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II. AUTHORIZED INVOLUNTARY TREATMENT
II. AUTHORIZED INVOLUNTARY TREATMENT:
A(1). Petition: Timeliness
In re Israel, 278 Ill. App. 3d 24, 664 N.E.2d 1032, 216 Ill. Dec. 104 (2nd Dist. 1996). Neither res judicata nor collateral estoppel barred the filing of a petition for involuntary medication where (1) the new petition was based on events that had occurred after the denial and dismissal of the two prior petitions and (2) in the hearing on the first petition, the trial court simply stated that the State had not proven that the respondent lacked decisional capacity; the trial court in that case had not found that the respondent had decisional capacity.
A(2). Petition: Form
In re Jill R., 336 Ill. App. 3d 956, 785 N.E.2d 46, 271 Ill. Dec. 395 (4th Dist. 2003) Failure to allege effort had been made to determine the existence of an advance directive is harmless error where there is no evidence that an advance directive exists.
In re Janet S., 305 Ill. App. 3d 318, 712 N.E.2d 422, 238 Ill. Dec. 700 (2nd Dist. 1999).Contrary to the statute’s requirement, the petitioner failed to allege that he had made a good faith attempt to determine whether the respondent had executed an advance directive for mental health treatment .Although the respondent’s public defender did not object to this failure in the trial court, the Appellate Court reached the merits of the case because the respondent’s liberty interests are at stake and reversed the trial court’s order authorizing involuntary medication.[This opinion implicitly overrules In re Len P., 302 Ill. App. 3d 281 (2nd Dist. 1999).]
In re Len P., 302 Ill. App. 3d 281, 706 N.E.2d 104, 235 Ill. Dec. 844 (2nd Dist. 1999).
Although the Appellate Court reversed the trial court’s order on other grounds, the Court found no error in the failure of the petitioner to allege that he had made a good faith attempt to determine whether the respondent had executed an advance directive for mental health treatment. [This holding was implicitly overruled in In re Janet S. ]
In re Miller, 301 Ill. App. 3d 1060, 235 Ill. Dec. 531, 705 N.E.2d 144 (4th Dist. 1998).
Despite finding many procedural errors, the Appellate Court affirmed the order for involuntary medication. For example, contrary to the statutory requirement, the petition did not allege that a good faith effort had been made to determine whether the respondent had executed an advance directive, but this error was harmless because there was no evidence that there was an advance directive.
In re Carmody, 274 Ill. App. 3d 46, 653 N.E.2d 977, 210 Ill. Dec. 782 (4th Dist. 1995). Trial court's order must be vacated where court failed to require filing of formal petition for involuntary administration of medication and to provide proper notice (permission to medicate added to involuntary admission order on motion of state and additional testimony.)
A(3). Petition: Service of petition/notice
In re Robert S., 213 Ill. 2d 30, 820 N.E.2d 424, 289 Ill. Dec. 648 (2004). 405 ILCS 5/2-10 7.1 required that notice of proceedings, seeking permission to involuntarily administer psychotropic drugs, be given to the patient's criminal defense attorney. The patient was denied a level playing field and a fundamental requirement of due process: the opportunity to be heard in a meaningful manner.
In re O.C. , 338 Ill. App. 3d 292, 788 N.E.2d 116, 273 Ill. Dec. 287 (4th Dist. 2003). Respondent entitled to at least three days notice on petition for administration of authorized involuntary treatment; Safeguards enacted by the legislature are not merely technicalities, rather they are intended to safeguard respondent’s important liberty interests, and the total disregard for the legislatively established procedures is contrary to the Mental Health Code and must not be condoned. Citing with approval In re Luttrell, 261 Ill. App. 3d 221, 633 N.E.2d 74, 198 Ill. Dec. 612 (4th Dist. 1994).
In re Richard C. , 329 Ill. App. 3d 1090, 769 N.E.2d 1071, 264 Ill. Dec. 234 (2nd Dist. 2002). Although the return of service showed only that a notice of hearing was served on the respondent, but not a copy of the petition, the trial court did not err in denying the respondent's motion to dismiss. The clerk informed the court that petitions are customarily served along with the notice, and the respondent offered no rebuttal testimony.
In re Miller, 301 Ill. App. 3d 1060, 235 Ill. Dec. 531, 705 N.E.2d 144 (4th Dist. 1998).
Despite finding many procedural errors, the Appellate Court affirmed the order for involuntary medication. For example, the respondent was not given actual notice of the medication hearing until the day of the hearing, and the Court held that respondents cannot waive Section 2-107.1’s ten day notice requirement. Nonetheless, the Court found that the respondent’s agreement to go to hearing had been in his best interests.
In re DeLong, 289 Ill. App. 3d 842, 682 N.E.2d 1189, 225 Ill. Dec. 112 (3rd Dist. 1997).The respondent appealed the trial court’s order for involuntary treatment because, inter alia, the record did not establish that he had received a copy of the petition for involuntary treatment. Finding that the State’s failures to follow the Code were neither waived nor harmless, the Appellate Court reversed the trial court’s order.
In re Robinson, 287 Ill. App. 3d 1088, 679 N.E.2d 818, 223 Ill. Dec. 367 (4th Dist. 1997).Refusing to find the issue waived, the Appellate Court reversed the trial court’s order for involuntary treatment because the petitioner failed to give the respondent the statutorily required 10 days’ notice, having filed the petition the same day the hearing was held.
