                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           In re Daniel K., 2013 IL App (2d) 111251




Appellate Court            In re DANIEL K., Alleged to be a Person Subject to Involuntary
Caption                    Admission (The People of the State of Illinois, Petitioner-Appellant, v.
                           Daniel K., Respondent-Appellee).



District & No.             Second District
                           Docket No. 2-11-1251


Filed                      March 29, 2013
Rehearing denied           May 17, 2013


Held                       The order granting respondent’s petition for discharge from his
(Note: This syllabus       involuntary admission pursuant to the Mental Health and Developmental
constitutes no part of     Disabilities Code was reversed, where the trial court erred in rejecting the
the opinion of the court   State’s request to call respondent as a witness and excluding evidence as
but has been prepared      to the reasons for respondent’s involuntary admission and evidence as to
by the Reporter of         the consequences of his anticipated refusal to continue taking his
Decisions for the          medication after being discharged.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Winnebago County, No. 11-MH-595;
Review                     the Hon. K. Patrick Yarbrough, Judge, presiding.



Judgment                   Reversed.
Counsel on                 Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer
Appeal                     and Sally A. Swiss, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.

                           Veronique Baker and Teresa L. Berge, both of Guardianship and
                           Advocacy Commission, of Rockford, for appellee.


Panel                      JUSTICE HUDSON entered the judgment of the court, with opinion.
                           Presiding Justice Burke and Justice McLaren concurred in the judgment
                           and opinion.


                                             OPINION

¶1          The State appeals the trial court’s order granting respondent Daniel K.’s petition for
        discharge from involuntary admission under the Mental Health and Developmental
        Disabilities Code (Code) (405 ILCS 5/1-100 et seq. (West 2010)). Respondent argues that
        the matter is moot, as he has already been discharged. We determine that two issues are
        reviewable. We hold that the court erred in disallowing evidence from the State about the
        reasons for respondent’s admission and the potential effect of his failing to take medication.
        We also determine that the court improperly denied the State’s request to call respondent as
        a witness. Accordingly, we reverse.

¶2                                       I. BACKGROUND
¶3          On September 20, 2011, respondent was involuntarily admitted for a period not to exceed
        90 days, and the court granted the State’s request to administer psychotropic medication. On
        October 20, 2011, respondent filed a petition for discharge. The court ordered an
        examination and legal representation.
¶4          On October 25, 2011, a report was filed from Dr. William Welch, who wrote, based on
        a 15-minute interview and a review of respondent’s medical records, that respondent was not
        reasonably expected to inflict serious physical harm upon himself or another in the near
        future. Welch also wrote that, although respondent was mentally ill, he would be able to
        provide for his basic physical needs and guard himself from harm without assistance. Welch
        noted that respondent was diagnosed with schizophrenia and was refusing to attend treatment
        groups, that respondent denied any current suicide or homicide ideation, and that he received
        disability payments, had a home to go to, and worked part time at various businesses.
¶5          On November 8, 2011, another report from Welch was filed, in which he stated his
        opinion that respondent was not subject to involuntary admission or continued
        hospitalization. Under the section for respondent’s symptoms, Welch reported that
        respondent exhibited rational thoughts and a willingness to talk freely. His behavior was not
        problematic and he was generally calm and quiet, but he did not plan to follow up with

