SIXTH DIVISION
February 21, 2003

Following a bench trial pursuant to a petition seekinginvoluntary medication of respondent R.K., an involuntary patientat Tinley Park Mental Health Center, the trial court foundrespondent subject to involuntary medication with psychotropicdrugs for a period not to exceed 90 days. Respondent contendsthat the trial court erred in granting the petition where she wasneither suffering nor experiencing deterioration in her abilityto function, where she was capable of making a reasoned decisionconcerning her own treatment and where less restrictive treatmentwas available.

On February 14, 2001, Dr. Sunil Ballal, a psychiatristemployed at Tinley Park Mental Health Center, filed a petition inthe circuit court of Cook County asserting that respondentrequired psychotropic medication but refused to take themedication when offered by the hospital staff. Dr. Ballal statedthat respondent suffered from paranoia and hallucinations, shewas loud and threatening toward her mother and hospital staff,and her ability to function was deteriorating. The doctor notedthat respondent's mother would not allow her to return homeunless respondent took her prescribed medication. Respondentrefused to discuss her illness with the doctor because she didnot believe that she was ill, but believed that the intention ofhospital staff was to imprison her.

During the trial on April 17, 2001, Steve Buhle, a mentalhealth technician employed at the Tinley Park Mental HealthCenter, testified that on April 3, 2001, he escorted respondentto court. When the proceedings concluded, respondent attemptedto leave the courthouse. Although she stopped in the parking lotand returned toward the courthouse when Buhle told her to do so,she became agitated when he took her by the elbow to lead herback inside. She asked him to take his hands off of her and whenhe responded that he could not do that, she wrenched her arm awayand punched him in the stomach. When they later arrived back atthe hospital, a paper bag containing her belongings tore.Respondent then threw the bag to the floor and began kicking itscontents across the floor.

Dr. Ballal testified that pursuant to court order,respondent was hospitalized involuntarily on December 16, 2000,and that the commitment order expired at the end of April.Essentially, the doctor testified that respondent did notacknowledge that she was mentally ill, she rejected any type ofevaluation of her condition, she refused all medication and sheexperienced bouts of hostile, agitated and aggressive behavior.He had observed her five days a week since her admission, buteach time that he asked her to come to his office for anevaluation, she replied, "No, thank you." He found that she wasclearly suffering from psychosis but because he could not performany psychological testing, he was unable to fully evaluate hercondition. He diagnosed her as having psychosis NOS (nototherwise specified). He based his diagnosis on his ownobservations, information contained in respondent's hospitalchart and the courtroom testimony of respondent's family duringher commitment hearing. He stated that the extent of herpsychosis prevented her from participating in less restrictive,alternative treatments such as individual or group therapy. Hebelieved that without medication respondent's prognosis wasguarded and poor, and it was unlikely that her symptoms wouldsubside "on their own." He believed that with medication herprognosis was very good because she was "high functioning,""alert" and "spontaneous." He predicted that with themedications respondent would be less paranoid under stress, shewould not manifest some of the psychotic symptoms that she hadmanifested in the community and she would be able to continue herfamily life in a peaceable manner and continue her professionalpursuits as a social worker. He stated that respondent lastdemonstrated "episodic agitation" two weeks before the trial whenshe learned that she was not going to be discharged. She thenbecame physically aggressive and struck a staff member.

When asked about the side effects of the medications that hewas recommending, the doctor responded that the most common weredryness of the mouth, blurring of vision, constipation, tremorsof the hands and stiffness in the muscles. If the medicationsare administered for a prolonged period of time, patients canexperience tardive diskinesia, an untreatable movement disordermanifested by tremors in the lips, tongue and muscles around themouth. Some patients suffer from tardive diskinesia during theinitial phase of treatment. A patient was much less at risk ofsuffering tardive diskinesia from Olanzapine (also known asZyprexa). He stated that for all of the side effects excepttardive diskinesia, Cogentin was helpful for providingsymptomatic relief. He noted that when he administered Haldol torespondent on an emergency basis, she "doubled-up" in an acutereaction of muscle stiffness, but an immediate injection ofCogentin completely relieved her symptoms. He opined that if hewere able to stabilize respondent with Haldol, he would thenchange her medication to Zyprexa (Olanzapine) and that with thetwo medications, she would "do fine without long term tardivediskinesia or [would experience] less tardive diskinesia."

On cross-examination, the doctor testified that he hadobserved some of respondent's symptoms such as episodic agitationand being withdrawn, but he never observed her hallucinating orbeing delusional. He stated that those symptoms were witnessedby respondent's mother. He also admitted that other than theincident with the staff member two weeks before the trial,respondent was never physically aggressive with any of the staffmembers.

During redirect examination of the doctor, respondentstipulated that at the time of her commitment hearing, herhusband had obtained an order of protection against her withrespect to him and their daughter.

