Rule 23 order filed                    NO. 5-09-0310
February 8, 2010;
Motion to publish granted                 IN THE
April 1, 2010.
                            APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

In re JOSEPH M., Alleged to Be a Person           ) Appeal from the Circuit Court
Subject to the Involuntary Administration of      ) of Randolph County.
Psychotropic Medication                           )
                                                  ) No. 09-MH-89
(The People of the State of Illinois, Petitioner- )
Appellee, v. Joseph M., Respondent-               ) Honorable William A. Schuwerk, Jr.,
Appellant).                                       ) Judge, presiding.
________________________________________________________________________

       PRESIDING JUSTICE GOLDENHERSH delivered the opinion of the court:

       Respondent, Joseph M ., appeals an order finding him subject to the involuntary

administration of psychotropic medications pursuant to section 2-107.1 of the M ental Health

and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/2-107.1 (West

2008)) after he waived his right to a hearing. The State has filed a confession of error.

Because the Mental Health Code does not contemplate or permit such a blanket waiver of

all the procedural safeguards provided to respondents in proceedings on a petition for the

involuntary administration of psychotropic medication, we reverse.

       Prior to discussing the case, we note that the case could be considered moot, which

would result in a lack of jurisdiction in the court to consider the appeal. The order at issue

was entered on May 7, 2009, and expired 180 days later. See 405 ILCS 5/2-107.1(a-5)(5)

(West 2008). Because the order appealed has expired, we cannot grant effective relief to

respondent. We recognize that the reversal of the trial court's order would not, in itself,

purge respondent's medical records of the fact of his treatment or the involuntary medication

order. Nonetheless, we will address the questions raised in this appeal under the "public-

interest exception" to the mootness doctrine. Our review recognizes that the duration of the


                                               1
order is "too short to be fully litigated prior to its cessation" (In re Alfred H.H., 233 Ill. 2d

345, 358, 910 N.E.2d 74, 82 (2009)), and yet, respondent's history of mental illness virtually

guarantees that he will be the subject of petitions for the involuntary administration of

psychotropic medication in the future (see In re Mary Ann P., 202 Ill. 2d 393, 401-02, 781

N.E.2d 237, 242-43 (2002); In re Donrell S., 395 Ill. App. 3d 599, 603, 919 N.E.2d 512, 516

(2009)). His involuntary treatment could adversely affect him collaterally in the future. See

In re Alfred H.H., 233 Ill. 2d 345, 362, 910 N.E.2d 74, 84 (2009) (the

collateral-consequences exception applies where the reversal of the trial court's order could

provide a basis for a motion in limine that would prohibit any mention of the hospitalization

during the course of another proceeding).

       We also recognize that the State's confession of error does not relieve this court of its

duty to perform its judicial function by independently examining the errors confessed, in

order to protect the public interest. Young v. United States, 315 U.S. 257, 258-59, 86 L. Ed.

832, 834-35, 62 S. Ct. 510, 511 (1942); In re Larry B., 394 Ill. App. 3d 470, 471, 914 N.E.2d

1243, 1244-45 (2009).

                                       BACKGROUND

       On April 30, 2009, Chester Mental Health Center (Chester) psychiatrist P.S. Thakur,

M.D., filed a petition seeking permission to administer involuntary treatment to respondent.

The petition detailed respondent's long history of mental illness and treatment, his criminal

history, and his then-current mental status. It listed the medications that Dr. Thakur sought

to administer to respondent and included the proposed dosages, their frequency and the mode

of administration, and the monitoring tests that were required. On May 2, 2009, respondent

was served with the petition. Although the petition stated that a 1999 Cook County criminal

charge had not been withdrawn by the State in June 2007, when the defendant was declared

permanently unfit to stand trial, there was no substantiation that respondent's attorney had


                                               2
been served with the petition in compliance with section 2-107.1(a-5)(1) of the Mental

Health Code (405 ILCS 5/2-107.1(a-5)(1) (West 2008) (a respondent's criminal defense

attorney is to be notified of a hearing on a petition for the involuntary administration of

psychotropic medication)). See In re Robert S., 213 Ill. 2d 30, 56, 820 N.E.2d 424, 439

(2004).

