SIXTH DIVISION

									February 21, 2003

No. 1-01-1641

In re R.K.				     	)   Appeal from the	

(The People of the State of Illinois,	)   Circuit Court of

								)   Cook County.

	Petitioner-Appellee,			)   		

								)   No. 01 CM 415

		v.						)   

								)	

R.K.,                  				)   Honorable	

								)   Marsha D. Hayes,

	Respondent-Appellant).			)   Judge Presiding. 

	PRESIDING JUSTICE O'BRIEN delivered the opinion of the

court:

	Following a bench trial pursuant to a petition seeking

involuntary medication of respondent R.K., an involuntary patient

at Tinley Park Mental Health Center, the trial court found

respondent subject to involuntary medication with psychotropic

drugs for a period not to exceed 90 days.  Respondent contends

that the trial court erred in granting the petition where she was

neither suffering nor experiencing deterioration in her ability

to function, where she was capable of making a reasoned decision

concerning her own treatment and where less restrictive treatment

was available.

	On February 14, 2001, Dr. Sunil Ballal, a psychiatrist

employed at Tinley Park Mental Health Center, filed a petition in

the circuit court of Cook County asserting that respondent

required psychotropic medication but refused to take the

medication when offered by the hospital staff.  Dr. Ballal stated that respondent suffered from paranoia and hallucinations, she was loud and threatening toward her mother and hospital staff,

and her ability to function was deteriorating.  The doctor noted

that respondent's mother would not allow her to return home

unless respondent took her prescribed medication.  Respondent

refused to discuss her illness with the doctor because she did

not believe that she was ill, but believed that the intention of

hospital staff was to imprison her.

	During the trial on April 17, 2001, Steve Buhle, a mental

health technician employed at the Tinley Park Mental Health

Center, testified that on April 3, 2001, he escorted respondent

to court.  When the proceedings concluded, respondent attempted

to leave the courthouse.  Although she stopped in the parking lot

and returned toward the courthouse when Buhle told her to do so,

she became agitated when he took her by the elbow to lead her

back inside.  She asked him to take his hands off of her and when

he responded that he could not do that, she wrenched her arm away

and punched him in the stomach.  When they later arrived back at

the hospital, a paper bag containing her belongings tore.

Respondent then threw the bag to the floor and began kicking its

contents across the floor.

	Dr. Ballal testified that pursuant to court order,

respondent was hospitalized involuntarily on December 16, 2000,

and that the commitment order expired at the end of April. Essentially, the doctor testified that respondent did not

acknowledge that she was mentally ill, she rejected any type of

evaluation of her condition, she refused all medication and she

experienced bouts of hostile, agitated and aggressive behavior.

He had observed her five days a week since her admission, but

each time that he asked her to come to his office for an

evaluation, she replied, "No, thank you."  He found that she was

clearly suffering from psychosis but because he could not perform

any psychological testing, he was unable to fully evaluate her

condition.  He diagnosed her as having psychosis NOS (not

otherwise specified).  He based his diagnosis on his own

observations, information contained in respondent's hospital

chart and the courtroom testimony of respondent's family during

her commitment hearing.  He stated that the extent of her

psychosis prevented her from participating in less restrictive,

alternative treatments such as individual or group therapy.  He

believed that without medication respondent's prognosis was

guarded and poor, and it was unlikely that her symptoms would

subside "on their own."  He believed that with medication her

prognosis was very good because she was "high functioning,"

"alert" and "spontaneous."  He predicted that with the

medications respondent would be less paranoid under stress, she

would not manifest some of the psychotic symptoms that she had

manifested in the community and she would be able to continue her family life in a peaceable manner and continue her professional

pursuits as a social worker.  He stated that respondent last

demonstrated "episodic agitation" two weeks before the trial when

she learned that she was not going to be discharged.  She then

became physically aggressive and struck a staff member.

