In re Maureen D. , 2015 IL App (1st) 141517 ( 2015 )

2015 IL App (1st) 141517
SIXTH DIVISION
August 14, 2015
No. 1-14-1517
In re MAUREEN D., Found to Be a Person Subject to ) Appeal from the
Involuntary Medication, ) Circuit Court of
) Cook County.
(The People of the State of Illinois, )
)
Petitioner-Appellee, )
) 2014 COMH 000812
v. )
)
Maureen D., ) Honorable
) Paul A. Karkula,
Respondent-Appellant). ) Judge Presiding.
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Presiding Justice Hoffman and Justice Lampkin concurred in the judgment and opinion.
OPINION
¶1 Respondent, Maureen D., appeals the order of the trial court authorizing the involuntary
administration of psychotropic medications to her pursuant to section 2-107.1(a-5)(4) of the
Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/2­
107.1(a-5)(4) (West 2014)). Respondent contends the State failed to prove by clear and
convincing evidence that she was subject to involuntary treatment because no evidence showed
she was advised, in writing, of the side effects, risks and benefits of the psychotropic medications
as well as alternatives thereto as required by section 2-102(a-5) of the Mental Health Code (405
ILCS 5/2-102(a-5) (West 2014)). We affirm.
¶2 I. BACKGROUND
¶3 Dr. James Corcoran, a psychiatrist, filed a petition seeking to involuntarily administer
psychotropic medications to respondent pursuant to section 2-107.1(a-5)(4) of the Mental Health
Code. Section 2-107.1(a-5)(4) provides:
No. 1-14-1517
"(4) Psychotropic medication and electroconvulsive therapy may be administered
to the recipient if and only if it has been determined by clear and convincing evidence
that all 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 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 capacity to make a reasoned decision
about the treatment.
(F) That other less restrictive services have been explored and found
inappropriate.
(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." (Emphasis added.) 405 ILCS 5/2-107.1(a-5)(4) (West 2014).
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¶4 Before respondent can make a reasoned decision about her medications, she first must be
advised about their risks and benefits. In re Tiffany W., 2012 IL App (1st) 102492-B, ¶ 13.
Pursuant thereto, section 2-102(a-5) of the Mental Health Code provides in pertinent part:
"If the services include the administration of *** psychotropic medication, the physician
or the physician's designee shall advise the recipient, in writing, of the side effects, risks,
and benefits of the treatment, as well as alternatives to the proposed treatment, 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 2014).
¶5 "The rationale underlying the requirements of section 2-102(a-5) is to not only ensure
that a respondent is fully informed, but also 'to ensure that a respondent's due process rights are
met and protected.' [Citation.] Strict compliance is necessary to guard a respondent's
fundamental liberty interest in refusing invasive medication [Citation.] Verbal notification is
insufficient and the right to receive written notification under section 2-102(a-5) cannot be
waived by a respondent." In re Nicholas L., 407 Ill. App. 3d 1061, 1072 (2011).
¶6 II. HEARING
¶7 At the hearing on the petition on April 18, 2014, respondent's sister, Mary S., testified
respondent was diagnosed with a personality disorder in 1990 and hospitalized at MacNeal
Hospital in Berwyn. Respondent was hospitalized again in 1994 at Northwestern Memorial
Hospital and diagnosed as bipolar. She was prescribed medications, specifically, Lithium and
Stelazine. Upon her discharge from Northwestern Memorial Hospital, respondent received
outpatient treatment from Dr. Burton, her psychologist, for several years and continued to take
the medications. During that time period, respondent did "very well"; she owned her own
condominium, ran marathons, got along with her family, and "looked great."
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¶8 Around 2006 or 2007, respondent lost her job and stopped taking her medications.
Without her medications, respondent became "progressively paranoid," believing everybody was
against her and that Mary S. was abusing their mother. Mary S. last saw respondent in 2011,
about three years prior to the hearing.
¶9 Dr. Corcoran testified he is a psychiatrist who works full-time as the medical director at
Chicago-Read Mental Health Center (Chicago-Read) and he also works part-time for the DuPage
County jail. Dr. Corcoran testified that in 2013, respondent was briefly hospitalized at Chicago-
Read for causing a disturbance at the Chicago Public Library. She refused treatment and was
subsequently discharged.
¶ 10 Dr. Corcoran testified that later, in October 2013, respondent fell into arrears in her
payments to the condominium association and eviction proceedings were initiated. When the
sheriff tried to serve her, she refused to open the door and the sheriff forced it open. Respondent
was then taken into custody and charged with misdemeanor obstruction of service. In December
2013, respondent was found unfit to stand trial on the misdemeanor charge and she stayed in jail
while waiting for placement at a minimum-security facility. When a bed opened up at Chicago-
Read on January 29, 2014, respondent was transferred there to be restored to fitness.
