No. 2-07-0610 Filed: 4-1-10 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
In re JONATHAN P., Alleged to be a Person ) Appeal from the Circuit Court Subject to Involuntary Treatment ) of Kane County. ) ) No. 07--MH--32 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. Jonathan P., ) James C. Hallock, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Respondent, Jonathan P., appealed from the trial court's order authorizing the involuntary
administration of psychotropic medication to respondent for up to 90 days pursuant to section
2--107.1 of the Mental Health and Developmental Disabilities Code (the Code) (405 ILCS
5/2--107.1 (West 2006)). Although the order had expired, we found review of the case appropriate
under the capable-of-repetition-yet-evading-review mootness exception, and we reversed the order.
In re Jonathan P., 386 Ill. App. 3d 981 (2008). In the exercise of its supervisory authority, our
supreme court has directed us to vacate our opinion and reconsider the matter in light of its decision
in In re Alfred H.H., 233 Ill. 2d 345 (2009), to determine whether a different result is warranted.
Having done so, we adhere to our prior determination that review of the case is appropriate under
the capable-of-repetition-yet-evading-review mootness exception, and we reverse.
At the hearing on the involuntary treatment petition, Dr. Husain testified that she was
respondent's psychiatrist at the Elgin Mental Health Center. Respondent had been diagnosed with No. 2--07--0610
"bipolar one disorder, unspecified, with rapid cycling," a serious mental illness. Due to the illness,
respondent suffered from grandiose delusions, his mood was volatile, and he exhibited poor
judgment. Respondent had been hospitalized twice in the past. Respondent was previously ordered
to take psychotropic medication and, as a result, his behavior improved, he was less disruptive, and
he became fit to stand trial. When respondent discontinued the medication, his condition
deteriorated.
In her petition for involuntary treatment, Husain requested to administer four primary
psychotropic medications and two alternative medications. Specifically, Husain petitioned to
administer ziprasidone, orally (80 to 160 milligrams per day), ziprasidone, intramuscularly (10 to
30 milligrams per day), clonazepam (2 to 4 milligrams per day), and valproic acid (1,000 to 2,000
milligrams per day). (Because the petition listed ziprasidone in pill form and in injectable form
separately, we will treat oral ziprasidone and injectable ziprasidone as separate medications for
purposes of this decision.) The petition also listed quetiapine (300 to 800 milligrams per day) and
Prolixin (10 to 25 milligrams per day) as alternative medications if ziprasidone was not effective.
At the hearing, Husain testified that respondent was previously treated with Geodon and
risperidone. (Our research reveals that Geodon is the brand name for ziprasidone.) Respondent
benefited from these medications, but he complained of side effects from risperidone. Thus, Husain
testified that she did not want to administer risperidone, but rather was seeking to administer 300 to
800 milligrams per day of Seroquel and 10 to 25 milligrams per day of Prolixin or fluphenazine.
(Apparently, Seroquel is the brand name for quetiapine, although this was not made clear from the
testimony; Seroquel and quetiapine are used interchangeably throughout.) The State then asked
Husain: "The other two medications prior to this?" Husain responded: "[z]iprasidone, 80 to 60
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milligrams orally and [r]isperidone, two to 16 milligrams per day orally." (Presumably, this refers
to the dosages Husain administered previously to respondent, since Husain specifically testified that
she was not seeking to administer risperidone, due to its side effects.) Husain testified inconsistently
as to which were primary medications and which were alternative medications. Lastly, Husain
testified that she was seeking authorization for blood testing to safely administer the medication.
On cross-examination, Husain testified for the first time that she was also petitioning for
clonazepam, which initially she stated was the generic name for risperidone. She then clarified that
they were two different medications. Clonazepam is an antianxiety medication. Husain also testified
that risperidone was included on the first page of the petition, but she made clear that she was not
seeking to administer risperidone, due to its side effects. Risperidone appears on page two of the
petition, as a medication respondent had received in the past.
Husain gave evidence of what she deemed to be the appropriate maximum and minimum
dosages of two medications, namely Seroquel and Prolixin. She did not testify about valproic acid,
and she did not testify about the appropriate dosages of clonazepam and ziprasidone.
The trial court discussed the specific statutory factors necessary for the involuntary
administration of psychotropic medication and found that the State proved the factors by clear and
convincing evidence. The court further found that "the medication to be administered shall be as
described by the doctor in her testimony and in the range of dosages described by the doctor in her
testimony." The court also stated that the hospital staff "will be allowed to run blood tests to check
the safe administration of the medication."
