2016 IL App (2d) 151138
No. 2-15-1138
Opinion filed December 2, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re CLINTON S., Alleged to be a Person
) Appeal from the Circuit Court
Subject to Involuntary Administration of
) of Kane County.
Psychotropic Medication )
)
) No. 15-MH-88
)
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Clinton S., ) Divya Sarang,
Respondent-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
Justices Birkett and Spence concurred in the judgment and opinion.
OPINION
¶1 Respondent, Clinton S., had a long history of mental health issues. He had also been
diagnosed with end-stage kidney failure. In granting a petition for the involuntary
administration of psychotropic medication pursuant to section 2-107.1 of the Mental Health and
Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/2-107.1 (West 2014)), the
trial court also ordered that respondent undergo regular hemodialysis treatments. This was based
on evidence that hemodialysis was essential for the safe and effective administration of the
medication, as respondent’s kidneys could not otherwise filter the chemicals from his blood.
Respondent appeals, arguing that: (1) the State failed to prove by clear and convincing evidence
that the benefits of the medication outweighed the harm; and (2) the trial court’s order exceeded
2016 IL App (2d) 151138
the scope of the testing and other procedures that are authorized under section 2-107.1. We
affirm.
¶2 I. BACKGROUND
¶3 Respondent was admitted to the Elgin Mental Health Center (EMHC) on February 5,
2015, after being found unfit to stand trial on a robbery charge. He had been hospitalized for
issues related to his mental health over 40 times since 1980. At the time of these proceedings,
respondent was 53 years old.
¶4 On July 23, 2015, the State filed a petition for the involuntary administration of
psychotropic medication pursuant to section 2-107.1 of the Mental Health Code. Dr. Mirella
Susnjar signed the petition, as respondent’s treating psychiatrist. In addition to seeking the
involuntary administration of several medications, Susnjar requested that respondent be ordered to
undergo regular hemodialysis treatments, which she deemed essential for the safe and effective
administration of the requested medications. Susnjar noted that respondent was suffering from
end-stage kidney failure, and she asserted that hemodialysis was necessary to prolong his life.1
¶5 The trial court conducted a hearing on the petition on August 21, 2015. Susnjar was the
only witness to testify. The parties stipulated that Susnjar was an expert in the field of psychiatry.
Susnjar testified that she had performed a psychiatric evaluation on respondent and had diagnosed
him with schizophrenia. Susnjar explained that respondent suffered hallucinations and
1
The Mayo Clinic website describes “hemodialysis” as a procedure used for the treatment
of advanced kidney failure, in which a machine is used to filter wastes, salts, and fluid from the
blood. Hemodialysis, Mayo Clinic, http:www.mayoclinic.org/tests-procedures/hemodialysis/
home/ovc-20229742 (last visited Nov. 3, 2016).
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delusions, heard voices, talked to himself, and struggled to converse with other people.
Respondent also occasionally became angry and violent. In one instance, he threw a food tray
and threatened to kill a nurse. Susnjar testified that respondent’s symptoms had not improved
from less restrictive treatments such as “one-to-one” and group therapies. She did not believe
that respondent was likely to stabilize without psychotropic medication. She had checked
respondent’s medical records and consulted with his assigned social worker, but she was unable
to determine whether respondent had executed a power of attorney for health care or a
declaration under the Mental Health Treatment Preference Declaration Act (755 ILCS 43/1 et
seq. (West 2014)).
¶6 Susnjar testified that respondent had previously agreed to take Stelazine (trifluoperazine),
Haldol (haloperidol), Benadryl (diphenhydramine), and lorazepam. When he took these
medications, his symptoms improved. He was able to plan and discuss his legal and health
situations. However, he eventually stopped taking the medications due to his preference for
“white” Stelazine. Susnjar explained that the EMHC offered only “purple” Stelazine. Beyond
the color, the medications were the same. After respondent stopped taking his medications, his
symptoms returned.
¶7 To treat respondent’s mood and psychosis, Susnjar sought to administer specified doses
of trifluoperazine, risperidone, quetiapine, and aripiprazole. Susnjar testified that the side
effects of the medications included neuroleptic malignant syndrome, involuntary movements,
lower blood pressure, sedation, muscle rigidity, tardive dyskinesia, diabetes, weight gain, and
cataracts. The primary benefits of the medications were that respondent would become calm
and better able to express himself and make decisions.
