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In re B.K.
State: Illinois
Court: 4th District Appellate
Docket No: 4-05-0210 Rel
Case Date: 12/01/2005

NO. 4-05-0210


IN THE APPELLATE COURT


OF ILLINOIS


FOURTH DISTRICT



In re: B.K., a Person Found Subject
toAdministration of Authorized
Involuntary Treatment,
THE PEOPLE OF THE STATE OF ILLINOIS,

Petitioner-Appellee,

v.

B.K.,

Respondent-Appellant.

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Appeal from
Circuit Court of
McLean County

No. 05MH18



Honorable
Rebecca Simmons Foley,
Judge Presiding.


JUSTICE McCULLOUGH delivered the opinion of the court:

On February 25, 2005, the trial court ordered respondent, B.K., subject to involuntary admission to a mental healthfacility and involuntary treatment in the form of psychotropicmedication. Respondent appeals, arguing the court's authorized-involuntary-treatment order must be reversed because (1) neitherrespondent nor her attorney received a copy of the petition ornotice of hearing three days prior to the hearing as required bysection 2-107.1(a-5)(1) of the Mental Health and DevelopmentalDisabilities Code (Mental Health Code) (405 ILCS 5/2-107.1(a-5)(1) (West 2004)), (2) hearings on the petitions for involuntaryadmission and authorized involuntary treatment were not heldseparately as required by section 2-107.1(a-5)(2) of the MentalHealth Code (405 ILCS 5/2-107.1(a-5)(2) (West 2004)), and (3) thecourt's decision to order authorized involuntary treatment wasagainst the manifest weight of the evidence. We reverse.

On February 22, 2005, Jacquiline Mathias, an on-callcrisis counselor, filed a petition for involuntary admission ofrespondent to a mental health facility pursuant to section 3-600of the Mental Health Code (405 ILCS 5/3-600 (West 2004)). Thepetition alleged respondent was mentally ill and unable toprovide for her own basic physical needs so as to guard herselffrom serious harm. Specifically, it was alleged respondent had ahistory of bipolar episodes with the last one occurring approximately seven years earlier. Prior to the filing of the petition,respondent's mother noticed disorganized thinking and behavior inrespondent. Additionally, it was alleged respondent walked nakedto her mother's house after giving her clothing and purse to astranger.

Two certificates were filed with the petition. Theywere executed by a physician and psychiatrist, both of whomexamined respondent. Each certificate alleged respondent wasmentally ill and unable to provide for her basic physical needs. Both also noted that respondent was pregnant.

On February 25, 2002, a hearing on the petition wasconducted. At the hearing, the State presented the testimoniesof petitioner Mathias and Dr. Carmen Chase, the psychiatrist whoexecuted one of the certificates and examined respondent. Eachgave testimony concerning her own personal contact with respondent and the behavior she exhibited during that contact. Additionally, Dr. Chase testified she diagnosed respondent as havingbipolar affective disorder and found her to be in a manic state. Further, she recommended that respondent be treated withpsychotropic medication and described the benefits and potentialrisks of each drug to respondent and her unborn child. Respondent testified on her own behalf.

The trial court determined respondent suffered frombipolar disorder and ordered her subject to involuntary admissionin a mental health facility. After the hearing, the court notedthat a petition for authorized involuntary treatment had beentendered to it that day. The petition requested the court enteran order authorizing the involuntary administration ofpsychotropic medication pursuant to section 2-107.1(a-5) of theMental Health Code (405 ILCS 5/2-107.1(a-5) (West 2004)). Thecourt considered the petition filed instanter. Without objection, a hearing then proceeded on that petition.

Instead of presenting additional evidence at thehearing, the parties stipulated to the evidence presented at theearlier involuntary-admission hearing. After listening to theparties' arguments, the trial court concluded the State met itsburden on the petition and authorized involuntary treatment to beadministered to respondent in the form of psychotropic medication. Specifically, Lithium was ordered as the first choice ofmedication to be administered to respondent with alternativemedications being Zyprexa, Haldol, and Lamotragine.

