                                                                           Digitally signed by
                                                                           Reporter of Decisions
                                                                           Reason: I attest to the
                           Illinois Official Reports                       accuracy and
                                                                           integrity of this
                                                                           document
                                  Appellate Court                          Date: 2017.10.16
                                                                           08:53:35 -05'00'




                        In re Tara S., 2017 IL App (3d) 160357



Appellate Court       In re TARA S. (The People of the State of Illinois, Petitioner-
Caption               Appellee, v. Tara S., Respondent-Appellant).



District & No.        Third District
                      Docket No. 3-16-0357



Rule 23 order filed   June 21, 2017
Motion to publish
allowed               August 3, 2017
Opinion filed         August 3, 2017



Decision Under        Appeal from the Circuit Court of Peoria County, No. 16-MH-128; the
Review                Hon. Suzanne L. Patton, Judge, presiding.



Judgment              Reversed.


Counsel on            Veronique Baker and Ann E. Krasuski, of Illinois Guardianship &
Appeal                Advocacy Commission, of Hines, for appellant.

                      Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, Lawrence
                      M. Bauer, and Richard T. Leonard, of State’s Attorneys Appellate
                      Prosecutor’s Office, of counsel), for the People.
     Panel                   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 that 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 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

                                                  -2-
       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 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 make a decision about her treatment, and the proposed inpatient treatment plan was the

                                                 -3-
       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.
¶ 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


                                                   -4-
       review exception to mootness.

¶ 18                               II. Ineffective Assistance of Counsel
¶ 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 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


                                                  -5-
       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 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.




          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.

                                                   -6-
