                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            In re Dawn H., 2012 IL App (2d) 111013




Appellate Court            In re DAWN H., Alleged to be a Person Subject to Involuntary Treatment
Caption                    (The People of the State of Illinois, Petitioner-Appellee, v. Dawn H.,
                           Respondent-Appellant).



District & No.             Second District
                           Docket No. 2-11-1013


Rule 23 Order filed        June 29, 2012
Rule 23 Order
withdrawn                  August 20, 2012
Opinion filed              August 20, 2012


Held                       An order for the involuntary administration of psychotropic medication
(Note: This syllabus       to respondent was upheld where the evidence supported the trial court’s
constitutes no part of     finding that the benefits of the proposed treatment outweighed the harm.
the opinion of the court
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Kane County, No. 11-MH-118; the
Review                     Hon. Susan Clancy Boles, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Veronique Baker, of Guardianship and Advocacy Commission, of
Appeal                     Chicago, and Penelope S. Smith, of Guardianship and Advocacy
                           Commission, of Anna, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Diane L. Campbell, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                           court, with opinion.
                           Justices Hutchinson and Schostok concurred in the judgment and opinion.




                                             OPINION

¶1         In September 2011, the trial court authorized the involuntary administration of
        psychotropic medication to respondent, Dawn H., for a period of 90 days. 405 ILCS 5/2-
        107.1 (West 2010). We decline to dismiss this appeal as moot, but we affirm the trial court’s
        order.

¶2                                       I. BACKGROUND
¶3          Respondent, age 30, has a 12-year history of mental illness. Specifically, respondent has
        been diagnosed with bipolar disorder with psychosis. Respondent first became symptomatic
        following the birth of her first child (respondent’s two children are now in the custody of
        respondent’s mother). According to respondent’s mother, respondent has had “revolving
        door type hospitalizations” throughout the past decade and has been consistently
        noncompliant with treatment recommendations.
¶4          The instant episode can be traced back to April 2011, when respondent was jailed for
        scratching two male victims in the face. While in jail, respondent exhibited a state of
        psychosis and was placed in the jail medical unit. There, she went 30 days without
        showering, was unable to interact with others, and talked to herself. In the middle of her jail
        stay, she was taken to a custody hearing concerning her children. There, she got into a verbal
        altercation with officers of the court and spit in the faces of three officers, leading to her
        removal from the courtroom.
¶5          Respondent was subsequently placed in the Elgin Mental Health Center, and in
        September 2011, her treating psychiatrist, Dr. Donna Luchetta, petitioned for the involuntary
        administration of psychotropic medication. Luchetta averred in the petition that, for two
        weeks, she had observed respondent on a daily basis during group and individual interviews.

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       Luchetta collected information about respondent’s behavior from health center staff and from
       jail progress notes.
¶6          Luchetta requested the court’s permission to administer the following medications with
       specified alternatives should the proposed medications prove ineffective or difficult to
       administer: (1) lithium (or divalproex or carbamazepine) for mood stabilization; (2)
       olanzepine (or risperidone or haloperidol or fluphenazine) for treatment of psychosis; (3)
       lorazepam for agitation; (4) fluvoxamine for anxiety; (5) aripiprazole for depression; and (6)
       diphenhydramime, i.e., Benadryl (or benztropine), to prevent side effects (not a psychotropic
       medication). Additionally, Luchetta requested authorization to perform procedures to
       monitor for side effects; these procedures included urinalysis, EKGs (electrocardiogram
       tests), and blood tests.
¶7          At the hearing on the petition, Luchetta testified that she observed respondent’s bipolar
       disorder with psychosis manifested in respondent’s loud, argumentative behavior;
       monopolizing and hyperverbal speech; hypergraphia (writing unprompted five- and six-page
       letters to judges, requesting that they help her find a home, even though she was housed in
       the health center at the time); delusions (reporting to others that the health center staff were,
       in effect, killing her because they did not allow her food when, in fact, she received three
       meals per day plus snacks); grandiose delusions (repeatedly stating that she is perfect); and
       impaired judgment (previously having been unable to secure housing despite receipt of a
       $700-per-month social security check). Additionally, while at the health center, respondent
       called the Will County courthouse and told the person who answered the phone that she had
       a gun to her head and was going to kill herself.
¶8          Luchetta further testified to an incident where health center staff administered three
       medications under a “restriction of rights” policy. On that occasion, respondent threatened
       others and exhibited loud, hostile behavior. The medications were: (1) haloperidol for
       psychosis; (2) lorazepam for agitation; and (3) diphenhydramime to prevent side effects. The
       medications treated the targeted conditions without side effect. However, following that
       incident, respondent has refused medication, hence the instant petition. Luchetta stated that,
       due to respondent’s paranoia, respondent was unable to make reasonable decisions
       concerning her own treatment.
¶9          Finally, in 12 transcript pages of direct testimony and 5 transcript pages of cross-
       examination, Luchetta testified to the purpose, dosage, and potential risks and side effects
       of each drug listed in the petition. As to the purpose, Luchetta testified as stated in the
       petition and as set forth above as to each drug (i.e., for mood stabilization, for treatment of
       psychosis, for agitation, for anxiety, and for depression). Luchetta testified extensively
       concerning risks, much of which was elicited during cross-examination. At one point,
       Luchetta testified to which specific drugs within a certain class were preferred based on the
       likelihood of fewer or less severe side effects: “The reason why carbamazepine is such an
       effective mood stabilizer is because it doesn’t have many of the side effects that you might
       have with either lithium or divalproex sodium, yet you do have very significant mood-
       stabilizing benefits.”
¶ 10        In closing, respondent’s attorney argued: “The benefits may be somewhat apparent, but


