1 Int er es ti ng ly, the trial court granted the stay pending app eal on the b asis that a "written notice" issue would likely resul t in rever sal on appeal. The court stated that the previously filed notice of appeal prevented it fr om reco nsid ering sua sponteits order , and it invited resp ondent to withdraw the notic e of appe al so that i t could reconsi der its order. Alternatively , the court invited the State to dismiss its peti tion to treat re spondent a

nd to ref ile the ca use in ac cordanc e with

proper procedure. Neither party

proceeded with the court's rec ommended course of action. No. 2-09-0472 Filed: 6-30-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ In re STEPHEN J., Alleged

to ) Appeal from the Circuit Court be a Person in Need of I

nvoluntary ) of Wi nn eb ag o C ou nt y. Psychotropic Medication ) ) No. 09--MH--244 ) (The Peo ple of the State of I llinois, ) Honorab le Petitioner-Appellee, v. Stephen J., ) Brian D. Shore, Respondent-Appellant). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE JORGENSEN d

elivere d the opini on of the c ourt: OnApril 23, 2009, after a bench trial, thetrial court ordered pursuant to section 2--107.1 of the Mental Health and

Developmental Disabilities Code (Code) (405 IL CS 5/2--107.1 (West 2008)) th at responde

nt, Stephe

n J., be invol

untarily subjecte d to the ad

ministrati on of psy

chotropi c medication. OnApril 30, 2 009, the c ourt temporarily stayed the orde

r; however, on May

15 and 20, 200 9, the court granted ( nunc pro tunc to April 23 , 2009) re spondent' s motion to st ay the order during the pendency

of thi s appe al. 1 On appeal, respondent argues tha t reversal of the April 23,No. 2--09--0472

-2-

2009, order

is required because: (1) there wa s insufficient evidence for the order; and (2) the court engaged in selective a

uthorization of the medication. For two reasons, the State argues that this appeal must be dismisse d as moot. F irst, the St ate notes tha t section 2--107.1(a--5)(5) of the Code provides f or psychotropic medic ation to be involunta rily administered for no more than 90 days ( "[i]n no event shall an order issued under thi s Sectionbe effective for more than 90days") and that the court entered the order here "for a period notto exceed 90 days." 405 IL CS 5/2--107.1(a--5)(5) (West 2008). Clearly , it asserts, more than 90 days have pa ssed since the court en tered th e April 23 , 2009, or der. Sec ond, the Sta

te contends , the order r

ema i ns mo ot ev en if

, i n l ig ht of

th e s ta y, t he 90 -d ay p er io d c om me nc es on ly after our resolutionof this appeal. Specifically , the State argues that respo ndent's condition after our resolutionof this ap

peal will "proba bly have changed" fr

om April 23, 2009, and, therefore, the order "may no longer be medically

appropriate." The State, relying on In re Alfred H .H. , 233 Ill. 2d 345 (2009), concludes that no exceptions to the mootnes s doct rine apply her e and, therefore, that the appeal should be dismissed. We disagree that

the appe al is moot. B y a

rguing that the a ppeal is mo ot simply

because 90 da ys ha ve pa ss ed , e ve n t ho ug h t he co ur t s ta yed th e o rd er , t he St at e e ss en ti al ly suggests, w ithout
au th or it y, that a stay is virtually meaningless. In other

words, near ly e ve ry t ime that a section 2--107.1 order is

appeale d, the app eal will b e moot bec ause 90 d ay s will pass

before it is resolved, and th e t ri al co ur t m ay never preserve the appeal by

staying the or

der. See, e.g. , In re Bar

bara H. , 183 Ill. 2d 482, 492 (1998) (noting that, in the absence of

exceptions to the mootness doctrine, the right to revie w under t he Code is rendere d a nullity because the duration of involuntary tre atment is "far too brief

to permit a

ppellate review" and "[i]n vi

rtually every case" the chal lenged

order willNo. 2--09--0472

-3-

expire before compl etion of app ellat e revie w). Al thou ghour rese arch did not reve al a cas e explicitl

y discussing wh et he r a st ay o n a se ct io n 2
-- 10 7. 1 o rd er al so st ays its 90-da y e ffectiv eness period, i

