over to the efter now and you know this oral argument by zoom is a great convenience to all of us but occasionally we want run into a couple of bumps in the road so you will see you are not going to have a panel of just two there will be three of us just to slip in is also on this panel but he will be listening to the oral arguments and participating in our deliberations he's just we just can't get in here right now  with that said are you both ready yes mr kal is that correct correct it's nice to see you you may proceed when you're ready ok good afternoon may it please the court some background i petitioned court and voluntary admission with bob on september th two thousand and eighteen and a hearing date was set for september th two thousand and eighteen prior to the hearing mary team won her attorney that she wanted to represent herself in it would be in her best interest to have an attorney at the ripple evidentiary hearing the court ruled mary t to be committed to mcparland mental health center up to sixty days and mental health cases when a person wants to represent himself the child should look to section three d s eight or five of the mental health code which states if a person is subject to involuntary admission i'm an inpatient basis they should be represented by counsel mary t about her education mary answered a question about her education the cortex mary t about she can read or write the english language the mary key responded yes then the port acts marry a compound question you understand today the person feed it to the left is a trained attorney throughout this process he will be at ciena sears a question a series of questions that is about your liberty do you understand that mary t answered i'm mary to explain that she had volunteered for a civil work program at the age of sixty six was she was considered to the court then made their finding and said i'm going to make sure you have an attorney representing us up throughout the process same as competency to stand trial they stated the standard should apply the same in civil mental health hearing that standard did the responded is unable to understand the nature and purpose of the proceeding or assist in their defense in the  district in the michael f case the court used a standard whether the court properly informed the respondent of his right to counsel the nature of the hearing and possible consequences of the hearing or garlits what standard is used or questions the understand why you are here today do you understand the role of counsel you understand the consequences of the hearing today do you understand that you will be held that the same standard as any attorney those questions would show whether mental health proceeding the trial court st must find a person is subject to involuntary commitment then they must decide the leadership the setting for such treatment in deciding the least restrictive treatment the court must consider whether a facility is both appropriate or and available to respond such decisions must be based on evidence the illinois mental health quarter of ours or britain previous a predisposition to report and one of the requirements of the report is a written report she needed to go there for a longer period or time mary t was at uni point methodist were stopped her at a laurie considered an acute care facility the state presented no testimony from the department of human services generally or mcfarlane health cent two thousand make team when the court acts or to protect how long it would take for mary to go to a state operated fertility doctor adolescent i answered that it i can name social worker a unity point methodist talk to an unnamed person from the state system and there's a possibility that a death bed will be available and the data through two or three days the state only file the treatment plan portion of the previous root pre disposition report the treatment plan contain no information  will not get a full inquiry to ascertain if they have capacity to waive counsel and they can be ordered to a disposition that is not appropriate or available this case the this case with judge try to do it in curry however the judge the questions that were presented to mary did not show that mary lacked capacity and it's kind of showing a progression we've had the court never ruled that mary lacked capacity so i think the trial courts need more guidance to guide them on not specific questions that they need to say what they should have had to go or questions such that's not available and then algy i would submit to you it if this was the involuntary treatment say the court would not order a medication that's not available to the hospital to get somebody and so this earlier about these bumps in the road and that was one of them i'm glad that you asked the questions because it's just a split and i'm glad you asked the questions because i have a couple for you i you which one are you advocating for i'm advocating for this standard that would show that respondent as you know the nature of why they're there and the standard that the nature that the respondent know the consequences against them that the standard that the responded would know that they're going to be held to the same standard i don't want to get into it like i said this if a question capacity to waive counsel and otherwise we would get the trial court axion our respondent do you know who the president is them if they give a wrong answer oh well then you can represent yourself however if the well i need to know their spawn even knows why they're here today what are the consequences and the health of that same standard as an attorney then those questions will get to the other responded half the passably to waive counsel if i interpret your answer correctly you're saying that either case either standard would be fine with you the difficulty here is that the judge made no ruling at all with respect to competency is a correct yes the judge made no ruling that mary two black capacity to make the the wave counsel the judge you best interest pandered and if you go back and look at their record it seems like and bachelors but in this case mary took her question literal and said here's my middle school here's my high school well the judge then was like well let me talk to you about ed your work history and then mary  went off on all these pansies in this almost seems like the judge is like you know what you have a trained attorney sitting next to you i think it's better that you have this person and that's not the standard that the judge should use the standard should be down i think in reading the record that it's fair to say the judge was being kind she wasn't trying to trample anybody's rights that she you know that the reference to best interests i think she really was trying to act in the best interests of the person in front of her i would like you to address movements that point because i don't see any allegations that council did a poor job and mary would have been better off if she had represented herself and we are limiting really it we're not supposed to enter advisory opinions once the issue is moot and the appointment of counsel you know it's most right now we have two cases that set forth adequate standards and you're not asking us to establish a rd standard so why is it important to you that we not find this issue with respect to counsel is moot well st i would say the state conceded that this case falls under one  t st time in in the hospital the doctor testified that in the year that the case was heard of for her she's been