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¶8 Susnjar also petitioned for the administration of five alternative medications: haloperidol,
fluphenazine, lorazepam, diphenhydramine, and benztropine. She testified that haloperidol and
fluphenazine were alternative psychotropic medications for the treatment of psychosis and
delirium and that they involved similar side effects and benefits as the primary psychotropic
medications. Lorazepam would be used if necessary to treat anxiety; the potential side effects
were sedation and addiction. Finally, diphenhydramine and benztropine were used to treat the
side effects from the psychotropic medications. The risks included weight gain, confusion, dry
mouth, constipation, and difficulty urinating.
¶9 Susnjar also testified at length about respondent’s kidney disease and her request for
hemodialysis treatments. She explained that respondent was admitted to Sherman Hospital for
renal failure in April 2015. When respondent was discharged in May 2015, his treating
nephrologist diagnosed him with end-stage kidney failure and recommended that he undergo
hemodialysis treatments three times per week. Respondent initially received 18 hemodialysis
treatments without incident, but he later began refusing the treatments. These refusals
happened around the same time that respondent began refusing to take the psychotropic
medications. Susnjar testified that she had repeatedly discussed with respondent the status of
his kidneys and the need for hemodialysis, but respondent insisted that it was not necessary.
Based on these facts, Susnjar opined that respondent’s mental illness was directly related to his
refusal to undergo hemodialysis. Although Susnjar refrained from speculating on a specific
time frame, she opined that respondent would eventually die if he did not receive hemodialysis.
Susnjar further opined that the hemodialysis was necessary for the safe and effective
administration of the psychotropic medications, because respondent’s kidneys could not
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adequately filter the chemicals from his blood. Susnjar cautioned that, without hemodialysis,
the medications could cause a toxic accumulation that could lead to a coma.
¶ 10 On cross-examination, respondent’s trial counsel asked Susnjar whether she could safely
and effectively administer the psychotropic medications if respondent were not receiving
hemodialysis. Susnjar answered that she might be compelled to administer the medications in
certain limited circumstances, such as if respondent became violent, but that she would not
otherwise administer the medications unless she knew that respondent would be undergoing
regular hemodialysis.
¶ 11 In rendering its decision, the trial court acknowledged the potential risks involved with
the psychotropic medications, but it found that those risks were outweighed by the benefit of
helping respondent manage his psychosis. The trial court noted Susnjar’s testimony that she
could not safely and effectively administer the psychotropic medications without the
hemodialysis. It accordingly granted the petition, authorizing the administration of each of the
requested medications, as well as the hemodialysis, for up to 90 days.
¶ 12 On September 17, 2015, respondent’s trial counsel filed a motion to reconsider. The
trial court entered an order denying the motion on October 16, 2015. Respondent timely
appeals.
¶ 13 II. ANALYSIS
¶ 14 This appeal centers on whether the Mental Health Code was an appropriate vehicle for
the State to obtain an order requiring respondent to undergo hemodialysis. Respondent raises
two arguments in support of his contention that the trial court erred by granting the State’s
petition. He first argues that the benefits of the psychotropic medication did not clearly and
convincingly outweigh the risk of significant damage to his kidneys, and that in finding to the
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contrary the trial court improperly factored in his receiving hemodialysis treatments.
Respondent’s second argument is that the trial court was not authorized under section 2-107.1 of
the Mental Health Code to order hemodialysis as an essential procedure for the safe and effective
administration of the psychotropic medication. Before addressing these arguments, we must
first discuss the issue of mootness.
¶ 15 Respondent acknowledges that, because more than 90 days have passed since the trial
court granted the petition, the trial court’s order is no longer effective and this appeal is therefore
moot. He argues, however, that exceptions to the mootness doctrine apply.