This appeal followed.

Initially, we note that this case is moot because bothof the trial court's orders were effective for only 90 days andthat time period has expired. However, we will address respondent's arguments because this case involves an event of shortduration that is capable of repetition yet evades review. In reBarbara H., 183 Ill. 2d 482, 491, 702 N.E.2d 555, 559 (1998).

On appeal, respondent first contends the trial court'sauthorized-involuntary-treatment order should be reversed becauseneither she nor her attorney received a copy of the petition ornotice of a hearing on the petition at least three days prior tothe hearing as required by section 2-107.1(a-5)(1) of the MentalHealth Code (405 ILCS 5/2-107.1(a-5)(1) (West 2004)). Conversely, the State contends respondent received timely notice,her claim of error has been forfeited, and she failed to showprejudice.

Section 2-107.1(a-5) of the Mental Health Code providesfor the authorized involuntary treatment of a recipient of mentalhealth services in certain instances. 405 ILCS 5/2-107.1(a-5)(West 2004). Section 2-107.1(a-5)(1) requires an individual whofiles a petition requesting authorized involuntary treatment todeliver a copy of the petition and a notice of hearing to therespondent and his or her attorney "no later than [three] daysprior to the date of the hearing." 405 ILCS 5/2-107.1(a-5)(1)(West 2004). However, "[i]f a hearing is requested to be heldimmediately following the hearing on a petition for involuntaryadmission, then the notice requirement shall be the same as thatfor the hearing on the petition for involuntary admission, andthe [authorized-involuntary-treatment] petition *** shall befiled with the petition for involuntary admission." 405 ILCS5/2-107.1(a-5)(1) (West 2004).

Fundamental liberty interests are implicated by theinvoluntary administration of mental health services and, therefore, statutes governing such proceedings should be narrowlyconstrued. Barbara H., 183 Ill. 2d at 498, 702 N.E.2d at 562. In this same context, this court has stated as follows:

"'The procedural safeguards enacted bythe legislature are not mere technicalities. Rather, they are intended to safeguard theimportant liberty interests of the respondentwhich are involved in mental health cases.***

***

*** The total disregard for the legislatively established procedures is contrary tothe balancing of interests established by the[Mental Health] Code and should not be condoned.'" In re O.C., 338 Ill. App. 3d 292,298, 788 N.E.2d 1163, 1168 (2003), quoting Inre Luttrell, 261 Ill. App 3d 221, 230-31, 633N.E.2d 74, 81-82 (1994).

Nevertheless, strict compliance with the notice requirements inauthorized-involuntary-treatment proceedings has been deemedunnecessary where the respondent had actual notice of the proceedings and ample opportunity to prepare a defense. In reRobinson, 287 Ill. App. 3d 1088, 1091-92, 679 N.E.2d 818, 821(1997), citing In re C.E., 161 Ill. 2d 200, 225-27, 641 N.E.2d345, 356-57 (1994).

In this case, neither respondent nor her attorneyreceived a copy of the petition for authorized involuntarytreatment until the day of the hearing. Further, they neverreceived formal notice of a hearing on that petition and actualnotice was not received until immediately before the hearing wasto take place. Although the State contends respondent receivedtimely notice pursuant to an alternative-notice provision insection 2-107.1(a-5)(1), for the reasons that follow, thatprovision does not apply.

The State points out section 2-107.1(a-5)(1) permitsnotice for an authorized-involuntary-treatment petition to be thesame as notice for an involuntary-admission petition when arequest is made for the authorized-involuntary-treatment hearingto be held immediately following the involuntary-admissionhearing. The provision noted by the State does not apply to thefacts of this case because it requires an authorized-involuntary-treatment petition to "be filed with the petition for involuntaryadmission." 405 ILCS 5/2-107.1(a-5)(1) (West 2004). In thisinstance, the petitions were not filed together.

