No. 2--08--0132 Filed: 11-20-09

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

______________________________________________________________________________ In re VAL Q., Allege d to be a Person ) Appeal from the Circuit Court Subject to Involuntary

Admission ) of Du Pa ge Co un ty. ) ) No. 07--MH--274 ) (The Peo ple of the State of I llinois, ) Honorab le Petitioner-Appellee, v. Val Q., ) Thomas C. Dudgeon, Respondent-Appellant). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BOWMAN de livered

the opinion of the c ourt: Responde nt, Val Q., appeal s fro m the trial court's order authorizing the involuntary administration of psychotropic med icatio n to respondent for up to 90 day s pursuant to section 2--107.1 of the Mental Health and Developmental Disabilities Code (Code) (405 IL CS 5/2--107.1 (West 2006)). Respondent contends that the trial court erred in granting the petiti on where

the State failed to prove by clea

r and convincing

evidence that (1) she lacked the capacity

to make a reasoned decisionconcerning her

own treatment, (2) the benefits of treatment outweighed the har m, and (3) she was suffering

because of her mental illness or exhibited a deterioration in her ability to f unction. We ag re e w it h h er se co nd co nt en ti on an d r ev er se ac co rd in gl y. OnDecember 10, 2007, respon dent was brought into the emergenc y room of Good Samaritan Hospital fo r bleeding from rectal canc er. Respondent was also diagnosed with hy pertension. Respondent

was refusing medical treatment for bothher cancer and her hy pertension because she did not believe the doctors' diagnoses or their prognosis for respondent if the medical conditionsNo. 2--08--0132

-2-

were left untreated. It was a lso reported to hospital staff that respondent was sleeping in the ha ll wa ys of her apartment building because she believed her apartment

was bein g gas sed. Be cause respondent

was exhibiting disorganized thinking and behavior, she was assessed by psy chiatrist Dr. Bhatt. After

observing respondent and administering neuropsycholog

ical testing, Bhatt diagnosed respondent

as suffering from a mental il lness, nam ely, a delusional d isorder. Bh att op ined that respo ndent 's sym

ptoms had been long standing. Bhatt re commended psychotropic medica

tion for respondent

but respondent simply refuse d. Respondent did not explain why she w as refus ing psychotropi c medication and Bh att o pined that respondent's refusal was a dire ct result of her delus ional thin king. Bhatt petitione d for aut

horization

to administ

er I nvega as the pr imary medication. As alterna tives, Bhatt was seeking to administer Haldol De canoate

and Rispe

rdal. Ac cording

to Bhatt, thesemedicati ons are a

ntipsy chotics that would

improve respondent's thinking. With improved and
more organized thinking, respondent would be more comp liant with receiving treatment for her
cancer an d hy pertension. The most common side effect of all three medica tions was sedation. Haldol Decano ate also

had a pos sible side effect of involuntary shaking of the hands. Bhatt testified to the specific dosages he wasseeking to administer for each medication. He further testified that there was no con train dicat ion b etween the me dicat ions he was r ecomm endin g and res ponde nt's cancer or hy

pertension. B hatt o pined tha

t, based on respond

ent's me ntal illne ss, she wo

uld need p syc

hotropic medicationlong term
. Without psychotropic medication, respondent would re main guarded and suspicious and would

continue living in an unsaf e environment, na me ly, sl ee pi ng in pu bl ic ha ll wa ysNo. 2--08--0132

-3-

because of her delusions that her apartment was being gassed. Furthermore, withoutpsychotropi c treatment, respondent's recover y from ca ncer was in question. On cross-examination, Bhatt testified that, upon respondent's admission to the hospital, an EKG showed an

abnorma l QT inter val. Apparently, the Q T interval measures the time it takes the heart to reset itself between beats. See Jans sen Pharm aceutica, Inc . v. Bailey , 2002--CA-- 00736--S CT (99), 878 So. 2d 31, 37 (Mis s. 2004). Ac cording to Bhatt, an abnor

mal QT inte

rval is "not that significant." However, B hat t also ack nowledg ed that th e medica tion he wa s seeking