¶ 16 An appeal is considered moot where it presents no actual controversy or where it is
impossible for the reviewing court to grant effectual relief to the complaining party. In re
Jonathan P., 399 Ill. App. 3d 396, 400 (2010). Reviewing courts generally refrain from
considering moot questions. Id. However, there are three recognized exceptions to the
mootness doctrine: (1) the public-interest exception, which applies where the case presents a
question of public importance that will likely recur and the answer will guide public officers in the
performance of their duties; (2) the capable-of-repetition exception, which applies to cases
involving events of short duration that are capable of repetition, yet evading review; and (3) the
collateral-consequences exception, which applies where the answer could have consequences for a
party in some future proceedings. In re Donald L., 2014 IL App (2d) 130044, ¶ 19. Although
there is no per se exception to the mootness doctrine, most appeals in mental health cases fall
within one of these established exceptions. Id.
¶ 17 Here, respondent argues that the capable-of-repetition and public-interest exceptions
apply. The State disagrees, arguing that this appeal presents a straightforward question of the
sufficiency of the evidence rather than a question of statutory interpretation or statutory
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compliance. We agree with respondent. First, given respondent’s mental health history and
end-stage kidney failure, it is likely that he will be subjected to a petition with similar requests in
the future. See In re Alfred H.H., 233 Ill. 2d 345, 360 (2009) (holding that the
capable-of-repetition exception applies where there is a substantial likelihood that resolution of an
issue will have some bearing on a similar issue involving the same respondent in a subsequent
case). Second, cases involving the tests and procedures authorized under the Mental Health Code
have not specifically addressed whether a procedure for the treatment of a physical health
condition (such as kidney failure) can be ordered pursuant to section 2-107.1. We therefore hold
that the capable-of-repetition and public-interest exceptions to the mootness doctrine apply in this
case.
¶ 18 Turning to the merits, section 2-107.1 of the Mental Health Code “embodies this State’s
significant parens patriae interest in providing for persons who, while suffering from a serious
mental illness or development disability, lack the capacity to make reasoned decisions concerning
their need for medication.” In re C.E., 161 Ill. 2d 200, 217 (1994). However, the forced
administration of psychotropic medication involves a severe interference with a person’s liberty.
In re Robert S., 213 Ill. 2d 30, 46 (2004). The Mental Health Code therefore provides safeguards
to protect mental health patients from the misuse of psychotropic medication by medical staff for
purposes other than treating mental illness. In re Larry B., 394 Ill. App. 3d 470, 474 (2009).
Pursuant to section 2-107.1(a-5)(4), the forced administration of psychotropic medication is
authorized only if the trial court finds clear and convincing evidence regarding each of the
following elements:
“(A) That the recipient has a serious mental illness or developmental disability.
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(B) That because of said mental illness or developmental disability, the recipient
currently exhibits any one of the following: (i) deterioration of his or her ability to function,
as compared to the recipient’s ability to function prior to the current onset of symptoms of
the mental illness or disability for which treatment is presently sought, (ii) suffering, or (iii)
threatening behavior.
(C) That the illness or disability has existed for a period marked by the continuing
presence of the symptoms set forth in item (B) of this subdivision (4) or the repeated
episodic occurrence of these symptoms.
(D) That the benefits of the treatment outweigh the harm.
(E) That the recipient lacks the capacity to make a reasoned decision about the
treatment.
(F) That other less restrictive services have been explored and found inappropriate.
(G) If the petition seeks authorization for testing and other procedures, that such
testing and procedures are essential for the safe and effective administration of the
treatment.” 405 ILCS 5/2-107.1(a-5)(4) (West 2014).
¶ 19 We note at the outset that respondent challenges the trial court’s findings pertaining only to
subsections (D) and (G). He has not challenged any of the findings regarding his mental fitness,
nor has he challenged his diagnosis of end-stage kidney failure. Respondent also concedes that
a patient with end-stage kidney failure will die without artificial support and treatment such as
hemodialysis. He nonetheless maintains that the trial court’s order improperly infringed on his
substantial liberty interest to refuse psychotropic medication and hemodialysis. See C.E., 161
Ill. 2d at 216.
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¶ 20 We must also address the parties’ disagreement over the applicable standard of review.
