In re Linda K.

• Court: Appellate Court of Illinois
• Decided: March 18, 2011
• Docket: 4-10-0510 Rel
• Status: Published

Opinion

NO. 4-10-0510 Opn Filed 3/18/11

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: LINDA K., a Person Found ) Appeal from Subject to Administration of ) Circuit Court of Psychotropic Medication, ) Sangamon County THE PEOPLE OF THE STATE OF ILLINOIS, ) No. 10MH503 Petitioner-Appellee, ) v. ) Honorable LINDA K., ) Robert T. Hall, Respondent-Appellant. ) Judge Presiding. _________________________________________________________________

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justice Appleton concurred in the judgment and opinion. Justice Myerscough1 dissented, with opinion.

OPINION

Following a July 2010 hearing, the trial court found

respondent, Linda K., subject to involuntary administration of

psychotropic medication (405 ILCS 5/2-107.1 (West 2008)).

Respondent appeals, arguing that the trial court’s

judgment should be reversed because the State failed to present

evidence that respondent was provided with the statutorily

mandated written information about the side effects, risks,

benefits, and alternatives of the proposed involuntary

administration of psychotropic medication. We agree and reverse.

I. BACKGROUND

In June 2010, Sriehri Patibandla, respondent's

1 Justice Myerscough registered her dissent with this opinion before she resigned from the Appellate Court of Illinois, Fourth District, in order to be sworn in as a judge of the United States District Court, Central District of Illinois. psychiatrist at McFarland Mental Health Center, filed a petition,

seeking to involuntarily administer psychotropic medication to

respondent. The petition alleged that respondent (1) suffered

from a mental illness--namely, schizophrenia, paranoid type, and

(2) was "noncompliant with medication in the initial days of

hospitalization and also in the community."

At the July 2010 hearing on the petition, Patibandla

testified that respondent had been diagnosed with schizophrenia.

Respondent was initially committed to McFarland because she had

previously been found unfit to stand trial. According to

Patibandla, respondent believed that she had been granted

immunity by the President of the United States, and respondent

had a "very poor comprehension of her legal situation."

Patibandla explained that respondent (1) refused to take

psychotropic medication, (2) lacked insight about her mental

illness, (3) failed to acknowledge her mental illness, and (4)

had suffered from her mental illness for at least 20 years.

Patibandla opined that because respondent showed mild

improvement with court-ordered medication, he requested that the

trial court allow him to involuntarily administer the following

psychotrophic medications: (1) Abilify (10 to 30 milligrams per

day), (2) Abilify injection (9.75 milligrams per day), and (3)

Ativan (2 to 8 milligrams per day). Patibandla further requested

that the court authorize the involuntary administration of the

following alternative psychotrophic medications if respondent did

not show improvement: (1) Risperdal (1 to 10 milligrams per

- 2 - day), (2) Risperdal Consta (25 to 50 milligrams every two weeks),

(3) Haldol (5 to 30 milligrams per day), (4) Haldol Decanoate (25

to 100 milligrams one time per month), (5) Seroquel (100 to 800

milligrams per day), and (6) Clozaril (25 to 800 milligrams per

day).

Additionally, Patibandla requested the following

testing and procedures necessary for the safe and effective

administration of the psychotrophic medications: (1) complete

blood count; (2) complete metabolic panel; (3) lipid panels; (4)

an electrocardiogram; (5) tardive dyskinesia monitoring; (6)

physical- and mental-health assessments; and (7) pulse and blood-

pressure assessments. Patibandla acknowledged that the suggested

psychotropic medications had possible side effects, including

weight gain, metabolic syndromes, tardive dyskinesia, white-cell

suppression, and oversedation. Patibandla added that respondent

was currently taking Abilify and Ativan and had not experienced

any adverse side effects.

Patibandla explained that he had discussed the benefits

and side effects of the proposed treatment with respondent.

Thereafter, the following exchange occurred between the prosecu-

tor and Patibandla:

"Q. [STATE:] Has [respondent] been

handed a written list of the side effects?

A. [PATIBANDLA:] Yes, she was.

Q. [STATE:] Did she take them in her hand?

A. [PATIBANDLA:] Yes, she did."

- 3 - Patibandla further explained that (1) treatment without medica-

tion was inappropriate for respondent because of her mental

illness, and (2) group or individual therapy without medication

would be an inadequate treatment alternative.

Patibandla based his opinion that respondent had been

mentally ill for at least 20 years on information gained from

respondent’s sister. Patibandla also acknowledged that respon-

dent claimed that (1) she was allergic to all of the recommended

medications and (2) the psychotropic medication caused her to

experience tremors.