¶ 11 Dr. Corcoran evaluated respondent in February 2014, and he also performed subsequent
evaluations. During many of the evaluations, respondent asked questions Dr. Corcoran was
unable to answer, an "explosive argument" ensued, and respondent spoke and shouted in a
"monologue of 5 to 10 solid minutes." Dr. Corcoran was then "able to maybe ask a question,
*** but the answer [he] got was confusing, disorganized and based on delusions."
¶ 12 Dr. Corcoran opined that respondent suffers from bipolar affective disorder, manic type,
and was currently symptomatic. Respondent talks about a conspiracy of gang members and
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Serbian/Baltic Nazis in her neighborhood who attempt to get her evicted. Respondent also has
suffered socioeconomic decline because, although she had worked various jobs in the past, she
has not worked recently.
¶ 13 Dr. Corcoran testified that respondent exhibits "suffering behavior" in that when he tries
to talk to her, she appears quite anguished and agitated and she shouts and screams. Respondent
has exhibited threatening behavior, specifically, when she engaged in some type of "altercation"
with the sheriff who attempted to serve her during the eviction proceedings, and also on February
14, 2014, when she was so resistive to medication that she was placed in a "physical hold."
Respondent also was placed on a phone restriction at Chicago-Read because she was making
harassing phone calls to Cook County sheriff's office.
¶ 14 Dr. Corcoran testified about the psychotropic medications he wanted to administer to
respondent, their dosages, side effects, and benefits. He requested to administer Lithium, which
respondent has taken before, and several other medications. Dr. Corcoran also testified he
attempted to give respondent written information in February 2014 and again on March 17, 2014,
regarding the psychotropic medications he wanted to administer, including their benefits and side
effects, as well as the nonmedical alternatives to the proposed treatment. In response to the
written information, respondent stated: "I don't need that. I don’t need medication."
¶ 15 Dr. Corcoran testified that respondent does not have the capacity to make a reasoned
judgment about the treatment he was seeking for her. When asked why not, Dr. Corcoran
explained: "Because her paranoid delusions about what has happened in her life and the
deterioration that she has experienced are so heavily ingrained at this point that she is not able to
listen to reason." Dr. Corcoran has explored less restrictive alternatives to psychotropic
medications, such as group and individual therapy, but he found them to be inappropriate for
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respondent given her lack of insight into her illness. Dr. Corcoran opined that the benefits of the
psychotropic medications outweighed their harm and that without administration of the
psychotropic medications, respondent's prognosis was "very poor."
¶ 16 On cross-examination, Dr. Corcoran testified in pertinent part:
"Q. And when you were talking about the written information about the
treatment, your written information about the medication - ­
A. Yes.
Q. You testified that you attempted to give the information. What do you mean
by attempted?
A. I handed it to her, and she walked away from me.
Q. Okay. Did she take it in her hands?
A. No. I left it on the counter in the nursing station because she walked away.
Q. Okay.
A. I said [to respondent] here's some information about medication. This was
some time ago when I thought originally that she may have the capacity to consent to
medication, and I have since realized that she doesn't.
Q. Okay. So you left the papers on the counter? Did you take them and put them
on her nightstand or on her bed?
A. I'm not allowed in her room. I don't go into a female patient room."
¶ 17 Following Dr. Corcoran's testimony, respondent was called to testify, but she stated that
she preferred to read a statement. The court refused to allow respondent to read her statement,
and she did not testify.
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¶ 18 Following all the testimony and closing arguments, the trial court granted Dr. Corcoran's
petition to involuntarily administer psychotropic medications to respondent. Respondent now
appeals, contending the State failed to prove by clear and convincing evidence that she was
subject to involuntary administration of psychotropic medications because no evidence showed
she was advised, in writing, of the side effects, risks and benefits of these medications as well as
alternatives thereto as required by section 2-102(a-5) of the Mental Health Code.
¶ 19 III. ANALYSIS
¶ 20 Initially, we note the underlying judgment, entered on April 18, 2014, was limited to 90
days, which have passed. Therefore, we cannot grant respondent any effectual relief and her
appeal is moot. See In re Robert S., 213 Ill. 2d 30, 45 (2004) (holding that after the 90-day
period for the administration of involuntary treatment has passed, the circuit court's order no
longer has any force or effect, the reviewing court cannot grant any meaningful relief and,
therefore, the case is moot and any decision would be advisory in nature). See also In re
Nicholas L., 407 Ill. App. 3d at 1070 ("An appeal is moot when no actual controversy is
presented or when the issues raised in the trial court have ceased to exist, rendering it impossible
for the court of review to grant effectual relief to the appellant."); People v. Hill, 2011 IL
110928, ¶ 6 ("The mootness doctrine provides that we must dismiss an appeal when the issues
involved have ceased to exist because intervening events have made it impossible for us to grant
effectual relief.").
