People v. Michelle J.

JUSTICE THOMAS,

specially concurring:

I agree with the result in these consolidated cases. However, I cannot agree with the majority that this court’s decision in Barbara H. can be salvaged in its entirety. In my opinion, we must repudiate two paragraphs of that opinion if we are going to have a workable rule for the lower courts to follow.

The principal holding in Barbara H. was that the public defender had not validly waived Barbara H.’s right to be present at the involuntary commitment hearing. Barbara H., 183 Ill. 2d at 494-96. After so holding, this court noted some additional problems with the involuntary commitment hearing. One of the problems was that the court did not believe that the State had supported its case with the testimony of a psychiatrist who had examined Barbara H.:

“The State likewise had no information regarding whether Barbara H.’s attendance would pose a risk, substantial or otherwise, of serious physical or emotional harm to her. Indeed, the State had no direct evidence of any facet of Barbara H.’s condition. Its entire case was predicated on the testimony of a physician who had not personally examined her. Although the doctor had treated Barbara H. in the past, he1 admitted on direct examination that he had not had an opportunity to perform a psychiatric examination on her in connection with this case and her present situation.
Section 3 — 807 of the Mental Health Code expressly provides:
‘No respondent may be found subject to involuntary admission unless at least one psychiatrist, clinical social worker, or clinical psychologist who has examined him testifies in person at the hearing. The respondent may waive the requirement of the testimony subject to the approval of the court.’ 405 ILCS 5/3 — 807 (West 1996).
Because the sole witness to testify for the State had not examined Barbara H., this statute was not satisfied. In addition, the requirement of the testimony was not waived.” Barbara H., 183 Ill. 2d at 497.

In my view, the psychiatrist’s testimony in Barbara H. was sufficient to satisfy the statutory requirement of an examination, and this court erred in concluding otherwise. Dr. Husain’s testimony, as detailed in the appellate court opinion (Barbara H., 288 Ill. App. 3d at 363-64), shows that she was intimately familiar with Barbara H.’s condition. Barbara H. had been her patient for a six-month period that ended three months before the hearing. Importantly, Dr. Husain attempted to conduct a current examination of Barbara H. on three separate occasions, and each time Barbara H. refused to talk to her. Thus, Dr. Husain’s diagnosis of the respondent “was based on her review of the medical records, conversation with the staff, personal observations, and her past experience with the respondent when Barbara H. was her patient for a six-month period ending in May 1996.” Barbara H., 288 Ill. App. 3d at 363. Neither in Barbara H. nor in the current opinion does this court explain what else it would have required this psychiatrist to have done. This is clearly not like the situation in Sam S., in which the State relied upon someone who had never been involved with Sam’s treatment and who only attempted to examine him one time. Moreover, in Sam S. the evidence was that the doctor could not examine him because he was in restraints at the time. In Barbara H. the evidence was that a doctor who had been intimately involved in the respondent’s treatment attempted to speak with the respondent on three occasions and the respondent refused to talk to her. Is the majority holding that a respondent can avoid involuntary commitment simply by refusing to speak with the doctor assigned to examine him or her?

When the disposition of Barbara H.’s case is compared with Michelle J.’s, it will be difficult for the lower courts to discern what our rule is with respect to this issue. In Barbara H. we held insufficient the testimony of a doctor who had personally treated the respondent for six months and had updated her knowledge of the case through conversations with staff, personal observations, and a review of medical records. Further, she attempted three examinations of the respondent, but the respondent refused to speak with her. By contrast, in Michelle J.’s case we hold sufficient the testimony of a psychiatrist who was merely a consultant to Michelle J.’s treatment team and who had met with her in a group session. The doctor attempted to interview Michelle J. the day before the hearing, and Michelle J. refused to speak with her. As the majority admits, we know nothing about the group session:

“We do not know the length or depth of the session, but we see nothing in the materials before us to suggest that it was not adequate to enable the expert to draw an informed judgment as to Michelle’s psychiatric condition at the time of the hearing.” 209 Ill. 2d at 439.

Because the group session occurred within 72 hours of the hearing, the majority holds it sufficient to allow the testifying doctor to give an informed opinion as to Michelle J.’s condition. 209 Ill. 2d at 439.

Several problems are apparent with this approach. First, the majority acknowledges that “[w]e cannot rewrite a statute under the guise of statutory construction or depart from the plain language of a statute by reading into it exceptions, limitations, or conditions not expressed by the legislature.” 209 Ill. 2d at 437. If this is true, how can we write a 72-hour time limit into the statute? Second, how can we say that an observation of the respondent in a group session by a consultant to the respondent’s treatment team (Michelle J.) is an “examination” for purposes of the statute, but a review of medical records, conversations with staff, and personal observations by a treating physician intimately familiar with the respondent’s treatment (Barbara H.) is not? Third, how can one attempt to speak with the respondent be sufficient to satisfy the statute while three attempts are insufficient? I do not see how the lower courts will be able to discern a workable rule from these opinions.

Both in Barbara H. and in Michelle J., a physician familiar with the respondent’s case attempted a personal interview with the respondent, and the respondent refused to speak with the doctor. In each of these cases we should say that the State satisfied the requirement of an examination. In my opinion, no rule is workable other than one that requires the doctor to attempt a personal interview, but if the respondent refuses, then the statutory examination may be based on discussions with treating staff and a review of medical records. The majority’s attempt to forge a workable rule out of this case and Barbara H. will cause confusion for the lower courts and result in wholly illogical decisions. We made a mistake in Barbara H., and we owe it to the courts to fix it.

According to the appellate court opinion, the doctor was a woman. See In re Barbara H., 288 Ill. App. 3d 360, 363 (1997).