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     medication upon discharge.
¶6        On November 11, 2011, a hearing was held. Welch testified consistently with his reports
     and stated his opinion that respondent had stabilized due to his treatment and was suitable
     for discharge. Welch stated on cross-examination, without objection, that respondent did not
     plan to continue his medication when he was discharged and that taking the medication was
     critical to stabilizing his condition. Welch also testified that he did not have access to the
     petition that resulted in the admission, did not speak with respondent’s treating psychiatrist
     or social worker, and did not know that respondent’s mother, who was also his guardian, did
     not want respondent released and was fearful for his safety. However, Welch stated that this
     information would not impact his opinion, as he was evaluating respondent’s current status
     and not what might happen in the future. Welch testified that respondent was taking
     haloperidol to control irrational thoughts and behavior and agreed that a person with
     irrational thoughts and behavior might be a danger to himself or others.
¶7        When Welch was asked on two occasions during cross-examination if he agreed that
     stopping the medication would result in a return to the behavior that caused respondent to
     be admitted in the first place, respondent’s objections based on speculation were sustained.
     After hearing argument about the scope of the testimony, the court stated that it would allow
     testimony about respondent’s medication, the symptoms it controlled, and respondent’s
     intention not to take the medication, because Welch reached his opinion based on his
     interview of respondent and the information in his chart. But the court said that it would not
     allow speculation as to what would happen if respondent did not take his medication in the
     future. The court also sustained an objection, as beyond the scope, to the question of whether
     respondent could be placed in a less restrictive location.
¶8        The court determined that respondent made a prima facie case for discharge, and the
     State called respondent’s treating psychiatrist, Dr. Howard Paul. Paul testified that he was
     board certified and had testified as an expert hundreds of times. He said that his specialty was
     in addiction medicine. The State sought to qualify Paul as an expert, and respondent objected
     on the basis that Paul was being called to testify as an occurrence witness, not as an expert.
     Other than providing notes about respondent in his medical chart, Paul had not provided a
     written opinion about the proceedings. The court found that Paul could testify about his
     contact with respondent and the opinions he had formed as a result, but that he had not been
     qualified as an expert in the field of psychiatry for any other purpose.
¶9        Paul testified about his interactions with respondent and the medications respondent was
     receiving, and he said that respondent did not think he was ill and would not continue
     treatment when discharged. However, when the State sought to elicit testimony about
     respondent’s medical history or behavior before he was admitted, objections as to relevance
     were sustained on the basis that the issue before the court was his current condition.
     Objections as to speculation were also sustained in regard to questions about what would
     happen if respondent stopped taking his medication. The court stated that it was limited to
     looking at respondent’s current condition. Another objection was sustained to questions
     about a less restrictive treatment alternative. When asked if relatives would help respondent
     if he were released, Paul began to say something about respondent’s mother that was based
     on statements that she had made to social workers, and a hearsay objection was sustained.

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       The State did not make any argument that a hearsay exception applied. During the course of
       the testimony, there were also various objections sustained based on lack of foundation or
       because a question called for an expert opinion.
¶ 10       After Paul’s testimony, the State requested to call respondent as a witness. Respondent’s
       objection, that the State did not have a right to require him to testify, was sustained. The trial
       court, noting a lack of evidence that respondent was currently a danger to himself or others,
       granted the petition for discharge. The State appeals.

¶ 11                                      II. ANALYSIS
¶ 12       The State contends that the trial court’s evidentiary rulings and denial of its request to
       call respondent as a witness prevented it from showing that the petition for discharge should
       have been denied. Specifically, the State argues that the trial court erred by (1) disallowing
       evidence about why respondent was admitted and what would happen if he stopped taking
       medication, (2) not allowing the State to call respondent as a witness, (3) refusing to qualify
       Paul as an expert, (4) sustaining a hearsay objection, and (5) granting the petition for
       discharge. The State acknowledges that the issues are moot but argues that exceptions apply.

¶ 13                           A. Exceptions to the Mootness Doctrine
¶ 14        The parties agree that the matter is moot because respondent has already been discharged.
       However, the State contends that we should review the issues under either the public-interest
       exception to the mootness doctrine or the exception for issues that are capable of repetition,
       yet evading review.
¶ 15        “An appeal is considered moot where it presents no actual controversy or where the
       issues involved in the trial court no longer exist because intervening events have rendered
       it impossible for the reviewing court to grant effectual relief to the complaining party.” In re
       J.T., 221 Ill. 2d 338, 349-50 (2006). Generally, courts of review do not decide moot
       questions, render advisory opinions, or consider issues where the result will not be affected
       regardless of how those issues are decided. In re Barbara H., 183 Ill. 2d 482, 491 (1998).
¶ 16        Reviewing courts, however, recognize exceptions to the mootness doctrine: (1) the
       public-interest exception, applicable where the case presents a question of public importance
       that will likely recur and whose answer will guide public officers in the performance of their
       duties, (2) the capable-of-repetition exception, applicable to cases involving events of short
       duration that are capable of repetition, yet evading review, and (3) the collateral-
       consequences exception, applicable where the order could have consequences for a party in
       some future proceedings. See In re Alfred H.H., 233 Ill. 2d 345, 355-62 (2009); In re J.T.,
       221 Ill. 2d at 350. There is no per se exception to mootness that universally applies to mental
       health cases; however, most appeals in mental health cases will fall within one of the
       established exceptions to the mootness doctrine. In re Alfred H.H., 233 Ill. 2d at 355.
       Whether a case falls within an established exception is a case-by-case determination. Id.
¶ 17        The public-interest exception allows a court to consider an otherwise moot issue when
       (1) the question presented is of a public nature, (2) there is a need for an authoritative


