                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           In re Katarzyna G., 2013 IL App (2d) 120807




Appellate Court            In re KATARZYNA G., Alleged to be a Person Subject to Involuntary
Caption                    Treatment (The People of the State of Illinois, Petitioner-Appellee, v.
                           Katarzyna G., Respondent-Appellant).



District & No.             Second District
                           Docket No. 2-12-0807


Filed                      August 30, 2013


Held                       The order authorizing the involuntary administration of psychotropic
(Note: This syllabus       medication to respondent was reversed where the State failed to establish
constitutes no part of     that she lacked the capacity to make a reasoned decision as to whether she
the opinion of the court   would take the medications, because she was not given written notice of
but has been prepared      the medications in Polish, the only language she understood.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 12-MH-74; the Hon.
Review                     Susan Clancy Boles, Judge, presiding.



Judgment                   Reversed.
Counsel on                  Veronique Baker, of Guardianship and Advocacy Commission, of
Appeal                      Chicago, and Ann Krasuski, of Guardianship and Advocacy Commission,
                            of Hines, for appellant.

                            Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                            Bauer and Diane L. Campbell, both of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE McLAREN delivered the judgment of the court, with opinion.
                            Justices Zenoff and Birkett concurred in the judgment and opinion.




                                               OPINION

¶1          Respondent, Katarzyna G., appeals from an order of the circuit court of Kane County
        authorizing the involuntary administration of psychotropic medication. At issue is whether,
        because respondent was not given written notice about the psychotropic medications in
        Polish, which is the language she understands, the State failed to establish that respondent
        lacked the capacity to make a reasoned decision about whether to take medication. We
        answer this question in the affirmative and reverse the order granting the State’s petition.
¶2          The facts relevant to resolving the issue raised are as follows. Respondent moved to the
        United States from Poland in 1977, when she was around 25 years old. She worked cleaning
        houses for many years, owned her own home, and raised a family.
¶3          In May 2008, respondent was arrested for aggravated battery to a police officer. She was
        found not guilty by reason of insanity, was court-ordered to attend outpatient treatment at the
        John H. Stroger, Jr., Hospital of Cook County, and eventually was involuntarily admitted to
        the Elgin Mental Health Center (EMHC) in August 2011. The EMHC doctor who treated
        respondent indicated that respondent suffers from a “delusional disorder persecutory type,”
        which is a psychotic disorder, and that she has so suffered since her arrest. Since respondent
        was admitted to the EMHC, she has refused to take any kind of medication that could treat
        her illness.
¶4          As a result, respondent’s treating doctor petitioned the court for permission to
        involuntarily administer to respondent various medications that the doctor believed could
        help treat respondent’s mental illness. At the hearing, a Polish-speaking interpreter was
        present for respondent.1 When the State asked the doctor whether respondent was given


                1
                 At oral argument on appeal, respondent’s counsel, who speaks Polish, stated that she spoke
        to respondent only in Polish, and the State conceded that respondent spoke Polish and could not

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     notice about the medications’ benefits and side effects, the following exchange was had:
             “Q. Doctor, has [respondent] been provided with written materials on the risks and
         benefits of the medications you wish to prescribe?
             A. Yes.
             Q. And in your opinion does [respondent] have the capacity to make a reasoned
         decision about the medications?
             A. No, she doesn’t because of her mental illness which interferes with her making a
         reasoned decision.
                                                ***
             Q. Is [respondent] able to make a reasoned decision about potential benefits and side
         effects of medication?
             A. She–her perceptions interfere with her realizing that she has a mental illness, that
         there is a mental illness to treat, that there is medication to treat it, and she has difficulty
         facing the reality of that information. So she would have difficulty making a reasoned
         decision.”
¶5       The assistant State’s Attorney also inquired about whether a Polish interpreter was
     present when the doctor would talk to respondent about treatment. That dialogue proceeded
     as follows:
             “Q. How often were you able to talk to [respondent] with a Polish interpreter?
             A. Let me see. I would say 10 times.
             Q. Ten times over how long a period of time?
             A. Since the end of August [2011].
             Q. Since the end of August [2011]?
             A. Uh-hum.[2]
             Q. So about once a month?
             A. Yes.
             Q. When you went over the benefits and side effects of the medications you’re
         seeking with her was there a Polish interpreter present?
             A. There was a Polish interpreter there. I told [respondent] that I wanted to discuss
         some medications with her, but she would not discuss that at the time. So I gave her the
         sheets about the medication, and she said she was–at first she didn’t want to take them,
         but then she did take them and she said she would go over them with the interpreter who
         was coming.



     understand English.
             2
              The record reflects that respondent’s treating doctor spoke directly to respondent when she
     was admitted but that, after that initial conversation, she spoke with respondent through a Polish
     interpreter.