there four times so when you have somebody who's been at the hospital multiple times this is likely that this can happen to her mary t again she can she would go to the hospital and follow the petition if you want to represent yourself so because of her prior hospitalization is reason to expect to some action to take against her in the future also this also has a public interest exception statutory compliance with the mental health code is in the public interest and we want judges to comply with you and in this case there are two statutes that does not comply with and so we would say because of the capable yet avoiding review in the public interest those are two acception the move refined perfectly you have now run out of time but on this side i will say that even though the state has conceded the yeshu should be treated as moot sometimes we disagree with both of complied section three best funk the mental health code when the trial judge determined that respondent lacked capacity to represent herself under section three that it a five anyone subject to an  has the capacity to waive her right to counsel is with in the discretion of the trial judge and the state finds that point very important the determination of whether respondent has the absolute with the right to counsel is it respond a request to represent herself and the court is satisfied that the respondent has the capacity to make an informed waiver of a right to counsel in this case as a closing counsel noted they responded requested to represent herself however the trial judge was not satisfied that respondent had the capacity to do so to determine whether the respondent has the capacity to make an informed waiver of a right to counsel the trial judge should make a wire is concerning the responde mental ability intelligence an understanding of the basic purpose of counsel additionally a trial judge should be certain to respond and has the legal or educational background necessary to represent herself the trial judge should ask questions  requiring answers that would show whether the respondent has a basic understanding of what it hearing is about and the will of counsel here the trial judge conducted a thorough inquiry prior to determin the trial judge started off with a hearing saying that i want to ask you about your education tell me about your education ma'am she responded my education was when i went to a gifted school ok where as the trial judge it was lincoln school it was the principal was a holmes thomas holmes yet wife mrs holmes after that ask the trial judge the respondent said i didn't really know her  name after that where did she go ask the trial judge i went to roosevelt ok after that i went also to because we had a fire at the house i had to go transfer into a different territory so i went to woodruff the trial judge said ok and you finished with your high school correct response that i didn't finish these high schools because this was because we had fires we moved when our house was fixed we moved that the trial judge said ok after going to what jeff did you start working is that what happened they responded so i went to manual that you went to manuals at the trial judge did you graduate from daniel yes i did t respondents that i would like to clarify that i went to work when i was very young when i was four years old i went and i cleaned for th but the police also asked me to tell them anything that was going on and that was out of the ordinary in that household the trial judge that said can you read and write the english language respond and said yes i can the trial judge then continued on with several other questions asking the respondent about if she knew the nature of the proceedings and if she understood the basic purpose of counsel opposing counsel to note the question that the trial judge asked that goes in counsel said it was a compound question the trial judge did say you understand that today the person seated to your left is a trained attorney throughout this process he will be asking questions a series of questions this is about your liberty do you understand that the respondents that i'm not worried about because i took the trial just said where did you take law respon law when i was in the gifted school i took law when i was in manual high school and i also took business law and constitution as opposing counsel noticed the trial judge then asked respondent about the last time that she was employed she discussed being employed and then after she was finished with that answer the trial judge said i appreciate that and the judge that at this time the court has found that i am going to make sure that you have an attorney represent you through this process so with that being said one of the things the court was doing i had to listen to some of the information provided i understand you stated to the court that lincoln middle school lincoln school you at law classes and you also had business law i do believe that this time the court fin your best interest to have an attorney represent you with that being said the city council so the state would submit that the trial judge here performed a thorough inquiry into terminate whether respondent lack habsi the state understands that opposing counsel says that the judge applied an impermissible standard what he refers to as a best interest dander however there  capacity to make an waiver of her right to counsel and again as stated at the beginning the determination of whether responded has the capacity to waive her right to counsel is within the discretion of the trial judge and after movie nancy issued to the state's admits that the trial judge properly found that mcfarlane mental health and it was appropriate and the least restrictive alternative for  counsel discussed a letter that was received from the department of human services what's important to note about this letter in which the department of human services stated them mcfarland was not available to respond and that appropriate for responded that this letter did not come until one week after the trial judge made her ruling reading the transfer of responded from unity point to mcfarlane the information in this letter from department of human services w not discussed during respondents involuntary commitment hearing or the subsequent hearing on disposition a review in court must determine the issues before it based upon the evidence presented to the trial court is proper if the record provides the basis for the court to determine involuntary hospitalization is the least restrictive alternative the code does not state that a court must make a specific finding that a certain treatment and place is the least restrictive facility it treats chronically ill patients offers more services than unity point a psychiatrist who treated respondent testified they responded frequent hospitalizations were not helping responded stabilize and that responded should be transferred from unity to a long term state facility where she would have access to different services or guardianship also want to have a place that had outpatient care and do much better with and follow and follow up care responded had been discharged to a nursing home previously in one particular case one day after being showered discharged to understand how respond it came back to unity and then was read it was the treating psychiatry opinion and that respondent should not be released back to her residence or stay on occurrence at u t even at the conclusion of the st hearing not disposition the trial judge wanted to continue this matter for