THIRD DIVISION

March 26, 2003

JUSTICE WOLFSON delivered the opinion of the court:

The State filed a petition seeking involuntary medication ofRandall C. On a date set for trial, this troubled respondentasked for appointment of an independent expert. The trial court,deciding that the request was made for the purpose of delayingthe trial, denied the request. The question we must answer iswhether the trial court had discretion to deny the request forappointment. We conclude it did not.

Following a jury trial pursuant to a petition seekinginvoluntary medication of respondent, a patient at Chicago-ReadMental Health Center (Chicago-Read), the jury found respondentsubject to involuntary medication with psychotropic drugs for aperiod not to exceed 90 days. Respondent contends: (1) the trialcourt's order for involuntary administration of medication mustbe reversed because he was denied his statutory right to theappointment of an independent expert, and (2) he was denied theeffective assistance of counsel. We reverse and remand.

FACTS

On August 31, 2001, Dr. Usha Kartan, a psychiatrist employedat Chicago-Read, filed a petition in the circuit court of CookCounty asserting that respondent required psychotropic medicationbut refused to take the medication when offered by the hospitalstaff. In the petition, Dr. Kartan noted a court had orderedinvoluntary administration for respondent on June 2, 2001, for aperiod of 90 days. Respondent told staff members he was planningto stop the medication after the 90 days expired, because therewas nothing wrong with him and he did not need it. According toDr. Kartan, respondent, even on medication, was grandiose,flighty, isolative, and withdrawn. He exhibited poor hygiene,impaired judgment and extremely poor insight. Respondent had"clearly improved" while on court-ordered medication. Due to histhought disorder, respondent was unable to give informed consentand thought he did not need medication.

Prior to the hearing on the petition, on October 19, 2001,respondent appeared pro se before the trial court and requestedthat the court order an independent examination of respondent bya psychiatrist. The court denied the request.⁽¹⁾

At the hearing on November 27, 2001, Dr. Kartan testifiedshe had been treating respondent since September 5, 2000, when hewas transferred to her unit at Chicago-Read. He had beenhospitalized since September 1999 and "several times" prior to1999. Dr. Kartan said she attempted to evaluate respondent everyday Monday through Friday, whenever he cooperated with her. Respondent had no family contacts, and his father had lostcontact with him since 1981. In Dr. Kartan's opinion, based onher evaluations, review of medical records, and discussions withother doctors, respondent suffered from a mental illness. Thediagnosis was paranoid schizophrenia, continuous in nature, witha history of poly-substance abuse. Respondent first had beendiagnosed with schizophrenia in 1972.

According to Dr. Kartan, respondent exhibited both positivesymptoms, including delusions, hallucinations, and disorganizedthinking, and negative symptoms interfering with his functioning. Dr. Kartan saw a reduction in respondent's symptoms while hewas on court-ordered medication, but an increase in severesymptomology when the involuntary medications expired.

Dr. Kartan said respondent's current hospitalization was histwenty-third Department of Mental Health (Department)hospitalization. She had seen significant improvement inrespondent's illness while he was on medication, and she wantedto offer services to him with the goal of his discharge. Respondent became upset in the past when they discussed hisdischarge and said there was no place for him in the community. Respondent told Dr. Kartan the State had placed him in a rat-infested place to live. Dr. Kartan said she believed anappropriate place could be found for respondent if he wasdischarged. Respondent refused to discuss medications and sideeffects with her because he believed that he was not ill and thatDr. Kartan did not have a license to treat him. In Dr. Kartan'sopinion, respondent did not have the capacity to make a decisionabout his medical treatment because of acute psychosis.

On cross-examination, Dr. Kartan testified respondent hadnever voluntarily agreed to take medication, other than the timemedication was court-ordered. Since 1972, respondent had been inthe care and custody of the Department of Mental Health, off andon. Since that time, he would "relapse" and be hospitalized onalmost a yearly basis.

Respondent testified that he did not want to take medicationagainst his will. He said he had been hospitalized at Chicago-Read for seven weeks, and the hospital wanted to involuntarilydischarge him against his will. He said he was hospitalized inElgin Mental Health Center for six months. During that time, hewas not taking medication and refused medication. After he wastransferred to Chicago-Read, respondent was offered medicationonce, and he said "no comment." On cross-examination, respondenttestified he was hospitalized in Elgin because he was accused ofsexually assaulting a young girl, but he was found not competentto stand trial.