t is clear th at st ays are rou

tinely entere d in this context. See, e.g. , In re Jonathan P. , 386 Ill. App. 3d 981, 984-85 (2008) (

trial cou rt tempor arily stay ed involun

tary treatme nt order ); Inre Evely

n S. , 337 I ll. App. 3d 1096, 1101 (2003) ( appella te court stayed trea

tment order pending

resolution of the appeal); Inre Hatsuye

T. , 293 Ill. App. 3d 1046, 1049 (1997) ( same). Although sec tion 2--107.1 (a--5)(5) states that an order may

not be effective ( i.e. , medication may not be involuntarily administered) for
more than 90 days, her

e, the stay kept the order fr

om taking effect--no medication was administered. Thus, we conclude that the 90-day effectiveness period was tolled. We note that Alfred H.H. does not suggest that, because 90days have passed, the order here is moot despite the stay. I n Alfred H.H. , the parties agreed that the order at issue was moot

because it was limited

to 90 days, which had pa ssed. Alfred H.H. , 233 Ill. 2d at 350-51. Accordingly , our supreme court noted that the order's expiration meant that it could no longer serve as the basis for an adve rse act ion aga inst the re spondent; the resp ondent co uld be invo luntarily

held and f

orced to take psychotropic medica tion only if a new set of pe titions were filed. Alfred H.H. , 233 I ll. 2d a t 350-51. Therefore, the court considered only whether any exceptions to mootness applied. Alfred H.H. , 233 Ill. 2d at 350-51. However, Alfred H.H. is clear ly d istinguishablebecause therewas no stay entered on

that order. Accordingly, unlike in Alfred H.H. , it cannot be said that the order here cannot serve as the ba sis for an a dverse a ction ag ainst res

pondent. Theref

ore, we conclude that, altho ugh more than 90 days have pa ssed since the order was entered, this appea l is not moot in light of the sta y pe nding a ppeal.No. 2--09--0472

2 Inlight of its confession

of erro r on res ponde nt's second argument (selective authorization of medication), the State makes no argument regarding respondent's first arg ument (sufficiency

). -4- We also reject the State's argume nt that, even if the 90-d ay period c ommence s after t his appeal is resolved, the order is moot because it might no longer be approp riate for

respo ndent 's current condition. While it might be true that the order is no longer appropriate , appropriateness of the order f

or respondent' s condition is an issue separ ate from that of mo otness. Th us, we re ject both of the Sta te's ar guments and conc lude that

the appe al is not moot. Turning to the merits of the appeal, the State confess es error on resp ondent' s second a ppellate issue. 2 The State agrees that the order must be re versed because the court err ed where it authorized involuntary

administration of only some of the med ications t hat respondent's phy sician sought authority to ad mi ni st er . S pe ci fi ca ll y, the State agrees that section 2--107.1 does not per mit selective authorization of

psychotropi c medica

tions and t

hat, abse nt a requ est from the treating physician, a court is limited to authorizing the treatment regime as described in the pe tition. Here, the petition re qu es te d a ut ho ri za ti on to ad mi ni st er , b ot h o ra ll y an d i nt ra mu sc ul ar ly, three medications: risperidone, haloperidol decanote, and benztropine. The order did not a uthor ize the intramusc

ular adm inist ration of h aloperi dol or the administr

ation of b enztropine. The Sta te disagrees that the order's omission of benztr opine wa s error , assert

ing that , becau se benztropi ne is
a side-effect-relieving

medicati on and not

a psy chotropi c medicati on, authorization di d not need to be requested via petition. Nevertheless, it confesses that the orde r's failure to authori z e intramuscular administration of haloperidol constitutes error. As the court did not approve in its entirety the requested medication regimen, we agree that the order granting the petition should be reversed. See In re

Mary Ann P. , 202 Ill. 2d 393, 405-06No. 2--09--0472

-5-

(2002) (section 2--107.1 does not permit selective authorization of psyc hotropic medication; where "the recommend edtreatment consists of multiple medications--some to be administered al te rn at iv el y, some to be administered in combination, and some to be administered only as needed to counter side effects--it is only this treatment, in its entirety, that may be authorized"). Fo r the foregoing reasons, the judg ment of the circuit court of Winnebago County is re versed
. Reversed. O'MALL EY and HUDSON, JJ., concur.