                               Illinois Official Reports

                                      Appellate Court



                           In re Steven T., 2014 IL App (5th) 130328



Appellate Court          In re STEVEN T., Alleged to Be a Person Subject to Involuntary
Caption                  Treatment With Psychotropic Medication (The People of the State of
                         Illinois, Petitioner-Appellee, v. Steven T., Respondent-Appellant).




District & No.           Fifth District
                         Docket No. 5-13-0328



Filed                    September 24, 2014



Held                       An order finding respondent subject to the involuntary administration
                           of psychotropic medications was reversed, since the State failed to
(Note: This syllabus
constitutes no part of the
                           present the clear and convincing evidence required by the statute for
opinion of the court but the administration of testing and procedures requested, regardless of
has been prepared by the the mention in the petition that the testing and procedures would be
Reporter of Decisions essential to the safe and effective administration of the medication.
for the convenience of
the reader.)




Decision Under           Appeal from the Circuit Court of Randolph County, No. 13-MH-84;
Review                   the Hon. Richard A. Brown, Judge, presiding.




Judgment                 Reversed.
     Counsel on               Veronique Baker and Barbara A. Goeben, both of Guardianship and
     Appeal                   Advocacy Commission, of Alton, for appellant.

                              Jeremy R. Walker, State’s Attorney, of Chester (Patrick Delfino,
                              Stephen E. Norris, and Patrick D. Daly, all of State’s Attorneys
                              Appellate Prosecutor’s Office, of counsel), for the People.




     Panel                    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.

¶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.



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¶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 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.
¶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



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       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.
¶ 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 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 so that he could make a fully informed


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       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 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.




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