to administer

had the potential to increase a n alre ady-irreg

ular QT in terval, which in tu

rn could i ncreas e the risk of arrhy

thmia and heart attack. Bhatt testified that, if respondent had a greed to take psychotropi c medicati on, Bhat t would have first consulted with respondent's primary care phy sician before admin

ister ing t he me dica

tion. If the p rima

ry care phy sicia n exp resse d any

concer n with administering the medic ation, B hatt would have followed the doctor's recommendations, including
a recomme ndation to consult a cardiologist. Bhatt had not consulted with respondent's primary care physician, because responde nt was not receiving any medication. Bhatt would begin involuntary treatment only af

ter consulting with respondent's primary care phy sician. Bhatt testified that there was no increased r isk in administering the petitioned-for psychotropi c medicati ons to elde rly patients. These medications carried a "blac k-box warning" for patients at risk of stroke or heart attack, if the patients also had dementia. Bhatt performed tests that showed that r espon dent d id no t suff er from demen tia. T hus, a pparen tly, the "black -box warni ng" did not app ly to

responde nt. Next, respondent's sister, Mildred Blacke, testified that she had been appointed respo ndent 's temporary

guardian. According to Blacke, re spondent had suffered from mental illness "for awhile"No. 2--08--0132

-4-

and was psy chiatric ally

hospitalized several times in the past few ye ars. Doctors had recommended psychotropi c me dication for respondent in the past, but respondent had alway s refused. Blacke opined th at r esponde

nt was una

ble to mak

e decisi ons conc erning

her hea lth and safety

because responde nt would so metimes g o "missing " for da ys. Respondent

testified that she was 78 ye ars old. She acknowledged that she was not sleeping inher apa rtment be cause she felt tha t it was unsafe. Respondent testified to two prior "ga s incident s" where gas vapors permeated her apartment building. According to respondent, the existence of the gas vapors was verified by her neighbors and the vapors wer e found to be coming from the boiler
room o f the ap artme nt bu ildi ng. Respondent

did not want to take psychotropic me dications, because of potential side effects. Respondent

was first diagnosed with cancer a t Loy ola Medical Center but

she refused treatment

at Loy ola becaus e she was asked to sign forms without being allowed to re ad them. Respondent understood

that cancer treatment wasnecessary . She agreed to receive the treatment, but not at Good Samarita n Hospital
. The trial court found

that the Sta

te had sus tained its

burden of proof by

clear and convincing evidence, and the court

authorize d the peti

tioned-f or trea tment in the

dosage s testifie d to by B hatt. The court found that the evidence showed that the benefits of trea tment outweighed the harm. The court, however, noted the possible risk of heart attack associa ted with the medications and found that this risk "will be considered by Dr. Bhatt" in consultation with a car diol ogist, if

necessa ry . Thus, the court authorized involuntary tre atment with the "initial caveat," "as has be enrecommended by Dr. Bha tt, that ther

e be a consultation , if nece ssary, to deter mine the r

isk to [resp ondent' s] heart of taking these medica tions." Lastly , the court commented: "I do not intend to substitute my judgmentNo. 2--08--0132

-5-

for that of the

phy sician' s [ sic ], but only to recog nize that that is one o f the ca veats that they have a

nd would clear before giving these medica tions, in keeping with good and standard medical practice." Responde nt timely appeals , challe

nging the trial court' s order a

uthorizing

involunta

ry treatme nt. Before we address the merits of the case, we note tha t the appeal i s moot because the 90-day period covered by

the trial court's order has alrea dy expired. In re

Robert S. , 213 Ill. 2d 30, 45 (2004). "An

appeal is considered moot where it presents no actual c ontroversy or where the issues involved in the trial court no l onger exist beca

use inter vening events ha ve rende red it impo ssiblefor the re vi ew in g c ou rt to gr an t e ff ec tu al re li ef

to th e c om pl ai ni ng pa rt y. " In re J.T
. , 221 Ill. 2d 338, 349-50 (2 00 6) . G en er al ly, courts of revie w do not de cide moot

