             NOTICE
                                      2014 IL App (5th) 130328
 Decision filed 09/24/14.   The
 text of this decision may be              NO. 5-13-0328
 changed or corrected prior to
 the filing of a Petition for
 Rehearing or the disposition of
                                               IN THE
 the same.
                                   APPELLATE COURT OF ILLINOIS

                               FIFTH DISTRICT
________________________________________________________________________

In re STEVEN T., Alleged to Be a Person           ) Appeal from the Circuit Court of
Subject to Involuntary Treatment With             ) Randolph County.
Psychotropic Medication                           )
                                                  ) No. 13-MH-84
(The People of the State of Illinois, Petitioner- )
Appellee, v. Steven T., Respondent-Appellant). )    Honorable Richard A. Brown,
                                                  ) Judge, presiding.
________________________________________________________________________

         JUSTICE CATES delivered the judgment of the court, with opinion.
         Justices Spomer and Schwarm concurred in the judgment and opinion

                                        OPINION

¶1       The respondent, Steven T., appeals from an order of the circuit court of Randolph

County finding him subject to involuntary administration of psychotropic medications

according to section 2-107.1(a-5) of the Mental Health and Developmental Disabilities

Code (Code) (405 ILCS 5/2-107.1(a-5) (West 2012)). The respondent argues that (1) the

circuit court's finding that he met the statutory criteria for forced administration of

medication was against the manifest weight of the evidence, and (2) he was not afforded

effective assistance of counsel. The State has filed a confession of error. We find the

respondent's contentions and the State's confession to be well-taken. For the reasons that

follow, we reverse the order of the circuit court.


                                               1
¶2                                   BACKGROUND

¶3    The respondent was admitted to Chester Mental Health Center (Chester) on May

1, 2013, after having been found unfit to stand trial on a charge for domestic battery. He

had no previous hospital admissions. Prior to being admitted to Chester, the respondent

allegedly killed the family dog and then threatened to kill his family. Upon admission to

Chester, he displayed aggressive behavior. On May 30, 2013, the respondent became

agitated and threatened to harm others, which required restraints and the administration

of emergency medication. On June 6, 2013, the respondent's treating psychiatrist at

Chester, Dr. Sudarshan Suneja, filed a petition for the authority to administer involuntary

psychotropic medication and the necessary, supportive medical testing. The petition

indicated that the respondent had been given a list of side effects of the medication in

writing. As the primary medications that Dr. Suneja sought to administer, the petition

listed risperidone, risperidone consta, olanzapine, benztropine, lorazepam, and

divalproex, with corresponding dosage ranges for each.          The petition also listed

alternative medications and their dosages should the primary medications prove to be

ineffective. The petition also sought the authority to administer testing and procedures

such as the use of a nasogastric tube should it become necessary.

¶4    The court held a hearing on the petition on June 12, 2013. Dr. Suneja testified for

the State as follows. He diagnosed the respondent as suffering from schizophrenia,

disorganized type, with psychotic features. Since May 31, 2013, the respondent had been

on emergency medication because he had become agitated and had threatened to hurt


                                            2
staff at Chester. The emergency medication had improved the respondent's symptoms by

60%.

¶5     Dr. Suneja testified that the respondent lacked the capacity to make a reasoned

decision about his treatment and medication. He stated that the respondent was given a

written list of the benefits and side effects of the requested medication, which was also

attached to the petition. Dr. Suneja testified that the staff at Chester had tried activity

therapy, milieu therapy, and individual and group counseling with the respondent, but the

respondent did not benefit from those forms of treatment. However, Dr. Suneja did not

testify as to whether the respondent received any written information about the risks and

benefits of nonmedicinal forms of treatment.

¶6     Next, with respect to the testing and other procedures, Dr. Suneja did not testify or

even confirm that he was asking the court for the authority to conduct testing or other

procedures. On cross-examination, Dr. Suneja said that the respondent would be tested at

regular intervals, and "[t]here's a protocol that pharmacy monitors and automatically the

tests are done." The tests would be done within a month of starting the medication. No

mention was made, either during direct examination or cross-examination, about Dr.

Suneja's request for the use of a nasogastric tube.