In re Jones, 285 Ill. App. 3d 8, 673 N.E.2d 703, 220 Ill. Dec. 559 (3rd Dist. 1997).The Appellate Court reversed the trial court’s order for treatment on other grounds but noted that, having only 1 day’s notice of the hearing did not prejudice the respondent.
A(4). Petition: In general
In re Austin, 245 Ill. App. 3d 1042, 185 Ill. Dec. 852 (4th Dist. 1993). "[T]he plain meaning of section 2-107.1 (g) requires a petition, hearing, and court order before a guardian can authorize the administration of psychotropic medication--even if the ward does not refuse consent." [Section 2-107.1 has since been amended to exclude the requirement of a petition if the ward does not object to the medication.]
B(1). Clear and convincing evidence: Mental illness
B(2). Clear and convincing evidence: Capacity
In re Jill R., 336 Ill. App. 3d 956, 785 N.E.2d 46, 271 Ill. Dec. 395 (4th Dist. 2003). Trial court’s finding respondent lacked the capacity to make a reasoned decision about medication was not against the manifest weight of the evidence. Psychiatrist testified respondent lacked the capacity to make a reasoned decision about the medication. Respondent was psychotic, and she refused medication because she said she wanted to be free and God told her not to take the medication.
In re Christopher P., 342 Ill. App. 3d 336, 795 N.E.2d 323, 276 Ill. Dec. 970 (5th Dist. 2003). Pursuant to 405 ILCS 5/2-107.1, the State must prove, among other things, that the respondent lacks the capacity to make a reasoned decision regarding the administration of psychotropic medication, and it must prove this by clear and convincing evidence. Before one can make a reasoned decision regarding medication, it is first necessary to be informed about the risks and benefits of the proposed course of medication.
In re Christopher P., 342 Ill. App. 3d 336, 795 N.E.2d 323, 276 Ill. Dec. 970 (5th Dist. 2003). Even if respondent's paranoia interfered with the discussions about the medication, it did not mean that the respondent could have neither understood nor utilized the information provided in writing.
In re Christopher P., 342 Ill. App. 3d 336, 795 N.E.2d 323, 276 Ill. Dec. 970 (5th Dist. 2003). The trial court’s order for involuntary administration of psychotropic medicines on a non-emergency basis was reversed where the record was devoid of any evidence that the respondent was informed in writing about the risks and benefits of the medication in writing and the State failed to show that the respondent was incapable of understanding the information.
In re Steven P., 343 Ill. App. 3d 455; 797 N.E.2d 1071; 278 Ill. Dec. 153 (4th Dist. 2003). If shown by clear and convincing evidence that patient lacks the ability to understand the risks and benefits of medication [and here also ECT], there is no requirement, by statute, that he be given written advisement of these options, advantages, and disadvantages.
In re Jill R., 336 Ill. App. 3d 956, 785 N.E.2d 46, 271 Ill. Dec. 395 (4th Dist. 2003) Where petition alleges and treatment plan contains information that respondent has been informed in writing of the risks and benefits of authorized involuntary treatment, trial court’s finding that State proved by clear and convincing evidence that respondent lacked capacity to make a reasoned decision about the treatment is not against manifest weight of the evidence.
In re R.K., 338 Ill. App. 3d 514, 786 N.E.2d 212, 271 Ill. Dec. 954 (1st Dist. 2003). Appeal denied by 204 Ill. 2d 682, 792 N.E.2d 313, 275 Ill. Dec. 82 (2003).Because respondent’s symptoms were not shown to have continued after hospitalization, lack of insight into illness alone does not prove by clear and convincing evidence lack of capacity to make a reasoned decision about involuntary treatment.
In re John R., 339 Ill. App. 3d 778, 792 N.E.2d 350, 275 Ill. Dec. 119 (5th Dist. 2003). State failed to prove by clear and convincing evidence that respondent lacked capacity to make a reasoned decision about the administration of psychotropic medication where respondent was not informed in writing of the side effects and benefits of the treatment as well as alternatives to the proposed treatment, the information respondent must be given to make a reasoned decision, and contrary order is against the manifest weight of the evidence.
In re John R., No. 5-02-0027 (5th Dist. June 11, 2003) Even where the physician has verbally advised the patient of the benefits and side effects of the medication and the patient has informed the physician that he chooses not to take the medication, the patient is still entitled to receive the written notification required by section 2-102 of the Code. Verbal notification is not enough to ensure a respondent's due process rights. Nor is harmless error analysis appropriate to this question. The procedural safeguards of the Code must be strictly construed in favor of the respondent, and strict compliance therewith is compelling, because liberty interests are involved. The failure to comply with the procedural rules requires the reversal of court orders authorizing involuntary treatment. In re Richard C., 329 Ill. App. 3d 1090, 1095 (2nd Dist. 2002)
Furthermore, a respondent cannot waive, by refusing to discuss his treatment with his physician, his right to receive the written advisories required by section 2-102 of the Code. The rights provided in the statute were not placed in the Code to ensure that a respondent understands a medication's side effects but to ensure that a respondent's due process rights are met and protected. Where a patient refuses to discuss the risks and benefits of proposed medications with his physician, it is even more important that he receive the written notification so that he will at least have the minimal amount of notice that is required under the Code. In re Cathy M., 326 Ill. App. 3d 335, 341-43 (2nd Dist. 2001)
In re Richard C., 329 Ill. App. 3d 1090, 769 N.E.2d 1071, 264 Ill. Dec. 234 (2nd Dist. 2002).The trial court's finding that the respondent lacked decisional capacity was against the manifest weight of the evidence because the respondent had not been given written information about the proposed medications. Even though the respondent was paranoid and complained that the medications, due to their side effects, were poison, the respondent still may have been able to read and to understand the written information, and the doctor could fully assess the respondent's capacity only after the respondent had had the opportunity to read the information. Moreover, the requirements of both the Code and of due process mandated that the written information be given. Thus, the trial court's order for involuntary medication was reversed.