The trial court entered an order allowing Husain to administer the following medications to
respondent for 90 days: "[z]iprasidone 80-160 milligrams po/day, [z]iprasidone 10milligrams-
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30milligrams IM/day, [q]uetiapine 300-800 milligrams po/day, [f]luphenazine 10-25 milligrams po/
IM." The order left blank what testing and lab procedures were authorized.
Soon after, respondent noticed that the petition was missing the page that requested the
testing deemed essential for the safe and effective administration of the psychotropic medications.
Based on this defect in the petition, respondent made an oral motion to dismiss the petition. The trial
court denied the motion to dismiss, granted the State leave to file an amended petition, and continued
the matter for "consideration" of the amendment. The court stayed the involuntary treatment order
and, on the order itself, the court crossed out the authorized medications.
On May 25, 2007, the trial court granted the State's motion to amend the petition, finding that
"the pleadings now conform to the proof." On June 15, 2007, the court denied respondent's motion
to dismiss and motion to reconsider. The court lifted the stay, ruling that the medication order would
take effect immediately. Respondent filed a timely notice of appeal.
On appeal, respondent contends that the trial court's order authorizing the involuntary
administration of psychotropic medication should be reversed because the treatment order is legally
invalid and unsupported by the evidence. Before addressing the merits, we note that the issues are
moot because the 90-day period covered by the trial court's order has expired. See In re Robert S.,
213 Ill. 2d 30, 45 (2004). "An appeal is considered moot where it presents no actual controversy or
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 complaining party." In re J.T.,
221 Ill. 2d 338, 349-50 (2006). Generally, courts of review do not decide moot questions, render
advisory opinions, or consider issues where the result will not be affected regardless of how those
issues are decided. In re Barbara H., 183 Ill. 2d 482, 491 (1998). Reviewing courts, however,
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recognize exceptions to the mootness doctrine, such as the public interest exception, applicable
where the case presents a question of public importance that will likely recur and whose answer will
guide public officers in the performance of their duties, and an exception for cases involving events
of short duration that are capable of repetition, yet evading review. J.T., 221 Ill. 2d at 350.
We determine that this case falls within the capable-of-repetition exception. This exception
has two requirements. "First, the challenged action must be of a duration too short to be fully
litigated prior to its cessation." Alfred H.H., 233 Ill. 2d at 358. "Second, there must be a reasonable
expectation that 'the same complaining party would be subjected to the same action again.' " Alfred
H.H., 233 Ill. 2d at 358, quoting Barbara H., 183 Ill. 2d at 491. "This means that the present action
and a potential future action must have a substantial enough relation that the resolution of the issue
in the present case would have some bearing on a similar issue presented in a future case involving
the respondent." In re Val Q., 396 Ill. App. 3d 155, 160 (2009), citing Alfred H.H., 233 Ill. 2d at
360.
First, the challenged action was obviously too short to be fully litigated during the pendency
of the order. See Alfred H.H., 233 Ill. 2d at 358. Second, the issues presented here, and any
resolution thereof, would bear on a subsequent case involving respondent. In Alfred H.H., our
supreme court found that the capable-of-repetition mootness exception did not apply in that
involuntary commitment case, because the respondent challenged whether the specific facts that were
established during the hearing were sufficient to prove that the respondent was a danger to himself
or to others. Alfred H.H., 233 Ill. 2d at 360. Because the facts would necessarily be different in any
future commitment hearing, the court found that the issues presented in the case before it would have
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no bearing on similar sufficiency-of-the-evidence issues presented in subsequent cases. See Alfred
H.H., 233 Ill. 2d at 360; Val Q., 396 Ill. App. 3d at 160-61.
This case, however, is distinguishable. First, respondent makes two arguments that challenge
the interpretation of the statute by contending that the order violated the Code. See Alfred H.H., 233
Ill. 2d at 360. Second, although respondent's remaining arguments contest the sufficiency of the
evidence, he specifically argues that the treatment order improperly varied from the petition and that
it authorized dosages that were stated in the petition but were not in the testimony. Unlike the issue
in Alfred H.H., it is reasonably likely that the resolution of these issues would affect future cases
involving respondent, because respondent will likely again be subject to involuntary treatment and
the court will likely again commit the same alleged errors. See Val Q., 396 Ill. App. 3d at 161; In
re Robin C., 395 Ill. App. 3d 958, 963-64 (2009) (applying capable-of-repetition exception where
the resolution of the respondent's statutory compliance issue would have some bearing on a
subsequent case involving respondent). Review is, therefore, appropriate.