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       determination for the future guidance of public officers, and (3) there is a likelihood of future
       recurrence of the question. Id. “Where the substantive issue on appeal involves the State’s
       compliance with the Code, the public interest exception applies.” In re Connie G., 2011 IL
       App (3d) 100420, ¶ 15.
¶ 18       In regard to the exception for issues capable of repetition, yet evading review, the
       exception has two requirements. “First, the challenged action must be of a duration too short
       to be fully litigated prior to its cessation.” In re Alfred H.H., 233 Ill. 2d at 358. “Second,
       there must be a reasonable expectation that ‘the same complaining party would be subjected
       to the same action again.’ ” Id. (quoting Barbara H., 183 Ill. 2d at 491). In a case where a
       party challenges the specific facts that were established during the discharge hearing, the
       exception generally does not apply, because the facts would necessarily be different in any
       future hearing and thus the present issue would have no bearing on similar issues presented
       in subsequent cases. In re Val Q., 396 Ill. App. 3d 155, 160-61 (2009); see also Alfred H.H.,
       233 Ill. 2d at 360 (applying this rule to involuntary admission hearings). However, when a
       purely legal question is raised, such as an issue of statutory interpretation, the exception can
       apply because the court will likely again commit the same alleged errors. See In re Jonathan
       P., 399 Ill. App. 3d 396, 401 (2010).
¶ 19       In regard to the court’s disallowing evidence about why respondent was admitted and
       what would happen if he stopped taking medication, the issue involves a determination of
       the scope of discharge proceedings under the Code. Accordingly, the public-interest
       exception to the mootness doctrine is applicable. Likewise, the exception applies to the
       court’s denial of the State’s request to call respondent as a witness. Accordingly, we address
       those issues. The remaining three issues, conversely, do not share such characteristics.
       Hence, they do not fit within the public-interest exception.
¶ 20       Moreover, the remaining three issues are also fact specific. The court’s refusal to certify
       Paul as an expert does not present a purely legal question or involve interpretation of the
       Code. Instead, it is governed by the specific facts of the case, in which there was a lack of
       evidence that Paul had been retained to act as an expert at trial. See People v. Blair, 2011 IL
       App (2d) 070862, ¶ 50 (discussing the difference between a treating physician acting as an
       occurrence witness and as an expert). In regard to the hearsay objection, the State argues that
       a hearsay exception applies, but it did not present that argument to the trial court and did not
       provide a foundation to support application of an exception. In any event, this too is an issue
       dependent on the facts. Similarly, the State’s argument concerning the trial court’s decision
       to grant the petition for discharge is purely a matter of disagreement with the trial court’s
       factual findings. As such, they do not fit within the capable-of-repetition-yet-evading-review
       exception either. In sum, we will not address them and we confine our analysis to the two
       issues identified above.

¶ 21        B. Denial of Evidence About the Reasons for Respondent’s Admission
                 and Potential Consequences of His Failure to Take Medication
¶ 22       The State contends that the trial court erred when it determined that evidence about why
       respondent was admitted and whether respondent could pose a danger to himself or others

