NO. 5-99-0760

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

JUSTICE KUEHN delivered the opinion of the court:

Emmett Jones appeals from an order of the circuit court of Madison County authorizing the administration of psychotropicmedication to him. Kimbra Wheeler appeals from an order of the circuit court of Madison County subjecting her toinvoluntary admission. These appeals have been consolidated for review. We reverse.

On October 26, 1999, Jagannah Patil, M.D., Jones's treating psychiatrist, filed a petition naming Jones for the involuntaryadministration of psychotropic medication pursuant to section 2-107.1 of the Mental Health and Developmental DisabilitiesCode (the Code) (405 ILCS 5/2-107.1 (West 1998)). On November 4, 1999, the case was called for a hearing on thepetition. At this hearing, a guardian ad litem was appointed to "represent the interest of the Respondent." The recorddemonstrates that the guardian ad litem appointed is a licensed attorney. At the close of Jones's hearing, the trial courtentered an order finding that Jones was a person subject to the involuntary administration of psychotropic medication, andthe court authorized the Department of Human Services to administer the medications specified in the order.

On April 18, 2000, James Bigby, a mental-health-case manager, filed a petition naming Wheeler for involuntary admission. On April 20, 2000, the case was called for a hearing on the petition. Prior to the presentation of evidence, Wheeler's court-appointed guardian ad litem, a licensed attorney, advised the court that Wheeler wished to proceed pro se. The trial courtmade no inquiry of Wheeler and advised the guardian ad litem "to at least assist her." The guardian ad litem was appointedto "represent the interest of the Respondent." At the close of Wheeler's hearing, the trial court found Wheeler to be aperson subject to involuntary admission, and the court ordered her hospitalized in the Department of Human Services.

On appeal, Jones and Wheeler urge us to reverse the orders of the trial court because there was a failure to strictly complywith the Code. Specifically, Jones and Wheeler contend that the trial court wrongfully appointed a guardian ad litem torepresent their interests rather than an attorney to advocate on their behalf. In addition, Jones alleges that he was not giventimely notice of the November 4, 1999, hearing and that the State failed to prove by clear and convincing evidence that helacked the capacity to make a reasoned decision about psychotropic medication. In her appeal, Wheeler additionally arguesthat the trial court's order must be reversed because no psychiatrist, clinical social worker, or clinical psychologist who hadexamined her testified at the hearing. These contentions present disputed questions of law that we review de novo. SeeStatler v. Catalano, 293 Ill. App. 3d 483, 485-86, 691 N.E.2d 384, 386 (1997).

We begin by noting that these cases are moot. The underlying judgments, entered by the circuit court in 1999 and 2000,were limited in duration to a period of 90 days and 180 days, respectively. Those periods have passed. However, thesecases fall within the exception to the mootness doctrine because the periods for involuntary commitment and involuntaryadministration of medication are too short to permit review, and the same actions will likely be taken against eachrespondent in the future. See In re Barbara H., 183 Ill. 2d 482, 491-92, 702 N.E.2d 555, 559-60 (1998). We thereforeaddress these appeals on the merits.

Persons who suffer from mental illness have constitutionally protected liberty interests that permit them to refuseinvoluntary commitment and the administration of psychotropic medications. In re Williams, 305 Ill. App. 3d 506, 509,712 N.E.2d 350, 352 (1999). Any legislation that infringes upon these liberty interests must bear an important andsubstantial relationship to the State's interest in providing for mentally ill people who present a danger to themselves orothers or who lack the capacity to make informed decisions concerning psychotropic medications. Williams, 305 Ill. App.3d at 509, 712 N.E.2d at 352. Because involuntary commitment and the involuntary administration of medications affectimportant liberty interests, strict compliance with the Code's procedural safeguards is required to insure that the mentalhealth system does not become a tool to oppress rather than to serve society. Williams, 305 Ill. App. 3d at 509, 712 N.E.2dat 352.