¶7     The respondent testified that he did not believe he needed the medication. He

explained that he would rather be in restraints than be forced to take medication. Since

starting the emergency medication, he felt that the medication adversely affected his

ability to communicate and he was unable to say words clearly. He felt sleepy and less

vibrant.
                                              3
¶8     The court entered an order for the administration of authorized involuntary

treatment, finding that the respondent had a serious mental illness, had exhibited

deterioration in his ability to function, and had exhibited threatening behavior.      In

addition to authorizing the involuntary administration of psychotropic medication, the

court ordered specific testing and procedures when necessary to administer the

medication and that the medication be administered via a nasogastric tube should the

respondent's medical condition be at risk from worsening psychosis.           This appeal

followed.

¶9                                     ANALYSIS

¶ 10   We begin by noting that this appeal is moot because the 90-day period authorized

by the circuit court's order has expired. Nevertheless, we will address the questions

raised in this appeal because they are capable of repetition yet might evade review

because of the short duration of the orders and the respondent's continuing mental health

issues and unwillingness to take medication. See In re Joseph M., 405 Ill. App. 3d 1167,

1175 (2010).

¶ 11   The respondent argues, and the State concedes, that the State failed to prove by

clear and convincing evidence that (1) the respondent lacked the decisional capacity to

make a reasoned decision about the proposed treatment (405 ILCS 5/2-107.1(a-5)(4)(E)

(West 2012)), and (2) the tests and other procedures that the court ordered, which

included the use of a nasogastric tube, were essential for the safe and effective

administration of the medication (405 ILCS 5/2-107.1(a-5)(4)(G) (West 2012)). The

respondent further argues that he was denied the effective assistance of counsel.
                                            4
¶ 12     The Code states that a recipient of mental health services shall be provided with

adequate and humane care and services in the least restrictive environment, pursuant to

an individual service plan. 405 ILCS 5/2-102(a) (West 2012). Section 2-102(a-5) of the

Code states that if the services include the administration of psychotropic medication, the

physician shall: (1) 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, and (2) determine and state in writing whether the recipient has the

capacity to make a reasoned decision about the treatment. 405 ILCS 5/2-102(a-5) (West

2012).     If the recipient lacks the capacity to make a reasoned decision about the

treatment, the treatment may be administered only pursuant to section 2-107 or 2-107.1

of the Code. 405 ILCS 5/2-102(a-5) (West 2012).

¶ 13     Medication may be administered to a recipient without his consent if and only if it

has been determined by clear and convincing evidence that, inter alia, (1) the recipient

lacks the capacity to make a reasoned decision about treatment, and (2) if the petition

seeks the authorization for testing and other procedures, such testing and procedures are

essential for the safe and effective administration of the treatment.         405 ILCS 5/2-

107.1(a-5)(4)(E), (G) (West 2012). Whether there was substantial compliance with a

statutory provision is a question of law, which we review de novo. In re Tiffany W., 2012

IL App (1st) 102492-B, ¶ 10. A reviewing court will not reverse a circuit court's

determination about the sufficiency of the evidence unless such determination was

against the manifest weight of the evidence. Id. A judgment is against the manifest
                                          5
weight of the evidence only where the opposite conclusion is apparent or where the

findings appear to be unreasonable, arbitrary, or not based on the evidence. Id.

¶ 14   A patient's decisional capacity to make treatment decisions for himself is based

upon the conveyed information concerning the risks and benefits of the proposed

treatment and reasonable alternatives to treatment. In re John R., 339 Ill. App. 3d 778,

785 (2003). The failure to provide the respondent with the statutorily mandated written

information about the risks and benefits of the proposed treatment as well as the

alternatives to the treatment amounts to reversible error because the respondent has not

received all of the information necessary to make a rational choice. In re Bobby F., 2012

IL App (5th) 110214, ¶ 18. The failure to provide the respondent with information about

alternative nonmedicinal forms of treatment amounts to reversible error. In re Laura H.,

404 Ill. App. 3d 286, 291-92 (2010).

¶ 15   In this case, the petition listed the medications Dr. Suneja sought to administer and

indicated that the respondent had been advised in writing as to the benefits and side

effects of those medications. At the hearing on the petition, Dr. Suneja testified that the

respondent was given a written list of the benefits and side effects of the medications he

sought to administer. However, the petition did not contain any information about the

alternative, nonmedicinal forms of mental health treatment available to the respondent,

nor did Dr. Suneja testify that the respondent received written information about those

methods of treatment. While Dr. Suneja did testify that the staff at Chester had tried

different nonmedicinal forms of treatment with the respondent, it was necessary for the

respondent to be provided with written information about those methods available to him
                                            6
so that he could make a fully informed decision about his treatment. This is especially

important considering the respondent indicated that he would rather be restrained than be

on forced medication.

