No. 3--96--0487
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
IN THE MATTER OF DENISE BONTRAGER ) Appeal from the Circuit
(PEOPLE OF THE STATE OF ILLINOIS) ) Court of the 10th
) Judicial Circuit,
Petitioner-Appellee, ) Peoria County, Illinois
)
v. ) No. 96-MH-125
DENISE BONTRAGER, ) Honorable
) E. Michael O'Brien
Respondent-Appellant. ) Judge, Presiding
_________________________________________________________________
OPINION
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Respondent, Denise Bontrager, appeals from orders of the
circuit court of Peoria County, which found her subject to
involuntary admission into Zeller Mental Health Center (Zeller)
for 60 days, and subject to involuntary administration of
psychotropic drugs for a period not to exceed 90 days. For the
following reasons, we reverse.
FACTS
The limited record in this case reveals that respondent
obtained a college degree, and at one point, was employed and
living with her husband in Ohio. Since approximately 1991,
respondent has been employed, on and off, has moved often, and
her marital status is uncertain.
Respondent spent the last week of April 1996 living with her
sister in Spring Valley, Illinois. That living arrangement ended
sometime after a spanking incident involving respondent's nine
year old niece, for which the police were called.
On May 2, 1996, a petition for respondent's involuntary
admission was filed pursuant to section 119 of the Mental Health
and Developmental Disabilities Code (the Code). 405 ILCS 5/1-119
(West 1992). The petition asserted respondent was mentally ill
and unable to provide for her basic physical needs so as to guard
herself from serious harm. This assertion was based on
respondent's reports of hearing voices, referring to herself in
the third person, failing to eat for three months because she
believed unnamed persons removed her internal organs and blood,
fearing herself because she told the truth, and spitting
frequently because she would not swallow her saliva.
A certificate by licensed clinical social worker and
qualified examiner, David Schwarz (Schwarz), accompanied the
petition. Schwarz certified that respondent's irrational fears
and loss of touch with reality proved she could not be depended
on to care for herself.
On May 3, 1996, respondent was hospitalized at Zeller on an
emergency basis with petition and certificate. Also that day, a
petition for administration of psychotropic drugs was filed
pursuant to section 107.1(d) of the Code. 405 ILCS 5/2-
107.1(d)(West 1992). A certificate by respondent's treating
psychiatrist at Zeller, Dr. Jayalakshmi Attaluri, accompanied the
petition and certified, inter alia, that respondent was mentally
ill, evidenced by her deteriorating behavior, repeated episodic
occurrences, and preoccupation with her problems.
At a May 8, 1996, hearing on both petitions, Dr. Attaluri
testified to the allegations set forth in the petition and the
certificate, and opined that respondent's condition had existed
prior to her admission to Zeller. She recommended that
respondent be committed to Zeller for 60 days, and that a
neuroleptic psychotropic drug such as Prolixin or Haldol be
administered. Dr. Attaluri believed that respondent lacked the
capacity to reasonably decide to take medication, and that the
use of such psychotropic drugs would benefit respondent, with any
possible harm or side effects being outweighed by the benefits.
Respondent testified and denied any psychiatric problems.
She only demanded medical treatment for her missing organs, and
requested legal assistance. She asked to be released to the
Guardianship and Advocacy Commission, and also asked to be
discharged, stating that she could return home, which could be
Peoria, but which had been Spring Valley. She also voiced an
interest in contacting Catholic Social Services and living in one
of their facilities.
Respondent stated that until approximately ten days prior to
the hearing, she had lived independently, and paid her expenses.
She maintained that she was last employed in late 1994 early
1995, however, she stated that she had received unemployment
compensation on and off since 1991. She denied that she would
harm herself or anyone, and if allowed to be released, she could
care for herself, needing only transportation.
The court found clear and convincing evidence of
respondent's mental illness, her refusal of medication, and her
deteriorating condition. The court determined respondent lacked
the capacity to make a reasoned decision about medication, and
that the benefits of psychotropic drugs would outweigh any harm,
which could be guarded against. Finding other less restrictive
services inappropriate, the court ordered respondent
involuntarily committed for 60 days, and authorized the
administration of psychotropic drugs not to exceed 90 days.
Respondent appeals the court's orders.
I. INVOLUNTARY COMMITMENT.
Pursuant to the section 119 of the Code, respondent is
subject to involuntary admission if, due to a mental illness, she
is reasonably expected to inflict serious physical harm upon
herself or another in the near future, or is unable to care for
her basic needs so as to guard herself from serious harm. 405
ILCS 5/1-119 (West 1992).
The elements of section 119 must be proved by clear and
convincing evidence, which requires a high level of certainty
before finding one in need of mental treatment and curtailing
one's liberty, but it is something less than proof beyond a
reasonable doubt. In re Stephenson, 67 Ill. 2d 544 (1977); In re
Johnston, 118 Ill. App. 3d 214 (1983); Bazydlo v. Volant, 164
Ill. 2d 207 (1995).
As a reviewing court, we give great deference to a circuit
court's factual findings, as it stands in the best position to
weigh witness credibility, and its decision will not be disturbed
unless it is manifestly erroneous. In re Jeffers, 239 Ill. App.
3d 29, 35 (1992). However, we emphasize that in order to uphold
a court's order, appropriate findings, based on nothing less than
clear and convincing evidence, must be made.