Respondent testified that she discussed the medications

that Patibandla was seeking to involuntarily administer with him,

and she informed him that she was allergic to "medications that

are mind altering." Respondent added that she was not asked

whether she had received any written notification regarding the

side effects, risks, benefits, and alternatives of the proposed

treatment. Respondent further testified that it was illegal to

administer the proposed medications because they had previously

been "pulled off the shelf." Respondent then (1) requested

"immunity" because she believed her case had been dismissed five

times, (2) claimed "double jeopardy" because she was being tried

more than once for the same crime, and (3) expressed concern

regarding her constitutional rights. Because respondent believed

that she was going to be sentenced by the trial court, she

requested "probation, misdemeanor, time[-]served court supervi-

sion for employment reasons for a suspension first time offense."

- 4 - Based on this evidence, the trial court found respon-

dent subject to involuntary administration of the psychotropic

medications for a period not to exceed 90 days as requested by

Patibandla.

This appeal followed.

II. ANALYSIS

A. The Mootness Doctrine and This Case

Initially, we note that the trial court entered the

involuntary-treatment order on July 2, 2010, and limited the

enforceability of the order for a period not to exceed 90 days.

The 90-day period has passed. As a result, this case is moot.

Therefore, before we can address the merits of respondent’s

appeal, we must first determine whether any exception to the

mootness doctrine applies.

An issue raised in an otherwise moot appeal may be

reviewed when (1) addressing the issues involved is in the public

interest, (2) the case is capable of repetition, yet evades

review, or (3) the petitioner will potentially suffer collateral

consequences as a result of the trial court's judgment. In re

Alfred H.H., 233 Ill. 2d 345, 355-61, 910 N.E.2d 74, 80-83

(2009).

The collateral-consequences exception to the mootness

doctrine allows a reviewing court to consider an otherwise moot

case because a respondent has suffered, or is threatened with, an

actual injury traceable to the petitioner and will likely be

redressed by a favorable judicial decision. Alfred H.H., 233

- 5 - Ill. 2d at 361, 910 N.E.2d at 83. "The collateral-consequences

exception applies to a first involuntary-treatment order." In re

Joseph P., Nos. 4-10-0346, 4-10-0347, cons., slip op. at 8 (Ill.

App. Dec. 22, 2010). The collateral-consequences exception

applies where (1) the record does not indicate that the respon-

dent has previously been subject to an involuntary-treatment

order and (2) it appears that the respondent will likely be

subject to future proceedings that would be adversely impacted by

her involuntary treatment. In re Wendy T., No. 2-09-0595, slip

op. at 5 (Ill. App. Dec. 8, 2010), 940 N.E.2d 237, 241-42.

In this case, our review of respondent’s particular

medical history does not indicate that she has ever properly been

subjected to an order for involuntary administration of medica-

tion. Further, respondent’s condition indicates that she would

very likely be subject to future proceedings that would be

adversely impacted by past involuntary treatment. Thus, we

conclude that the collateral-consequences exception applies.

B. Respondent’s Claim That the State Failed To Prove That She Was Provided with Certain Statutorily Mandated Information in Writing

Respondent argues that the State failed to prove by

clear and convincing evidence that she lacked capacity to make a

reasoned decision about the proposed treatment because she was

not provided the statutorily mandated written information about

the side effects, risks, benefits, and alternatives of the

proposed treatment. We agree.

Generally, we review a trial court's order permitting

- 6 - the involuntary administration of psychotropic medication under

the manifest-weight-of-the-evidence standard. In re Louis S.,

361 Ill. App. 3d 774, 779, 838 N.E.2d 226, 231 (2005). Under

this standard, we will reverse a court's judgment only when the

opposite conclusion is apparent or the court's findings are

unreasonable, arbitrary, or not based on the evidence. Louis S.,

361 Ill. App. 3d at 779, 838 N.E.2d at 231.

Pursuant to section 2-107.1 of the Mental Health and

Developmental Disabilities Code (Mental Health Code), psychotro-

pic medication may be administered when the trial court has

determined by clear and convincing evidence that each of the

following factors are present:

"(A) That the recipient has a serious

mental illness or developmental disability.

(B) That because of said mental illness

or developmental disability, the recipient

currently exhibits any one of the following:

(i) deterioration of his or her ability to

function, as compared to the recipient’s

ability to function prior to the current

onset of symptoms of the mental illness or

disability for which treatment is presently

sought, (ii) suffering, or (iii) threatening

behavior.

(C) That the illness or disability has

existed for a period marked by the continuing

- 7 - presence of the symptoms set forth in item

(B) of this subdivision (4) or the repeated

episodic occurrence of these symptoms.

(D) That the benefits of the treatment

outweigh the harm.

(E) That the recipient lacks the capac-

ity to make a reasoned decision about the

treatment.

(F) That other less[-]restrictive ser-

vices have been explored and found inappro-

priate.