       At the beginning of the May 7, 2009, hearing on the petition, respondent's attorney,

Jeremy Walker, addressed the court. He informed the court that he had met with respondent

and had discussed with him the petition and his right to a hearing and that respondent had

"expressed a desire to waive his right to the same." The remainder of the hearing transcript

is set out verbatim as follows:

              "THE COURT: Mr. [M.], do you wish to give up your right to have a hearing

       this morning?

              RESPONDENT [Joseph M .]: (Respondent [M.] nodding head.)

              THE COURT: He's shaking [sic] his head [']yes.['] I'll accept your waiver. It's

       the order of the [c]ourt that the administration is authorized to administer

       psychotropic medications and the medication dosages set forth in this order for a

       period not to exceed 180 days."

The judge signed a form order granting S.K. Suneja, M.D., a psychiatrist at Chester, the

authority to administer involuntary treatment to respondent. The judge made no findings of

fact for the record.

       On June 3, 2009, Barbara A. Goeben, staff attorney for the Illinois Guardianship and

Advocacy Commission, entered her appearance on behalf of respondent and filed a motion

to reconsider the grant of the petition. She argued that an order for the involuntary

administration of psychotropic medication cannot be entered without the entry of written

findings of fact that are sufficient to determine the basis for the involuntary medication order.


                                               3
She cited section 3-816 of the Mental Health Code (405 ILCS 5/3-816 (W est 2008)) and this

court's decision in In re James S., 388 Ill. App. 3d 1102, 904 N.E.2d 1072 (2009), a copy of

which was appended to the pleading, in support of the motion. The judge denied the motion

to reconsider.

                                 STANDARD OF REVIEW

       Generally, a trial court's order permitting the involuntary administration of

psychotropic medication will not be reversed unless it is against the manifest weight of the

evidence. In re C.S., 383 Ill. App. 3d 449, 451, 890 N.E.2d 1007, 1010 (2008). "A

judgment will be considered against the manifest weight of the evidence 'only when an

opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary,

or not based on evidence.' " In re Louis S., 361 Ill. App. 3d 774, 779, 838 N.E.2d 226, 231

(2005) (quoting In re John R., 339 Ill. App. 3d 778, 781, 792 N.E.2d 350, 353 (2003)).

                              CONTENTIONS ON APPEAL

       Respondent contends that the trial court's order authorizing the involuntary

administration of psychotropic mediation must be reversed. He argues that the trial court's

acceptance of his waiver of a hearing on the petition for the involuntary administration of

psychotropic medication violated his right to a fair trial, that the order was improper because

neither the record nor a written order containing a statement of the court's findings of fact

was made, and that his appointed counsel failed to provide him with adequate representation.

                                       DISCUSSION

       The Illinois Supreme Court has observed that the involuntary administration of

psychotropic drugs involves a " ' "massive curtailment of liberty." ' " In re Robert S., 213

Ill. 2d 30, 46, 820 N.E.2d 424, 434 (2004) (quoting In re Barbara H., 183 Ill. 2d 482, 496,

702 N.E.2d 555, 561 (1998) (quoting Vitek v. Jones, 445 U.S. 480, 491, 63 L. Ed. 2d 552,

564, 100 S. Ct. 1254, 1263 (1980))). "Even during involuntary hospitalization, an individual


                                              4
retains his liberty interests to remain free from unwarranted intrusions into his body and

mind." In re Orr, 176 Ill. App. 3d 498, 512, 531 N.E.2d 64, 74 (1988) (citing Mills v.

Rogers, 457 U.S. 291, 299, 73 L. Ed. 2d 16, 22-23, 102 S. Ct. 2442, 2448 (1982)). The

Mental Health Code serves in part to protect patients from the potential misuse of

psychotropic medication by medical staff to restrain, manage, or discipline patients, rather

than to treat their mental illness. In re Mary Ann P., 202 Ill. 2d 393, 408, 781 N.E.2d 237,

246 (2002); In re C.E., 161 Ill. 2d 200, 215-16, 641 N.E.2d 345, 352 (1994); In re Gloria