questions , render

advisory opinions,
or consider issues whe

re the r esult will not be af fected regar dless of how those

issues are decided. Inre Barbara H. , 183 Ill. 2d 482, 491 (1998). Reviewing courts, h owever , recog

nize excep tions to the mootnessdoctrine, such as (1) the public-interest exception, applica ble wher e the ca se prese

nts
a question o f public im

portanc e that wil l likely

recur and whose answer will guide public officers inthe performance of their d u ties, (2) the capable-of-repetition exception, applicable to c ases involving events of short duration that are capable of r epetition, yet evad

ing review, and (3) the collateral-consequencesexception, applicable where the involuntary treatment order

could re turn to plague the respondent in some future proceedings or could affect other aspect s of th e respo ndent 's life. In re Alfred H .H. , 233 I ll. 2d 345, 3 55-62 (20 09); J.T. , 221 I ll. 2d at 350; In re Wathan , 104 Ill. App. 3d 64, 66 (1982). Two of the mootness exceptions apply here
. First , thi s bein g respo ndent 's first involuntary treatment order, t here ar e collate ral consequences that may plag ue respondent in the future. Compare Inre Meek , 131 Ill. App. 3d 742, 745 (1985) (as the ca se appea red to be t he respondent' s firstNo. 2--08--0132

-6-

involuntary

commitment, court found that the collateral-consequences e xcept ion ap plied), w

ith Alfred H.H. , 2 33 Ill. 2d at 362-63 (because the respondent had multiple prior involuntary commitments and

was a felon, there were no collateral c onsequences that would stem solely from the present adjudication; every collateral consequence

that could be identified already existed as a result of the respondent's previous adjudications and felony conviction). The evidence shows that respondent

will need psychotropi c medica

tion long term. Thu s, it

appears that respondent will very likely be subject

to future proceedings and that her past involuntary tre atment could adversely affect her at that time. See Alf

red H.H. , 233 Ill. 2d at 362 (collateral-c onsequences exception applies where reversal could provide a basis for a motion in limine that would prohibit any mention of the hospitalization during the course of another proc eeding). F urtherm ore, the record shows that respondent

was appointed a temporary guardian at one point. The trea

tment orde

r at issue here co uld possibly be used in so me future guardianship proceeding s. Thus, the collateral-consequences exception applies. This case also falls within the capable-of-re petition exception. This exception has two require ments. "First , the cha

llenge d action m

ust be of a duration

too short to be fully litigated prior to its cessat ion." Alfred H.H. , 233 Ill. 2d at 358. "Second, there must be a reasonable expectation that *** 'the same complai ning party would be su bjected to t he same actio n again.' " Alfred H.H. , 233 Ill. 2d at 3 58, qu otin g Barbara H. , 183 Ill. 2d at 491. This means that the present action and a potential futur e acti on mu st hav e a sub stant ial en ough relation that the resolution of the issue in the present cas e would have some bearing on a similar issue prese nted in a future case involving the respondent. Alfred H.H. , 233 Ill. 2d at 360.No. 2--08--0132

-7-

First, the chal lenged

action wa s obviously

too short to be fully litigated during the pendency of the order. See Alfred H.H. , 233 Ill. 2d at 358. Second, at least one issue presented here, and any resolution thereof, would bea r on a subs equent c ase invol ving re spondent. We recognize that our supreme court in Alfred H.H. found that the capable-of-repetition mootness exception did not app ly inthat involuntary commitment case, because the resp ondent challeng ed whether the sp ecific f acts that were established during the hearing were sufficient

to prove that the respondent was a danger to himself or to others. Alfred H.H. , 233 Ill. 2 d at 360. Because the facts would nece ssarily be different in any futur

e commitment hearing , the cour t found tha

t the issue s presen

ted in the case before it would have no b earing on similar sufficie ncy-of-the -eviden