(G) If the petition seeks authorization

for testing and other procedures, that such

testing and procedures are essential for the

safe and effective administration of the

treatment." 405 ILCS 5/2-107.1(a-5)(4)(A)

through (a-5)(4)(G) (West 2008).

However, the Mental Health Code goes further, imposing

additional requirements. Section 2-102(a-5) of the Mental Health

Code also provides as follows:

"If the services include the administration

of *** psychotropic medication, the physician

or the physician’s designee shall advise the

recipient, in writing, of [(1)] the side

effects, [(2)] risks, and [(3)] benefits of

the treatment, as well as [(4)] alternatives

- 8 - to the proposed treatment, to the extent such

advice is consistent with the recipient’s

ability to understand the information commu-

nicated." (Emphasis added.) 405 ILCS 5/2-

102(a-5) (West 2008).

In In re Dorothy J.N., 373 Ill. App. 3d 332, 336, 869

N.E.2d 413, 416 (2007), this court explained that strict compli-

ance with all of section 2-102(a-5) is necessary to protect the

liberty interests of the mental-health treatment recipient. In

Dorothy J.N., we held that verbally advising the recipient of the

side effects of the proposed medication was insufficient to

satisfy section 2-102(a-5). Dorothy J.N., 373 Ill. App. 3d at

336, 869 N.E.2d at 416. The Second District Appellate Court

recently agreed, concluding that a failure to provide a patient

with written notification of alternatives to proposed treatment

pursuant to the Mental Health Code compelled reversal. In re

Nicholas L., No. 2-09-1181, slip op. at 15 (Ill. App. Feb. 16,

2011).

Here, the State points to Patibandla's petition for

involuntary administration of psychotropic medication to argue

that respondent was provided with written notification that

other, less-restrictive treatment alternatives were inappropri-

ate. The petition states "[o]ther less[-]restrictive treatment

services, such as counseling, therapy, education, activities and

rehabilitation, have been explored," and these treatment alterna-

tives were found inappropriate for respondent without the use of

- 9 - psychotropic medications. Although the petition stated that

other, less-restrictive treatment alternatives were considered,

this "notice" is not sufficient to comply with the Mental Health

Code because, as we previously explained, the State must present

evidence that respondent received written notification of the

alternatives (Louis S., 361 Ill. App. 3d at 780-81, 838 N.E.2d at

232-33).

Additionally, the State suggests that Patibandla's

testimony regarding his recommendations of alternative medica-

tions was sufficient to comply with the requirements of the

Mental Health Code. Because, as we explained in Dorothy J.N.,

strict compliance with all of the Mental Health Code is required,

including the section 2-102(a-5) mandate that the list of alter-

natives be in writing, we disagree.

Further, the State's claim that its questioning of

Patibandla regarding respondent being handed a written list of

the side effects was sufficient for the trial court to conclude

the State proved that respondent received written information on

the side effects of the proposed treatment. However, the record

before us shows that the State failed to present any evidence to

prove respondent was provided with the statutorily mandated

written information on the risks, benefits, and alternatives of

the proposed treatment.

In closing, we note that the prosecutors could assist

the attending physicians by preparing, in advance, a written-

description form regarding the involuntarily administered medi-

- 10 - cine that would comply with section 2-102(a-5) of the Mental

Health Code. Then, to comply with the statute, all that the

physician need do would be to hand that description to the

patient. For more detail on this procedure, see Dorothy J.N.,

373 Ill. App. 3d at 338-39, 869 N.E.2d at 418 (Steigmann, P.J.,

specially concurring) (outlining the procedure for complying with

section 2-102(a-5) of the Mental Health Code). Additionally, to

prove the State’s case by clear and convincing evidence, the

prosecutor must ask questions to fulfill the statutory require-

ments that respondent was advised in writing on the four mandated

matters: side effects, risks, benefits, and alternatives to the

proposed treatment.

Because the State failed to prove, by clear and

convincing evidence, that respondent was provided with the

statutorily mandated written information--that is, the risks,

benefits, and alternatives of the proposed treatment--we conclude

that the trial court’s judgment must be reversed. See Dorothy

J.N., 373 Ill. App. 3d at 336, 869 N.E.2d at 416 ("'the right to

written notification is not subject to a harmless-error analysis'

and *** strict compliance with the procedural safeguards of the

Mental Health Code is necessary to protect the liberty interests

involved" (quoting Louis S., 361 Ill. App. 3d at 780, 838 N.E.2d

at 232)).

III. CONCLUSION

For the reasons stated, we reverse the trial court's

judgment.

- 11 - Reversed.