¶ 21 However, respondent argues we should reach the merits of her appeal based on the public
interest exception to the mootness doctrine and the "capable of repetition yet avoiding review"
exception to the mootness doctrine. We agree. Our supreme court has stated:
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"The public interest exception allows a court to consider an otherwise moot case when
(1) the question presented is of a public nature; (2) there is a need for an authoritative
determination for the future guidance of public officers; and (3) there is a likelihood of
future recurrence of the question." In re Alfred H.H., 233 Ill. 2d 345, 355 (2009).
¶ 22 In the present case, the question presented by respondent involves whether section 2­
102(a-5) of the Mental Health Code was sufficiently complied with, which we have held
"qualifies as a matter of a public nature." In re Nicholas L., 407 Ill. App. 3d at 1071. See also In
re Robert S., 213 Ill. 2d at 46 ("the procedures courts must follow to authorize the involuntary
medication of mental health patients involve matters of 'substantial public concern' " (quoting In
re Mary Ann P., 202 Ill. 2d 393, 402 (2002))). "Moreover, the vast number of cases addressing
the issue of compliance with section 2-102(a-5) (see, e.g., In re Alaka W., 379 Ill. App. 3d 251,
263-64 (2008); In re Dorothy J.N., 373 Ill. App. 3d 332, 336-37 (2007)), indicates both a need
for an authoritative determination for the future guidance of public officers and the likelihood of
future recurrence." In re Nicholas L., 407 Ill. App. 3d at 1071. Accordingly, the public interest
exception to the mootness doctrine is applicable here. See In re Robert S., 213 Ill. 2d at 45-46
(applying the public interest exception to consider respondent's appeal from an order authorizing
the involuntary administration of psychotropic medication, even though more than 90 days had
passed and the circuit court's order no longer had any force or effect).
¶ 23 The "capable of repetition yet avoiding review" exception also applies here. This
exception has two elements. "First, the challenged action must be of a duration too short to be
fully litigated prior to its cessation. Second, there must be a reasonable expectation that 'the
same complaining party would be subjected to the same action again.' " In re Alfred H.H., 233
Ill. 2d at 358 (quoting In re Barbara H., 183 Ill. 2d 482, 491 (1998)).
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¶ 24 In the present case, the parties agree the first element has been met because the trial
court's involuntary medication order lasted only 90 days. The second element also has been met.
The record indicates respondent was prescribed psychotropic medications in the past; is likely to
be prescribed these medications in the future due to the ongoing nature of her illness; and, given
her history of refusing such medications and the written information about them, she will again
refuse to accept any written information about such medications. Thus, there is a reasonable
expectation that respondent would be subjected to the same action, involving the same issue, as
here; accordingly, we will address respondent's appeal on the merits. See In re Katarzyna G.,
2013 IL App (2d) 120807, ¶ 9 (holding that respondent's appeal from an order authorizing the
involuntary administration of psychotropic medication, in which she raised an issue involving
the propriety of the written information she was given about the medication, involved a question
capable of repetition yet avoiding review sufficient to allow the reviewing court to "bypass
mootness and consider the merits of [the] appeal").
¶ 25 On the merits, respondent argues that the State failed to show by clear and convincing
evidence that she lacked the capacity to make a reasoned decision about the requested
psychotropic medications as required by section 2-107.1(a-5)(4) of the Mental Health Code
because no evidence showed she was advised, in writing, of the risks, benefits and side effects of
the medications, as well as alternatives thereto, as required by section 2-102(a-5). Respondent
contends that although Dr. Corcoran twice attempted to give her this written information, he
failed in his attempts when she walked away from him without taking it and so then he left the
information on the counter at the nurses' station. Respondent argues that leaving the written
information on the counter at the nurses' station was not sufficient to comply with section 2­
102(a-5) and that, at the very least, Dr. Corcoran should have left the information on her
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nightstand, or in her room or her "personal area" where she would have the opportunity to read it
at a time and manner of her choosing. Respondent contends that Dr. Corcoran's failure to
comply with section 2-102(a-5) means that the State failed to meet its burden of proving that she
lacked the capacity to make a reasoned decision about her treatment and, therefore, we must
reverse the order for the involuntary administration of psychotropic medications. 1
¶ 26 We review de novo whether Dr. Corcoran complied with section 2-102(a-5) here.