As noted, the State asserts that this is a “routine sufficiency of the evidence question.” This is
supported to a certain extent by respondent’s brief, in which he labels his arguments as
challenges to whether the State satisfied by clear and convincing evidence the statutory factors in
question. The State accordingly argues that we should not reverse the trial court’s order unless it
is against the manifest weight of the evidence. See In re Vanessa K., 2011 IL App (3d) 100545, ¶
28 (“This court will not reverse a trial court’s order permitting the involuntary administration of
psychotropic medication unless it is against the manifest weight of the evidence.”). In his reply
brief, respondent acknowledges the manner in which he has framed his arguments, but he argues
that this case concerns an issue of statutory compliance and that we should therefore review the
trial court’s order de novo. See In re Jonathan P., 399 Ill. App. 3d at 401 (“Whether the order
complied with the [Mental Health] Code presents a question of law, which we review de novo.”).
¶ 21 As we have discussed, the primary issue respondent raises is whether the Mental Health
Code was an appropriate vehicle for the State to ensure that he would undergo hemodialysis.
Respondent argues that the trial court improperly factored in the hemodialysis in weighing the
benefits and harm of the psychotropic medication and that the trial court lacked authorization to
order the hemodialysis. The facts surrounding these issues are not in dispute; they are questions
purely of law, and the appropriate standard of review is de novo. See In re Alaka W., 379 Ill. App.
3d 251, 259 (2008). Once these issues have been resolved, we will consider whether the trial
court’s order is against the manifest weight of the evidence.
¶ 22 Respondent first argues that the State failed to prove by clear and convincing evidence that
the benefits of the psychotropic medication outweighed the harm. See 405 ILCS
5/2-107.1(a-5)(4)(D) (West 2014). His overarching argument is that, absent the hemodialysis,
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the benefits of the medication did not outweigh the risk of significant damage to his kidneys.
This is based on Susnjar’s admission that she could not safely administer the medication without
knowing that respondent would receive regular hemodialysis, due to the toxic accumulation of
chemicals that could otherwise occur in his blood. Respondent concedes in his reply brief that
the trial court was properly informed of the benefits and harm, but he asserts that its decision was
“based on a contingency that exceeded the Mental Health Code [s]ection 2-107.1 authority.”
We disagree.
¶ 23 We do not believe that the trial court erred by factoring the hemodialysis into its
consideration of whether the benefits of the psychotropic medication outweighed the harm. It is
foreseeable that a mental health patient in need of psychotropic medication would be suffering
from a physical health condition. It is also foreseeable that the negative effects from a
respondent’s physical health condition would be exacerbated by psychotropic medication. See
Robert S., 213 Ill. 2d at 50 (“Suffice it to say that the involuntary administration of psychotropic
drugs may have a profound and sometimes irreversible effect upon a recipient’s personality and
physical health.”). We do not believe that a trial court under these circumstances is bound to
consider the benefits and harm of psychotropic medication in a vacuum, without any regard for the
absence or presence of treatment for a respondent’s physical health condition. Rather, we believe
that the better approach is for a trial court to consider the totality of the evidence in rendering its
conclusion. Here, the trial court heard evidence that hemodialysis would offset a significant harm
that the psychotropic medication would cause. In our view, it would be untenable to hold that this
type of evidence may not be factored into a trial court’s consideration of the benefits and harm of
psychotropic medication.
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¶ 24 We find guidance on this issue from In re Val Q., 396 Ill. App. 3d 155 (2009). The
respondent in that case had an abnormal “QT” interval, meaning her heart took an abnormal
amount of time to reset itself between beats. The testifying physician acknowledged that the
requested medication had the potential to exacerbate the abnormal QT interval, which could
increase the risk of arrhythmia or heart attack. The physician stated that he would begin
involuntary treatment only after consulting with the respondent’s primary-care physician. The
trial court authorized the involuntary treatment with the “ ‘initial caveat’ ” that the physician first
seek consultation to determine the risks posed by the treatment. Id. at 158-59. This court
reversed the trial court, holding that information regarding the potential risks to the respondent’s
heart was necessary before the trial court could engage in any meaningful review of the risks and
benefits of the proposed treatment plan. Id. at 163.
¶ 25 Unlike the physician in In re Val Q., Susnjar performed the consultation necessary to
inform the trial court of the risks and benefits associated with her proposed treatment plan.