ce issue s presen

ted in subsequent

cases. Alfred H.H. , 233 Ill. 2d at 360. We agre e with re spondent, however , that this c ase is distinguishable. Here, within respondent's evidentiary arguments i s a contention that the trial court erred by d elega ting to ph ysi cians its duty

of ass essing t

he risks o f the tre atment. I t is reasonably likely that the r

esolution of this issu

e would affect f

uture ca ses involv

ing res p ondent, b ecause respondent

will likely aga

in be su bject to in

voluntar y tr eatment a nd the cou

rt will like ly a

gain commit the same alleged error. Review is, there fore, appropriate. Turning to the merits, the dispositive issue is whether the State failed to prove by clear and convincingevidenc e that the benefit s of

treatment outweighed the harm. Although re spondent failed to raise this issue in the trial court, it affects a substantial right and, ther efore, we revie

w it for pl ain
err or. See 134 I

ll. 2d R. 615 (a); In re

Cyn thia S. , 326 I ll. App. 3d

65, 68 (20 01) ("F

undament a l liberty interest s are involved in the involunt ary administr

ation of me dication

for menta

l health purposes").No. 2--08--0132

-8-

Giventhe poten

tial seri ous side e ffects

of psy chotropi c medica

tion, cour ts must be cautious inthe entry of or

ders allowing hospital staff to involuntari ly adminis ter these drugs to persons suffering from mental illness. In re David S. , 386 Ill. App. 3d 878, 883-84 (2008). Section 2--107.1 of the Code (405 IL CS 5/2--107.1 (West 2006)) delineates the nonemergency circumstances under whichpsychotropi c medica tion may be admini stered a

gainst the wishe s of the r

ecipien t. Under th

is section, ps ych ot ro pi c m ed ic at io n m ay be ad ministere d to one who is rece iving me ntal hea lth service s, provided the standards and procedures set out in the section are satisfied. In re C.E. , 161 Ill. 2d 200, 204 (1994). These g uideline s are in p lace in order to provide the respon dent with due process. David S. , 386 Ill. App. 3d at 881. Section 2--107.1 directs that the for ced administration of psychotropic medica

tion is authorized only if the court finds evidence of each of the following elements, by clea

r and convincing proof: "( A) Th at th e r ec ip ie nt ha s a se ri ou s m en ta l i ll ne ss or de ve lo pm en ta l d is ab il it y. (B) That bec ause of s aid me ntal illn ess or developmental disability, the re cipient
curren tly exhibits any one of

the following: (i) deterioration of his or her ability to function,
as compared t o t he recipient's ability to function prior to the current onset of sy mptoms of the mental illness or

disability for whic h treatme nt is prese ntly sought, (ii) suff

ering, or (iii) threatening behavior. (C) That the illness or d isability has existed for a period marke d by the continuing presence of the sy

mptoms set f

orth in item (B) of this subdivision (4) or the repe ated epi sodic
occurr ence of these sy mptoms. (D) Tha t the bene fits of the

medicati on will outweigh the harm.No. 2--08--0132

-9- (E) That the recipient lacks the capacity to make a reasoned decision about the treatme nt. (F) That other less restrictive services have been explored and found inappropria te. (G) If thepet ition seeks authorization for testing and other procedures, that such testing and proc edures a re esse ntial for the safe and eff ective a dminis tra tion of the treatment." 405 IL

CS 5/2--107.1(a--5)(4) (West 2006). Clear and convincing evidence is defined as the quantum of proof tha t leaves no reasonable doubtin the mind of the fact finder as to the veracity

of the proposition in question. In re I srael , 278 Ill. App. 3d 24, 35 (1996). As a reviewing court, we give great deferenc e to the trial court's factual finding s ( In re