¶ 16   When seeking the involuntary testing of a mental health patient, the State must

prove by clear and convincing evidence that such testing is essential for the safe and

effective administration of the treatment. 405 ILCS 5/2-107.1(a-5)(4)(G) (West 2012).

The State must present specific testimony about the requested testing and procedures. In

re David S., 386 Ill. App. 3d 878, 883 (2008). This court has reversed an involuntary

medication order where the testifying physician simply confirmed at the hearing that he

wanted to conduct testing to ensure that the administration of the medication was safely

and effectively done. In re Larry B., 394 Ill. App. 3d 470, 478 (2009). With no other

evidence presented about the administration and testing methods, we found that the

physician's testimony "fell far short of clear and convincing specific expert testimony in

support of a request for testing." Id.

¶ 17   Here, the State did not present evidence about the necessity of the requested

testing or procedures. Dr. Suneja simply testified that the testing would be conducted at

regular intervals and would be done within a month of starting the medication. Further,

the petition mentioned a nasogastric tube, yet no information about that procedure was

given at the hearing, and the information in the petition simply stated that the testing and

procedures were essential for the safe and effective administration of the medication.

The State did not present any evidence to support this claim. Without more than a mere

conclusion that the requested testing and nasogastric tube were necessary, the State failed
                                             7
to provide the clear and convincing evidence required by the Code to administer tests,

and potentially the nasogastric tube, without the respondent's consent.

¶ 18   The respondent also contended that his appointed counsel provided ineffective

assistance. Because of the resolution of the preceding issues and our determination that

the order granting the petition must be reversed, we need not consider the respondent's

allegations of error regarding his counsel's representation. See In re Larry B., 394 Ill.

App. 3d 470, 479 (2009).

¶ 19                                  CONCLUSION

¶ 20   For the foregoing reasons, the judgment of the circuit court of Randolph County

ordering the involuntary administration of medication for the respondent is reversed.



¶ 21   Reversed.




                                             8
                                2014 IL App (5th) 130328

                                     NO. 5-13-0328

                                          IN THE

                           APPELLATE COURT OF ILLINOIS

                               FIFTH DISTRICT
________________________________________________________________________

In re STEVEN T., Alleged to Be a Person           ) Appeal from the Circuit Court of
Subject to Involuntary Treatment With             ) Randolph County.
Psychotropic Medication                           )
                                                  ) No. 13-MH-84
(The People of the State of Illinois, Petitioner- )
Appellee, v. Steven T., Respondent-Appellant). )    Honorable Richard A. Brown,
                                                  ) Judge, presiding.
________________________________________________________________________

Opinion Filed:        September 24, 2014
________________________________________________________________________

Justices:          Honorable Judy L. Cates, J.

                 Honorable Stephen L. Spomer, J., and
                 Honorable S. Gene Schwarm, J.,
                 Concur
________________________________________________________________________

Attorneys        Veronique Baker, Director, Barbara A. Goeben, Staff Attorney,
for              Legal Advocacy Service, Guardianship and Advocacy Commission,
Appellant        Metro East Regional Office, 4500 College Avenue, Suite 100,
                 Alton, IL 62002
________________________________________________________________________

Attorneys        Hon. Jeremy R. Walker, State's Attorney, Randolph County
for              Courthouse, Chester, IL 62233; Patrick Delfino, Director, Stephen E.
Appellee         Norris, Deputy Director, Patrick D. Daly, Staff Attorney, Office of
                 the State's Attorneys Appellate Prosecutor, 730 East Illinois
                 Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
________________________________________________________________________
