                                          2017 IL App (3d) 160357

                                Opinion filed August 3, 2017
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2017

     In re TARA S.,                         )     Appeal from the Circuit Court
                                            )     of the 10th Judicial Circuit,
     (The People of the State of Illinois,  )     Peoria County, Illinois,
                                            )
             Petitioner-Appellee,           )     Appeal No. 3-16-0357
                                            )     Circuit No. 16-MH-128
             v.                             )
                                            )
     Tara S.,                               )     Honorable
                                            )     Suzanne L. Patton,
             Respondent-Appellant).         )     Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Presiding Justice Holdridge and Justice Wright concurred in the judgment.
     _____________________________________________________________________________

                                                 OPINION

¶1          Respondent, Tara S., appeals from the circuit court’s orders for involuntary admission

     and administration of psychotropic medication. Respondent argues that she was denied the

     effective assistance of counsel and this issue is subject to review under the capable of repetition

     yet avoiding review exception to the mootness doctrine. We reverse the court’s orders for

     involuntary admission to a mental health facility and involuntary administration of psychotropic

     medication.
¶2                                                 FACTS

¶3           On June 16, 2016, the State filed a petition for the involuntary administration of

     psychotropic medication to respondent. The petition was a prepared form which indicated that

     respondent had a mental illness and lacked the capacity to give an informed consent to

     psychotropic medication. The second page of the petition contained the proposed psychotropic

     medication treatment, length of the treatment plan, required pretreatment medical testing, and

     treatment alternatives. The petition was signed by psychiatrist Andrew Lancia.

¶4           On June 17, 2016, the court appointed counsel to represent respondent. On the same date,

     the State filed a petition for the involuntary admission of respondent to a mental health facility.

     The petition alleged that respondent had a history of psychiatric hospitalizations related to her

     bipolar diagnosis and noncompliance with treatment. Respondent exhibited bouts of mania and

     psychosis. Respondent told a hospital employee that she had been physically and sexually

     assaulted in the past six months. Respondent had no place to live, no income, and no insight into

     her illness.

¶5           In a contemporaneously filed inpatient certificate, Lancia attested that he had personally

     examined respondent. Lancia opined that respondent was a person with mental illness whom he

     reasonably expected to engage in harmful conduct. Respondent refused treatment and was unable

     to understand her need for treatment. Respondent’s mental disorder presented with episodes of

     mania, paranoia, and respondent’s belief that she had been subject to multiple incidents of sexual

     assault in the past six months. Lancia opined that respondent was vulnerable to such assaults

     because of her manic state.

¶6           On June 21, 2016, the court held a hearing on the State’s petitions. Psychiatrist Marika

     Wrzosek testified that she was assigned to the case one day before the hearing. Wrzosek said that


                                                       2
     she had reviewed respondent’s medical records but indicated that she had not personally

     examined respondent. At the time of her admission, respondent was paranoid, talked to herself,

     believed that her mother was following her, and exhibited disorganized speech that frequently

     mentioned sexual assault. While in the psychiatric unit of the hospital, respondent exhibited

     hypersexualized behavior and reported feeling excess stress. Respondent had been mentally ill

     for nearly 10 years and had two prior hospitalizations since 2013. Respondent had no

     understanding of her mental illness. Respondent refused to take the prescribed medication and

     stated that she did not have a mental illness. Wrzosek said respondent had the working diagnosis

     of schizoaffective bipolar type. Wrzosek opined that respondent’s provocative behavior put her

     at risk for a recurrence of sexual assault. Wrzosek thought that if respondent were released, she

     risked being victimized by others due to her disorganized thoughts and hypersexualized

     behavior. Wrzosek said that with treatment, respondent’s disorder could be stabilized and she

     could be released to continue her independent living.

¶7          On cross-examination, Wrzosek said that her main concern for harm was respondent’s

     penchant to engage in frequent sexual intercourse with multiple partners. Wrzosek also feared

     that respondent’s paranoia about her family members prevented her from having the necessary

     support.

¶8          Respondent testified that she was homeless. Prior to her hospital admission, she stayed

     with a man named “Bill.” Bill asked respondent to leave after respondent left the door open to

     Bill’s house and his dog ran out. On June 13, 2016, respondent voluntarily sought admission to

     the hospital. Respondent said that she was “stressed out” and had no place to live. Respondent

     also explained that she needed to gather evidence in order to procure an order of protection

     against a woman that she thought was following her. Respondent said that she was “tired of


                                                      3
       being abused.” She previously took the medications risperidone and lithium. Respondent thought

       that she did not need medication but acknowledged that she needed counseling.