Kness , 277 Ill. App. 3d 711, 718 (1996)), but we will reverse an order allowing the involuntary

administration of psychotropic medica tion whenthe tr ial co urt's f indi ngs are against the manifest weight of the evidence. In re John R. , 339 Ill. App. 3d 778, 781 (2003). Here, the trial court's or der must be re versed b ecause

there wa s insuffic ient evid ence to support the trial court' s fin ding thatthe benefits of the medication outweighed the har m. "The statutory scheme of the Code requires 'spec ific evidence [of] the benefits and ri sks o f each medication*** so that the trial court may dete rmine whether the State can demonstrate by clear and convincingevidence that the benefits of the proposed trea tmentoutweigh the potential harm.' " In
re C.S. , 383 Ill. App. 3d 449, 452 (2008), quoting In re Al aka W
. , 379 Ill. App. 3d 251, 263 (2008). Thus, the State

must produ

ce evide nce of the benef

its of eac h drug s ought to b e administ ered as well as the potential risks of each drug. Alak a W. , 379 I ll. App. 3d

at 263. I f the State

fails toproduce suchevidence, we must reverse the involuntary treatment order. C.S. , 383 Ill. A pp. 3d at 452 (informat ion r egarding a medication' s effect on respondent in the past was "key information,"No. 2--08--0132

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withoutwhich the

trial cou rt could notdetermine whether the benefit of the medica tion outweighed its potential harm). Ths State's

evidenc e failed

in this regard. The

evidenc e showed

that resp ondent w as adm itted to the hospital with an abnormal QT interval. The evidence f urther s howed that the proposed psychotropi c medications could increase t h e already-abnormal interval, creating a r isk of heart attack. Accord

ingly, Bhatt a

dmitted tha

t he would

first con sult with re spondent' s prim ary care physician and a cardiol ogist, if

necessa ry , before administe

ring the medicati ons, esse

ntially to determine the safety of

the medications to respondent's hea rt. F urther, the court, recognizing the seriousness of the risk to respondent's heart , authorized the administration of the proposed medications with

th e " in it ia l c av ea t" th at "t he re be a c on su lt at io n, if ne ce ss ar y, with the c ardiolog ist, to determine the risk

to [respondent's] heart." Howeve r, this inf ormation r

egard ing the p otential r

isk to re sp on de nt 's he ar t w as ne ce ss ar y before the court could engage in a ny meaning ful review

of the risks and benefits of the proposed treatment plan. Without this evidence of the extent of the potential harm, the State failed to prove that the benefit s of the pe titioned- for medic ations out weighe d their harm. See Kness , 277 I ll. App. 3d at 720 (without test

imony identify ing the medication sought to be administered a

nd an expl anation as to the side effects of the medication, "the re is no evidence fromwhich the trial court could determine that the benefits outweighed the harm of the medica tion"). Furthermore, the trial court's comment, that it did "not intend to substitute [its] judgment for that of the phy

sician' s [ sic ]," reve als that the trial c ourt im pr op er ly delegated its duty of assessing the risks and benefits of the medication to respondent's trea ting physicians. See I n r e G we nd ol yn N. , 326 Ill. A

pp. 3d 427, 431 (2001 ) (trial court' s intent to t

rust the treating psy

chiatrist's professional judgment in determining respondent's alternate tr eatment plan violated the Code's requirement thatNo. 2--08--0132

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the trial court balance the harm and benef its of treatment). It

was the trial court's duty

to make the necessary assessment of the risks and benefits based on the e vidence bef ore it, and, if the court believed it lacked all the necessary information to make that assessme nt, the pr oper cou rse was t o continue the matter to obtain such information (405 ILCS 5/2--107.1(a--5)(2) (West 2006)) or deny the State's petition outright. Accordingly , the trial court's orde r granting the petition for the involuntary

admission of psychotropic medica tion is against the manifest weight of the evidence and must be reversed. A remand is not necessary , since the administration of the medication has been terminat ed

according to the terms of the trial court' s order. See In re Richard C
. , 329 Ill. App. 3 d 1090, 1094 (2002). Becau se we reverse on this basis the trial court's involuntary treatment order, we do not reach respo ndent 's remaining arguments. See In re Atul R. , 382 Ill. App. 3d 1164, 1170 (2008); John R. , 339 Ill. App. 3d at 785. The judgment of the circuit court of Du Pag e County is reverse d. Reversed. ZENOFF, P.J., and O'MAL LEY, J., concur.