additional question questioning so she set up another hearing at that next hearing she asked the psychiatrist about the timing of the transfer to mcfarlane and the psychiatr and that is what the trial judge at the time made her decision on she also took under consideration that respond it was on a lack down floor at unity for patients sixty five years old with psychosis or mental health issues the psychiatrist of the respondent had visits to several different places methodist and unity hospitals just to name a few so there were alternatives consider remaining at unity point returning t respondents residence the treating psychiatrist however made clear that these were not appropriate locations for responding considering her medical and psychiatric needs respondants conditions condition was worsening according to a treating psychiatrist she refused to speak to her psychiatrist that you know her safety as well as the safety of others was a concern in the trial judge made the proper decision to take the recommendation of respondents treating psychiatrist and grant the transfer  mcfarlane and this was based on the evidence that was presented to the trial judge at that time between the testimony of the treating that are in additional information available to the trial judge including the week after the determination was made that mcfarlane was appropriate does not mean that at the time the trial judge made her decision that it was and in a correct decision therefore considering the evidence available to the trial judge the course i do you know and then we'll see if any of the other panel members you know what is that about what judge washington said that or what what is it about the responses to judge washington's questions that caused justifiably cause the judge to find she was not have been in other words what did she say what did the responded what did mary t say we take a look and read in the record and i went over some of the comments that mary t provided to the trial judge in reading them one may say that it doesn't appear from the record just reading them from the record that she sounds like she would lack of acidy to wait for a right to counsel however the trial judge was there was able to ascertain the mental state of the respondent her behavior her demeanor how she was responding i did not see any of that but the trial judge did and the main thing that the state would argue in regard to that is that the trial judge does have the discretion to determine whether she has the right to waive her  determination is up to the trial judge who has a chance to st can't see in a witness the respondent the line of questioning was was pretty extensive from our from our standpoint it women are not certain how long it went on but i did ask about the education when you take a look at the case law education is one of the things that it says that a trial judge should consider in determining whether a respondent lacks capacity also we did ask if she understood about the basic purpose of counsel and her legal prep background where did you take law she respond that's my point though those answers were responsive to the questions she clearly understood the questions and she gave appropriate answers but i understand that the child judge does have an advantage to us in that she gets to see and hear the witnesses that observation by me is also probably why the judge didn't use the magic words because sometimes those words are triggering to people with mental health issues if she said that mary lacked passive the or was not have the tent you know sometimes that is not th they to recur is that correct the repetition exception we argued would apply because it is likely since she has a history dating back to two thousand and eight that this likely would occur again and so the state felt that because there must be there was a step substantial likelihood for the recurrence of this that a resolution would have some bearing on a similar issue thank you for your answer are there any other certificate and the state of illinois anybody over the age of eighteen can file a petition for involuntary commit you need somebody with qualifications to do the certificate however those are just pleadings those are just allegations you cannot in the state of illinois people with mental illness are presumed competent until proven otherwise you cannot just say well this is a for mental health hearing and look at the allegations in the patient that she doesn't have competent for we would argue until the court ruled that somebody is incompetent  their rule in a while you're not going to take and say well based off of some your answers it doesn't look like you understand why you're here today based off a summary answers it doesn't you don't even know d what the consequences are so i'm going to appoint an attorney in this case we don't have any of that we have the judge going through their questions seems like she didn't like mary's answers and the judge is like it's in your best interest the old that is would that not she lack a passive but after hearing all of this it's in your best interest and in looking at and i would and i would agree with the state we don't know the contact how mary was answering because we just had what she said however if you look at the record we don't have mary coming in interrupting the judge we don't have mary talking over anybody we don't have mary stand will you ask me this question tonight into a dozen other steps in another subject let me go back to the st object that you asked me about we have a person then they want to represent them so we have a person saying judges are going to ask you some questions you have a person answering those questions so yes there were no magic words but it's the judge did not do it will anchor e to see it mary lack of now as we know mcfarland did not except marry for placement due to her geriatric medicine the the state at the trial level has the burden to prove the district the best disposition consideration of should go to mcfarlane but the doctor didn't have not have all the facts to support that she should marry she go to mcfarland the fact is mary t own her own apartment in peoria married she had a home health care aide with her and t was taking all the prescribe medication d from doctor at a large since the beginning of her admission and the here since macfarlane was not appropriate for an available to the three to ask eleven now i understand that a judge can go only go based off on the facts that are presented for them however we have this case where mary was they doctor said all those reasons why mary can't do outpatient why mary can go back to her apartment the mary half the goals of this long term facility and then we come to find out that the facility is not available so i think the courts need guidance if you're going to order somebody to these this position we need to st make make sure that it's a bailable to them and the state would have said today that will the doctor talk to a social worker but like in the social worker talked to somebody from the department of human services but that is just a hearsay statement after here's a statement the judge and making a rule to make sure that this position is available to and this position is appropriate for this that was not the cayle no questions with as i started saying earlier you both did the nice job of arguing the case and feeling questions from the court we will now take this matter under advisement we will conference the case and hopefully it you disposition without undue delay thank you very much