Turning to the merits, respondent first argues that the trial court's order violated the Code for
failing to include the testing authorized to monitor administration of the medications and for crossing
out the approved medications. Whether the order complied with the Code presents a question of law,
which we review de novo. See In re Leslie H., 369 Ill. App. 3d 854, 856 (2006).
Section 2--107.1(a--5)(6) of the Code, which dictates the content of involuntary treatment
orders, states as follows:
"(6) An order issued under this subsection (a--5) shall designate the persons
authorized to administer the authorized involuntary treatment under the standards and
procedures of this subsection (a--5). Those persons shall have complete discretion not to
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administer any treatment authorized under this Section. The order shall also specify the
medications and the anticipated range of dosages that have been authorized ***." 405 ILCS
5/2--107.1(a--5)(6) (West 2006).
Section (a--5)(6) does not require that an order include the testing authorized to monitor
administration of the medication (see In re Barry B., 295 Ill. App. 3d 1080, 1088 (1998)), although
the "petition may include a request that that court authorize such testing and procedures as may be
essential for the safe and effective administration of the authorized involuntary treatment sought to
be administered" (emphasis added) (405 ILCS 5/2--107.1(a--5)(1) (West 2006)). Thus, the order
entered here was not legally insufficient for failure to specify the precise tests to be administered.
See Barry B., 295 Ill. App. 3d at 1088. We note, however, that the better practice would be to
include in the order the tests to be administered to monitor medication levels. This would ensure
that the provider of medical care has strict guidance for the treatment of a patient receiving
psychotropic medication involuntarily. Barry B., 295 Ill. App. 3d at 1088.
The parties' cited authority is not on point, because the cited cases address the court's
authority to order blood tests. See In re Jill R., 336 Ill. App. 3d 956, 964 (2003) (trial court had
authority to order medical testing even though not requested in the petition for involuntary
administration of psychotropic medication); In re Floyd, 274 Ill. App. 3d 855, 860 (1995)
("Respondent *** contends that the order authorizing the involuntary withdrawal of blood is void
for want of statutory authority"). Here, the issue is whether, after the court authorized blood testing,
it was reversible error to omit this information from the treatment order. We have determined that
it was not.
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Next, respondent argues that the order violated the statute because the authorized medications
are crossed out. Respondent likens the crossing out of the approved medications to the failure to
include this information in the first place. See In re Gwendolyn N., 326 Ill. App. 3d 427, 429 (2001)
(noncompliance with the Code provision requiring the order to specify the approved medications and
dosages mandated reversal). The cross-out on the treatment order is troublesome, as the crossing
out of material would generally indicate a deletion or correction. See Geiser v. Geiser, 115 A.D.2d
373, 375, 495 N.Y.S.2d 401, 403 (1985) (where a paragraph is crossed out, it is to be read as the
deliberate deletion of the paragraph). But, under the unique circumstances of this case, it appears
that the cross-out was meant to indicate a stay of the order. The subsequent order lifted the stay and
clarified that the treatment order was to take effect immediately. Thus, the treatment order was not
legally insufficient on this basis.
Respondent's remaining two arguments raise issues regarding the sufficiency of the evidence.
Respondent complains of Husain's failure to testify regarding all petitioned-for medications and
failure to testify to the appropriate dosages for several medications. Whether there was sufficient
evidence regarding the type of medications sought to be administered and their anticipated dosages
goes to the issue of whether the State proved by clear and convincing evidence that the benefits of
the treatment outweigh the harm. See 405 ILCS 5/2--107.1(a--5)(4)(D) (West 2006); see also In re
A.W., 381 Ill. App. 3d 950, 958 (2008) (to prove by clear and convincing evidence that the benefits
of the treatment outweigh the harm, the State must present evidence as to the anticipated range of
dosages of the proposed psychotropic medication); In re Gail F., 365 Ill. App. 3d 439, 446 (2006)
(where doctor failed to testify to all requested medications, evidence was insufficient to determine
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whether the benefits of the treatment outweighed the harm). To these questions, we apply the
manifest-weight-of-the-evidence standard. Gail F., 365 Ill. App. 3d at 446.
Here, Husain did not testify to the appropriate dosages for clonazepam and injectable
ziprasidone.1 Respondent appears to believe that Husain's testimony was adequate as to the
appropriate dosage for oral ziprasidone, but we do not find that to be the case. While discussing the
requested medications, the State asked Husain an ambiguous question: "The other two medications
prior to this?" Husain responded: "[z]iprasidone, 80 to 60 milligrams orally and [r]isperidone, two
to 16 milligrams per day orally." Because Husain testified that she previously administered
ziprasidone and risperidone to respondent, and she stated numerous times that she was not seeking
to administer risperidone, the above testimony logically refers to the dosages previously administered
to respondent. In any event, Husain never testified to the appropriate dosage for injectable
ziprasidone, although the court authorized 10 to 25 milligrams in injectable form. Because of these
omissions, Husain's testimony did not support the treatment order. See A.W., 381 Ill. App. 3d at 958
1 We note that the Code does not require that an involuntary-treatment petition or an
involuntary-treatment order set forth proposed nonpsychotropic medications (A.W., 381 Ill. App.
