 On appeal, Vanessa did not contend that her doctor failed to provide her with

information about alternatives to medication. Instead, she argued that the order

authorizing treatment "must be reversed because she was not provided written

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information about all the medication approved for adminstration by the court, noting the

lengthy list of alternative medications attached to the order." (Emphasis added.) Id. ¶ 21.

In rejecting this argument, the Third District noted that "there was no need to provide

information on all the medications listed as alternatives in the attachment" because

Vanessa's doctor "did not consider them to be viable options." Id. ¶ 23. This is the

language relied upon by the State to support its position in this case. More importantly,

however, the In re Vanessa K. court twice emphasized that the trial court's order did not

authorize the administration of any drug other than Prolixin. Id. This fact negated

Vanessa's claim that she did not receive written information on all of the medications

authorized by the court. We have already concluded that the State's failure to offer

evidence that Dr. Patil provided Debra with oral or written information about alternative

forms of treatment requires reversal. In re Vanessa K. does not require us to reach a

different result.

¶ 35 Debra next argues that the State did not prove either that she was suffering or that

her ability to function had deteriorated since the onset of her symptoms. As the State

correctly notes, it was only required to prove one of these propositions. See In re Lisa P.,

381 Ill. App. 3d at 1095. We will address these arguments in turn; however, we will first

discuss the principles applicable to both questions.

¶ 36 We begin by emphasizing the importance of the rights at stake. As Illinois courts

have repeatedly stated, "the involuntary administration of psychotropic drugs involves a

'massive curtailment of liberty.' " (Internal quotation marks omitted.) In re Joseph M.,

398 Ill. App. 3d at 1089-90 (quoting In re Robert S., 213 Ill. 2d 30, 46 (2004), quoting In

15
re Barbara H., 183 Ill. 2d 482, 496 (1998), quoting Vitek v. Jones, 445 U.S. 480, 491

(1980)). The right to refuse these medications is among "the 'liberty' interests recognized

in constitutional jurisprudence." In re C.E., 161 Ill. 2d 200, 213 (1994). There are "[t]wo

fundamental concerns" that underscore the importance of protecting this right. Id. at 214.

Our first concern is "the substantially invasive nature of psychotropic substances and

their significant side effects." Id. Our second concern is the potential for these drugs to

be used for patient management and control rather than for treatment. Id. at 215. Thus,

even during involuntary admissions, a mental health patient retains the right "to remain

free from unwarranted intrusions into [her] body and mind." In re Orr, 176 Ill. App. 3d

498, 512 (1988) (citing Mills v. Rogers, 457 U.S. 291, 299 (1982)). For this reason, we

believe it is imperative that before a respondent may be forced to take psychotropic

medication against her will, the State must prove something more than the fact that a

patient is mentally ill or the fact that the patient is subject to involuntary admission

because of her illness.

¶ 37 In addition, we reiterate that the State must prove that involuntary medication is

appropriate by clear and convincing evidence. This standard requires the State to present

expert medical testimony. See In re Joseph M., 398 Ill. App. 3d at 1090. Generally, the

testimony of an expert medical witness coupled with the court's observation of the

respondent is sufficient to meet this standard. In re Perona, 294 Ill. App. 3d 755, 766

(1998). However, expert testimony is not sufficient unless the medical expert testifies to

specific facts to support his opinions. See In re Joseph M., 398 Ill. App. 3d at 1090.

With these principles in mind, we turn to the parties' contentions.

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¶ 38 In support of her contention that the State did not meet its burden of proving that

she was suffering, Debra points out that the Mental Health Code does not define the term

"suffering." As such, she correctly contends, we must give the word its plain and

ordinary meaning. See Cojeunaze Nursing Center v. Lumpkin, 260 Ill. App. 3d 1024,

1029 (1994). She further contends that the dictionary definitions of suffering include

physical, mental, and emotional pain or distress. See Webster's Ninth New Collegiate

Dictionary 1179 (1988) (defining suffering as "pain" and noting that "distress" is a

synonym); Black's Law Dictionary 1109 (6th ed. 1990) (defining "pain and suffering" as

a "[t]erm used to describe not only physical discomfort and distress but also mental and

emotional trauma"). Thus, to prove that a respondent is suffering, the State must show

that she is experiencing physical pain or emotional distress. As we will explain, we agree

with Debra that Dr. Patil's testimony did not support such a finding.

¶ 39 Debra calls our attention to the cases of In re Wendy T. and In re Lisa P. In In re

Wendy T., the respondent's illness resulted in disorganized thinking. This made it

impossible for her to carry on ordinary conversations, process what other people said to

her, or make decisions. In re Wendy T., 406 Ill. App. 3d at 187-88. Her treating

psychiatrist testified that Wendy T. often became angry because she was unable to

effectively communicate, and that she was unable to perform "simple tasks that the

average person could easily perform." Id. at 188. On appeal, the court found this

testimony sufficient to support a finding that Wendy T. was suffering. Id. at 194.