In re Gwendolyn N., 326 Ill. App. 3d 427, 760 N.E.2d 575, 260 Ill. Dec. 158 (4th Dist. 2001). Although the trial court's order was reversed on other grounds, the Appellate Court upheld the finding that the respondent lacked decisional capacity. The respondent was mentally ill, failed to recognize her mental illness, was not cognizant of the proposed treatment's risks and benefits, and failed to offer any rational reason for refusing the proposed treatment.
In re Cathy M., 326 Ill. App. 3d 335, 760 N.E.2d 579, 260 Ill. Dec. 162 (2nd Dist. 2001),. Distinguishing Barry B., the Appellate Court reversed the trial court's order because the State failed to prove that the respondent lacked decisional capacity to refuse psychotropic medication. The respondent walked away before the doctor could discuss the medication's risks and benefits, and the doctor did not give the respondent written information about the medication's risks and benefits. Because the respondent was not informed about the medication, the trial court's finding was against the manifest weight of the evidence, and it's order was reversed.
In re E.L., 316 Ill. App. 3d 598, 736 N.E.2d 1189, 249 Ill. Dec. 751 (1st Dist. 2000).Evidence that the respondent consented to medication before the hearing, but after the filing of the petition, was relevant in determining whether she had decisional capacity. By refusing to consider evidence of events that happened after the filing of the petition, the trial court judge abused his discretion and committed reversible error.
In re A.M.P., 303 Ill. App. 3d 907, 708 N.E.2d 1235, 237 Ill. Dec. 195 (4th Dist. 1999).
The parents of a 16 year old minor petitioned the court for authority to consent to ECT. Because the Code contained no provision governing ECT for minors when the petition was filed, the trial court conducted a hearing using the standards of Section 2-107.1 and granted the petition. The Appellate Court affirmed, ruling that the hearing had been required to protect the minor’s rights and that the finding that the minor lacked the capacity to make her own decision was not against the manifest weight of the evidence.[This case was the apparent impetus behind the enactment of Section 2-110.5. ]
In re Edward S., 298 Ill. App. 3d 162, 698 N.E.2d 186, 232 Ill. Dec. 348 (2nd Dist. 1998).
At the hearing on the petition for involuntary treatment, the treating psychiatrist admitted that he had not informed the respondent of the risks and benefits of the proposed treatment but testified that, according to a note in the respondent’s hospital chart, another doctor had. On appeal, the respondent argued that the State had not proven that he lacked the capacity to make a reasoned decision about the medication, and the Appellate Court agreed. The testimony regarding the note in the chart provided no evidence that the respondent had been informed of the medication’s risks and benefits, and giving this information to the respondent was a required element of the petitioner’s case.
In re Barry B., 295 Ill. App. 3d 1080, 693 N.E.2d 882, 230 Ill. Dec. 404 (2nd Dist. 1998).The Appellate Court affirmed the trial court’s order for involuntary treatment. The Court held that the trial court’s finding that the respondent lacked decisional capacity was not manifestly erroneous where the respondent refused to listen to the doctor’s explanation of the proposed treatment and claimed to see no benefit to past treatment, despite the contrary testimony of his family and the doctor.
In re Dorothy W., 295 Ill. App. 3d 107, 692 N.E.2d 388, 229 Ill. Dec. 615 (2nd Dist. 1998).Rejecting the de novo standard of review, the Appellate Court affirmed the trial court’s order for involuntary treatment. Because the respondent failed to give a reason for refusing treatment, refused to listen to the doctor’s explanation of the proposed treatment, complained of no side effects from prior treatment, and contradicted the doctor’s testimony, the Appellate Court ruled that the trial court’s finding that the respondent lacked decisional capacity was not manifestly erroneous.
In re Perona, 294 Ill. App. 3d 755, 690 N.E.2d 1058, 229 Ill. Dec. 11 (4th Dist. 1998).In this consolidated appeal, the respondent appealed both the order for his admission and the order for treatment. The Appellate Court affirmed the trial court’s medication order, finding, inter alia, that the respondent’s denial of mental illness established his lack of capacity.
In re Branning, 285 Ill. App. 3d 405, 674 N.E.2d 463, 220 Ill. Dec. 920 (4th Dist. 1997).The Appellate Court invalidated Section 1-110 on both substantive and procedural due process grounds. In violation of the guarantee of substantive due process, 2-110 allowed the involuntary administration of ECT without requiring proof that the respondent lacked decisional capacity.[The administration of ECT is now governed, not by Section 2-110, but by Section 2-107.1.]