Susnjar testified that she had consulted with respondent’s nephrologist to find the proper balance
of psychotropic medications to maximize the likelihood of respondent’s receiving the
hemodialysis. She explained that respondent had been voluntarily receiving the hemodialysis
when he was taking psychotropic medication; he began refusing the hemodialysis only after he
began refusing to take the medication. The “initial caveat” discussed by Susnjar was that, as
per her consultation with the nephrologist, so long as respondent was receiving the treatment for
his kidneys, the benefits of the medication would outweigh the risks. Susnjar further testified
that the involuntary administration of psychotropic medication would serve the dual purposes of
improving respondent’s mental health and increasing the likelihood of his receiving treatment for
his debilitating physical condition. Under these circumstances, we find no fault with the trial
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court’s consideration of whether respondent would be receiving hemodialysis or its conclusion
that, with the hemodialysis, the benefits of the requested medications outweighed the harm.
¶ 26 As a corollary to his overarching argument, respondent asserts that Susnjar failed to
adequately define an administration plan for the requested medications and that she therefore
failed to meaningfully weigh the benefits and harm of her proposed treatment plan. See In re
Williams, 305 Ill. App. 3d 506, 512 (1999) (“An order allowing the use of psychotropic drugs
cannot be based upon a new regimen so poorly defined that the expert could not have meaningfully
weighed the benefits and harm involved.”). We disagree. The petition and Susnjar’s testimony
provided enough details to show that she had meaningfully weighed the benefits and harm
involved with the requested medications. Moreover, the trial court commented that it “[did] not
take lightly the potential serious side effects associated with the medication” but stressed
Susnjar’s testimony that the medication would help respondent manage his delusions,
hallucinations, suffering, and threatening behavior. In light of our holding that the trial court
properly considered respondent’s receiving hemodialysis, we do not believe that its finding that
the benefits of the psychotropic medication outweighed the harm is against the manifest weight
of the evidence.
¶ 27 Respondent’s second argument is that the trial court was not authorized to order
hemodialysis as a procedure for the safe and effective administration of the psychotropic
medication. See 405 ILCS 5/2-107.1(a-5)(4)(G) (West 2014) (authorizing the trial court to grant
a petition for “testing and other procedures” that are “essential for the safe and effective
administration of the treatment”). Respondent acknowledges that section 2-107.1 provides the
authority to order blood testing to ensure the safe administration of psychotropic medication where
the statute’s requirements are met by clear and convincing evidence. In re Floyd, 274 Ill. App. 3d
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855, 863 (1995); see also In re Jill R., 336 Ill. App. 3d 956, 964 (2003) (“Under the doctrine of
parens patriae, courts have the implied authority to order periodic blood testing to ensure the safe
administration of psychotropic drugs, provided the requirements of section 2-107.1 of the [Mental
Health] Code are met by clear and convincing evidence.”). Respondent argues, however, that the
statute does not allow for “invasive” procedures such as hemodialysis.
¶ 28 In Floyd, the appellate court held that section 2-107.1 would be rendered meaningless if a
trial court were unable to order monitoring of medication levels in a respondent’s blood. Floyd,
274 Ill. App. 3d at 863. The court commented that a doctor who prescribed psychotropic
medication could be found guilty of malpractice if the levels of the drugs were not properly
monitored and the respondent suffered toxic side effects. Id. This court has since held that
specific evidence is needed for trial courts to determine which tests are essential for the safe and
effective administration of treatment. In re Donald L., 2014 IL App (2d) 130044, ¶ 26
(concluding that trial courts may not allow doctors to administer unspecified tests at their own
discretion). Here, Susnjar satisfied the requirement from Donald L. insofar as it pertains to the
“other procedures” authorized under section 2-107.1. She testified that, without the
hemodialysis, respondent’s end-stage kidney failure would render him susceptible to a toxic
accumulation of chemicals from the psychotropic medication. We believe that the same rationale
for finding authorization to order blood testing in Floyd allows us to find authorization to order
hemodialysis in this case.
¶ 29 The evidence here reflected that respondent’s mental illness symptoms returned after he
refused to take psychotropic medication. He became delusional, angry, and unable to converse.
He refused to acknowledge the status of his kidneys and he denied that he needed hemodialysis.