These cases have been consolidated because they share one dispositive issue on review. Jones and Wheeler both contendthat the trial court's orders must be reversed because, contrary to the Code, the trial court failed to appoint counsel toadvocate on their behalf. We agree.

The conduct of both hearings was governed by article VIII of chapter 3 of the Code (405 ILCS 5/3-800 et seq. (West1998)), which includes section 3-805 (405 ILCS 5/3-805 (West 1998)). Section 3-805 provides:

"Every respondent alleged to be subject to involuntary admission shall be represented by counsel. If the respondent isindigent or an appearance has not been entered on his behalf at the time the matter is set for hearing, the court shall appointcounsel for him. A hearing shall not proceed when a respondent is not represented by counsel unless, after conferring withcounsel, the respondent requests to represent himself and the court is satisfied that the respondent has the capacity to makean informed waiver of his right to counsel. ***

1. If the court determines that the respondent is unable to obtain counsel, the court shall appoint as counsel an attorneyemployed by or under contract with the Guardianship and Mental Health Advocacy Commission, if available.

2. If an attorney from the Guardianship and Mental Health Advocacy Commission is not available, the court shall appointas counsel the public defender or, only if no public defender is available, an attorney licensed to practice law in this State." 405 ILCS 5/3-805 (West 1998).

Although the statute refers to involuntary admissions, it is equally applicable to proceedings with respect to the involuntaryadministration of psychotropic medication. 405 ILCS 5/2-107.1 (West 1998). Accordingly, the right to counsel, as definedby section 3-805, attached not only to the petition to have Wheeler involuntarily committed but also to the petition toadminister psychotropic medication to Jones against his will. See Barbara H., 183 Ill. 2d at 494, 702 N.E.2d at 560.

The record before us demonstrates that no legal representative was appointed to advocate on behalf of Jones or Wheeler inaccordance with section 3-805. Instead, the trial court appointed guardians ad litem to represent the interests of therespondents. This was improper. Section 3-805 confers on persons in the position of Jones and Wheeler the right tocounsel. This statutory right to counsel may be waived only after conferring with counsel. 405 ILCS 5/3-805 (West 1998).

Moreover, it is improper to expect a guardian ad litem to act as both a guardian ad litem and an attorney. A guardian adlitem and an attorney serve two distinct functions. A guardian ad litem is responsible for representing the respondent's bestinterests as opposed to serving as an advocate for the respondent's possibly ill-advised desires. In re Estate of Ohlman, 259Ill. App. 3d 120, 126-27, 630 N.E.2d 1133, 1139 (1994). While a guardian ad litem may properly determine thatpsychotropic medication is in the respondent's best interest, an attorney is necessary to advocate on the respondent's behalf. The roles necessarily conflict with one another. See Ohlman, 259 Ill. App. 3d at 126-27, 630 N.E.2d at 1138-39. Here,Jones and Wheeler needed the legal representation of an attorney, free from the conflicting duties of a guardian ad litem.

The Code mandates that persons subject to proceedings under the Code be represented by an attorney. In re Click, 196 Ill.App. 3d 413, 419, 554 N.E.2d 494, 497 (1990). Involuntary mental health services entail a "massive curtailment ofliberty," and the right to counsel is a central feature of the procedures enacted to ensure that citizens are not subjected tosuch services improperly. Barbara H., 183 Ill. 2d at 496, 702 N.E.2d at 561-62. The trial court's appointment of aguardian ad litem with or without a law license fails to strictly comply with this requirement. Accordingly, we reverse. Given our disposition of this issue, we need not address the remaining issues raised by the respondents.

These proceedings are concluded. If the State believes that Jones should continue to be given psychotropic medicationagainst his will or that Wheeler remains in need of involuntary commitment, it must initiate new proceedings in the circuitcourt. See Barbara H., 183 Ill. 2d at 498, 702 N.E.2d at 562.

For the foregoing reasons, the orders of the circuit court of Madison County are reversed.

No. 98-MH-248, reversed.

No. 00-MH-120, reversed.

MAAG and WELCH, JJ., concur.