In re Dawn H.

ILLINOIS OFFICIAL REPORTS
Appellate Court

In re Dawn H., 2012 IL App (2d) 111013

Appellate Court In re DAWN H., Alleged to be a Person Subject to Involuntary Treatment
Caption (The People of the State of Illinois, Petitioner-Appellee, v. Dawn H.,
Respondent-Appellant).

District & No. Second District
Docket No. 2-11-1013

Rule 23 Order filed June 29, 2012
Rule 23 Order
withdrawn August 20, 2012
Opinion filed August 20, 2012

Held An order for the involuntary administration of psychotropic medication
(Note: This syllabus to respondent was upheld where the evidence supported the trial court’s
constitutes no part of finding that the benefits of the proposed treatment outweighed the harm.
the opinion of the court
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)

Decision Under Appeal from the Circuit Court of Kane County, No. 11-MH-118; the
Review Hon. Susan Clancy Boles, Judge, presiding.

Judgment Affirmed.
Counsel on Veronique Baker, of Guardianship and Advocacy Commission, of
Appeal Chicago, and Penelope S. Smith, of Guardianship and Advocacy
Commission, of Anna, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Bauer and Diane L. Campbell, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the
court, with opinion.
Justices Hutchinson and Schostok concurred in the judgment and opinion.

OPINION

¶1 In September 2011, the trial court authorized the involuntary administration of
psychotropic medication to respondent, Dawn H., for a period of 90 days. 405 ILCS 5/2-
107.1 (West 2010). We decline to dismiss this appeal as moot, but we affirm the trial court’s
order.

¶2 I. BACKGROUND
¶3 Respondent, age 30, has a 12-year history of mental illness. Specifically, respondent has
been diagnosed with bipolar disorder with psychosis. Respondent first became symptomatic
following the birth of her first child (respondent’s two children are now in the custody of
respondent’s mother). According to respondent’s mother, respondent has had “revolving
door type hospitalizations” throughout the past decade and has been consistently
noncompliant with treatment recommendations.
¶4 The instant episode can be traced back to April 2011, when respondent was jailed for
scratching two male victims in the face. While in jail, respondent exhibited a state of
psychosis and was placed in the jail medical unit. There, she went 30 days without
showering, was unable to interact with others, and talked to herself. In the middle of her jail
stay, she was taken to a custody hearing concerning her children. There, she got into a verbal
altercation with officers of the court and spit in the faces of three officers, leading to her
removal from the courtroom.
¶5 Respondent was subsequently placed in the Elgin Mental Health Center, and in
September 2011, her treating psychiatrist, Dr. Donna Luchetta, petitioned for the involuntary
administration of psychotropic medication. Luchetta averred in the petition that, for two
weeks, she had observed respondent on a daily basis during group and individual interviews.

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 Luchetta collected information about respondent’s behavior from health center staff and from
jail progress notes.
¶6 Luchetta requested the court’s permission to administer the following medications with
specified alternatives should the proposed medications prove ineffective or difficult to
administer: (1) lithium (or divalproex or carbamazepine) for mood stabilization; (2)
olanzepine (or risperidone or haloperidol or fluphenazine) for treatment of psychosis; (3)
lorazepam for agitation; (4) fluvoxamine for anxiety; (5) aripiprazole for depression; and (6)
diphenhydramime, i.e., Benadryl (or benztropine), to prevent side effects (not a psychotropic
medication). Additionally, Luchetta requested authorization to perform procedures to
monitor for side effects; these procedures included urinalysis, EKGs (electrocardiogram
tests), and blood tests.
¶7 At the hearing on the petition, Luchetta testified that she observed respondent’s bipolar
disorder with psychosis manifested in respondent’s loud, argumentative behavior;
monopolizing and hyperverbal speech; hypergraphia (writing unprompted five- and six-page
letters to judges, requesting that they help her find a home, even though she was housed in
the health center at the time); delusions (reporting to others that the health center staff were,
in effect, killing her because they did not allow her food when, in fact, she received three
meals per day plus snacks); grandiose delusions (repeatedly stating that she is perfect); and
impaired judgment (previously having been unable to secure housing despite receipt of a
$700-per-month social security check). Additionally, while at the health center, respondent
called the Will County courthouse and told the person who answered the phone that she had
a gun to her head and was going to kill herself.
¶8 Luchetta further testified to an incident where health center staff administered three
medications under a “restriction of rights” policy. On that occasion, respondent threatened
others and exhibited loud, hostile behavior. The medications were: (1) haloperidol for
psychosis; (2) lorazepam for agitation; and (3) diphenhydramime to prevent side effects. The
medications treated the targeted conditions without side effect. However, following that
incident, respondent has refused medication, hence the instant petition. Luchetta stated that,
due to respondent’s paranoia, respondent was unable to make reasonable decisions
concerning her own treatment.
¶9 Finally, in 12 transcript pages of direct testimony and 5 transcript pages of cross-
examination, Luchetta testified to the purpose, dosage, and potential risks and side effects
of each drug listed in the petition. As to the purpose, Luchetta testified as stated in the
petition and as set forth above as to each drug (i.e., for mood stabilization, for treatment of
psychosis, for agitation, for anxiety, and for depression). Luchetta testified extensively
concerning risks, much of which was elicited during cross-examination. At one point,
Luchetta testified to which specific drugs within a certain class were preferred based on the
likelihood of fewer or less severe side effects: “The reason why carbamazepine is such an
effective mood stabilizer is because it doesn’t have many of the side effects that you might
have with either lithium or divalproex sodium, yet you do have very significant mood-
stabilizing benefits.”
¶ 10 In closing, respondent’s attorney argued: “The benefits may be somewhat apparent, but