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                Q. Do you know if [respondent] went over them with the interpreter who was
            coming?
                A. No, I don’t.”
¶6          Respondent testified that she has been feeling sad. She indicated that, when she spoke
       with her doctor about the medications, her doctor said that the “medication [would] make
       [her] happy, that they were just a few milligrams.” Respondent also stated that “[b]efore
       court [she] received information about the medication.”
¶7          Based on the evidence presented at the hearing, the trial court granted the State’s petition.
       Respondent never claimed in the trial court that the notice she had received about the
       medications was defective in that it was not in Polish. Respondent timely appealed.
¶8          Before addressing the merits of this appeal, we address three preliminary matters.
       Specifically, we consider whether the issue is moot, whether respondent forfeited review of
       the issue, and the procedural posture of the case.
¶9          First, we note that the issue raised is moot. However, in cases like this, where the
       question raised in the appeal is “ ‘capable of repetition, yet evading review,’ ” our supreme
       court has considered moot issues. In re Barbara H., 183 Ill. 2d 482, 491 (1998) (quoting In
       re A Minor, 127 Ill. 2d 247, 258 (1989)). Additionally, the public interest exception to the
       mootness doctrine also provides us with a basis upon which to consider the issue. In re
       Robert S., 213 Ill. 2d 30, 45 (2004); see also In re Nicholas L., 407 Ill. App. 3d 1061, 1071
       (2011) (noting that mootness does not apply to questions about compliance with the Mental
       Health and Developmental Disabilities Code (Code) (405 ILCS 5/1-100 et seq. (West 2012))
       because such matters involve substantial public concern). Because only one exception must
       apply for us to bypass mootness and consider the merits of an appeal (see In re Christopher
       P., 2012 IL App (4th) 100902, ¶ 19), we need not consider whether the third exception to the
       mootness doctrine also applies.
¶ 10        Second, the record reflects that respondent never raised in the trial court any claim
       concerning the propriety of the notice she was given about the medication. Ordinarily, the
       failure to raise an issue in the trial court results in forfeiture of that issue on appeal. See
       People v. Enoch, 122 Ill. 2d 176, 185-86 (1988). However, we decline to determine that the
       issue is forfeited. In its brief, the State did not claim that respondent forfeited review of the
       issue. As such, the State forfeited any forfeiture argument. See People v. De La Paz, 204 Ill.
       2d 426, 433 (2003). We note that at oral argument, in response to this court’s questions about
       whether respondent forfeited review of the issue, the State argued that at the hearing in the
       trial court respondent forfeited any issue concerning notice. However, the record reflects that
       respondent took no issue “with regard to notice or timeliness of today’s hearing.” (Emphasis
       added.) Notice of the hearing is distinguishable from notice about proposed medications’
       risks and benefits. Additionally, forfeiture is not apt because the issue relates to public and
       liberty interests relating to the administration of psychotropic drugs upon an unwilling
       patient. Courts have disregarded forfeiture when the issues raised deal with public and liberty
       interests. See In re Janet S., 305 Ill. App. 3d 318, 320 (1999); see also In re Tiffany W., 2012
       IL App (1st) 102492-B, ¶ 21.
¶ 11        Third, regarding the procedural posture of this case, although the issue of whether