At respondent's request, an independent report was completedby Dr. Shabbir Zarif,who based his findings on a single interviewwith her and her inpatient hospital chart. He reported thatrespondent was mostly cooperative during the interview, but wouldnot give him permission to talk to family members or hospitalstaff regarding her symptoms. His report stated in part:

"Review of progress notes in chart revealedthat the patient was admitted for aggressivebehaviors towards mother and destroyingproperty. She was reportedly not sleepingwell and talking to herself. Admission notesalso describe her having 'bizarre behaviors'in the ER ('suddenly took all the papers andtore them up and threw them in the garbagecan'). Hospital stay progress notes revealthat [respondent] has generally been non-compliant with various offers for treatmentincluding staffing and individual sessionsand has often been irritable, hostile,uncooperative and uses strong language. Sheis reportedly guarded. She was given PRNmedications twice in December, once inFebruary for agitation and verbally abusivebehaviors. There was no record that I couldfind of her being put in restraints, norcould I find any documentation that she hadassaulted anyone though she has threatenedto. There was no documentation of herthreatening to assault her family members.There are many notes that she is calm,cooperative though isolative."

His impression was that her overall insight into her illness waspoor, that she was in "very high denial of all of her behaviorproblems especially the aggressive acts" and that as a result sheexhibited poor judgment with respect to improving that aspect ofher life. He diagnosed respondent as suffering from paranoidschizophrenia, stating:

"[I]n summary we have a [41-year-old AfricanAmerican] lady with a very good personalpremorbid history but with a family historyof affective disorder who has had somewhatlate onset behavior problems which aremanifested most overtly by affectivelability, aggression and delusional thinking.The core of the behaviors seems centeredaround family and so family dysfunctioncannot be ruled out. Regardless of etiology,she has a history of threatening her familyand that possibility remains in the future,unless treatment is instituted. On the otherside, [respondent] appears capable ofindependent functioning and able to take careof herself. It is quite possible that herfunctioning outside the context of herpsychosis is good."

In his recommendations, the doctor stated, "The patientclearly is in need for a more detailed evaluation and treatment."He further stated that if respondent was discharged withouttreatment and exposed to the same environment as before heradmission to the hospital, she would have been at high risk forrepeated aggression. He then stated:

"In my opinion *** I feel that lessrestrictive measures *** may be implemented,under court order, rather than just prescribeinvoluntary medications. Patient's nonresponsiveness with these measures would thenconstitute a compelling argument forinvoluntary medications."

At the conclusion of the trial, the court stated:

"Now, I have a problem here. I mighthave to ask the doctor a couple morequestions because, first of all, I believethat all the testimony is clear andconvincing that, and the State has, basicallyproved that she should have, she -- I shouldauthorize involuntary treatment.

But, and I believe what the doctor saidthat she would best benefit from acombination of medication and then aftershe's medicated, then she would takeadvantage of the other service that had beenoffered to her.

What I'm not comfortable with and I'mnot a doctor so I don't know about this, butI don't feel comfortable at all authorizingthe use of Haldol for her. Now he mentioneda couple of other medications, Zyprexa orOlanzapine and I don't know what the, I don'tknow if they have the same side effects.

Now I understand his estimation of thedifference between the dystonic reaction andthe tardive diskinesia, but I still -- Istill don't feel comfortable asking her totake Haldol again."

When the court asked the doctor to suggest a medication withlesser side effects, he responded:

"Now Haldol was recommended because wethought if she's refused to go take themedication by mouth, then of course thiscomes in injectable from. But we can alwaysgive her Haldol maybe for a few days and thenswitch her to something like Olanzapine orRisperdal which is a medication."

The court responded:

"I don't even then want to see her get thatmuscle tightening for five minutes, even ifyou can give her the Cogentin and it willease it. I'm trying to see if you can getthe result you want without having her gothrough that."

When the doctor told the court that Zyprexa would affordrespondent the same benefit without the side effects of Haldol,the court stated:

"Then what I'm going to propose then isthat the Haldol be the alternative medicationand that they start off trying her with theother medicines that don't have the same sideeffects. And if not, she then refuses thoseothers, then if you need to, then the Haldol.But the Haldol as the medicines [sic] lastresort."

The court entered an order providing that for a period notexceeding 90 days, Dr. Ballal was permitted to administer thefollowing medications to respondent: Olanzapine, Prolixin, Haldoland Cogentin. The order also specified the range of doses forthe medications, but did not state any limitations on theadministration of Haldol.

Although respondent asked the trial court to stay the order,the court denied her request. Because the effect of the courtorder expired 90 days later on July 17, 2001, respondent's appealwould ordinarily be considered moot. However, pursuant to In reBarbara H., 183 Ill. 2d 482 (1998), and In re Jennifer H., 333Ill. App. 3d 427 (2002), "where a case involves an event of shortduration that is capable of repetition, yet evading review, itqualifies for review even if it otherwise would be moot."Jennifer, 333 Ill. App. 3d at 430. In such a case, the appellateorder is in the nature of an advisory ruling. Jennifer, 333 Ill.App. 3d at 430. Where, as here, a respondent's history of mentalillness makes it likely that she will be subjected to involuntarytreatment again, we have authority to consider the respondent'sappeal under the mootness exception found in Barbara H. andJennifer H.