In re Bontrager, 286 Ill. App. 3d 226, 676 N.E.2d 4, 221 Ill. Dec. 664 (3rd Dist. 1996).In this appeal from both an order for involuntary admission and involuntary treatment, the Appellate Court reversed both orders for being against the manifest weight of the evidence. In the treatment case, because there was no testimony about the respondent’s understanding of the treatment’s effects, the State had not proven that the respondent lacked decisional capacity.
In re Israel, 278 Il. App. 3d 24, 664 N.E.2d 1032, 216 Ill. Dec. 104 (2nd Dist. 1996). Establishes six factors to be considered in determining whether individual has capacity to make a reasoned decision concerning psychotropic medication: 1) knowledge of choice; 2) ability to understand options and advantages/disadvantages; 3) voluntary/involuntary commitment; 4) previous experience with same medication/treatment; 5) if so, ability to describe result and effects; 6) absence of interfering pathologies/emotional states preventing understanding. Applying these factors in this case, the State failed to prove that the respondent lacked decisional capacity, and the trial court's order was reversed.
In re Kness, 277 Ill. App. 3d 711, 661 N.E. 2d 394, 214 Ill. Dec. 540 (2nd Dist. 1996).Although the trial court's order was reversed on other grounds, the trial court did not error in finding that the respondent lacked decisional capacity based on evidence that the respondent was delusional and lacked awareness of his mental illness.
In re Austwick, 275 Ill. App. 3d 769, 656 N.E.2d 779, 212 Ill. Dec. 182 (1st Dist. 1995).Testimony that the respondent had dementia, had impaired judgment, and could not distinguish between right and wrong constituted clear and convincing evidence that she lacked the capacity to make a reasoned decision about ECT.
In re Schaap, 274 Ill. App. 3d 497, 654 N.E.2d 1084, 211 Ill. Dec. 274 (2nd Dist. 1995).Before the enunciation, in In re Israel, of the relevant factors to be considered when determining whether a respondent has decisional capacity, the Second District upheld the trial court's finding that the respondent in this case lacked decisional capacity because she lacked insight into her mental illness and had "poor judgment". The Court also found no error in the State's failure to present any evidence of substituted judgment because, pursuant to C.E., the trial court used an objective standard of reasonableness.
In re Jeffers, 239 Ill. App. 3d 29, 606 N.E.2d 727, 179 Ill. Dec. 895 (4th Dist. 1994).The Appellate Court affirmed the trial court's order for medication and its finding that the respondent lacked decisional capacity. Although the respondent's disagreement with her doctor did not establish her lack of capacity, her "non-deluded" reason for refusing the medication did not establish that she was able to appropriately balance the information given her concerning the proposed medication.
B(3). Clear and convincing evidence: Substituted judgment
In re Mark W., 348 Ill. App. 3d 1065, 811 N.E.2d 767, 285 Ill. Dec. 280 (5th Dist. 2004). 405 ILCS 5/2-107.1 permits a court's consideration of the "substituted judgment" of a mental health recipient, and that the court respect the wishes expressed by the mental health patient when the patient was capable of making rational treatment decisions in his own behalf.
In re Len P., 302 Ill. App. 3d 281, 706 N.E.2d 104, 235 Ill. Dec. 844 (2nd Dist. 1999).
Although the Appellate Court reversed the trial court on other grounds, the Court found no error in the State’s failure to present evidence of substituted judgment, ruling that the burden to present such evidence is the respondent’s.
In re Jones, 285 Ill. App. 3d 8, 673 N.E.2d 703, 220 Ill. Dec. 559 (3rd Dist. 1997).The Appellate Court reversed the trial court’s order on other grounds but noted that, because the respondent did not clearly prove her competent wishes, the trial court did not err in failing to employ the substituted judgment standard.
In re Israel, 278 Ill. App. 3d 24, 664 N.E.2d 1032, 216 Ill. Dec. 104 (2nd Dist. 1996).Although the trial court's order was reversed on other grounds, the Appellate Court found no error in the trial court's failure to use the substituted judgment standard. Even though a prior petition had been denied because the State had failed to prove that the respondent lacked decisional capacity, evidence of the respondent's refusal from that prior hearing did not constitute "clear" evidence of the respondent's competent wishes.
In re Austwick, 275 Ill. App. 3d 769, 656 N.E.2d 779, 212 Ill. Dec. 182 (1st Dist. 1995).Because neither side presented any evidence of the respondent's substituted judgment, the trial court could rely on the objective, best interest standard. However, the trial court's finding that ECT was in the respondent's best interest was manifestly erroneous because the doctor gave conflicting testimony about the respondent's eating habits, the respondent took the anti-depressant medication as prescribed and was not critically ill, and there were other medications, with fewer side effects than ECT, that could be tried. Thus, the trial court's order for ECT was reversed.
In re Schaap, 274 Ill. App. 3d 497, 654 N.E.2d 1084, 211 Ill. Dec. 274 (2nd Dist. 1995).Affirming the trial court's order for treatment, the Appellate Court found no error in the State's failure to present any evidence of substituted judgment because, pursuant to C.E., the trial court used an objective standard of reasonableness.