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       respondent received sufficient written notice is not forfeited, below there was no hearing on
       the merits giving the parties and the trial court the opportunity to fully and fairly adjudicate
       the matter. Thus, we are reviewing the entire record, as well as concessions made by the State
       on appeal, to determine whether the facts establish that respondent understood written
       English. Even when an issue is forfeited, the respondent (the proponent of the claimed error)
       has the burden on review to establish that the evidence supports the claim of error. In this
       particular instance, we are convinced that the record supports the claim of error.
¶ 12        Turning to the analysis of the merits of the claim of error, the issue raised in this appeal
       is whether the notice respondent received about the proposed medications enabled her to
       make a reasoned decision about her treatment. “The State must present clear and convincing
       evidence that a respondent lacked the capacity to make a reasoned decision about taking the
       prescribed psychotropic medication.” In re Cathy M., 326 Ill. App. 3d 335, 341 (2001).
       “When reviewing the sufficiency of this evidence, we will reverse the trial court’s order if
       it is against the manifest weight of the evidence.” Id. “A judgment is against the manifest
       weight of the evidence when the opposite conclusion is clearly evident, plain, and
       indisputable.” Id.
¶ 13        In resolving whether respondent received proper notice, we must examine the applicable
       sections of the Code. Whether there has been strict compliance with the Code presents a
       question of law, which is reviewed de novo, but the State still bears the burden of presenting
       clear and convincing evidence of compliance. Nicholas L., 407 Ill. App. 3d at 1072.
¶ 14        In examining the statutes at issue, we are guided by the well-settled rules of statutory
       construction. The primary rule in construing a statute is to ascertain and give effect to the
       legislature’s intent. In re R.C., 338 Ill. App. 3d 103, 110 (2003). The best indication of the
       legislature’s intent is the language used in the statute at issue. Id. When that language is clear
       and unambiguous, we must give the language its plain and ordinary meaning and cannot
       resort to extrinsic aids of construction. Id.
¶ 15        One of the statutory provisions at issue here is section 2-107.1 of the Code (405 ILCS
       5/2-107.1 (West 2012)). That section outlines when, after specific conditions are met, the
       State may proceed with the involuntary administration of psychotropic medication. Among
       other things, that section provides:
                “(a-5) Notwithstanding the provisions of Section 2-107 of this Code, psychotropic
            medication *** may be administered to an adult recipient of services on an inpatient or
            outpatient basis without the informed consent of the recipient under the following
            standards:
                                                  ***
                     (4) Psychotropic medication *** 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. ***
                                                  ***
                         (E) That the recipient lacks the capacity to make a reasoned decision about
                     the treatment.” 405 ILCS 5/2-107.1(a-5)(4)(E) (West 2012).


                                                  -5-
¶ 16       Before a respondent can make a “reasoned decision” about treatment, the respondent
       must be advised in writing about several things important to making that decision. See In re
       Tiffany W., 2012 IL App (1st) 102492-B, ¶ 13. Section 2-102(a-5) of the Code (405 ILCS
       5/2-102(a-5) (West 2012)) delineates what those are. It provides:
           “If the services [that the State wishes to provide to a respondent] 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.” Id.
       Section 2-102(a-5) of the Code not only ensures that a respondent is fully informed about the
       risks, benefits, side effects, and alternatives to treatment, but also ensures that the
       respondent’s due process rights are protected. Nicholas L., 407 Ill. App. 3d at 1072. As a
       result, section 2-102(a-5) of the Code must be strictly complied with, so as to secure the
       liberty interest that a respondent has in refusing invasive medication. Id. Because of this,
       verbal notice does not constitute compliance with section 2-102(a-5) of the Code, and a
       respondent cannot waive his right to written notice. Id.
¶ 17       These two sections of the Code clearly mandate that a respondent be given written notice
       about the side effects, risks, benefits, and alternatives to the proposed treatment. If such
       notice is not given, then the State cannot establish that a respondent lacks the capacity to
       make a “reasoned decision” about treatment, because the written notice forms the basis upon
       which such a decision can be made.
¶ 18       The problem presented in this case is that respondent was given written notice but not
       in Polish. Section 3-204 of the Code (405 ILCS 5/3-204 (West 2012)) outlines when notice
       must be given to a respondent in a language other than English. Specifically, it states:
           “Whenever a statement or explanation is required to be given to a recipient under this
           Chapter and the recipient does not read or understand English, such statement or
           explanation shall be provided to him in a language which he understands. *** This
           section does not apply to copies of petitions and court orders.” Id.
¶ 19       The plain and ordinary language of section 3-204 of the Code directs that any statement
       or explanation that must be given to a respondent must be in a language that the respondent
       understands. The notice referred to in section 2-102(a-5) of the Code certainly qualifies as
       a statement or explanation that must be given to a respondent. Thus, when the State seeks
       to involuntarily administer psychotropic medication, the respondent must first be informed
       in writing, in a language he or she understands, about the risks, benefits, and side effects of
       the medication, and the alternatives to it. When notice is not so given, the State cannot
       establish by clear and convincing evidence that the respondent is unable to make a reasoned
       decision about the medication. If the State cannot establish this element, then the State’s
       petition seeking to involuntarily administer psychotropic medication necessarily must fail.
       See In re Louis S., 361 Ill. App. 3d 774, 780 (2005) (before a respondent can make a
       reasoned decision about medication, the State must inform the respondent in writing about
       the various aspects of treatment, and this notice constitutes an element that the State must
       establish before the court may order the involuntary administration of psychotropic


