No. 3--01--0972

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

BACKGROUND

On November 13, 2001, the State filed petitions (1) toinvoluntarily admit the respondent to a mental health facility,and (2) to involuntarily administer psychotropic medications toher. At a hearing on these petitions held on November 14, 2001,the respondent refused to attend. The court granted the State'spetition to involuntarily admit her for a period of up to 90days.

During the portion of the hearing on the petition toinvoluntarily administer psychotropic medications, Dr. SreehariPatibandla stated that the respondent was admitted to the ZellerMental Health Center (Zeller) on November 9, 2001, wherePatibandla was a psychiatrist. When the respondent was admitted,she presented symptoms of psychosis with persecutory thoughts. The respondent believed that the facility had the wrong person,that people were "after her," and that people were trying to harmher.

While on her own in the community, the respondent was notbathing or eating properly. She was homeless and was eating outof garbage cans. The respondent was causing disturbances in thecommunity and had been arrested several times.

The doctor stated that the respondent suffered fromschizophrenia, a serious mental illness. He said that she hadthis mental illness at least since 1987. One of thecharacteristics of the respondent's mental illness was thecontinued deterioration in her ability to function or aninability to function in the community.

Patibandla testified that he had prescribed medication forthe respondent's mental illness. In the petition for involuntarytreatment, Patibandla's first choice for medication was 2 to 12milligrams of Risperdal, with alternatives listed as 2.5 to 20milligrams of Zyprexa, 5 to 80 milligrams of Haldol, and 1 to 8milligrams of Ativan. The doctor said that Haldol, Zyprexa, orRisperdal would be administered to the respondent "one at atime." Depending on her response to those medications, Ativanwould be given to her "concurrently with the other three."

The doctor stated that these medications were intended toimprove the respondent's persecutory thinking, her ability tocare for herself, and her ability to make reasoned decisions. Hesaid that the respondent had taken Haldol in the past, which hadimproved her symptoms. However, at the time of the hearing, therespondent refused to take any medications, believing that shedid not need them. Patibandla stated that these medications wereantipsychotic agents. He submitted that their benefitsoutweighed any of their possible side effects.

Patibandla testified that the respondent did not have thecapacity to make a reasoned decision concerning whether to takemedication. He stated that less restrictive services for therespondent had been explored in the community, but had beenineffective. The doctor believed that without medication, therespondent's condition would not improve. He recommended thatthe medications be involuntarily administered for up to 90 days.

The judge granted the State's petition. The court's writtenorder was dated November 14, 2001. This document is a form orderwith blanks to be filled in by the court. The printed languageof the form indicates the court found, inter alia, that becauseof her mental illness, the respondent exhibited "threatening ordisruptive behavior." The order states that psychotropicmedication was to be administered by the Zeller staff. The orderdoes not specify, however, the types of medication, the dosages,or the persons authorized to administer the medications. It isfrom this order that the respondent appeals.

The record indicates that the respondent's petition fordischarge from Zeller was granted on December 5, 2001.

ANALYSIS

I. Mootness

The State notes that this case is moot because the court's90-day involuntary treatment order has expired and the respondenthas been discharged from Zeller. The State acknowledges,however, that the Illinois Supreme Court recognized an exceptionto the mootness doctrine for mental health cases in In re BarbaraH., 183 Ill. 2d 482, 702 N.E.2d 555 (1998). In Barbara H., thecourt stated that where a case involves an event of shortduration which is capable of repetition, yet evading review, itqualifies for review even if it otherwise would be moot. Becausepsychotropic medications cannot be administered for more than 90days without review by the trial court, such a time period is toobrief to allow for appellate review. The Barbara H. court alsoemphasized that a respondent who has a history of mental illnessis likely to be subjected to involuntary administration ofmedications again. The court stated that appellate orders inthese cases are in the nature of advisory rulings.

The present respondent's situation qualifies for theexception to the mootness doctrine articulated in Barbara H. The90-day maximum period of involuntary treatment was too brief topermit appellate review. The respondent's history of mentalillness makes it likely that she will be subjected to involuntarytreatment again. Therefore, under the mootness exception inBarbara H., we have authority to consider the respondent'sappeal.

II. The Court's Involuntary Treatment Order

The respondent contends that the court's order was defectivebecause it (1) mentioned the respondent's "disruptive behavior,"which was not a statutory prerequisite for involuntary treatmentat the time the order issued; (2) did not designate the personsauthorized to administer the medication; (3) did not specifywhich medications were to be administered; and (4) did notspecify the range of dosages for the medications. She submitsthat the defects in the court's order prejudiced her libertyinterests.