On appeal, respondent contends that contrary to section 2107.1(4) of the Mental Health and Developmental Disabilities Code(Code) (405 ILCS 5/2 107.1(4) (West 2000)), the State failed toprove that she had suffered or exhibited a deterioration of herability to function which warranted a court order to compel herto submit to involuntary psychotropic medication. She assertsthat neither Dr. Ballal nor Dr. Zarif testified that he observedany overt symptoms of such deterioration; nor did either observeany symptoms of paranoia, finding her to be oriented as topersons, place and time and generally pleasant. She furtherasserts that the State failed to prove that the benefits of thepsychotropic medication to respondent outweighed the side effectsof the medication and the loss of her "bodily autonomy." Shestates that because the State did not prove that she wasincapable of making her own decisions about taking themedication, the court improperly denied her the right to refusethe medication. She further asserts that "the court disregardedthe existence of less restrictive alternative treatments thatwere specified in the evidence."

Section 2 107.1(4) of the Code provides as follows:

"(4) Authorized involuntary treatment shall not beadministered to the recipient unless it has beendetermined by clear and convincing evidence that all ofthe following factors are present:

(A) That the recipient has a serious mentalillness or developmental disability.

(B) That because of said mental illnessor developmental disability, the recipientexhibits any one of the following: (i)deterioration of his ability to function,(ii) suffering, (iii) threatening behavior,or (iv) disruptive behavior.

(C) That the illness or disability hasexisted for a period marked by the continuingpresence of the symptoms set forth in item(B) of this subdivision (4) or the repeatedepisodic occurrence of these symptoms.

(D) That the benefits of the treatmentoutweigh the harm.

(E) That the recipient lacks thecapacity to make a reasoned decision aboutthe treatment.

(F) That other less restrictive serviceshave been explored and found inappropriate.

(G) If the petition seeks authorizationfor testing and other procedures, that suchtesting and procedures are essential for thesafe and effective administration of thetreatment." 405 ILCS 5/2 107.1(4) (West2000).

A physician's opinion that a respondent is suffering from amental illness "must have a sufficient factual basis, but, as amatter of law, there need not be independent substantive evidencein order for such an opinion to be 'clear and convincing.'" In reTuman, 268 Ill. App. 3d 106, 110 (1994). However, where thephysician's opinion is supported by his review of hospitalrecords or the testimony of witnesses which the State has notbrought before the trial court, this "court must carefullyevaluate all evidence presented by the State to determine whetherit is 'clear and convincing.'" Tuman, 268 Ill. App. 3d at 111. Aphysician's opinion may comprise clear and convincing evidence ifhis diagnosis is based on his personal observations of arespondent on several occasions. Tuman, 268 Ill. App. 3d at 111.

Here, Dr. Ballal testified that he had observed respondentfive days a week for several months and although he never saw herhallucinating or manifesting physical aggression, he did observesymptoms of episodic agitation and being withdrawn. Both he andDr. Zarif based their diagnoses in part on the hospital recordsand, although they have not been made a part of the appellaterecord, Dr. Zarif's summary of those records in his report givesus a general description of the behavior which led torespondent's hospitalization. We find that their diagnoses weresupported by a factual basis sufficient to be considered clearand convincing evidence. Accordingly, we find that the trialcourt did not err in determining that respondent had a seriousmental illness and that she exhibited deterioration of herability to function and threatening behavior.

However, we find that the State presented little or noevidence of the continuing presence of these symptoms after herhospitalization, and presented only one instance of a "repeatedepisodic occurrence" of threatening behavior which was triggeredby outward circumstances. Additionally, we find that the Statedid not present any evidence that respondent lacked the capacityto make a reasoned decision about her treatment. Instead, therecord shows that while hospitalized, respondent functioned at ahigh level, was alert, polite, and oriented to time and place.Dr. Zarif found her to appear capable of independent functioningand able to care for herself. Dr. Ballal admitted that he neverobserved any delusional or hallucinatory behavior and that suchbehavior was only reported by respondent's mother. Furthermore,although both doctors stated that respondent possessed no insightinto her mental illness and did not believe that she neededtreatment, we find that because the evidence failed to show thather symptoms continued after her hospitalization, her allegedlack of insight did not alone prove that she was incapable ofmaking a reasoned decision about her treatment.

We also find that the State did not show that under thesecircumstances, the benefits of the suggested medicationsoutweighed their potential harm to respondent.

For these reasons, we find that pursuant to section 2107.1(4) of the Code, the State did not present clear andconvincing evidence of all of the factors required to prove thatrespondent's condition necessitated involuntary treatment.

The judgment of the circuit court of Cook County isreversed.

Reversed.

GALLAGHER and O'MARA FROSSARD, JJ. concur.