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 it is very clear that the [negative] effects of this medication, contrary to [Luchetta’s]
minimizing it, *** are enough to give this court some pause in ordering them.” In other
words, respondent virtually conceded the benefits of treatment and did not question the
amount of testimony concerning risks; rather, respondent thought the risks so grave as to
preclude treatment. The court rejected respondent’s argument and found that the statutory
factors for the involuntary administration of psychotropic medication were met by clear and
convincing evidence. The court authorized the involuntary administration of psychotropic
medication and accompanying procedures for a period of 90 days. This appeal followed.

¶ 11 II. ANALYSIS
¶ 12 Respondent argues that the 90-day order for involuntary administration of psychotropic
medication must be reversed because the State failed to present specific evidence of the
benefits of each medication sought to be administered. Respondent does not question the
abundance of testimony concerning the medications’ risks but challenges only the adequacy
of the benefits testimony. Respondent’s argument implicates section 2-107.1(a-5)(4)(D) of
the Mental Health and Developmental Disabilities Code. 405 ILCS 5/2-107.1(a-5)(4)(D)
(West 2010). Subsection (a-5)(4)(D) states that psychotropic medication may not be
involuntarily administered to the recipient unless the trial court finds by clear and convincing
evidence that “the benefits of the treatment outweigh the harm.” Id.
¶ 13 Respondent acknowledges that the 90-day order has expired and that, therefore, this court
must consider whether an exception to the mootness doctrine applies. An appeal is moot
where the issues involved in the trial court no longer exist because intervening events have
rendered it impossible for the reviewing court to grant effectual relief to the appellant. In re
Val Q., 396 Ill. App. 3d 155, 159 (2009). Generally, courts do not decide moot questions or
render advisory opinions. Id. Exceptions to the mootness doctrine apply where: (1) the case
presents a question of public import that will likely recur and the answer to that question will
provide guidance to public officers in the performance of their duties; (2) the case involves
events of short duration that are capable of repetition yet evading review; and (3) collateral
consequences of the order could return to plague the respondent in some future proceeding
or could affect other aspects of the respondent’s life. Id.
¶ 14 The capable-of-repetition-yet-evading-review exception applies here. This exception has
two elements: the challenged action must be of a duration too short to be fully litigated prior
to its cessation, and there must be a reasonable expectation that the same complaining party
would be subjected to the same action again. In re Alfred H.H., 233 Ill. 2d 345, 358 (2009).
A sufficiency claim concerning the specific evidence in an isolated case is not enough,
because the next case involving the same respondent might involve completely different
evidence. Id. at 360. Rather, there must be a substantial likelihood that the issue presented
in the instant case, and any resolution thereof, will have some bearing on a similar issue
presented in a subsequent case. Id. Examples include constitutional arguments or challenges
to the interpretation of a statute that the respondent might again face. Id. (citing In re A
Minor, 127 Ill. 2d 247, 259 (1989) (a newspaper seeking to publish the name of a minor who
had been charged in closed criminal proceedings was reasonably expected to raise the same