	When asked about the side effects of the medications that he

was recommending, the doctor responded that the most common were

dryness of the mouth, blurring of vision, constipation, tremors

of the hands and stiffness in the muscles.  If the medications

are administered for a prolonged period of time, patients can

experience tardive diskinesia, an untreatable movement disorder

manifested by tremors in the lips, tongue and muscles around the

mouth.  Some patients suffer from tardive diskinesia during the

initial phase of treatment.  A patient was much less at risk of

suffering tardive diskinesia from Olanzapine (also known as

Zyprexa).  He stated that for all of the side effects except

tardive diskinesia, Cogentin was helpful for providing

symptomatic relief.  He noted that when he administered Haldol to

respondent on an emergency basis, she "doubled-up" in an acute

reaction of muscle stiffness, but an immediate injection of

Cogentin completely relieved her symptoms.  He opined that if he

were able to stabilize respondent with Haldol, he would then

change her medication to Zyprexa (Olanzapine) and that with the

two medications, she would "do fine without long term tardive diskinesia or [would experience] less tardive diskinesia."

	On cross-examination, the doctor testified that he had

observed some of respondent's symptoms such as episodic agitation

and being withdrawn, but he never observed her hallucinating or

being delusional.  He stated that those symptoms were witnessed

by respondent's mother.  He also admitted that other than the

incident with the staff member two weeks before the trial,

respondent was never physically aggressive with any of the staff

members.

	During redirect examination of the doctor, respondent

stipulated that at the time of her commitment hearing, her

husband had obtained an order of protection against her with

respect to him and their daughter.

	At respondent's request, an independent report was completed

by Dr. Shabbir Zarif,who based his findings on a single interview

with her and her inpatient hospital chart.  He reported that

respondent was mostly cooperative during the interview, but would

not give him permission to talk to family members or hospital

staff regarding her symptoms.  His report stated in part:

		"Review of progress notes in chart revealed

that the patient was admitted for aggressive

behaviors towards mother and destroying

property.  She was reportedly not sleeping

well and talking to herself.  Admission notes also describe her having 'bizarre behaviors'

in the ER ('suddenly took all the papers and

tore them up and threw them in the garbage

can').  Hospital stay progress notes reveal

that [respondent] has generally been non-

compliant with various offers for treatment

including staffing and individual sessions

and has often been irritable, hostile,

uncooperative and uses strong language.  She

is reportedly guarded.  She was given PRN

medications twice in December, once in

February for agitation and verbally abusive

behaviors.  There was no record that I could

find of her being put in restraints, nor

could I find any documentation that she had

assaulted anyone though she has threatened

to.  There was no documentation of her

threatening to assault her family members.

There are many notes that she is calm,

cooperative though isolative."

His impression was that her overall insight into her illness was

poor, that she was in "very high denial of all of her behavior

problems especially the aggressive acts" and that as a result she

exhibited poor judgment with respect to improving that aspect of her life.  He diagnosed respondent as suffering from paranoid

schizophrenia, stating:

		"[I]n summary we have a [41-year-old African

American] lady with a very good personal

premorbid history but with a family history

of affective disorder who has had somewhat

late onset behavior problems which are

manifested most overtly by affective

lability, aggression and delusional thinking.

The core of the behaviors seems centered

around family and so family dysfunction

cannot be ruled out. Regardless of etiology,

she has a history of threatening her family

and that possibility remains in the future,

unless treatment is instituted.  On the other

side, [respondent] appears capable of

independent functioning and able to take care

of herself.  It is quite possible that her

functioning outside the context of her

psychosis is good."

	In his recommendations, the doctor stated, "The patient

clearly is in need for a more detailed evaluation and treatment."

He further stated that if respondent was discharged without

treatment and exposed to the same environment as before her admission to the hospital, she would have been at high risk for

repeated aggression.  He then stated:

			"In my opinion *** I feel that less

restrictive measures *** may be implemented,

under court order, rather than just prescribe

involuntary medications.  Patient's non

responsiveness with these measures would then

constitute a compelling argument for

involuntary medications."

