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.
Mental Health Decisions Outline
Index
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.)
Mental Health Decisions Outline
Index
II. AUTHORIZED
INVOLUNTARY TREATMENT:
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.
Mental Health Decisions Outline
Index
II. AUTHORIZED
INVOLUNTARY TREATMENT:
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.]
Mental Health Decisions Outline
Index
II. AUTHORIZED
INVOLUNTARY TREATMENT:
B(1). Clear and convincing evidence: Mental illness
Mental Health Decisions Outline
Index
II. AUTHORIZED INVOLUNTARY TREATMENT:
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 "nondeluded" reason for
refusing the medication did not establish that she was able to appropriately
balance the information given her concerning the proposed medication.
Mental Health Decisions Outline
Index
II. AUTHORIZED
INVOLUNTARY TREATMENT:
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., 161 Ill. 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.)
Mental Health Decisions Outline
Index
II. AUTHORIZED
INVOLUNTARY TREATMENT:
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.
Mental Health Decisions Outline
Index
II. AUTHORIZED
INVOLUNTARY TREATMENT:
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.
Mental Health Decisions Outline
Index
II. AUTHORIZED
INVOLUNTARY TREATMENT:
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.
Mental Health Decisions Outline
Index
II. AUTHORIZED
INVOLUNTARY TREATMENT:
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."
Mental Health Decisions Outline
Index
II. AUTHORIZED INVOLUNTARY TREATMENT:
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.
Mental Health Decisions Outline Index
II.
AUTHORIZED INVOLUNTARY TREATMENT:
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.
Mental Health Decisions Outline Index
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