After careful review of the record, we find that the court's
decision to involuntarily commit respondent was manifestly
erroneous. First, we find that the People failed to prove by
clear and convincing evidence that respondent was unable to care
for her basic physical needs. Dr. Attaluri testified that she
could "not really say whether she [respondent] can prepare her
own meals or whether she was doing it or not." Dr. Attaluri
acknowledged that she had limited information about respondent,
noting that she "did not have a chance to talk to anybody [family
or friends, concerning respondent] ***." She further
acknowledged her inability to determine if respondent attached
any importance to providing for her own needs.
Under these circumstances, we find that Dr. Attaluri's
comments did not constitute clear and convincing evidence that
established a high level of certainty that respondent was unable
to care for her basic physical needs. We note that respondent
had a plan if discharged, with three possible living arrangements
and persons to contact. In addition, she showed some
understanding of money, considering she claimed that she had
lived independently and received unemployment compensation.
Next, we find that the People failed to prove by clear and
convincing evidence that respondent would seriously harm herself.
The record makes no mention of respondent being loud,
threatening, or disruptive. Although one spanking incident
involving respondent's niece was mentioned, the record is devoid
of information concerning the severity of this incident, and
there was no other evidence of past or projected serious harm to
herself or to anyone else presented.
In fact, when asked on direct examination whether respondent
may harm someone else or herself, Dr. Attaluri stated that "there
is a potential," however, on re-cross examination she stated that
respondent may harm, "somebody else, not herself. She's not
suicidal, no." Although the court does not have to wait until
respondent harms herself to commit her, (In re Manis, 213 Ill
App. 3d 1075 (3d Dist. 1991)), Dr. Attaluri's opinion of a
"potential" for harm, followed by a statement that respondent
would not harm herself, falls short of being clear and convincing
evidence, and is speculative at best.
Lastly, although respondent maintains that she was never
notified of the People's attempt to involuntarily commit her
based on "dangerous propensities," the record indicates
respondent was personally served with notice on May 7, 1996.
II. INVOLUNTARY ADMINISTRATION OF PSYCHOTROPIC DRUGS.
Section 107.1(d) of the Code requires that the following
factors be proved by clear and convincing evidence before
psychotropic drugs can be administered to a recipient:
"(1) That the recipient has a serious mental illness or
developmental disability.
(2) That because of said mental illness *** recipient
exhibits deterioration of his ability to function, suffering, or
threatening or disruptive behavior.
(3) That the illness *** has existed for a period marked by
the continuing presence of the symptoms *** or the repeated
episodic occurrences of these symptoms.
(4) That the benefits of the psychotropic medication will
outweigh the harm.
(5) That the recipient lacks the capacity to make a reasoned
decision about the medication.
(6) That other less restrictive services have been explored
and found inappropriate." 405 ILCS 5/2-107.1(d)(West 1992).
Although Dr. Attaluri considered respondent seriously
mentally ill, she acknowledged that she was unable to diagnose
her condition due to a lack of information.
Dr. Attaluri certified that respondent had become agitated
and physically aggressive, however, she failed to specify how.
Dr. Attaluri believed that respondent's mental illness affected
her relationships and her ability to function, in part, because
she went from a college educated, employed, married woman, to one
who is unemployed, moves from place to place, and will not
comment on her marital status. We do not consider these
characteristics to constitute a clear and convincing showing of
respondent's deteriorating ability to function. Further, when
asked, Dr. Attaluri admitted that she had "no idea if she
[respondent] can manage herself in this women's shelter ***."
Dr. Attaluri stated that respondent's illness has existed
for a period marked by the continuing presence of her symptoms,
i. e. respondent is psychotic, delusional, and paranoid that
people are stealing things from her. However, Dr. Attaluri
acknowledged that respondent "doesn't say directly that she's
hearing voices, all she says is all I can say is I have an ear
problem ***."
Although Dr. Attaluri indicated that the benefits of
psychotropic drugs would outweigh any harm, she failed to state
why the drugs were necessary, what the benefits were, or what
potential side affects existed.
Dr. Attaluri opined that respondent was incapable of making
a reasoned decision concerning medication due to her delusions
and denial of psychiatric problems. However, it is uncertain
from the record whether she discussed or reviewed written
explanations of benefits/side effects with respondent, as
required by section 102 of the Code, (405 ILCS 5/2-102 (West
1992)), and if so, whether respondent failed to understand her
options. Further, no one stated why respondent consistently
refused the drugs. In re Carmody, 274 Ill. App. 3d 46, 52-3
(1995)(a mentally ill person subject to involuntary commitment
retains a constitutional right to refuse psychotropic drugs.)
Lastly, there was no evidence submitted as to what least
restrictive services were explored and found inappropriate.
Under these circumstances, the People failed to prove the
elements of section 107.1(d) by clear and convincing evidence.
Therefore, we find that the court erred by ordering respondent
subject to the administration of psychotropic drugs.
Based upon the foregoing, the orders of the circuit court of
Peoria County subjecting respondent to involuntary commitment for
60 days, and involuntary administration of psychotropic drugs not
to exceed 90 days, are reversed.
Reversed.
HOLDRIDGE, P.J., with McCUSKEY and SLATER, J.J., concurring.