¶9            The court found that respondent suffered from schizoaffective disorder, she was the

       victim of sexual abuse and sexual assault, her testimony exhibited disorganized thoughts and

       paranoia, and respondent’s hypersexualized activities subjected her to potential harm. The court

       ordered respondent to be placed in a restrictive environment for up to 90 days for treatment. The

       court then proceeded to a hearing on the State’s petition for involuntary treatment.

¶ 10          Wrzosek testified that respondent had previously taken psychotropic medications

       risperidone and lithium. Based on Wrzosek’s review of respondent’s medical chart, these

       medications had restored respondent’s functioning. Wrzosek proposed a list of medications to

       stabilize respondent’s mood and decrease her paranoia and delusions. The list included

       risperidone and lithium. Wrzosek opined that the benefits of the proposed treatment outweighed

       the potential side effects and noted that there were no less restrictive options available. Wrzosek

       asked the court to order the medications to be administered for a period of up to 90 days.

¶ 11          Respondent testified that she was familiar with some of the psychotropic medications

       proposed by Wrzosek. Respondent previously received treatment at the Human Resource Center.

       However, in January 2015, the psychiatrist at the center discontinued respondent’s treatment.

       Respondent recalled that the treatment “slowed [her] down.” After the psychiatrist discontinued

       respondent’s psychotropic medication, he prescribed an antidepressant. Respondent asserted that

       she only needed pain medication and that she did not need inpatient treatment because she came

       to the hospital because she was “stressed out and *** a rape victim.”

¶ 12          The court found that respondent suffered from a psychiatric condition that required

       treatment, the benefits of the treatment outweighed the harm, respondent lacked the capacity to


                                                        4
       make a decision about her treatment, and the proposed inpatient treatment plan was the least

       restrictive service that was appropriate at the time. The court ordered the treatment to be

       administered for a period of up to 90 days. Respondent appeals.

¶ 13                                                ANALYSIS

¶ 14          Respondent argues that the case must be reversed because she received ineffective

       assistance of counsel. Specifically, defense counsel failed to (1) object to Wrzosek’s testimony,

       which was not based on a personal examination, and (2) argue that the State did not comply with

       the written medication information requirement. The State solely argues that the issue is rendered

       moot by the expiration of the 90-day deadline in the order. We find that this issue is moot but is

       subject to review under the capable of repetition yet evading review exception. We further find

       that respondent received ineffective assistance of counsel.

¶ 15                                                I. Mootness

¶ 16          Generally, courts of review do not decide moot questions. In re Alfred H.H., 233 Ill. 2d

       345, 351 (2009). However, the “capable of repetition yet avoiding review” exception permits

       review of an otherwise moot issue. Id. at 358. This exception has two elements: (1) the

       challenged action is of a duration too short to be fully litigated prior to its cessation and (2) there

       is a reasonable expectation that the complaining party will be subject to the same action again.

       Id. The parties agree that the present issue satisfies the first prong. However, the State argues that

       there is not a reasonable expectation that respondent will be subject to the same action again. To

       satisfy the second prong, “there must be a substantial likelihood that the issue presented in the

       instant case, and any resolution thereof, would have some bearing on a similar issue presented in

       a subsequent case.” Id. at 360.




                                                          5
¶ 17          Respondent’s ineffective assistance of counsel issue satisfies the second prong. The

       record establishes that respondent is a person with a 10-year history of mental illness. This

       history included two prior hospitalizations. No evidence was presented that the proposed

       treatment plan would alleviate respondent’s mental illness entirely. Rather, the evidence showed

       that her cognitive function would be stabilized once the treatment was in full effect. However,

       respondent had received and discontinued treatment in the past. Therefore, it is very likely that

       respondent will face future involuntary hospital admissions or involuntary administration of

       psychotropic medication proceedings. As respondent is statutorily entitled to counsel during

       these proceedings (405 ILCS 5/3-805 (West 2016)), ineffective assistance of counsel issues are

       likely to recur. Absent ineffective assistance of counsel review, the statutory guarantee of

       counsel is rendered a “ ‘hollow gesture serving only superficially to satisfy due process

       requirements.’ ” In re Carmody, 274 Ill. App. 3d 46, 55 (1995) (quoting In re Commitment of

       Hutchinson, 421 A.2d 261, 264 (Pa. Super. Ct. 1980)). Counsel’s actions protect respondent’s

       constitutionally protected liberty interest to refuse the administration of psychotropic drugs. U.S.