In re Jeffers, 239 Ill. App. 3d 29, 606 N.E.2d 727, 179 Ill. Dec. 895, revised after remand from Sup.Ct. 272 Ill. App. 3d 44, 650 N.E.2d 242, 208 Ill. Dec. 785 (4th Dist. 1995).The Court initially affirmed the trial court's order for medication, despite the absence of any discussion of substituted judgment, because, according to the Court, evidence of the respondent's competent wishes are not relevant in hearings held pursuant to Section 2-107.1.On remand from the Supreme Court, with directions to reconsider its initial opinion in light of In re C.E., the Appellate Court again affirmed the trial court's order because, pursuant to C.E., the trial court properly relied on the "best interest" standard because there was no evidence presented regarding substituted judgment.
In re C.E., 161Ill. 2d 200 , 641 N.E.2d 345, 204 Ill. Dec. 121 (1994). Here, the Supreme Court upheld the constitutionality of Section 2-107.1. Federal constitutional right to refuse exists under "liberty" interests; 2-107. 1 narrowly tailored to address State's parens patriae concern for well-being of those unable to make rational choice, provides due process to avoid concerns of psychotropic medication's serious side effects and misuse by staff; 2-107.1 "permits" substituted judgment consideration and recipient's wishes, when competent, "will often be very relevant..."
Woodland v. Angus, 820 F. Supp. 1408 (D. Utah 1993). Compelling State interest necessary to overcome incompetent person's liberty interest in avoiding unwanted psychotropic medication; State's parens patriae interest is not sufficiently compelling to override the right to refuse; an incompetent person's right to refuse (accept) must be exercised by a duly appointed surrogate using substituted judgment. (State sought to administer medication to render incompetent fit to stand trial.)
B(4). Clear and convincing evidence: Benefits/risks
In re Christopher P., 342 Ill. App. 3d 336, 795 N.E.2d 323, 276 Ill. Dec. 970 (5th Dist. 2003). A circuit court must determine, based upon competent medical testimony, whether respondent has the ability to understand the risks and benefits of treatment or if respondent has pathological perceptions or beliefs that prevent him from understanding the information. If the respondent lacks this ability, there is no requirement, by statute, that he be given written advisements of these options, advantages, and disadvantages. 405 ILCS 5/2-107.1.
In re Steven P., 343 Ill. App. 3d 455; 797 N.E.2d 1071; 278 Ill. Dec. 153 (4th Dist. 2003). JUSTICE TURNER, dissenting: Bad facts make bad law, the majority, in my opinion, today establishes ill-advised precedent, which obviates a logical and commonsense statutory requirement that recipients should be advised of the benefits and detriments of the treatment proposed to be administered to them.
In re Williams, 305 Ill. App. 3d 506, 712 N.E.2d 350, 238 Ill. Dec. 628 (5th Dist. 1999).Finding no testimony of the proposed medications’ side effects, the Appellate Court found that the State had failed to prove that the medications’ benefits outweighed their risks and reversed the trial court’s order.
In re Bontrager, 286 Ill. App. 3d 226, 676 N.E.2d 4, 221 Ill. Dec. 664 (3rd Dist. 1996).In this appeal from both an order for involuntary admission and involuntary treatment, the Appellate Court reversed both orders for being against the manifest weight of the evidence. In the treatment case, because there was no testimony about the treatment’s effects, the State had not proven that the treatment’s benefits outweighed the risks.
In re Kness, 277 Ill. App. 3d 711, 661 N.E. 2d 394, 214 Ill. Dec. 540 (2nd Dist. 1996). Failure to specify medication to be administered prevents determination of whether benefits of such medication outweigh harm. Testimony that medication would be safest kind and in lowest effective dosage insufficient. Distinguishes Jeffers, 239 Ill. App. 3d 29, where medication was identified.
In re Jeffers, 239 Ill. App. 3d 29, 606 N.E.2d 727, 179 Ill. Dec. 895 (4th Dist. 1994).At the trial, the State's expert testified that medication would lessen the respondent's psychotic symptoms and that the medication's side effects could be treated. The Appellate Court affirmed the order for medication, finding that the doctor's opinion that the medication's benefits outweighed its risks was sufficiently supported by factual testimony. And, even if it were not, the doctor's opinion alone presented a prima facie case which was not rebutted by the respondent.
B(5). Clear and convincing evidence: Deterioration/suffering/threatening
In re R.K. , 338 Ill. App. 3d 514, 786 N.E.2d 212, 271 Ill. Dec. 954 (1st Dist. 2003). Appeal denied by 204 Ill. 2d 682, 792 N.E.2d 313, 275 Ill. Dec. 82 (2003). Where State presented little or no evidence about the continuing presence of symptoms after respondent’s hospitalization and only one instance of a repeated episodic occurrence of symptoms, it failed to prove by clear and convincing evidence that there was a continuing presence of any deterioration or that such deterioration repeatedly occurred.
In re O.C., 338 Ill. App. 3d 292, 788 N.E.2d 116, 273 Ill. Dec. 287 (4th Dist. 2003). Expert testimony failed to indicate that respondent presently exhibited deterioration of his ability to function, suffering, or threatening behavior, but referred only to past behavior. State failed to present clear and convincing evidence on this element.
In re Jennifer H., 333 Ill. App. 3d 427, 775 N.E.2d 616, 266 Ill. Dec. 776 (3rd Dist. 2002) Any error contained in an order for involuntary treatment finding the respondent exhibited either threatening or disruptive behavior was harmless; while disruptive behavior had been removed from 2-107.1, statutory language was in the disjunctive and proof of threatening behavior was sufficient to support an order for involuntary treatment.