¶ 40 In In re Lisa P., the treating psychiatrist testified that Lisa P. experienced rage and

paranoia as a result of her mental illness. In re Lisa P., 381 Ill. App. 3d at 1090. The

17
psychiatrist further testified that Lisa P. "believed that her entire family was 'after [her],'

that the world was evil, and that she was a victim." Id. In addition, the trial judge

observed Lisa P. during the hearings, and he noted that she appeared to be suffering every

time he saw her in court. Id. at 1091. On appeal, the court found this evidence sufficient

to uphold the trial court's finding that she was suffering. Id. at 1095.

¶ 41 There are two significant distinctions between both of these cases and the case

before us. First, both cases included at least some evidence that the respondents were

suffering beyond a mere recitation of their symptoms. As just discussed, there was

testimony that Wendy T. was often angry because of her inability to communicate (In re

Wendy T., 406 Ill. App. 3d at 188) and that Lisa P. experienced rage, an intense negative

emotion (In re Lisa P., 381 Ill. App. 3d at 1090). In addition, Lisa P.'s demeanor in court

led the trial judge to believe she was suffering. Id. at 1091. The record in this case

contains no similar evidence.

¶ 42 Second, the symptoms experienced by both Wendy T. and Lisa P. lead more

readily to an inference that they were suffering than do the symptoms described by Dr.

Patil here. Wendy T.'s inability to manage even the simplest of tasks and her inability to

effectively communicate would obviously lead to a great deal of frustration. Lisa P.'s

extreme paranoia–particularly her belief that everyone, including her own family, was out

to get her–would cause anyone to feel isolated and fearful. The nexus in this case is less

obvious.

¶ 43 Debra argues that absent the "obvious signs of either extreme paranoia or inability

to carry out simple tasks" that were present in In re Wendy T. and In re Lisa P., the State

18
must provide some evidence of "the physical manifestations" of suffering. She notes that

such evidence might include testimony that the respondent is exhibiting "the common

physical manifestations of suffering in depression, such as crying, insomnia, changes in

appetite, or other digestive disorders."

¶ 44 Although we do not believe that evidence of physical manifestations of depression

is necessary to meet the clear-and-convincing standard, we do believe that the State must

provide some factual basis for an assertion that a respondent is suffering. For example,

the medical expert might testify that the respondent has reported feeling sorrow,

frustration, anger, anxiety, or some other intense negative emotion, or that the respondent

has behaved in a manner that indicates she is experiencing some sort of emotional

anguish. No such evidence was present in the instant case.

¶ 45 As discussed previously, Dr. Patil testified that he believed Debra was suffering.

When asked to elaborate, he simply described her grandiose delusions and other

symptoms. He did not provide any insight into why he believed these symptoms caused

her to suffer. That is, he did not explain how these symptoms caused her to feel grief,

anxiety, depression, or any other type of emotional distress. He did not even specifically

testify that Debra actually felt any of these emotions. To hold that Dr. Patil's testimony

here was sufficient to establish suffering would be tantamount to holding that any patient

with a serious mental illness is subject to involuntary administration of medication. Such

a holding would be untenable.

¶ 46 We note that Dr. Patil did testify that Debra B. was "sleeping adequately" since he

began administering medication to her on an emergency basis. This at least implies that

19
she was experiencing some difficulty in sleeping without the medication. Debra refers to

insomnia as a physical manifestation of depression and appears to acknowledge that

evidence of insomnia may therefore support a finding that a respondent is suffering. We

agree. However, there was no testimony regarding the severity or regularity of any sleep

deprivation Debra might have suffered. This does not meet the clear-and-convincing

standard.

¶ 47 In addition, we note that, as the State points out, Debra herself used the word

"suffering" in her testimony. As discussed previously, she testified that she was suffering

because she was in Alton, she missed her daughter, and she was concerned about her

daughter's ability to properly manage her home and care for her mother and her pets

while Debra was in Alton. This is not the type of "suffering" that can be alleviated by

psychotropic medication. In addition, the testimony came in response to a question in

which Debra's attorney used the word "suffering." In any case, we do not believe this

testimony provides any support for a finding that Debra was suffering. We conclude that

the State failed to provide clear and convincing evidence that Debra B. was subject to

being medicated against her will because she was suffering.

¶ 48 For similar reasons, we find that the State failed to prove the requisite

deterioration in Debra's ability to function. As previously discussed, Dr. Patil offered the

somewhat conclusory opinion that Debra's ability to function had deteriorated, and he

then described the symptoms of her mental illness. In describing her symptoms, Dr. Patil

focused on the fact that she was "into the business" of other patients and was "always

aggravating" them by "talking to them." He explained that due to her grandiose

20
delusions, Debra believed that she was able to help people. Dr. Patil did not elaborate or

give examples of how Debra "got into the business" of other patients. He did not testify

that she was violent or that she posed a threat to other patients or staff; in fact, he testified

to just the opposite.

¶ 49 We find that this testimony falls short of what is necessary to prove the type of

deterioration in ability to function sufficient to warrant the involuntary administration of

psychotropic medication for two reasons. First, the focus of most of this testimony is on

Debra's interactions with other patients. If the main goal in administering psychotropic

medication is to modify nonthreatening behavior towards other patients, this raises

serious questions concerning whether the medication is being used primarily as a means

of managing her behavior rather than as a means of treating her illness. This is precisely

the type of misuse our supreme court has warned against. See In re C.E., 161 Ill. 2d at

215.