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 constitutional challenge to the application of the statute in future cases seeking to publish the
names of charged juveniles)).
¶ 15 Here, there is no question that the challenged action is of a duration too short to be fully
litigated prior to its cessation. And, the record supports that there is a reasonable expectation
that respondent will be subjected to similar orders again. Though the record does not contain
documentation of prior commitments, respondent’s mother stated that respondent has been
in and out of treatment for the last decade. Respondent repeatedly thwarted treatment efforts
and repeatedly engaged in dangerous behavior: allowing herself to become homeless despite
adequate funds, criminally assaulting others, etc. Given her history of mental illness,
resistance to treatment, and aggressive behavior, it is reasonably likely that respondent will
be subjected to similar orders in the future. The State’s assertion otherwise is conclusory.
¶ 16 We reject the State’s position that respondent merely raises a sufficiency argument and
that, therefore, resolving the issue in the present case will not affect a future case involving
respondent. Alfred H.H., 233 Ill. 2d at 359. At first blush, respondent’s argument seems
contrary to her quasi-admission before the trial court that the “benefits [of the proposed
treatment] may be somewhat apparent.” Given this, and given that Luchetta clearly identified
and testified to the purpose of each drug (i.e., for psychosis, for agitation, for the prevention
of side effects, etc.), we take respondent’s claim to be broader than one of simple sufficiency.
Rather, it seems that respondent is arguing that, per se, a trial court is not equipped to weigh
a treatment’s benefits against potential harm where the only evidence as to benefits is the
drug’s identity, the drug’s stated purpose, and a respondent’s pretreatment needs. Respondent
might face this issue in future proceedings. Perhaps a future petition will arise under different
circumstances, but the type of testimony concerning benefits might very well be similar.
¶ 17 However, while we may reach respondent’s argument, we see no support for it. To
establish that the benefits of medication outweigh the harmful side effects so as to support
the involuntary administration of psychotropic medication, the State must produce evidence
of the benefits of each drug sought to be administered as well as the potential side effects of
each drug. In re Suzette D., 388 Ill. App. 3d 978, 985 (2009). Again, it is clear that Luchetta
identified and testified to the purpose of each drug: (1) lithium (or divalproex or
carbamazepine) for mood stabilization; (2) olanzepine (or risperidone or haloperidol or
fluphenazine) for treatment of psychosis; (3) lorazepam for agitation; (4) fluvoxamine for
anxiety; (5) aripiprazole for depression; and (6) diphenhydramime, i.e., Benadryl (or
benztropine), to prevent side effects. Luchetta also testified to respondent’s pretreatment
condition and thereby illuminated the need to effectuate the following treatment purposes:
(1) stabilization of respondent’s mood (where respondent’s symptoms ranged from dazed to
aggressive); (2) alleviation of psychosis (where respondent went 30 days without showering
or being able to interact with others); (3) alleviation of agitation (where respondent
threatened others); (4) alleviation of anxiety (where respondent wrote unprompted five- and
six-page letters about her need for shelter); and (5) alleviation of depression (where
respondent claimed to put a gun to her head).
¶ 18 Respondent does not suggest what further evidence is needed. Our research points to the
sort of benefits evidence that aids a trial court in its determination, and we find that
Luchetta’s testimony satisfied these standards. In In re Kness, 277 Ill. App. 3d 711, 720-21

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 (1996), for example, this court held that, in order to prove by clear and convincing evidence
that the benefits of involuntary treatment outweigh the harm to the patient, the State must
first identify which specific medication will be administered. The testimony in the instant
case clearly meets that threshold. Additionally, testimony concerning which specific drugs
within a certain class have fewer or less-severe side effects speaks not only to the harm
element, but also, albeit indirectly, to the benefits element. See, e.g., In re Nicholas L., 407
Ill. App. 3d 1061, 1065 (2011) (classifying such testimony as benefits testimony, though
adequacy of benefits testimony was not at issue). If a certain drug has fewer side effects, then
that is a benefit. In other words, “weighing” benefits against harm is not always like placing
each black-or-white factor on its respective side of the tipping scale; sometimes it is more
like performing a litmus test on the total mixture of black, white, and gray factors. Luchetta
provided this type of benefits testimony when she compared the side effects of various mood
stabilizers.
¶ 19 Finally, to whatever extent respondent might be relying on Suzette D. for the proposition
that the type of benefits testimony offered in this case (pretreatment condition, purpose of
each drug, and statements as to which drugs have the least side effects) is per se insufficient
evidence of benefits, we find that case distinguishable. In Suzette D., the expert testified to
the respondent’s pretreatment condition and the purpose of each drug, but, as to at least three
drugs, not the possible side effects. Suzette D., 388 Ill. App. 3d at 986. This court did state
that the expert failed to explain the benefits of each drug; however, the material part of our
reasoning in reversing the trial court’s involuntary-treatment order concerned the expert’s
absolute failure to name the side effects of certain drugs. Id. We cautioned that a lack of
evidence as to “each and every” petitioned-for medication is fatal to the entire claim. Id. We
further admonished against “perfunctory” prosecutions of involuntary-treatment petitions.
Id. at 987.
¶ 20 The bottom line is that, here, unlike in Suzette D., the type of evidence set forth does not
per se signal an incomplete or perfunctory prosecution. Unlike in Suzette D., there is no
question that Luchetta testified in detail as to the risks associated with each and every drug.
The testimony concerning benefits meets existing standards regarding benefits testimony as
set forth in Kness. Luchetta testified to respondent’s pretreatment condition, the identity and
purpose of each and every drug (and therefore the pretreatment symptoms each drug
targeted), and the varying levels of side effects. As respondent admitted in her closing
argument, the likely benefits of each drug and course of treatment are often readily apparent:
we know that a given respondent is severely ill, we know each drug’s purpose, and we know
which, among a respondent’s myriad symptoms, each drug would target. The focus of the
testimony and the bigger question to be answered often have more to do with the risks
associated with each medication. Thus, the trial court here did not err, as the evidence was
such that it was equipped to make a finding that the benefits of treatment outweighed the
harm.

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¶ 21 III. CONCLUSION
¶ 22 For the aforementioned reasons, we affirm the trial court’s order.

¶ 23 Affirmed.

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