                                                -6-
       medication).
¶ 20       Here, a review of the record reveals that every time respondent appeared in court she was
       assisted by a Polish interpreter. Likewise, except for the first time respondent met with her
       doctor, she always spoke with her doctor through a Polish interpreter. Although the record
       indicates that respondent came to this country as a young woman, owned a home here, and
       raised a family here, those facts do not necessarily support a conclusion that respondent
       understands English, especially in light of the noted facts to the contrary and the fact that in
       many parts of this country there are large communities where people speak exclusively or
       primarily their native language and not English. Because the evidence showed that
       respondent could not understand English, the notice in English that she was given was not
       sufficient to comply with the Code. Accordingly, the State essentially conceded that it failed
       to establish that respondent lacked the capacity to make a reasoned decision when it
       conceded that she understood Polish and not English. The concession is well grounded by
       the facts in the record establishing how respondent communicated solely in Polish.
¶ 21       We find support for our position in several other cases that have addressed the need to
       notify a respondent in writing of the various things related to making a reasoned decision
       about whether to take psychotropic medication. Courts have found that, not only will the
       failure to give any written notice warrant reversing an order granting the State’s petition to
       involuntarily administer psychotropic medication (see In re Richard C., 329 Ill. App. 3d
       1090, 1095-96 (2002)), but so will the failure to give written notice about alternatives to
       treatment (see Nicholas L., 407 Ill. App. 3d at 1071-72) and about the risks, benefits, and
       potential side effects of treatment (see In re John R., 339 Ill. App. 3d 778, 784-85 (2003)).
       Failing to provide a respondent with notice in a language he or she understands is tantamount
       to failing to provide a respondent with any type of notice or omitting from that notice any of
       the things that the notice is designed to convey. At the core of all of these circumstances is
       the denial of the respondent’s right to make a reasoned decision about whether to take
       medication, and, as noted, it is well settled that, when that right is denied, a petition to
       involuntarily administer psychotropic medication must likewise be denied. Tiffany W., 2012
       IL App (1st) 102492-B, ¶ 18.
¶ 22       The State argues that the notice in English was sufficient to comply with the Code,
       because respondent was afforded the services of a Polish interpreter who could translate the
       notice for her. The State then claims that, even if such circumstances were not sufficient to
       comply with the Code, any error was harmless. We disagree.
¶ 23       First, the plain language of section 2-102(a-5) of the Code mandates that a respondent
       be given notice “in writing.” 405 ILCS 5/2-102(a-5) (West 2012). “[I]n writing” necessarily
       means that verbal notice is insufficient. See Tiffany W., 2012 IL App (1st) 102492-B, ¶ 14;
       see also John R., 339 Ill. App. 3d at 783-84. The fact that respondent could have received
       verbal notice via a translation of the written notice is immaterial. The Code, which provides
       that a respondent be given written notice in a language he or she understands, requires strict
       compliance. See John R., 339 Ill. App. 3d at 783-84. Because strict compliance is required,
       a verbal translation of the written notice is insufficient. The State’s claim that giving
       respondent written notice and the services of a Polish interpreter complied with respondent’s
       wishes is likewise irrelevant. Not only must a respondent be given written notice in a

                                                 -7-
       language he or she understands, but a respondent cannot waive this right to written notice.
       See, e.g., Nicholas L., 407 Ill. App. 3d at 1072 (“[T]he right to receive written notification
       under section 2-102(a-5) cannot be waived by a respondent.”).
¶ 24       Second, where written notice is required, this court has found that a harmless-error
       analysis has no application. Id. (noting that the right to written notice is not subject to
       harmless error); Richard C., 329 Ill. App. 3d at 1095 (“[T]his right to written notification is
       not subject to a harmless error analysis.”). Although appellate courts from other districts
       might have reached a different conclusion, we are not bound by their decisions. See State
       Farm Fire & Casualty Co. v. Yapejin, 152 Ill. 2d 533, 539 (1992) (noting that an appellate
       court is not bound by the decisions of other appellate courts). We see no reason, under the
       facts presented here, to depart from our position that a harmless-error analysis has no
       application to this issue.
¶ 25       For these reasons, the judgment of the circuit court of Kane County is reversed.

¶ 26      Reversed.




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