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       if he stopped taking medication was speculative and beyond the scope of the proceedings.
¶ 23       Section 1-119 of the Code provides:
           “ ‘[A person] subject to involuntary admission on an inpatient basis’ means:
                    (1) A person with mental illness who because of his or her illness is reasonably
                expected, unless treated on an inpatient basis, to engage in conduct placing such
                person or another in physical harm or in reasonable expectation of being physically
                harmed;
                    (2) A person with mental illness who because of his or her illness is unable to
                provide for his or her basic physical needs so as to guard himself or herself from
                serious harm without the assistance of family or others, unless treated on an inpatient
                basis; or
                    (3) A person with mental illness who:
                        (i) refuses treatment or is not adhering adequately to prescribed treatment;
                        (ii) because of the nature of his or her illness, is unable to understand his or
                    her need for treatment; and
                        (iii) if not treated on an inpatient basis, is reasonably expected, based on his
                    or her behavioral history, to suffer mental or emotional deterioration and is
                    reasonably expected, after such deterioration, to meet the criteria of either
                    paragraph (1) or paragraph (2) of this Section.
                In determining whether a person meets the criteria specified in paragraph (1), (2), or
           (3), the court may consider evidence of the person’s repeated past pattern of specific
           behavior and actions related to the person’s illness.” 405 ILCS 5/1-119 (West 2010).
¶ 24       A person who is involuntarily admitted may petition for discharge. 405 ILCS 5/3-900
       (West 2010). At a hearing, if the person makes a prima facie case for discharge, the State
       must prove by clear and convincing evidence that the person remains subject to involuntary
       admission. In re Katz, 267 Ill. App. 3d 692, 695 (1994). As on the State’s initial petition, “a
       respondent is entitled to a current evaluation of his conduct and state of mind, including
       medical evidence that he presented a danger to himself or others as a direct result of the
       mental disorder.” People v. Nunn, 108 Ill. App. 3d 169, 173 (1982). “In other words, the
       decision to commit must be based upon a fresh evaluation of respondent’s conduct and
       mental state.” Id. at 174. An examining physician may properly consider the respondent’s
       complete medical history in forming an opinion about the respondent’s current and future
       dangerousness. In re Todd K., 371 Ill. App. 3d 539, 543 (2007). The court does not have to
       wait until the respondent hurts himself or another before involuntarily admitting him. Id.
¶ 25       In the absence of evidence that the respondent refused to take medication, an admission
       order cannot be based on the fact that the respondent might inflict harm if he or she fails to
       take medication. Id. For example, in Nunn, there was testimony that the respondent’s illness
       could be controlled if he continued to take medication but that it would not be if he failed to
       take medication. There was no evidence that the respondent ever refused to take his
       medication. The respondent was found to be subject to involuntary admission. On appeal,
       the First District held that evidence that the respondent would fail to take his medication was


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       speculative. Nunn, 108 Ill. App. 3d at 174. The court expressed concern that an order of
       admission based on such a possibility could lead to the unacceptable result of permanent
       detention. Id. Thus, the court stated that “the State cannot successfully maintain that the
       potentially permanent institutionalization of respondent is justified by speculation that he
       may fail to take medication.” Id. at 175; see also People v. Robin, 312 Ill. App. 3d 710, 717
       (2000) (argument that stresses of noninstitutional life could lead to psychosis was
       speculative).
¶ 26       In comparison, in People v. Washington, 167 Ill. App. 3d 73 (1988), testimony
       established that the defendant, who was found not guilty by reason of insanity, had no insight
       into his medical condition, minimized his problems, did not perceive the need for outpatient
       treatment, and was unlikely to continue treatment if not involuntarily admitted. There was
       also evidence that he had refused medication in the past and, in the absence of medication,
       would probably engage in harmful conduct. The trial court ordered that the defendant remain
       admitted, and he appealed, arguing that the court erred under Nunn. The First District held
       that Nunn was distinguishable because, unlike in Nunn, where it was speculative that the
       respondent might refuse medication, in the case before it, the record established that the
       defendant previously refused to take medication and did not perceive the value of continued
       medical treatment. Id. at 79-80. Thus, the court held that his past refusal to take medication
       was properly considered as a factor in determining his potential dangerousness and it
       affirmed. Id. at 80.
¶ 27       Here, Washington is applicable. Unlike in Nunn, it was not speculative that respondent
       might quit taking his medication. Instead, it was uncontroverted that respondent would not
       take medication if released, and the trial court allowed testimony to that effect. However, the
       court did not allow testimony as to what would happen when respondent no longer took
       medication. By not allowing that testimony, the court excluded pertinent evidence about
       whether respondent was a person subject to involuntary admission under section 1-119. For
       example, since it was clear that respondent believed that he did not have a problem and
       would refuse medication if released, evidence about the potential effect of that refusal of
       treatment was relevant to the determination of whether, unless treated on an inpatient basis,
       respondent was reasonably expected to engage in conduct placing himself or another in
       physical harm. Likewise, it was relevant to a determination of whether, if not treated on an
       inpatient basis, respondent was reasonably expected, based on his behavioral history, to
       suffer mental or emotional deterioration and then become a danger to himself or others.
       Indeed, the court not only deprived the State of the ability to explore what would happen to
       respondent when he stopped taking medication, but it also did not allow the State to present
       information about his behavioral history, which is a relevant factor specifically noted in
       section 1-119(3). 405 ILCS 5/1-119(3) (West 2010). Why respondent was admitted and his
       behavior at that time were relevant to what would happen if he were discharged and refused
       to take medication.
¶ 28       We recognize that Nunn illustrates legitimate concerns with engaging in speculation that
       a respondent might refuse treatment and then might deteriorate. But this case did not present
       such a level of guesswork, because it was uncontroverted that respondent did not appreciate
       his condition and would indeed cease treatment. At that point, evidence of what would likely