¶ 50 Second, as we have repeatedly emphasized, before a mental health patient may be

medicated against her will, the State must prove more than the fact that she suffers from a

serious mental illness. Debra argues that to show deterioration in ability to function, the

State must prove that the respondent's behavior endangers her own health or threatens

others. While we find this view too constricted, we believe that the State must show a

deterioration in the respondent's ability to function on a basic level. See id. at 228

(explaining that this statutory language "must be considered in the context of the mental

illness or disability from which the mental health recipient is suffering").

21
¶ 51 In this regard, we note that the instant case stands in marked contrast to cases in

which courts have upheld the finding that involuntary medication is warranted on the

basis of a deterioration in the respondent's ability to function. See, e.g., In re Wendy T.,

406 Ill. App. 3d at 194 (respondent was unable to carry on conversations, carry out even

simple tasks, process information, or behave appropriately in court); In re Lisa P., 381 Ill.

App. 3d at 1096 (respondent exhibited explosive rage and such inappropriate behavior

that she had to be physically restrained); In re M.T., 371 Ill. App. 3d 318, 320 (2007)

(respondent's extreme paranoia led her to stop eating for fear her food was contaminated,

barricade the entrance to her home, attempt to heat her home using an oven and a waffle

iron instead of her furnace, and refuse food even after admission to a facility); In re

Hannah C., 367 Ill. App. 3d 1021, 1023 (2006) (respondent's "health was at risk and she

was a danger to others"); In re Perona, 294 Ill. App. 3d at 766 (patient's inability or

unwillingness to remain clothed, disruptive behavior, depression, and loss of appetite

showed the deterioration of his ability to function even within the hospital environment).

¶ 52 Here, by contrast, Dr. Patil admitted that Debra was eating properly and was not

threatening staff or patients. Although he testified that she aggravated other patients, he

did not testify that she was disruptive. He specifically testified that she did not need to be

restrained or monitored on a one-on-one basis since her arrival at Alton. Both Debra and

Dr. Patil testified that Debra participated in therapy, although Dr. Patil testified that group

therapy was inappropriate due to her intrusive behavior. Debra testified that although she

was too tired to eat or shower, she forced herself to get up and shower so that she would

be permitted to use the "comfort room," which she described as a room with a recliner,

22
small table, puzzles, and stereo. From this evidence, it appears that Debra was able to

function reasonably well, at least in the environment of the facility. We therefore

conclude that the State did not show the type of deterioration in Debra's ability to

function that would support an order for involuntary administration of medication.

¶ 53 Finally, we note that the State asks us to consider Dr. Patil's testimony about

Debra's behavior at the jail before her admission. As noted earlier, he testified that she

threatened an officer and expressed suicidal ideations. We are not persuaded. The statute

explicitly provides that the court must find that the respondent's illness has been "marked

by the continuing presence of the symptoms" justifying involuntary medication "or the

repeated episodic occurrence of these symptoms." 405 ILCS 5/2-107.1(a-5)(4)(C) (West

2012). Thus, we limit our consideration to the behaviors and symptoms Dr. Patil

observed that occurred on an ongoing basis at Alton. Applying these standards, we

believe the court's findings that Debra was suffering and that her ability to function had

deteriorated were against the manifest weight of the evidence.

¶ 54 For the foregoing reasons, we reverse the order of the trial court finding Debra B.

to be subject to the involuntary administration of psychotropic medication.

¶ 55 Reversed.

23
 2016 IL App (5th) 130573

NO. 5-13-0573

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

In re DEBRA B., Alleged to Be a Person ) Appeal from the
Subject to Involuntary Treatment With ) Circuit Court of
Psychotropic Medication ) Madison County.
)
(The People of the State of Illinois, Petitioner- ) No. 13-MH-156
Appellee, v. Debra B., Respondent-Appellant). )
) Honorable Thomas W. Chapman,
) Judge, presiding.
______________________________________________________________________________

Opinion Filed: May 31, 2016
______________________________________________________________________________

Justices: Honorable Melissa A. Chapman, J.

Honorable S. Gene Schwarm, P.J., and
Honorable Bruce D. Stewart, J.,
Concur
______________________________________________________________________________

Attorneys Barbara A. Goeben, Staff Attorney, Veronique Baker, Director,
for Legal Advocacy Service, Guardianship and Advocacy Commission,
Appellant Metro East Regional Office, 4500 College Avenue, Suite 100,
Alton, IL 62002
______________________________________________________________________________

Attorneys Honorable Thomas D. Gibbons, State's Attorney, Madison County
for Courthouse, 157 N. Main Street, Suite 402, Edwardsville, IL 62025;
Appellee Patrick Delfino, Director, Stephen E. Norris, Deputy Director,
Whitney E. Atkins, Staff Attorney, Office of the State's Attorneys
Appellate Prosecutor, Fifth District Office, 730 E. Illinois Highway
15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
______________________________________________________________________________