Susnjar was therefore faced with the choice of: (1) taking no action; (2) petitioning for only the
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involuntary administration of psychotropic medication; or (3) petitioning for hemodialysis in
conjunction with the involuntary administration of psychotropic medication. But respondent
acknowledges that a patient diagnosed with end-stage kidney failure will die without artificial
support and treatment such as hemodialysis. Moreover, because respondent had been found
unfit to stand trial on a robbery charge, his commitment to the mental health system was an
indication of his lack of decisional capacity. See Larry B., 394 Ill. App. 3d at 476. We therefore
believe that Susnjar would have been derelict in her duties had she stood idly by as respondent’s
mental and physical health simultaneously deteriorated. Likewise, Susnjar could have been
found guilty of malpractice if she had administered the psychotropic medication without an
assurance that respondent would undergo hemodialysis. Given respondent’s dire physical health,
we cannot fault Susnjar for choosing the third option.
¶ 30 Respondent maintains that the trial court improperly intruded into his therapeutic medical
decisions for the purpose of administering psychotropic medication. He argues that, although
Susnjar was unable to determine whether he had executed a power of attorney for health care or a
declaration under the Mental Health Treatment Preference Declaration Act (755 ILCS 43/1 et
seq. (West 2014)), the Mental Health Code was not the proper vehicle for ensuring that he would
undergo hemodialysis. Respondent asserts that the proper course of action would have been to
have the trial court declare him incompetent and appoint either a personal guardian under the
Probate Act of 1975 (755 ILCS 5/11a-17 (West 2014)) or a surrogate under the Health Care
Surrogate Act (755 ILCS 40/20 (West 2014)), who would then have the authority to consent to
respondent’s receiving the hemodialysis. We disagree. Even if one of these alternative vehicles
had been used, and assuming that the individual granted such authority would have consented to
hemodialysis on respondent’s behalf, Susnjar would not necessarily have been adequately assured
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that she could safely and effectively administer psychotropic medication. We see no reason why
Susnjar should not have persisted with the section 2-107.1 petition as a means of guaranteeing that
respondent would receive hemodialysis.
¶ 31 One final case guides our analysis. In In re Mary Ann P., 202 Ill. 2d 393, 406 (2002), our
supreme court rejected an argument that section 2-107.1 impliedly allows for the selective
authorization of only certain of the requested medications. The court reasoned that such an
interpretation would permit the jury to substitute a treatment different from that recommended by
the testifying physician and set forth in the petition. Id. Thus, where the recommended
treatment consists of multiple medications, with some to be administered alternatively, others in
combination, and others as needed to counter side effects, “it is only this treatment, in its entirety,
that may be authorized.” Id. at 405-06.
¶ 32 We believe that, pursuant to Mary Ann P., the trial court in this case was precluded from
authorizing anything short of the treatment plan recommended by Susnjar, including the
hemodialysis. See Jonathan P., 399 Ill. App. 3d at 404 (“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.”).
Contrary to respondent’s repeated suggestions, his mental and physical health conditions were
inextricably linked. Out of necessity, Susnjar’s treatment plan addressed both of these
conditions.
¶ 33 Before concluding, we feel compelled to address respondent’s assertion that, by reversing
the trial court’s order, we would “discourage inappropriate attempts to treat medical conditions in
mental health proceedings.” Respondent would have us limit the “testing and other procedures”
authorized under section 2-107.1 to those deemed noninvasive. However, the State counters by
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noting that the Mental Health Code does not contain any language limiting to noninvasive the
“testing and other procedures” authorized under section 2-107.1. The State’s point is well taken.
While we caution that a section 2-107.1 petition should not be used as an end-around to obtain
authority for testing or other procedures to treat a respondent’s physical health condition, we
believe that the statute includes the necessary safeguards. Namely, based on the plain language of
section 2-107.1, the State must prove by clear and convincing evidence that the requested testing
or other procedures are “essential for the safe and effective administration of the treatment.” 405
ILCS 5/2-107.1(a-5)(4)(G) (West 2014). The trial court here ordered the hemodialysis treatments
on the basis of its finding that the State satisfied this burden. We do not believe that this finding is
against the manifest weight of the evidence.
¶ 34 III. CONCLUSION
¶ 35 The judgment of the circuit court of Kane County is affirmed.
¶ 36 Affirmed.
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