Additionally, the State has failed to indicate when itmade a request to hold successive hearings and it does not appearfrom the record that such a request was made. In fact, therecord makes no mention of a hearing on the authorized-involuntary-treatment petition until after the conclusion of theinvoluntary-admission hearing. The simple fact that successivehearings are held does not implicate the alternative-noticeprovision in section 2-107.1(a-5)(1). Moreover, compliance withthat provision's other requirements is also necessary.

We conclude the three-day-notice requirement in section2-107.1(a-5)(1) is applicable to the facts of this case. Further, that requirement was violated because respondent failed toreceive both a copy of the petition and notice of the hearing nolater than three days prior to the hearing. Nevertheless, theState contends respondent has forfeited any claim of errorbecause she failed to object to the hearing on the petition forauthorized involuntary treatment and her attorney stated he wasready to proceed with a hearing on that petition.

Generally, issues raised for the first time on appealare forfeited. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d1124, 1130 (1988). However, a reviewing court may consider aforfeited error affecting substantial rights when (1) there wasplain error and the evidence was so closely balanced that theerror caused prejudice or (2) there was plain error that "was soserious that it affected the fairness of the [proceedings] andchallenged the integrity of the judicial process." People v.Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 479-480 (2005). In the context of authorized-involuntary-treatment petitions,this court declined to apply forfeiture where the respondent had"no notice of the petition for administration of psychotropicmedication until the day of the hearing and had no opportunity toprepare a defense." Robinson, 287 Ill. App. 3d at 1092, 679N.E.2d at 821.

For those same reasons, forfeiture does not bar respondent's claim of error in this case. Specifically, the error wasboth plain and so serious that it affected the fairness of theproceedings. Section 2-107.1(a-5)(1) clearly requires that bothrespondent and her attorney receive a copy of the petition andnotice of hearing at least three days prior to a hearing on thepetition. Those requirements were ignored in this instance. Neither respondent nor her attorney had notice of the petitionfor authorized involuntary treatment until the day of the hearing. Thus, counsel had no opportunity to prepare a defense whensuch an opportunity was imperative due to the involvement ofrespondent's important liberty interests and the complexity ofthe subject matter.

The State further argues respondent did not sufferprejudice from any alleged error. Specifically, it contendsrespondent had actual notice of the petition when it was filedand her counsel was well prepared because he thoroughly cross-examined Dr. Chase and delivered a detailed argument. Under theplain-error doctrine, when there is plain error that "was soserious that it affected the fairness of the [proceedings] andchallenged the integrity of the judicial process," prejudice ispresumed because of the importance of the right involved. Herron, 215 Ill. 2d at 187, 830 N.E.2d at 479-480.

Based on the facts of this case and due to the importance of the rights involved, it is presumed that respondentsuffered prejudice when neither she nor her attorney received acopy of the petition or notice of a hearing as required bysection 2-107.1(a-5)(1). Additionally, we note the extent of theprejudice to respondent is unknown because it cannot be determined from the record what would have happened if respondent'scounsel had been given an opportunity to prepare for a hearing onthe petition.

In this case the procedural requirements of section 2-107.1(a-5)(1) were ignored. Compliance was necessary to safeguard the important liberty interests involved with authorizedinvoluntary treatment. Thus, because respondent did not receiveproper notice of a hearing on the petition for authorized involuntary treatment and her counsel had no opportunity to prepare adefense, the trial court's authorized-involuntary-treatment ordermust be reversed.

Finally, although respondent further contends (1)separate hearings were not conducted on the petitions for involuntary admission and authorized involuntary treatment as requiredby section 2-107.1(a-5)(2) of the Mental Health Code (405 ILCS5/2-107.1(a-5)(2) (West 2004)) and (2) the evidence was insufficient to support the trial court's authorized-involuntary-treatment order, those claims need not be addressed in light of ourresolution of respondent's other alleged error.

For the reasons stated, we reverse the trial court'sauthorized-involuntary-treatment order.

Reversed.

STEIGMANN and MYERSCOUGH, JJ., concur.

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