In re Perona, 294 Ill. App. 3d 755, 690 N.E.2d 1058, 229 Ill. Dec. 11 (4th Dist. 1998).In this consolidated appeal, the respondent appealed both the order for his admission and the order for treatment. The Appellate Court affirmed the trial court’s medication order, finding, inter alia, that the respondent’s poor eating habits established his deterioration within the hospital.
In re Bontrager, 286 Ill. App. 3d 226, 676 N.E.2d 4, 221 Ill. Dec. 664 (3rd Dist. 1996).In this appeal from both an order for involuntary admission and involuntary treatment, the Appellate Court reversed both orders for being against the manifest weight of the evidence. In the treatment case, although the respondent was no longer employed and moved from place to place, the State had not proven deterioration in her ability to function.
In re Jones, 285 Ill. App. 3d 8, 673 N.E.2d 703, 220 Ill. Dec. 559 (3rd Dist. 1997).The Appellate Court reversed the trial court’s order for treatment because evidence that the respondent became angry when examined or forced to take medication did not constitute clear and convincing evidence that she was suffering, deteriorating, threatening or disruptive.
B(6). Clear and convincing evidence: Least restrictive alternative/Dispositional report
In re Robert R. , 338 Ill. App 3d 343, 788 N.E.2d 122, 272 Ill. Dec. 818 (5th Dist. 2003). While 2-107.1(a-5)(3) indicates the provisions of Chapter III of the Code apply to hearings for authorized involuntary treatment, requiring a pre-dispositional report in such a hearing would defeat the obvious purpose of 2-107.1 and would cause an “absurd inconvenience” upon such proceedings.
In re Hatsuye T., 293 Ill. App. 3d 1046, 689 N.E.2d 248, 228 Ill. Dec. 376 (1st Dist. 1998). Although the trial court’s order for ECT was void because it conflicted with a valid power of attorney, the Appellate Court noted, in dicta, that the finding that ECT was the least restrictive alternative was not manifestly erroneous, given the principal’s 14 year history of medication regimens.
In re Jones, 285 Ill. App. 3d 8, 673 N.E.2d 703, 220 Ill. Dec. 559 (3rd Dist. 1997).The Appellate Court reversed the trial court’s order for treatment because there was no evidence that the proposed treatment was the least restrictive.
In re Austwick, 275 Ill. App. 3d 769, 656 N.E.2d 779, 212 Ill. Dec. 182 (1st Dist. 1995).Because neither side presented any evidence of the respondent's substituted judgment, the trial court could rely on the objective, best interest standard. However, the trial court's finding that ECT was in the respondent's best interest was manifestly erroneous because the doctor gave conflicting testimony about the respondent's eating habits, the respondent took the anti-depressant medication as prescribed and was not critically ill, and there were other medications, with fewer side effects than ECT, that could be tried. Thus, the trial court's order for ECT was reversed.
In re DeJesus, 263 Ill. App. 3d 487, 636 N.E.2d 112, 200 Ill. Dec. 921 (5th Dist. 1994).Because the State failed to present any evidence that involuntary medication was the least restrictive method with which to treat the respondent, the Appellate Court reversed the trial court's order.
B(7). Clear and convincing evidence: In general
In re Steven P., 343 Ill. App. 3d 455; 797 N.E.2d 1071; 278 Ill. Dec. 153 (4th Dist. 2003). No evidence was presented as to prior notification of the risks and benefits of medication and ECT. Patient heard the doctor’s testimony at the hearing. Absent any objection, we assume the doctor complied with the statute and did what he was required to do.
In re Steven P., 343 Ill. App. 3d 455; 797 N.E.2d 1071; 278 Ill. Dec. 153 (4th Dist. 2003). JUSTICE TURNER, dissenting: I strongly disagree with the majority's dicta that it will presume the doctor complied with the statute absent evidence to the contrary. Such a presumption cannot be inferred from the statutory language, and I find no authority to support the majority's position.
In re John R., 339 Ill. App. 3d 778, 792 N.E.2d 350, 275 Ill. Dec. 119 (5th Dist. 2003). Evidence necessary to infringe on liberty interests must be “real, clear, and convincing.”
In re Kness, 277 Ill. App. 3d 711, 661 N.E. 2d 394, 214 Ill. Dec. 540 (2nd Dist. 1996). "Courts have defined 'clear and convincing' evidence most often as the quantum of proof that leaves no reasonable doubt in the mind of the fact finder as to the truth of the proposition in question. Although stated in terms of reasonable doubt, courts consider clear and convincing evidence to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense."
In re Israel, 278 Ill. App. 3d 24, 664 N.E.2d 1032, 216 Ill. Dec. 104 (2nd Dist. 1996). "Clear and convincing evidence is defined as the quantum of proof which leaves no reasonable doubt in the mind of the trier or the fact finder as to the veracity of the proposition in question."
C. Order
In re Gloria B., 333 Ill. App. 3d 903, 776 N.E.2d 853, 267 Ill. Dec. 481 (3rd Dist. 2002)
Order for administration of involuntary treatment was reversed since it failed to list the specific medications to be administered, the dosage amounts, and the persons authorized to administer the involuntary treatment and respondent was prejudiced by the omissions in the order.