The State is not authorized to involuntarily administertreatment to a respondent unless the court determines by clearand convincing evidence that all of the following factors exist:(1) the respondent has a serious mental illness; (2) because ofher mental illness, the respondent exhibits any one of thefollowing: (a) deterioration of her ability to function, (b)suffering, or (c) threatening behavior; (3) the benefits of thetreatment outweigh the harm; (4) the respondent lacks thecapacity to make a reasoned decision about the treatment; and (5)other less restrictive services have been explored and foundinappropriate. 405 ILCS 5/2--107.1(a--5)(4)(A) through (a--5)(4)(F)(West Supp. 2001). The court's order shall designate thepersons authorized to administer the involuntary treatment. Theorder also shall specify the medications and the anticipateddosages that have been authorized. 405 ILCS 5/2--107.1(a--5)(6)(West Supp. 2001). An appellate court will reverse a trialcourt's order to involuntarily administer psychotropicmedications only if it is manifestly erroneous. In re DorothyW., 295 Ill. App. 3d 107, 692 N.E.2d 388 (1998).

The language and designation of subsections for section 2--107.1 have undergone many revisions in recent years. TheIllinois legislature deleted reference to "disruptive behavior"and renumbered the subsections by Public Act 91--726. Pub. Act91--726, eff. June 2, 2000 (amending 405 ILCS 5/2--107.1 (West2000)). In 1996, the applicable language of section 2--107.1referred to "threatening or disruptive behavior" (405 ILCS 5/2--107.1(a)(4)(B) (West 1996)). In 1998, the analogous passage read"(iii) threatening behavior, or (iv) disruptive behavior" (405ILCS 5/2--107.1(a)(4)(B) (West 1998)). After June 2, 2000, thepassage was reduced to "(iii) threatening behavior" (405 ILCS5/2--107.1(a--5)(4)(B) (West Supp. 2001)).

In this case, the printed language of the court's form orderapparently tracked the language of the statute from prior toJune 2, 2000. The order was in error because it did not trackthe language of the statute at the time the order issued onNovember 14, 2001. However, we hold that this error was harmlessbecause the version of the statute effective at the time of theorder was in the disjunctive. It was not error for the court tostate that the respondent exhibited either threatening ordisruptive behavior when the correct statutory language onlyrequired the court to find that the respondent exhibited one ofthe following: (1) deterioration of her ability to function; (2)suffering; or (3) threatening behavior. See 405 ILCS 5/2--107.1(a--5)(4)(B) (West Supp. 2001).

The respondent relies upon In re Gwendolyn N., 326 Ill. App.3d 427, 760 N.E.2d 575 (2001), for the proposition that thefailure of a court's order to specify the persons authorized toadminister the medications, the types of medications, and therange of dosages is reversible error. The State contends thatGwendolyn N. is distinguishable from the present case. Instead,the State argues that this case is controlled by In re Miller,301 Ill. App. 3d 1060, 705 N.E.2d 144 (1998), and In re Barry B.,295 Ill. App. 3d 1080, 693 N.E.2d 882 (1998).

Miller held that although the trial court's order violatedsection 2--107.1(a)(6), reversal was not warranted because (1)the respondent failed to object in the trial court, (2) therespondent's attending physician was intimately familiar with therespondent's treatment protocol, and (3) the respondent did notcontend that he was prejudiced by the court's defective order. Miller, 301 Ill. App. 3d 1060, 705 N.E.2d 144. In Gwendolyn N.,the Illinois Appellate Court, Fourth District, revisited itsruling in Miller and found it to be distinguishable. TheGwendolyn N. court reversed because the respondent in that caseasserted that her liberty interests were prejudiced by the trialcourt's defective order. Gwendolyn N., 326 Ill. App. 3d 427, 760N.E.2d 575.

In Barry B., the Second District affirmed the trial court'sinvoluntary treatment order despite its failure to specify themedications to be administered. However, in 1996, when the trialcourt's order issued in Barry B., the statute did not require theorder to specify the medications to be administered. See 405ILCS 5/2--107.1(a)(6) (West 1996). The statute only requiredthis information to be included in the State's petition forinvoluntary treatment. See 405 ILCS 5/2--107.1(a)(1) (West1996). In 1997, the legislature amended the statute to requirethe order to specify the medications. Pub. Act 90--538, eff.December 1, 1997 (amending 405 ILCS 5/2--107.1(a)(6) (West1996)). Therefore, Barry B. is inapplicable to our analysis ofthe current version of the statute.

We find the present case to be controlled by Gwendolyn N.rather than Miller or Barry B. The State submits that this caseis distinguishable from Gwendolyn N. because the instantrespondent has not argued that she was prejudiced by the court'sorder. We disagree. The respondent in this case specificallyargued in her briefs that her liberty interests were violated bythe trial court's defective order. We hold that it wasmanifestly erroneous for the trial court to fail to specify inits order the persons authorized to administer the medications,the types of medications, and the range of dosages. Wereemphasize the Illinois Supreme Court's position in Barbara H.that our ruling is advisory. See Barbara H., 183 Ill. 2d 482,702 N.E.2d 555.

CONCLUSION

For the foregoing reasons, we reverse the involuntarytreatment order of the Peoria County circuit court.

Reversed.

HOLDRIDGE and HOMER, JJ., concur.