After hearing arguments on both sides, the jury foundrespondent subject to involuntary treatment. The court enteredan order providing that for a period not exceeding 90 days, Dr.Kartan was permitted to administer the following medications torespondent: Zyprexa, Depakote, Thorazine, Prolixin, Cogentin,Zoloft, Ativan, and Klonopin. The order also specified the rangeof doses for the medications. Respondent asked the trial courtto stay the order. The court denied the request.

DECISION

Mootness

Although not discussed by the parties, we must address theissue of mootness. The trial court's order, the basis forrespondent's appeal, expired on February 27, 2002, 90 days afterit was entered. Even if moot, we may consider this case underthe exception recognized in In re Barbara H., 183 Ill. 2d 482,702 N.E.2d 555 (1998), and In re Jennifer H., 333 Ill. App. 3d427, 775 N.E.2d 616 (2002). In re R.K., No. 1-01-1641, slip op.at 10-11 (Ill. App. Ct. February 21, 2003). Where a caseinvolves "an event of short duration that is capable ofrepetition, yet evading review," it may qualify for review evenif it otherwise would be moot. Jennifer H., 333 Ill. App. 3d at430. In such a case, the appellate order is in the nature of anadvisory ruling. Jennifer H., 333 Ill. App. 3d at 430; In reR.K., slip op. at 11. Here, respondent's history of mentalillness makes it likely that he will be subject to involuntarytreatment again. Therefore, we have authority to consider therespondent's appeal under the mootness exception in Barbara H.and Jennifer H. In re R.K., slip op. at 11.

Independent Examination

Section 3-804 of the Mental Health and DevelopmentalDisabilities Code (Code) (405 ILCS 5/3-804 (West 2000)) providesfor an independent examination of a respondent in admission,transfer, and discharge proceedings. Section 3-804 states:

"[t]he respondent is entitled to secure an independentexamination by a physician, qualified examiner,clinical psychologist or other expert of his choice. If the respondent is unable to obtain an examination,he may request that the court order an examination tobe made by an impartial medical expert pursuant toSupreme Court rules or by a qualified examiner,clinical psychologist or other expert. Any suchphysician or other examiner, whether secured by therespondent or appointed by the court, may interview bytelephone or in person any witnesses or other personslisted in the petition for involuntary admission. Thephysician or other examiner may submit to the court areport in which his findings are described in detail. Determination of the compensation of the physician,qualified examiner, clinical psychologist or otherexpert and its payment shall be governed by SupremeCourt Rule." 405 ILCS 5/3-804 (West 2000).

A respondent in a hearing for involuntary administration ofmedication may request that a court order an independentexamination. Section 2-107.1 of the Code, which governs theadministration of authorized involuntary treatment, incorporatessection 3-804 with the following language:

"[t]he court may grant an additional continuance not toexceed 21 days when, in its discretion, the courtdetermines that such a continuance is necessary inorder to provide the recipient with an examinationpursuant to Section 3-803 or 3-804 of this Act, toprovide the recipient with a trial by jury as providedin section 3-802 of this Act, or to arrange for thesubstitution of counsel as provided for by the IllinoisSupreme Court Rules.

(3) Unless otherwise provided herein, the proceduresset forth in Article VIII of Chapter 3 of this Act,including the provisions regarding appointment ofcounsel, shall govern hearings held under thissubsection (a-5)." 405 ILCS 5/2-107.1(a-5)(2),(3)(West 2000).

On October 19, 2001, respondent appeared pro se before thetrial court and requested that the court order an independentexamination by a psychiatrist, pursuant to section 3-804 of theCode. The trial judge noted that the case had been before thecourt on September 7, September 13, September 21, September 28,October 5, and October 17. On the last date, the public defenderwas given leave to withdraw, and respondent was given leave toproceed pro se. The matter had been set for trial for October19. Previously, respondent had discharged "three sets ofattorneys" from the Guardianship and Advocacy Commission and fromthe Public Defender's Office.

The trial judge asked respondent his reason for requestingan independent examination. Respondent replied: "I told you as Istated before my reasons for requesting an independentexamination are simply to defer the trial as you suggest becauseI am not prepared to go to court. I believe, I know there areexceptional circumstances in my case, your Honor, that should bebrought to the court, and I don't want to do that disservice ofjustice."

The State contended the court should not allow theexamination, because respondent was using it as a delay tactic,and respondent previously had received an independent psychiatricevaluation in March 2001 for another court-ordered medicationcase. The court denied respondent's request, based on the priorcontinuances and the fact that respondent had not made a requestfor an examination in any prior appearance. The trial judgefound the only reason for the request was to delay the hearing. Respondent then demanded a jury trial.