B., 333 Ill. App. 3d 903, 905, 776 N.E.2d 853, 855 (2002). A petitioner seeking involuntary

medication for a patient is thus required to prove by clear and convincin g evidence that a

recipient of mental health services has a serious mental illness or developmental disability;

that his ability to function has deteriorated, that he is suffering, or that he exhibits threatening

behavior; that the mental illness has continued for a period of time or episodically; that the

benefits of the treatment outweigh the harm; that other, less restrictive services have been

explored and found inappropriate; and that if authorization is sought for testing and other

procedures, the testing and procedures are essential for the safe and effective administration

of the treatment. 405 ILCS 5/2-107.1(a-5)(4)(A) through (a-5)(4)(G) (W est 2008); In re

Dorothy J.N., 373 Ill. App. 3d 332, 335, 869 N.E.2d 413, 415-16 (2007). Clear and

convincing proof is defined as "that quantum of proof that leaves no reasonable doubt in the

mind of the fact finder about the truth of the proposition in question." In re John R., 339 Ill.

App. 3d at 781, 792 N.E.2d at 353 (citing Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647

N.E.2d 273, 276 (1995)). To meet this clear-and-convincing-proof standard, the State must

present expert testimony. 405 ILCS 5/3-807, 2-107.1(a-5)(3) (W est 2008). "An order

unsupported by expert testimony shall be reversed. [Citation.] Expert opinions alone are

insufficient. The opinions must be supported with specific facts establishing the bases for

those opinions." In re David S., 386 Ill. App. 3d 878, 882, 899 N.E.2d 349, 353 (2008).


                                                 5
       This court's decision in In re Larry B. is instructive. There, the trial court approved

the administration of psychotropic medication despite the facts that the petition had never

been introduced into evidence and the testimony of respondent's psychiatrist was factually

insufficient to allow the court to find that the benefits of the proposed medication

outweighed the risks. We reversed the court's order, finding as follows: "The procedural

safeguards enacted by the legislature regarding authorization for the involuntary

administration of psychotropic medication are not mere technicalities; rather, they are

intended to safeguard the important liberty interests of the patient." In re Larry B., 394 Ill.

App. 3d at 475, 914 N.E.2d at 1247.

       There was no evidence before the court in the instant case to support the grant of the

petition. Although the petition was well-written and thoroughly documented, it was never

introduced into evidence. The record is devoid of findings of fact to support the judge's

order, and the order itself was a form order that indicated no findings of fact. We have

already noted that respondent's new counsel presented the judge with authority from this

court that was directly on point: the trial court must accompany its order with a statement on

the record of its findings of fact or written findings that support the order for the involuntary

administration of psychotropic medication in compliance with section 3-816(a) of the Mental

Health Code (405 ILCS 5/3-816(a) (West 2008)). In re James S., 388 Ill. App. 3d 1102,

1107, 904 N.E.2d 1072, 1077 (2009). Given respondent's profound liberty interest in being

free of invasive chemical interference with his mental processes, the absence of findings

warrants a reversal of the judge's order.

       Respondent also contends that his appointed counsel provided ineffective assistance.

Because of our resolution of the preceding issues and our determination that the order

granting the petition must be reversed, we need not consider respondent's allegations of error

regarding his counsel's representation.


                                               6
                                    CONCLUSION

      For the foregoing reasons, the order authorizing the involuntary administration of

psychotropic medications to respondent is reversed.



      Reversed.



      DONOVAN and STEWART, JJ., concur.




                                           7
                                           NO. 5-09-0310

                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      In re JOSEPH M., Alleged to Be a Person           ) Appeal from the Circuit Court
      Subject to the Involuntary Administration of      ) of Randolph County.
      Psychotropic Medication                           )
                                                        ) No. 09-MH-89
      (The People of the State of Illinois, Petitioner- )
      Appellee, v. Joseph M., Respondent-               ) Honorable William A. Schuwerk, Jr.,
      Appellant).                                       ) Judge, presiding.
___________________________________________________________________________________

Rule 23 Order Filed:        February 8, 2010
Motion to Publish Granted:  April 1, 2010
Opinion Filed:              April 1, 2010
___________________________________________________________________________________

Justices:           Honorable Richard P. Goldenhersh, P.J.

                 Honorable James K. Donovan, J., and
                 Honorable Bruce D. Stewart, J.,
                 Concur
___________________________________________________________________________________

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

Attorneys        Hon. Randall Rodewald, State's Attorney, Randolph County Courthouse, Chester,
for              IL 62233; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Sharon
Appellee         Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth
                 District Office, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL
                 62864
___________________________________________________________________________________