- 12 - JUSTICE MYERSCOUGH, dissenting:

I once again respectfully dissent. As in Dorothy J.N.,

I would affirm because the trial court did not abuse its discre-

tion in authorizing administration of involuntary treatment. The

common-law record includes the signed petition for administration

of authorized involuntary treatment and a treatment plan that

states respondent had been delivered a written notice of the

risks and benefits of the proposed treatment. That petition

includes the following language of affirmation:

"I have read and understood this

[p]etition and affirm that the statements

made by me are true to the best of my knowl-

edge. I affirm that I advised the individ-

ual, in writing, of the risks and benefits of

the proposed treatment."

Dr. Patibandla, the treating psychiatrist who testified at the

petition-for-administration-of-involuntary-treatment hearing,

signed that petition..

That notice alone is sufficient compliance with section

102(a-5) (405 ILCS 5/2-102(a-5) (West 2008)). See In re Jill R.,

336 Ill. App. 3d 956, 964, 785 N.E.2d 46, 52 (2003) (petition and

treatment plan indicated written notice given was sufficient

compliance).

The majority disregards the written-notice affirmation,

the oral notice testified to, as well as the contents of the

petition, which again reiterate:

- 13 - "13. I have explained the risk and the

intended benefits of the treatment to the

patient/respondent and also have provided

that information in written or printed form

to the patient/respondent.

YES

14. The patient/respondent objects to

the administration of the requested

psychotropic medication(s) and/or the range

of dosages. However, the patient/respondent

lack[s] the capacity to make a reasoned deci-

sion about the treatment for the following

reasons:

She relates that she does not have a

mental illness and does not need medication.

She claims 'I don't want to be hooked onto a

medication.'

15. Other less restrictive treatment

services, such as counseling, therapy, educa-

tion, activities, and rehabilitation, have

been explored.

However, such treatment services have

been found to be inappropriate to treat the

patient/respondent without use of

psychotropic medication for the following

- 14 - reasons:

She is unable to participate in any non-

pharmacological treatments that are available

due to her disorganized thought processes."

Further, the majority ignores the language in the

Mental Health Code that requires written notice only "to the

extent such advice is consistent with the recipient's ability to

understand the information communicated" (405 ILCS 5/2-102(a-5)

(West 2004)). Respondent clearly exhibited an inability to

understand the information communicated.

Concededly, the supreme court reversed this court on

the written-notice requirement in In re Steven P., 207 Ill. 2d

604, 801 N.E.2d 947 (2004) (nonprecedential supervisory order),

in a terse supervisory order. However, this appellate court had

based its decision on the respondent's forfeiture of the written-

notice requirement. The record was silent on any written or oral

attempts to notify the respondent of the medication's side

effects. Moreover, the supervisory order specifically exercised

its supervisory authority "in light of the People's factual and

legal concessions," to which this court is not privy. Steven P.,

207 Ill. 2d at 604, 801 N.E.2d at 947. Moreover, supervisory

orders are not precedential. "As the State pointed out, supervi-

sory orders are unpublished, recite no facts, and provide no

rationale upon which the principles of stare decisis may attach."

People v. Jackson, 154 Ill. App. 3d 320, 324, 507 N.E.2d 89, 91

(1987).

- 15 - Our record is not so silent. Not only was the written

notice pleaded and affirmed in the petition, but Dr. Patibandla

also testified he had verbally notified respondent of the poten-

tial side effects:

"Q. Have you had occasion to discuss

with Miss [K.] the benefits and side effects

of the treatment that you're seeking in this

Petition?

A. Yes, I have.

Q. What does she say?

A. She did not believe that she would

need medication and said, 'I don't want to be

hooked onto medicine.'

Q. Has she been handed a written list

of the side effects?

A. Yes, she was.

Q. Did she take them in her hand?

A. Yes, she did.

Q. Did she have any questions for you,

Doctor, about the side effects?

A. She did not."

The doctor was very specific about the side effects:

"Patients may gain weight, there is

metabolic syndromes to be concerned about,

and there is tardive dyskinesia with Haldol

medication and white cell suppression with

- 16 - Clozapine."

Further, the majority's strict compliance with written

notice is not mandated by the statute or in Steven P. where, as

here, the respondent exhibited an inability to understand the

written information. She clearly lacked the capacity to give

informed consent. Dr. Patibandla testified:

"She has a lot of fixed false beliefs,

which are delusional thoughts she possesses.

She's charged with two counts of forgery from

Madison County, and she was sent to us as

unfit to stand trial because of this fixed

and false beliefs. She believes that she

went through some sort of appeal process."

In addition, the following exchange occurred:

"Q. Does she have the capacity to give

informed consent?

A. She does not.

Q. Does she acknowledge having a mental

illness?

Q. Does she have any understanding of

her mental illness?

Q. Does she have any insight at all into

her illness?

A. She does not."

- 17 - For these reasons, I would affirm the trial court.

- 18 -