The matter was continued until October 24, 2001 and again toOctober 31, 2001. On October 31, the trial court appointed thePublic Defender's Office to represent respondent, finding he wasincapable of representing himself due to his mental illness. Thehearing on the State's petition took place November 27, 2001.

Defendant contends on appeal that the trial court had nodiscretion under section 3-804 to deny his request for anindependent examination. He contends the court's denial wasreversible error and asks us to reverse the court's order forinvoluntary administration of medication.

This court has held a respondent is statutorily entitled tothe appointment of an independent examination prior to a hearingon a petition for discharge (In re Yoder, 289 Ill. App. 3d 465,479, 682 N.E.2d 753 (1997); In the Matter of Katz, 267 Ill. App.3d 692, 697, 642 N.E.2d 893 (1994); Brelje v. Pates, 99 Ill. App.3d 847, 849-50, 426 N.E.2d 275 (1981)), and prior to a hearingfor involuntary admission (In re Barnard, 247 Ill. App. 3d 234,251-52, 616 N.E.2d 714 (1993); In re Williams, 140 Ill. App. 3d708, 710-11, 489 N.E.2d 347 (1986) (Williams II); In re Williams,133 Ill. App. 3d 232, 236, 478 N.E.2d 867 (1985) (Williams I)). This court has found that Illinois requires an independentpsychiatric examination in proceedings for involuntary treatment. In re Branning, 285 Ill. App. 3d 405, 417, 674 N.E.2d 463 (1996)(ward is entitled to independent examination in proceeding onguardian's petition for approval of her consent toelectroconvulsive therapy for elderly ward).

Section 2-107.1 of the Code allows a trial court discretionto grant a continuance, not to exceed 21 days, in order toprovide the recipient with an examination pursuant to section 3-804. 405 ILCS 5/2-107.1(a-5)(2) (West 2000). Section 2-107.1incorporates the provisions of section 3-804 in proceedings foradministration of authorized involuntary treatment. 405 ILCS5/2-107.1(a-5)(3) (West 2000). Section 3-804 says a respondentis "entitled to secure an independent examination" by an expertof his choice. 405 ILCS 5/3-804 (West 2000). If he is unable todo so, he "may request that the court order an examination to bemade by an impartial medical expert pursuant to Supreme Courtrules or by a qualified examiner." 405 ILCS 5/3-804 (West 2000). The primary rule of statutory construction is to ascertainand give effect to the intent of the legislature. In re Mary AnnP., 202 Ill. 2d 393, 405, 781 N.E.2d 237 (2002). The languageused in the statute is the most reliable indicator of thelegislature's intent and must be given its plain, ordinarymeaning. Mary Ann P., 202 Ill. 2d at 405. Where the statutorylanguage is clear and unambiguous, we will give effect to itwithout resort to other aids of construction. Mary Ann P., 202Ill. 2d at 405.

Based on the clear language of sections 2-107.1 and 3-804 ofthe Code, we find the respondent was entitled to an examinationby an independent expert appointed by the court and paid for bythe State. See Williams I, 133 Ill. App. 3d at 236. Failure todo so was reversible error. Williams I, 133 Ill. App. 3d at 236. The trial court had no discretion to deny respondent hisstatutory right.

The State contends the use of the word "may" in section 3-804 shows the trial court has discretion in deciding whether toorder an independent examination. This contention is amisinterpretation of the statute. The State cites Gonzalez v.Profile Sanding Equipment, 333 Ill. App. 3d 680, 692-93, 776N.E.2d 667 (2002), where the court held the use of the word "may"in a statute signifies a legislative intent to vest the trialcourt with discretion in awarding relief to a party. InGonzalez, the word "may" in the statute referred to the court,not to the party (section 2-1402 provides a court "may," byappropriate order or judgment, transfer choses in action). Here,the word "may" in section 3-804 attaches to the respondent. Ifthe respondent is unable to obtain an examination, he "mayrequest that the court order an examination." The use of theword "may" shows that the respondent may request that the courtorder an exam; it does not grant the court discretion to denyrespondent's request.

The State also contends respondent fails to show he isconstitutionally entitled to an independent examination. InWilliams I, the court held a respondent in a civil commitmentproceeding does not have a constitutional right to an independentpsychiatric examination at the State's expense. Williams I, 133Ill. App. 3d at 234. The court ultimately held, however, that arespondent has a statutory right to an examination by anindependent expert appointed by the court and paid for by theState. Williams I, 133 Ill. App. 3d at 236. Respondent'srequest for an examination in this case was based on the statute,not the constitution.