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       it is very clear that the [negative] effects of this medication, contrary to [Luchetta’s]
       minimizing it, *** are enough to give this court some pause in ordering them.” In other
       words, respondent virtually conceded the benefits of treatment and did not question the
       amount of testimony concerning risks; rather, respondent thought the risks so grave as to
       preclude treatment. The court rejected respondent’s argument and found that the statutory
       factors for the involuntary administration of psychotropic medication were met by clear and
       convincing evidence. The court authorized the involuntary administration of psychotropic
       medication and accompanying procedures for a period of 90 days. This appeal followed.

¶ 11                                       II. ANALYSIS
¶ 12        Respondent argues that the 90-day order for involuntary administration of psychotropic
       medication must be reversed because the State failed to present specific evidence of the
       benefits of each medication sought to be administered. Respondent does not question the
       abundance of testimony concerning the medications’ risks but challenges only the adequacy
       of the benefits testimony. Respondent’s argument implicates section 2-107.1(a-5)(4)(D) of
       the Mental Health and Developmental Disabilities Code. 405 ILCS 5/2-107.1(a-5)(4)(D)
       (West 2010). Subsection (a-5)(4)(D) states that psychotropic medication may not be
       involuntarily administered to the recipient unless the trial court finds by clear and convincing
       evidence that “the benefits of the treatment outweigh the harm.” Id.
¶ 13        Respondent acknowledges that the 90-day order has expired and that, therefore, this court
       must consider whether an exception to the mootness doctrine applies. An appeal is moot
       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 appellant. In re
       Val Q., 396 Ill. App. 3d 155, 159 (2009). Generally, courts do not decide moot questions or
       render advisory opinions. Id. Exceptions to the mootness doctrine apply where: (1) the case
       presents a question of public import that will likely recur and the answer to that question will
       provide guidance to public officers in the performance of their duties; (2) the case involves
       events of short duration that are capable of repetition yet evading review; and (3) collateral
       consequences of the order could return to plague the respondent in some future proceeding
       or could affect other aspects of the respondent’s life. Id.
¶ 14        The capable-of-repetition-yet-evading-review exception applies here. This exception has
       two elements: the challenged action must be of a duration too short to be fully litigated prior
       to its cessation, and there must be a reasonable expectation that the same complaining party
       would be subjected to the same action again. In re Alfred H.H., 233 Ill. 2d 345, 358 (2009).
       A sufficiency claim concerning the specific evidence in an isolated case is not enough,
       because the next case involving the same respondent might involve completely different
       evidence. Id. at 360. Rather, there must be a substantial likelihood that the issue presented
       in the instant case, and any resolution thereof, will have some bearing on a similar issue
       presented in a subsequent case. Id. Examples include constitutional arguments or challenges
       to the interpretation of a statute that the respondent might again face. Id. (citing In re A
       Minor, 127 Ill. 2d 247, 259 (1989) (a newspaper seeking to publish the name of a minor who
       had been charged in closed criminal proceedings was reasonably expected to raise the same