	At the conclusion of the trial, the court stated:

			"Now, I have a problem here.  I might

have to ask the doctor a couple more

questions because, first of all, I believe

that all the testimony is clear and

convincing that, and the State has, basically

proved that she should have, she -- I should

authorize involuntary treatment.

			But, and I believe what the doctor said

that she would best benefit from a

combination of medication and then after

she's medicated, then she would take

advantage of the other service that had been

offered to her.

			What I'm not comfortable with and I'm not a doctor so I don't know about this, but

I don't feel comfortable at all authorizing

the use of Haldol for her.  Now he mentioned

a couple of other medications, Zyprexa or

Olanzapine and I don't know what the, I don't

know if they have the same side effects.

			Now I understand his estimation of the

difference between the dystonic reaction and

the tardive diskinesia, but I still -- I

still don't feel comfortable asking her to

take Haldol again."

	When the court asked the doctor to suggest a medication with

lesser side effects, he responded:

			"Now Haldol was recommended because we

thought if she's refused to go take the

medication by mouth, then of course this

comes in injectable from.  But we can always

give her Haldol maybe for a few days and then

switch her to something like Olanzapine or

Risperdal which is a medication."

The court responded:

		"I don't even then want to see her get that

muscle tightening for five minutes, even if

you can give her the Cogentin and it will ease it.  I'm trying to see if you can get

the result you want without having her go

through that."

When the doctor told the court that Zyprexa would afford

respondent the same benefit without the side effects of Haldol,

the court stated:

			"Then what I'm going to propose then is

that the Haldol be the alternative medication

and that they start off trying her with the

other medicines that don't have the same side

effects.  And if not, she then refuses those

others, then if you need to, then the Haldol.

But the Haldol as the medicines [sic] last resort."

	The court entered an order providing that for a period not

exceeding 90 days, Dr. Ballal was permitted to administer the

following medications to respondent: Olanzapine, Prolixin, Haldol

and Cogentin.  The order also specified the range of doses for

the medications, but did not state any limitations on the

administration of Haldol.

	Although respondent asked the trial court to stay the order,

the court denied her request.  Because the effect of the court

order expired 90 days later on July 17, 2001, respondent's appeal

would ordinarily be considered moot.  However, pursuant to In re Barbara H., 183 Ill. 2d 482 (1998), and In re Jennifer H., 333 Ill. App. 3d 427 (2002), "where a case involves an event of short

duration that is capable of repetition, yet evading review, it

qualifies for review even if it otherwise would be moot."

Jennifer, 333 Ill. App. 3d at 430.  In such a case, the appellate order is in the nature of an advisory ruling.  Jennifer, 333 Ill. App. 3d at 430.  Where, as here, a respondent's history of mental

illness makes it likely that she will be subjected to involuntary

treatment again, we have authority to consider the respondent's

appeal under the mootness exception found in Barbara H. and Jennifer H.

	On appeal, respondent contends that contrary to section 2

107.1(4) of the Mental Health and Developmental Disabilities Code

(Code) (405 ILCS 5/2 107.1(4) (West 2000)), the State failed to

prove that she had suffered or exhibited a deterioration of her

ability to function which warranted a court order to compel her

to submit to involuntary psychotropic medication.  She asserts

that neither Dr. Ballal nor Dr. Zarif testified that he observed

any overt symptoms of such deterioration; nor did either observe

any symptoms of paranoia, finding her to be oriented as to

persons, place and time and generally pleasant.  She further

asserts that the State failed to prove that the benefits of the

psychotropic medication to respondent outweighed the side effects

of the medication and the loss of her "bodily autonomy."  She states that because the State did not prove that she was

incapable of making her own decisions about taking the

medication, the court improperly denied her the right to refuse

the medication.  She further asserts that "the court disregarded

the existence of less restrictive alternative treatments that

were specified in the evidence."