3d at 959-60), but the petition identifies clonazepam and valproic acid as psychotropic medications
and our research has revealed the same. See Davis v. Hubbard, 506 F. Supp. 915, 927 (N.D. Ohio
1980) ("The term psychotropic, or 'mood altering' drug describes several categories of major
tranquilizers (also called antipsychotic or neuroleptic drugs), antianxiety drugs (minor tranquilizers),
antidepressants, sedatives (e.g., barbiturates), and hypnotics").
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(involuntary treatment order reversed because, inter alia, it authorized specific dosages of
psychotropic medications that were not supported by evidence).
Last, Husain failed to offer any testimony regarding the petitioned-for valproic acid, and,
although Husain testified regarding her request for clonazepam, the trial court failed to authorize it.
Respondent notes this error but fails to develop an argument or cite sufficient supporting authority.
However, our research has revealed the case of Gail F., 365 Ill. App. 3d at 447, where this court
concluded that the trial court cannot approve fewer than all the medications listed on the petition
unless the treating physician is seeking authorization for fewer than all.
In Gail F., the State petitioned for the administration of 12 medications. The treating
psychiatrist offered testimony regarding only 10 of those medications. The court, however,
authorized the administration of all 12 medications. On appeal, both parties agreed that this was
error. The State, however, argued that the lack of evidence affected only the approval of the 2
medications and that the order could be modified to authorize the 10 medications that were
supported by testimony. We rejected that argument. The lack of evidence on all petitioned-for
medications was fatal to the entire petition. See Gail F., 365 Ill. App. 3d at 447. We reasoned that
a modification of the treatment plan embodied in the petition must be a matter of medical judgment,
not legal:
" 'As this court has recognized, *** the diagnosis and treatment of mental health disorders
is a " 'highly specialized area of medicine which is better left to the experts.' " [Citation.]
Indeed, section 2--107.1 vests the physician authorized to administer the involuntary
treatment "complete discretion" not to administer the treatment. [Citation.] It is thus not for
the trial court or the jury to "develop a course of treatment and then dictate that course to the
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treating physician. That would constitute role reversal." [Citation.] In the words of amici
curiae, allowing the layperson jury to determine which of the various medications should be
involuntarily administered "dangerously approaches the practice of medicine." ' " (Emphasis
in original.) Gail F., 365 Ill. App. 3d at 447, quoting In re Mary Ann P., 202 Ill. 2d 393, 406
(2002).
The Code does not permit the fact finder "to parse the recommended treatment and
selectively authorize only certain requested medications." Mary Ann P., 202 Ill. 2d at 407. "[W]here
*** the recommended treatment consists of multiple medications--some to be administered
alternatively, some to be administered in combination, and some to be administered only as needed
to counter side effects--it is only this treatment, in its entirety, that may be authorized." Mary Ann
P., 202 Ill. 2d at 405-06.
While the rule in Mary Ann P. does not create an absolute bar on a court's approval of fewer
than all of the medications listed in a petition, it requires that any variance from the petition be made
at the behest of the treating physician. Gail F., 365 Ill. App. 3d at 447. However, "[w]e do not deem
a simple failure to testify about a medication to suggest the treating physician's judgment, as failure
to present evidence may reflect legal error rather than medical judgment." Gail F., 365 Ill. App. 3d
at 447.
Here, the petition requested six psychotropic medications. Husain testified in regard to five
medications. And the trial court's order ultimately approved four medications. Specifically, the
order did not approve valproic acid, likely because Husain neglected to testify to it, and, despite her
testimony regarding clonazepam, the order did not approve it. Because Husain did not request these
variances from the petition, selective authorization by the court was improper. See Gail F., 365 Ill.
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App. 3d at 447. Thus, the order must be reversed. See In re Richard C., 329 Ill. App. 3d 1090, 1094
(2002). A remand is not necessary, since the administration of the medications has been terminated
according to the terms of the court's order. See Richard C., 329 Ill. App. 3d at 1094.
For the foregoing reasons, we reverse the judgment of the circuit court of Kane County.
Reversed.
BOWMAN and BURKE, JJ., concur.
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