In re Jennifer H., 333 Ill. App. 3d 427, 775 N.E.2d 616, 266 Ill. Dec. 776 (3rd Dist. 2002) Order for administration of involuntary treatment was manifestly erroneous since it failed to list the specific medications to be administered, the dosage amounts, and the persons authorized to administer the involuntary treatment and respondent was prejudiced by the omissions in the order.
In re Mary Ann P., 202 Ill. 2d 393, 781 N.E.2d 237, 269 Ill. Dec. 440 (2002). Section 2-107.1 of the Mental Health Code does not permit selective authorization of only part of the treatment prescribed by the doctor and proposed in a petition for court-ordered psychotropic medication or ECT. Thus, the Appellate Court erred in requiring a specific verdict form in a jury trial held pursuant to Section 2-107.1, and Nancy M. and Frances K. are overruled.
In re Emmett J., 333 Ill. App. 3d 69, 266 Ill. Dec. 631, 775 N.E.2d 193 (3rd Dist. 2002).Contrary to Section 2-107.1, the trial court's order for authorized involuntary treatment did not specify the medications or the range of dosages to be given. Because the respondent was prejudiced by this error, the Appellate Court reversed the trial court's order.
In re Jennifer H., 226 Ill. Dec. 776, 775 N.E.2d 616 (3rd Dist. 2002).The respondent appealed the trial court's order for involuntary medication, alleging two errors in the order: (1) ignoring a recent change in Section 2-107.1 which eliminated "disruptive behavior" as an element, the trial court's order found that the respondent exhibited "threatening or disruptive behavior" and (2) ignoring the requirements of specificity, the trial court's order did not name the medications or dosages that were to be given and did not name the individuals authorized to give the medications. The Appellate Court found the first error harmless because the order's phrase "threatening or disruptive behavior" was expressed in the disjunctive. However, the Court found the second error prejudicial to the respondent's liberty interests and reversed the order for medication because it did not name the medications, dosages, or individual staff members.
In re R.W., 332 Ill. App. 3d 901, 266 Ill. Dec. 762, 775 N.E.2d 602 (5th Dist. 2002).In this trial by jury, the jury had been given only general, not specific, verdict forms. However, declining to follow the 2nd District's Nancy M. and Frances K., the 5th District affirmed the trial court's order for involuntary medication because, according to the 5th District, Section 2-107.1 does not require that the jury determine the benefits and risks of each specific medication requested in the petition.
In re Richard C., 329 Ill. App. 3d 1090, 769 N.E.2d 1071, 264 Ill. Dec. 234 (2nd Dist. 2002). Using the plain error doctrine, the Appellate Court reversed the trial court's order for the involuntary administration of psychotropic medication because, contrary to the statutory requirement, the order did not specify the individuals authorized to administer the medication.
In re Gwendolyn N., 326 Ill. App. 3d 427, 760 N.E.2d 575, 260 Ill. Dec. 158 (4th Dist. 2001).The trial court's order failed to specify the medications ordered and the individuals authorized to administer them. By failing to specify the medications, the trial court allowed the doctor to "experiment" with varying combinations of medications without limitation and without assurance that the medications would be used for only therapeutic purposes. Because the respondent was prejudiced by the order's omissions, the trial court's order was reversed.
In re Cynthia S., 326 Ill. App. 3d 65, 759 N.E.2d 1020, 259 Ill. Dec. 959 (2nd Dist. 2001).Requiring strict compliance with Section 2-107.1 of the Code, and disagreeing with the 4th District's opinion in Miller, the 2nd District reversed the trial court's order for medication because the order did not specifically designate the individual persons who were authorized to administer the ordered medication.
In re Frances K., 322 Ill. App. 3d 203, 749 N.E.2d 1082, 255 Ill. Dec. 600 (2nd Dist. 2001). Following Nancy M., the Appellate Court reversed the trial court's order for involuntary medication, ruling that the respondent had been denied a fair trial because the trial court had ordered all of the medications named in the petition even though the general verdict form gave no indication that the jury had conducted a risk/benefit analysis on each of the medications.
In re Nancy M., 317 Ill. App. 3d 167, 739 N.E.2d 607, 250 Ill. Dec. 844 (2nd Dist. 2000). In a jury trial, the verdict form should show that the jury "intended to authorize the involuntary administration of specific medications. "Because the verdict form used in this case did not specify the medications authorized, and because the trial court's order authorized all of the medications named in the petition, the respondent was denied her right to a fair trial, and the trial court's order was reversed.
In re Williams, 305 Ill. App. 3d 506, 712 N.E.2d 350, 238 Ill. Dec. 628 (5th Dist. 1999).Contrary to the statue’s requirement, the trial court’s order for medication did not name the specific medication or dosages which were authorized. Requiring strict compliance with the Code because the respondent’s liberty interests are at stake, the Appellate Court reversed.
In re Len P., 302 Ill. App. 3d 281, 706 N.E.2d 104, 235 Ill. Dec. 844 (2nd Dist. 1999).Contrary to the statute’s requirement, the trial court’s order for medication did not name the specific medication or dosages which were authorized. Thus, the Appellate Court reversed the order.
In re Miller, 301 Ill. App. 3d 1060, 235 Ill. Dec. 531, 705 N.E.2d 144 (4th Dist. 1998).
