dissenting:
I respectfully dissent. The State concedes the trial court’s order must be vacated, and the State’s concession is for good reason. If the respondent is not informed in writing of the risks and benefits of the medication and treatment, the court’s order for the involuntary administration of medication or therapy must be reversed. See Cathy M., 326 Ill. App. 3d at 342, 760 N.E.2d at 585; Edward S., 298 Ill. App. 3d at 166, 698 N.E.2d at 188.
In the case sub judice, Dr. Yang did not indicate he informed respondent either orally or in writing as to the benefits and risks of drug therapy or ECT. A review of the record supports the State’s concession that it failed to prove respondent was informed of the risks and benefits of the proposed treatment as required by the Code. Thus, the trial court erred in ordering respondent to be subjected to the involuntary administration of ECT and medication. I would, therefore, accept the State’s concession and reverse the trial court’s judgment.
In support of its conclusion that strict compliance with the statute was not necessary, the majority cites only a brief segment of Dr. Yang’s testimony. 343 Ill. App. 3d at 459. When Dr. Yang was asked if respondent was “ ‘capable of rationally weighing the risks and benefits involved in the treatment options available to him,’ ” the doctor opined “ ‘No.’ ” 343 Ill. App. 3d at 459. This is hardly surprising inasmuch as the doctor initiated the petition. Neither the question posed to the doctor nor the doctor’s response addresses the ultimate issue of whether the doctor advised respondent in writing (or otherwise) of the side effects, risks, and benefits of the treatment, as well as alternatives. Nonetheless, the majority concludes that under the circumstances of this case, “the advice to respondent about the involuntary treatment did not have to be in writing. The language in the statute actually contemplates this situation where respondent cannot comprehend written advice ***.” 343 Ill. App. 3d at 460. This generous interpretation of the statutory language ignores the important liberty interests of respondent and any similarly situated recipients involved in mental health cases. See In re Jill R., 336 Ill. App. 3d 956, 963, 785 N.E.2d 46, 52 (2003) (recognizing “a compelling need for strict compliance with statutory requirements in mental health cases because commitment is involuntary and liberty interests are involved”); In re Lanter, 216 Ill. App. 3d 972, 974, 576 N.E.2d 1219, 1220 (1991).
Under the majority opinion, the same physician who treats the recipient may petition for involuntary treatment, testify to the allegations set forth in the petition, and ignore the mandatory language of the statute by opining that the recipient would not have understood the advice anyway. This renders the statutory mandate utterly meaningless and should not be countenanced by this court, particularly in instances like the case now before us. Here, respondent, a former law professor at the University of Illinois, was capable of articulating and expressing his thoughts and anxieties. His testimony, though rambling, demonstrates he was lucid, and more important, not incapable of comprehending the written advice required by the statute. Under these facts, I conclude there is no reason to deviate from the statutory requirement to advise respondent of the risks and benefits of the proposed treatment.
In Jill R., 336 Ill. App. 3d at 964, 785 N.E.2d at 52, the respondent argued on appeal that the State failed to prove she lacked the capacity to make a reasoned decision about medication, alleging the State failed to present sufficient proof she was informed of the risks and benefits of the medication in writing. This court disagreed, noting the respondent received a written statement advising her of the benefits and side effects of the medication. Jill R., 336 Ill. App. 3d at 964, 785 N.E.2d at 52. Further, the multidisciplinary treatment plan contained a signed statement that the benefits and potential side effects of medications had been discussed with the respondent and provided in writing, along with informing her of the right to refuse medication. Jill R., 336 Ill. App. 3d at 964, 785 N.E.2d at 52. Here, the State offered nothing to show respondent was informed either in writing or orally of the risks and benefits of the proposed treatment as required by the Code.
Although I would reverse the trial court, I acknowledge the record as a whole appears to justify the trial court’s ultimate determination to allow the administration of the recommended treatment. The trial court no doubt considered the voluntary testimony of respondent and rendered a judgment it deemed would best serve respondent. However, bad facts make bad law, and the majority, in my opinion, today establishes ill-advised precedent, which obviates a logical and commonsense statutory requirement that recipients should be advised of the benefits and detriments of the treatment proposed to be administered to them.
As a final matter, I strongly disagree with the majority’s dicta that it will presume the doctor complied with the statute absent evidence to the contrary. 343 Ill. App. 3d at 458. “That the statutory procedures may have been followed offers little certainty that respondent’s liberty interests have, in fact, been safeguarded.” (Emphasis in original.) In re Luttrell, 261 Ill. App. 3d 221, 229, 633 N.E.2d 74, 80 (1994). Moreover, such a presumption cannot be inferred from the statutory language, and I find no authority to support the majority’s position.