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       constitutional challenge to the application of the statute in future cases seeking to publish the
       names of charged juveniles)).
¶ 15        Here, there is no question that the challenged action is of a duration too short to be fully
       litigated prior to its cessation. And, the record supports that there is a reasonable expectation
       that respondent will be subjected to similar orders again. Though the record does not contain
       documentation of prior commitments, respondent’s mother stated that respondent has been
       in and out of treatment for the last decade. Respondent repeatedly thwarted treatment efforts
       and repeatedly engaged in dangerous behavior: allowing herself to become homeless despite
       adequate funds, criminally assaulting others, etc. Given her history of mental illness,
       resistance to treatment, and aggressive behavior, it is reasonably likely that respondent will
       be subjected to similar orders in the future. The State’s assertion otherwise is conclusory.
¶ 16        We reject the State’s position that respondent merely raises a sufficiency argument and
       that, therefore, resolving the issue in the present case will not affect a future case involving
       respondent. Alfred H.H., 233 Ill. 2d at 359. At first blush, respondent’s argument seems
       contrary to her quasi-admission before the trial court that the “benefits [of the proposed
       treatment] may be somewhat apparent.” Given this, and given that Luchetta clearly identified
       and testified to the purpose of each drug (i.e., for psychosis, for agitation, for the prevention
       of side effects, etc.), we take respondent’s claim to be broader than one of simple sufficiency.
       Rather, it seems that respondent is arguing that, per se, a trial court is not equipped to weigh
       a treatment’s benefits against potential harm where the only evidence as to benefits is the
       drug’s identity, the drug’s stated purpose, and a respondent’s pretreatment needs. Respondent
       might face this issue in future proceedings. Perhaps a future petition will arise under different
       circumstances, but the type of testimony concerning benefits might very well be similar.
¶ 17        However, while we may reach respondent’s argument, we see no support for it. To
       establish that the benefits of medication outweigh the harmful side effects so as to support
       the involuntary administration of psychotropic medication, the State must produce evidence
       of the benefits of each drug sought to be administered as well as the potential side effects of
       each drug. In re Suzette D., 388 Ill. App. 3d 978, 985 (2009). Again, it is clear that Luchetta
       identified and testified to the purpose of each drug: (1) lithium (or divalproex or
       carbamazepine) for mood stabilization; (2) olanzepine (or risperidone or haloperidol or
       fluphenazine) for treatment of psychosis; (3) lorazepam for agitation; (4) fluvoxamine for
       anxiety; (5) aripiprazole for depression; and (6) diphenhydramime, i.e., Benadryl (or
       benztropine), to prevent side effects. Luchetta also testified to respondent’s pretreatment
       condition and thereby illuminated the need to effectuate the following treatment purposes:
       (1) stabilization of respondent’s mood (where respondent’s symptoms ranged from dazed to
       aggressive); (2) alleviation of psychosis (where respondent went 30 days without showering
       or being able to interact with others); (3) alleviation of agitation (where respondent
       threatened others); (4) alleviation of anxiety (where respondent wrote unprompted five- and
       six-page letters about her need for shelter); and (5) alleviation of depression (where
       respondent claimed to put a gun to her head).
¶ 18        Respondent does not suggest what further evidence is needed. Our research points to the
       sort of benefits evidence that aids a trial court in its determination, and we find that
       Luchetta’s testimony satisfied these standards. In In re Kness, 277 Ill. App. 3d 711, 720-21

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       (1996), for example, this court held that, in order to prove by clear and convincing evidence
       that the benefits of involuntary treatment outweigh the harm to the patient, the State must
       first identify which specific medication will be administered. The testimony in the instant
       case clearly meets that threshold. Additionally, testimony concerning which specific drugs
       within a certain class have fewer or less-severe side effects speaks not only to the harm
       element, but also, albeit indirectly, to the benefits element. See, e.g., In re Nicholas L., 407
       Ill. App. 3d 1061, 1065 (2011) (classifying such testimony as benefits testimony, though
       adequacy of benefits testimony was not at issue). If a certain drug has fewer side effects, then
       that is a benefit. In other words, “weighing” benefits against harm is not always like placing
       each black-or-white factor on its respective side of the tipping scale; sometimes it is more
       like performing a litmus test on the total mixture of black, white, and gray factors. Luchetta
       provided this type of benefits testimony when she compared the side effects of various mood
       stabilizers.
¶ 19        Finally, to whatever extent respondent might be relying on Suzette D. for the proposition
       that the type of benefits testimony offered in this case (pretreatment condition, purpose of
       each drug, and statements as to which drugs have the least side effects) is per se insufficient
       evidence of benefits, we find that case distinguishable. In Suzette D., the expert testified to
       the respondent’s pretreatment condition and the purpose of each drug, but, as to at least three
       drugs, not the possible side effects. Suzette D., 388 Ill. App. 3d at 986. This court did state
       that the expert failed to explain the benefits of each drug; however, the material part of our
       reasoning in reversing the trial court’s involuntary-treatment order concerned the expert’s
       absolute failure to name the side effects of certain drugs. Id. We cautioned that a lack of
       evidence as to “each and every” petitioned-for medication is fatal to the entire claim. Id. We
       further admonished against “perfunctory” prosecutions of involuntary-treatment petitions.
       Id. at 987.
¶ 20        The bottom line is that, here, unlike in Suzette D., the type of evidence set forth does not
       per se signal an incomplete or perfunctory prosecution. Unlike in Suzette D., there is no
       question that Luchetta testified in detail as to the risks associated with each and every drug.
       The testimony concerning benefits meets existing standards regarding benefits testimony as
       set forth in Kness. Luchetta testified to respondent’s pretreatment condition, the identity and
       purpose of each and every drug (and therefore the pretreatment symptoms each drug
       targeted), and the varying levels of side effects. As respondent admitted in her closing
       argument, the likely benefits of each drug and course of treatment are often readily apparent:
       we know that a given respondent is severely ill, we know each drug’s purpose, and we know
       which, among a respondent’s myriad symptoms, each drug would target. The focus of the
       testimony and the bigger question to be answered often have more to do with the risks
       associated with each medication. Thus, the trial court here did not err, as the evidence was
       such that it was equipped to make a finding that the benefits of treatment outweighed the
       harm.




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¶ 21                              III. CONCLUSION
¶ 22   For the aforementioned reasons, we affirm the trial court’s order.

¶ 23   Affirmed.




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