Despite finding many procedural errors, the Appellate Court affirmed the order for involuntary medication. For example, contrary to the statutory requirement, the trial court’s order did not specify the medications and dosages authorized and did not name the person authorized to administer the medication, but trial counsel had not objected to the order and appellate counsel made no claim of prejudice.
In re Barry B., 295 Ill. App. 3d 1080, 693 N.E.2d 882, 230 Ill. Dec. 404 (2nd Dist. 1998).The Appellate Court affirmed the trial court’s order for involuntary treatment. The Court held that the trial court’s order was legally sufficient because Section 2-107.1 did not, at that time, require the order to specify the medications which were being authorized.[Since the decision in this case, Section 2-107.1 has been amended to require this specificity in the trial court’s order; see In re Williams and In re Len P. ]
In re Hatsuye T., 293 Ill. App. 3d 1046, 689 N.E.2d 248, 228 Ill. Dec. 376 (1st Dist. 1998).The principal of a health care power of attorney was admitted to a psychiatric hospital and was prescribed ECT. She objected and amended her power of attorney to prevent her agent from consenting to ECT. The agent then petitioned the trial court to be appointed guardian and to be given authority to consent to ECT. The trial court granted the petition. The Appellate Court reversed and held that the trial court’s order was void because it violated the statutory provisions prohibiting a guardian from making decisions over a matter covered in a power of attorney.
In re Floyd, 274 Ill. App. 3d 855, 655 N.E.2d 10, 211 Ill. Dec. 350 (5th Dist. 1995). Parens patriae authority, which is the basis of Section 2-107.1, includes the authority to order the withdrawal of blood necessary for the safe and proper administration of psychotropic medication.
In re Jill R., 336 Ill. App. 3d 956, 785 N.E.2d 46, 271 Ill. Dec. 395 (4th Dist. 2003) Courts have the power under parens patriae to order periodic blood testing to ensure the safe administration of psychotropic medication where all elements of 2-107.1 have been demonstrated by clear and convincing evidence even when the petition does not request authority for such testing.
In re Estate of Ohlman, 259 Ill. App. 3d 120, 630 N.E.2d 1133, 197 Ill. Dec. 9 (1st Dist. 1994). Trial court's order detailing particular number of psychotherapy sessions per week and specific dosage of medication, in absence of any testimony making those recommendations, was erroneous.
D. Other
In re Jill R., 336 Ill. App. 3d 956, 785 N.E.2d 46, 271 Ill. Dec. 395 (4th Dist. 2003). Trial court had authority to order medical testing even though it was not requested in the petition for involuntary administration of psychotropic medication. Under the doctrine of parens patriae, courts have the implied authority to order blood testing to ensure the safe administration of psychotropic medication, provided the requirements of section 2-107.1 of the Code are met by clear and convincing evidence.
In re Robert R., 338 Ill. App 3d 343, 788 N.E.2d 122, 272 Ill. Dec. 818 (5th Dist. 2003). 405 ILCS 5/3-810 [predispositional report] is not applicable to a petition to involuntarily administer psychotropic medication. The court is required to find only whether the administration of psychotropic medication or other forms of involuntary treatment should or should not be administered.
In re Margaret S. , 347 Ill. App. 3d 1091, 808 N.E.2d 1022, 283 Ill. Dec. 734 (1st Dist. 2004).Trial court denied continuance for involuntary medication pending independent medical examination of the 95 year old patient. Court held, the Code’s interest in expediting petitions for involuntary medication must yield to the liberty interests of an incompetent patient faced with the possibility of being forcibly medicated.
In re Robert S., 213 Ill. 2d 30, 820 N.E.2d 424, 289 Ill. Dec. 648 (2004). Administration of authorized involuntary treatment was applicable to respondent, who was pretrial detainee found unfit to stand trial; petition to involuntarily administer psychotropic medications sought to treat patient on ground that, because of his mental illness, patient had exhibited deterioration of ability to function, suffering, and threatening behavior, rather than for purpose of rendering patient competent to stand trial, and patient advanced no plausible argument for proposition that, for purposes of section of code, pretrial detainees should be treated differently than any other person in need of mental health treatment.
In re Robert S., 213 Ill. 2d 30, 820 N.E.2d 424, 289 Ill. Dec. 648 (2004). The Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial if certain criteria are satisfied. Sell v. United States, 539 U.S. 166.
In re Mark W., 348 Ill. App. 3d 1065, 811 N.E.2d 767, 285 Ill. Dec. 280 (5th Dist. 2004). When considering whether to involuntarily administer psychotropic drugs to a mentally ill and unfit person with pending criminal charges, a trial judge must consider the following factors: (1) that important governmental interests are at stake, (2) that involuntary medication will significantly further those concomitant state interests, (3) that involuntary medication is necessary to further those state interests, and (4) that the administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition. Alternatively, trial courts should determine whether forced medication may be warranted for a purpose other than returning a defendant to competence to stand trial, such as purposes related to the individual's dangerousness or purposes related to the individual's own interests where refusal to take drugs puts his health gravely at risk.
In re Evelyn S., 337 Ill. App. 3d 1096, 788 N.E.2d 310, 273 Ill. Dec. 1 (5th Dist. 2003). Mental Health Code governs procedures for the authorized involuntary treatment of UST respondent.