Id. ¶ 13. When examining the trial court's order authorizing the involuntary administration of
psychotropic medications, we will not reverse the order unless it was against the manifest weight
of the evidence such that the opposite conclusion was apparent or the findings were
unreasonable, arbitrary, or not based on the evidence. In re A.W., 381 Ill. App. 3d 950, 957
(2008).
¶ 27 In re A.W. is dispositive on the issue of whether Dr. Corcoran complied with section 2­
102(a-5). A.W.'s psychiatrist at McFarland Mental Health Center filed a petition seeking to
involuntarily administer psychotropic medication to him. Id. at 952. At the hearing on the
petition, the psychiatrist testified in pertinent part that certain written information regarding
1
Respondent makes no argument that the written information Dr. Corcoran attempted to
provide her regarding the psychotropic medications was in any way deficient, i.e., that it failed to
inform her of the risks, benefits, and side effects of the medications and any alternatives and
accordingly the issue is waived (see Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)); further, the
written information was not included in the record on appeal and therefore any issue involving
the sufficiency of the information is resolved against respondent, the appellant, who has the duty
to provide a complete record on appeal. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).
Rather, the only issue preserved for review is respondent's contention that since Dr. Corcoran
attempted, but failed, to hand her the written information, and then left it on the counter at the
nurses' station, section 2-102(a-5) was not complied with and we should reverse the order
authorizing the involuntary administration of the psychotropic medications.
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A.W.'s medication was " 'put in his box for him.' " Id. at 953. The trial court subsequently
granted the petition. Id. at 954. A.W. appealed. Id.
¶ 28 This court stated:
"[S]imply placing the written notification in a respondent's 'box' (or anywhere other than
in the respondent's hands - or at least an attempt to place the notification in his hands) is
not sufficient [to comply with section 2-102(a-5)]. Instead, we urge the psychiatrist or
her designee to follow the procedure suggested by Justice Steigmann in his special
concurrence in Dorothy J.N. See Dorothy J.N., 373 Ill. App. 3d at 337-39 ***
(Steigmann, J., specially concurring). In particular, (1) the psychiatrist or her designee
who comes into contact with the respondent should have prepared, in advance, a written
list of the side effects, risks, and benefits of the proposed treatment, as well as
alternatives to the proposed treatment; (2) during the psychiatrist's examination of the
respondent, she should present a copy of the list to the respondent, thus complying with
the requirement that the respondent be advised, in writing, of that information '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 2006)); and (3) the psychiatrist or her
designee should attempt to explain the list's contents to the respondent." (Emphasis
added.) Id. at 958.
¶ 29 Thus, In re A.W. held that to comply with section 2-102(a-5), the psychiatrist or his
designee should present the written information advising of the side effects, risks and benefits of
the treatment to respondent, ideally by placing the information in her hands. Id. However, since
respondent cannot be forced to accept such a tender of the written information against her will,
section 2-102(a-5) is complied with as long as the psychiatrist or his designee attempts to place
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the information in respondent's hands, even if the attempt is unsuccessful. Id. Further, although
not expressly required by section 2-102(a-5), the psychiatrist or his designee also should attempt
to explain the contents of the written information to respondent, i.e., respondent should at least
be told that the written information addresses her proposed treatment. Id.
¶ 30 Dr. Corcoran's undisputed trial testimony indicates he made two attempts to present
respondent with written information regarding her proposed psychotropic medications, once in
February 2014 and again on March 17, 2014, when he handed her the information and he said to
her: "Here's some information about medication." However, respondent refused to accept the
tenders of the written information, stating she does not need medication, and she walked away
from Dr. Corcoran, thus ending any further discussion. Only after respondent refused to accept
the tenders of the written information did Dr. Corcoran place it on the counter in the nurses'
station. Dr. Corcoran's two attempts to tender the written information to respondent in February
and March 2014 satisfied the requirement of section 2-102(a-5), even though respondent refused
to accept the tenders and walked away. Contrary to respondent's argument, neither section 2­
102(a-5), nor the interpreting case law obliged Dr. Corcoran to leave the written information in
any particular place (such as her nightstand, or in her room, or "personal area") upon her refusal
to take it.
¶ 31 Accordingly, as Dr. Corcoran testified to his compliance with section 2-102(a-5) and to
respondent's lack of capacity to make a reasoned decision about her treatment, the State met its
burden of proof regarding her lack of capacity and the trial court's order authorizing the
involuntary administration of the psychotropic medications was not against the manifest weight
of the evidence.
¶ 32 For the foregoing reasons, we affirm the circuit court.
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¶ 33 Affirmed.
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