	Section 2 107.1(4) of the Code provides as follows:

		"(4) Authorized involuntary treatment shall not be

administered to the recipient unless it has been

determined by clear and convincing evidence that all of

the following factors are present:

			(A) That the recipient has a serious mental

illness or developmental disability.

			(B) That because of said mental illness

or developmental disability, the recipient

exhibits any one of the following: (i)

deterioration of his ability to function,

(ii) suffering, (iii) threatening behavior,

or (iv) disruptive behavior.

			(C) That the illness or disability has

existed for a period marked by the continuing

presence of the symptoms set forth in item

(B) of this subdivision (4) or the repeated

episodic occurrence of these symptoms.

			(D) That the benefits of the treatment

outweigh the harm.

			(E) That the recipient lacks the

capacity to make a reasoned decision about

the treatment.

			(F) That other less restrictive services

have been explored and found inappropriate.

			(G) If the petition seeks authorization

for testing and other procedures, that such

testing and procedures are essential for the

safe and effective administration of the

treatment."  405 ILCS 5/2 107.1(4) (West

2000).

	A physician's opinion that a respondent is suffering from a

mental illness "must have a sufficient factual basis, but, as a

matter of law, there need not be independent substantive evidence

in order for such an opinion to be 'clear and convincing.'" In re Tuman, 268 Ill. App. 3d 106, 110 (1994).  However, where the physician's opinion is supported by his review of hospital

records or the testimony of witnesses which the State has not

brought before the trial court, this "court must carefully

evaluate all evidence presented by the State to determine whether

it is 'clear and convincing.'" Tuman, 268 Ill. App. 3d at 111.  A physician's opinion may comprise clear and convincing evidence if his diagnosis is based on his personal observations of a

respondent on several occasions.  Tuman, 268 Ill. App. 3d at 111.

	Here, Dr. Ballal testified that he had observed respondent

five days a week for several months and although he never saw her

hallucinating or manifesting physical aggression, he did observe

symptoms of episodic agitation and being withdrawn.  Both he and

Dr. Zarif based their diagnoses in part on the hospital records

and, although they have not been made a part of the appellate

record, Dr. Zarif's summary of those records in his report gives

us a general description of the behavior which led to

respondent's hospitalization.  We find that their diagnoses were

supported by a factual basis sufficient to be considered clear

and convincing evidence.  Accordingly, we find that the trial

court did not err in determining that respondent had a serious

mental illness and that she exhibited deterioration of her

ability to function and threatening behavior.

	However, we find that the State presented little or no

evidence of the continuing presence of these symptoms after her

hospitalization, and presented only one instance of a "repeated

episodic occurrence" of threatening behavior which was triggered

by outward circumstances.  Additionally, we find that the State

did not present any evidence that respondent lacked the capacity

to make a reasoned decision about her treatment.  Instead, the

record shows that while hospitalized, respondent functioned at a high level, was alert, polite, and oriented to time and place.

Dr. Zarif found her to appear capable of independent functioning

and able to care for herself.  Dr. Ballal admitted that he never

observed any delusional or hallucinatory behavior and that such

behavior was only reported by respondent's mother.  Furthermore,

although both doctors stated that respondent possessed no insight

into her mental illness and did not believe that she needed

treatment, we find that because the evidence failed to show that

her symptoms continued after her hospitalization, her alleged

lack of insight did not alone prove that she was incapable of

making a reasoned decision about her treatment.

	We also find that the State did not show that under these

circumstances, the benefits of the suggested medications

outweighed their potential harm to respondent.

	For these reasons, we find that pursuant to section 2

107.1(4) of the Code, the State did not present clear and

convincing evidence of all of the factors required to prove that

respondent's condition necessitated involuntary treatment.

	The judgment of the circuit court of Cook County is

reversed.

	Reversed.

	GALLAGHER and O'MARA FROSSARD, JjJ. cConcuCONCconcur..