specially concurring:
I agree with the majority’s holding that a petition for involuntary commitment may be filed against a voluntarily admitted patient if the facility determines that it can no longer adequately treat the patient. However, I write separately because I would do explicitly what the majority has done implicitly: overrule this court’s decision in In re Hays, 102 Ill. 2d 314 (1984).
The resolution of this case should be simple. Sections 3 — 601 and 3 — 602 of the Code set forth the requirements for a petition for involuntary admission. No one disputes that the State complied with these sections in respondent’s case, and that should be the end of the analysis. The reason the analysis does not end where it should is found in our decision in Hays, in which this court improperly rewrote section 3 — 403 of the Code.
Section 3 — 403 does not prohibit filing involuntary commitment petitions against voluntarily admitted patients. This section merely gives notice to voluntary recipients of mental health services that, if they file a written request for a discharge, they will be discharged within five days unless they withdraw their request, or unless a petition for involuntary commitment is filed within the five-day period. This section does not state that a petition for involuntary commitment can be filed against a voluntarily admitted patient only if the patient has first requested a discharge in writing. The section merely sets out the two circumstances in which a voluntarily admitted patient’s request for a discharge will be denied. The requirements for involuntary commitment petitions are in sections 3 — 601 and 3 — 602. These sections are of general applicability and do not contain any exceptions for people who are already receiving treatment on a voluntary basis.
The majority concedes that our decision in Hays was not based on the language of the Code, acknowledging that “[njothing in the Code expressly requires that a voluntary patient must first make a written request for discharge before a petition for involuntary admission can be filed under article VI of the Code.” 207 Ill. 2d at 111. Because a majority of this court now recognizes that the Code does not contain the restriction that we read into it in Hays, we should overrule that decision. This is an entirely statutory matter, and our analysis should be based solely on what the Code does and does not require.
In this particular area of the law, we have entered the realm of judicial legislation. First, in Hays, we created our own rule that is not based on the language of the statute. We held that a petition for involuntary admission cannot be filed against a voluntary patient unless the patient has first requested a discharge. However, we immediately realized that our new rule was unworkable because an involuntary commitment petition might be necessary if a voluntary patient’s condition deteriorates to the point where he cannot request a discharge. Accordingly, we created an exception to our rule for these situations. Hays, 102 Ill. 2d at 320-21.
Then today’s case came along, and we realized that there was another problem with our rule. What if the treating facility determines that it can no longer adequately treat the patient and involuntary commitment is needed, but the patient’s condition has not deteriorated to the point where he cannot request a discharge? This court’s response is to create another exception to our rule to accommodate this factual setting. 207 Ill. 2d at 113. In an area of the law that is purely statutory, we have begun legislating instead of judging. Our analysis should be based on the language of the Code. Following the language of the Code leads to the same result as the majority’s analysis because the Code does not restrict the class of people who can be the subject of involuntary commitment petitions. The State followed sections 3 — 601 and 3 — 602, and thus respondent was properly involuntarily committed.
Another problem with the approach we have taken is that we have created two exceptions that essentially swallow our rule. We have held that a petition for involuntary admission can be filed against a voluntary patient who has not requested a discharge if either (1) the patient’s condition has deteriorated to the point that the patient can no longer request a discharge, or (2) the facility determines that it can no longer adequately treat the patient as a voluntary admittee. Although the majority states that it is adhering to the Hays rule and creating only a “narrow exception” (207 Ill. 2d at 114), it is difficult to conceive of any other reason than the above two that a petition for involuntary commitment would be filed against someone who is already receiving treatment voluntarily. The majority states that it is absurd to believe that the legislature would not approve of involuntary admissions in cases such as this. 207 Ill. 2d at 113. This is obviously true and is likely precisely why the legislature put no such restriction in the Code. Because the Hays rule was not based on the language of the Code, and because we have essentially nullified the rule with today’s decision, we should admit that Hays was an erroneous decision and overrule it expressly.