       Const., amend. XIV; see also In re C.E., 161 Ill. 2d 200, 214 (1994) (holding that “mentally ill or

       developmentally disabled [persons] have a Federal constitutionally protected liberty interest to

       refuse the administration of psychotropic drugs”); In re Benny M., 2015 IL App (2d) 141075,

       ¶ 24 (noting “like defense counsel in a criminal proceeding, the respondent’s counsel in a mental

       health proceeding plays an essential role in ensuring a fair trial”). Accordingly, we find that the

       ineffective assistance of counsel issue presented in this case is reviewable under the capable of

       repetition yet avoiding review exception to mootness.

¶ 18                                  II. Ineffective Assistance of Counsel




                                                        6
¶ 19          A respondent that is subject to an involuntary hospital admission or involuntary

       administration of psychotropic medication has a statutory right to counsel. 405 ILCS 5/3-805

       (West 2016); In re Barbara H., 183 Ill. 2d 482, 493-94 (1998). The Strickland standard applies

       where a respondent argues that she received ineffective assistance of counsel. In re Daryll C.,

       401 Ill. App. 3d 748, 754 (2010). Under Strickland, respondent must prove that “(1) counsel’s

       performance was deficient, such that the errors were so serious that counsel was not functioning

       as the ‘counsel’ contemplated by the Code; and (2) counsel’s errors were so prejudicial as to

       deprive her of a fair proceeding.” Carmody, 274 Ill. App. 3d at 57 (citing Strickland v.

       Washington, 466 U.S. 668, 687 (1984)). Upon review, we find two instances of ineffective

       assistance.

¶ 20                                   A. Examination of Medical Expert

¶ 21          Section 3-807 of the Mental Health and Developmental Disabilities Code (Code)

       provides:

                      “No respondent may be found subject to involuntary admission on an inpatient or

                      outpatient basis unless at least one psychiatrist, clinical social worker, clinical

                      psychologist, or qualified examiner who has examined the respondent testifies in

                      person at the hearing. The respondent may waive the requirement of the testimony

                      subject to the approval of the court.” (Emphasis added.) 405 ILCS 5/3-807 (West

                      2016).

¶ 22          We note that the State has confessed error with regard to this issue. For the following

       reasons, we accept the State’s confession.

¶ 23          In this case, Wrzosek’s testimony established that she had not personally examined

       respondent before the hearing. The pleadings indicate that only Lancia had personally examined


                                                         7
       respondent, and the State did not call Lancia to testify. Respondent also did not waive the

       testimony of an examining expert, and Wrzosek’s review of respondent’s medical records did not

       satisfy this statutory requirement. In re Michelle J., 209 Ill. 2d 428, 437 (2004) (reviewing a

       respondent’s medical records does not satisfy the statutory requirement that the expert examine

       the respondent prior to the hearing). Therefore, counsel’s performance was deficient for not

       objecting to the State’s omission of testimony of an expert who had not examined respondent.

       Counsel’s omission prejudiced the outcome of the proceeding as respondent could not be subject

       to involuntary admission without the testimony of an expert examiner who actually examined

       respondent. 405 ILCS 5/3-807 (West 2016).

¶ 24                                      B. Written Medication Requirement

¶ 25           Section 2-102 of the Code requires the State to notify the recipient of involuntarily

       administered psychotropic medication with written notice of the “side effects, risks, and benefits

       of the treatment, as well as alternatives to the proposed treatment.” 405 ILCS 5/2-102(a-5) (West

       2016). Information regarding the risks and benefits of the psychotropic medications is required

       for a respondent to make an informed decision on treatment. In re Vanessa K., 2011 IL App (3d)

       100545, ¶ 20. Verbal advice on the medication does not satisfy this statutory requirement. Id.

¶ 26           The State concedes that the treating psychiatrists proposed treating respondent with

       lithium but the record did not contain any written information on this medication. 1 After

       reviewing the record, we accept the State’s confession and find that there is no indication that

       respondent received written notice of the side effects, risks, benefits, and alternative treatments

       to lithium. Therefore, counsel’s performance was deficient for not raising this omission in the

       circuit court. As respondent could not be compelled to take lithium without receiving the

               1
                The common law record contains written information forms for risperidone and several other alternative
       psychotropic medications that were proposed in the petition that was signed by Lancia.

                                                               8
       statutorily required written information, counsel’s performance was deficient for failing to raise

       this issue. 405 ILCS 5/2-102(a-5) (West 2016).

¶ 27                                            CONCLUSION

¶ 28          The judgment of the circuit court of Peoria County is reversed.

¶ 29          Reversed.




                                                        9