The State relies on two cases from the Fifth District, Patesand Barnard, in contending the trial court has discretion todecide whether to appoint an independent expert to examine arespondent. According to the State, these cases hold that thesection 3-804 provision for an independent expert is notmandatory in every case where a respondent makes such a request. The State contends the holdings in Pates and Barnard differ fromcases in the Third District, Williams I, Williams II, and Katz,which hold that a respondent is entitled to an independentexamination at the State's expense. We believe the Statemisinterprets the holdings of the Fifth District cases.

In Pates, the respondent was examined by Dr. Dan Cuneo, apsychologist employed by the Department, who testified at theproceeding on respondent's petition for discharge. Pates, 99Ill. App. 3d at 848-49. The respondent contended he was deniedhis statutory rights because the trial court refused his requestfor an independent psychiatric examination prior to the hearing. The Fifth District court held that the appointment of Dr. Cuneofulfilled the statutory requirement of providing respondent withan examination by an impartial psychologist. Pates, 99 Ill. App.3d at 849. The respondent did not allege that Dr. Cuneo was notimpartial, nor did the record show Dr. Cuneo was not impartial. Dr. Cuneo did not provide a certificate for respondent'sinvoluntary admission or help prepare a treatment plan. He wasnot a full-time employee of the Department and spent little ofhis professional time as an employee of the Department due to hisprivate practice and teaching activities. Pates, 99 Ill. App. 3dat 850.

In Barnard, the respondent challenged the impartiality ofthe same expert, Dr. Cuneo, who examined respondent prior to thehearing and testified at his involuntary admission hearing. Barnard, 247 Ill. App. 3d at 249. The court found the respondenthad been provided with an examination by an impartialpsychologist--Dr. Cuneo. The court re-affirmed its holding inPates, finding section 3-804 of the Code "merely requires theState to provide respondent with an impartial medical expert uponrequest and does not exclude Department of Mental Healthemployees from being considered as impartial ***. While theexpert appointed by the court may not be the examiner therespondent would have chosen, we do not read section 3-804 asmandating that the appointed examiner be chosen by therespondent." Barnard, 247 Ill. App. 3d at 250.

Pates and Barnard do not hold, as the State contends, thatthe trial court has discretion when deciding whether to grant anindependent examination. Rather, they hold a respondent'sstatutory entitlement may be satisfied by an examination by aDepartment employee, provided the employee is impartial.

In this case, respondent was not provided with anexamination by an impartial, independent examiner. Dr. Kartanwas respondent's treating physician. She testified that sheattempted to evaluate respondent on a daily basis and preparedhis treatment plans. She also prepared the petition forrespondent's involuntary medication. In contrast to Pates andBarnard, the record presents us with ample evidence that Dr.Kartan was not an impartial examiner.

Respondent was denied his statutory right when the trialcourt failed to provide him with an examination by an independentexpert. The fact that respondent may have used his request as adelay tactic does not defeat his statutory entitlement. Thestatute does not require that respondent have a particular reasonfor his request. Nor does it envision an inquiry into arespondent's motives. It says only that respondent is "entitled"to the examination. Black's Law Dictionary defines an"entitlement" as "[a]n absolute right to a (usu. monetary)benefit, such as social security, granted immediately uponmeeting a legal requirement." Black's Law Dictionary 553 (7thed. 1999). Respondent had a right to an independent examination,and the trial court had no discretion to deny it. We note thatalthough the trial court denied the examination because it woulddelay the hearing, the hearing did not take place until 39 dayslater. There was sufficient time for respondent to be examinedby an impartial psychologist.

Effective Assistance Of Counsel

Respondent also contends on appeal that he was denied theeffective assistance of counsel because the public defenderfailed to challenge the State's case during cross-examination andfailed to ask the jury to deny the State's petition duringclosing argument. Because of our disposition of the independentmedical examination issue, we see no reason to inquire intocounsel's conduct at the trial.

CONCLUSION

We find the trial court's failure to appoint an independentexpert to examine respondent was reversible error. Under section3-804 of the Code, respondent was entitled to an independentexamination.

Reversed and remanded.

HOFFMAN, and HALL, JJ., concur.

1. Respondent personally made a second request for anindependent examination on October 31, 2001. It is not clearwhether he was represented by counsel at that time. Due to ourdisposition of this case, there is no need to reach that request.