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       happen was within the scope of the proceedings, which, under section 1-119, look at what
       is “reasonably expected” to happen, and the court should have allowed the State to present
       evidence on the matter.

¶ 29                  C. Ability of the State to Call Respondent as a Witness
¶ 30       The State next contends that it had the right to call respondent as a witness. Respondent,
       however, contends that doing so would be in contravention of a legislative intent to codify
       the privilege against self-incrimination in mental health proceedings.
¶ 31       A respondent may not invoke his or her constitutional right against self-incrimination in
       an admission proceeding unless the testimony might subject him or her to criminal liability.
       In re Powell, 85 Ill. App. 3d 877, 880 (1980); see People ex rel. Keith v. Keith, 38 Ill. 2d 405,
       410 (1967). In this case, there is no indication that the State wished to inquire about anything
       that would subject respondent to criminal liability. Thus, the State was entitled to call
       respondent as a witness.
¶ 32       Respondent contends that comments made in 1976 by the Governor’s Commission for
       the Revision of the Mental Health Code of Illinois show an intent to allow all respondents
       in discharge proceedings the ability to assert the privilege against self-incrimination.
       Governor’s Comm’n for Revision of the Mental Health Code of Illinois 38 (Nov. 1976).
       However, respondent has not pointed to anything in the Code that actually codified that
       principle. Instead, the only Code provision that addresses the matter is section 3-208, which
       provides that an examiner must inform the respondent that he or she does not have to talk to
       the examiner and that any statements made may be disclosed at a court hearing on the issue
       of whether the respondent is subject to involuntary admission. 405 ILCS 5/3-208 (West
       2010). That section does not address the ability to call a respondent as a witness in discharge
       proceedings, and the First District has rejected the argument that revisions to the Code
       changed the rule that the privilege does not apply unless the testimony will subject the
       respondent to criminal liability. Powell, 85 Ill. App. 3d at 880-81; see also Allen v. Illinois,
       478 U.S. 364, 375 (1986) (proceedings under the Sexually Dangerous Persons Act (Ill. Rev.
       Stat. 1985, ch. 38, ¶ 105-1.01 et seq.) are not criminal within the meaning of the guarantee
       against self-incrimination). Thus, we determine that the State was entitled to call respondent
       as a witness, who could assert the privilege against self-incrimination only if his testimony
       would subject him to criminal liability.

¶ 33                                     III. CONCLUSION
¶ 34        The trial court erred when it excluded evidence about the reasons for respondent’s
       admission and what would happen when he stopped taking medication. It also erred when
       it denied the State’s request to call respondent as a witness. As the trial court failed to admit
       and consider highly relevant evidence, the trial court erred in granting the discharge petition,
       and accordingly its judgment is hereby reversed. We do not address the State’s remaining
       arguments, because they are moot and an exception does not apply.



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¶ 35   Reversed.




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