Filed 5/7/08 NO. 4-07-0372 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

In re: De

netra P., a Person

Found Subj ect to Authorize

d Involunta

ry Treatm

ent, THE PEOPLE OF THE STATE O F ILLINOIS, Petitioner-Appellee, v. DENETRA P., Res

pondent- Appellan

t. )

) ) ) ) ) ) ) Appeal fr

om Circuit C ourt of Sangamo

n County No. 07MH2

28 Honorab le George H. Ray, Judge Pre

siding

.

PRESIDIN G JUSTICE A PPLETON

deliver ed the op

inion of th

e court: A psych iatrist a t McFarlan

d Mental H ealth Cen

ter, Aura M. Eberha

rdt, petitioned for authority for the involuntary administration of psychotropic medications to respondent, Denetra P. See 405 ILCS 5/2-107 .1 (West 2006). After an evidentiary hearing in which Eberhard t and respondent testified, the trial court granted the petition. We reverse the judgment because the petition lacks any allegation that Eberh ardt made a good-faith attempt to determine whether respondent had ex ecuted a power of attorney for health care or a declaration for mental-health treatment (405 ILCS 5/2-10 7.1(a-5)(1) (West 2006)). According to respondent's testimony and her brief, she had executed a power of attorney for health care. I. BACK GROUND

Eberha rdt testifi ed she w

as treating respon

dent for "b

ipolar a ffective disorder type I, severe, manic, with psychotic symptoms." Scott Kains, the assis tant State's Attor

ney, as ked Eber hardt:- 2 - "Q. Does she have a guardian? A. No. [RESPONDE NT]: Yes, I do. MR. KAINS : Q. Does

she hav e a power

of attorney

for health care? [RESPONDE NT]: I do. MR. KAINS : Q. Doc

tor, do you k

now?A. To my knowledge, no guardian or power of attorney. [RESPONDE NT]: Memori al Medic al Center [(a hospital in Springfield)] has it. Thank you very much. MR. KAINS: Q. And[,] Doctor, to your knowledge, does she have a declara tion for me

ntal[-]hea

lth treatme

nt under th

e Illinois Mental H ealth Treatmen

t Preferen

ce Decla ration Ac

t? A. No, she

does not. Q. Is the re anyth ing in yo ur chart, Doctor, to i ndicate that she has a guardian or power of attorney? A. No. [RESPONDENT]: I told them--I verbally told them on several occasions. [RESPONDENT'S ATTORNEY]: Hold on a second." On cross -exam ination, Eberha

rdt testifi ed: "[Re

sponden t] had a p

revious hospitalization in[] [January 2006], I believe, and that was in New York, as per the- 3 -

records that we have." Eberhardt testified, however, that she had no records pertaining to that hospitalization--and, thus, did not know if respondent previously had bee n administered psychotropic med ication–because respondent refused to sign a release. At that point, respondent interjected: "I did s ign a release, and the record s are here in Springfi eld. I'm s

orry." R esponde

nt's attorne

y then as ked Eber hardt: "Q. Have you made a good[-]faith effort to explorewhether or not she does have a power of attorney or a guardian? A. I am not--until today when she mentioned that she has a power of attorney, I have no way of knowing that she has a power of attorney. And I, myself, did not make any attempts to try to find out if she has one.Q. Is that typically done by someone other than yourself? A. Right. The social worker usually helps with that type of search. Q. But are you aware of whether or not a search was made? A. No, I'm not aware." Respondent took the stand, and her attorney asked her: "Q. Who is your power of attorney [ sic ]? A. My power of attorney is in New York, and he is my pastor to the sister church of Jerry Doss here in Springfield,- 4 - Illinois[,] at Abundant Faith. Q. What is his name? A. His name is Senior Pas tor Donald McClerkland (phonetically)." II. ANALYSIS A. Statutory Conditions for the Involuntary Administration of Medication in a Nonemergenc y An adult recipient of mental-health services has aright to refuse medication (405 ILCS 5/2- 107(a) (Wes t 2006)), an

d the refus

al will be h

onored e xcept i n two circumstances. The first circumstance is an emergency, namely, the medi cation is "neces sary to pr

event the r

ecipie nt from caus

ing seri ous and i mminent p hysica l harm to the reci pient or o

thers an d no less [-]restri ctive alte rnative i s availa ble." 40 5 ILCS 5/2

- 107(a) (West 2006). The second circumstance is not an em ergency, but the recipient meets the criteria in section 2-107 .1(a-5)(4) of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/2-107.1(a- 5)(4) (West 2006)), including an incapacity to make a reasoned decision about treatment (405 ILCS 5/2-107.1(a-5)(4)(E) (West 2006)).

In a none

mergenc y, the in voluntary a

dminis tration of m

edica tion to a recipi ent of menta

l-health service s require s the cir cuit court's

permiss ion, gra nted on written petition. Section 2-107.1(a-5)(1) states as follows:

"(1) Any person 18 years of age or older, including any guardia n, may pe

tition the

circuit c ourt for an or

der autho

rizing th e admin istration of authoriz

ed involun

tary trea t-- 5 - ment to a recipient of services. The petition shall state that the petitioner has made a good[-]faith attempt to determine whether th

e recip ient has execute d a power

of attorney

for health care under the Powers of Attorney for Health Care Law [(755 ILCS 45/4-1 through 4-12 (West 2006))] or a declaration for mental[-]health treatment under the Mental Health Treatment Preference Declaration Act [(755 ILCS 43/1 through 75 (West 2006))] and to obtain copies of theseinstruments if they exist. If either of the above-named instruments is available to the petitioner, the instrument or a copy of the instrument shall be attached to the petition as an exhibit. The petitioner shall deliver a copy of the petition, and notice of the time and place of the hearing, to the respondent, his or her attorney, any known agent or attorneyin-fact, if any, and any guardian , if any, no later than [three] days prior to the date of the hearing." 405 IL CS 5/2-107.1(a5)(1) (West 200

6). Section 2-107.1(a-5)(4) sets forth what the petitioner must prove in the hearing. It says: "(4) Authorized involuntary treatment shall not be

administered to the recipient unless it has been determi ned[,] by clear a nd convi ncing e

videnc e[,] that all

of the following factors are present. In determining whether a- 6 - person meets the criteria specifiedin the following paragraphs (A

) through (G), th

e court ma

y consi der evid

ence of the person's history of serious violence, repeated past pattern of speci fic beha

vior, ac tions rela

ted to the p

erson's illness, or past outcomes of various treatment options.

(A) That the

recipi ent has a

serious mental illness or developmental disability. (B) That because of said mental illnessor developmental disability, the recipient currently exhibits any one of the following: (i) deterioration of his or her ability to function, as compare d to the re

cipien t's ability to function prior to the current onset of symptoms of the mental illness or disability for which treatment is presently sought[;] (ii) suffering[;] or (iii) threatening behavior. (C) That the illnes s or disabilit

y 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.- 7 - (E) That the

recipi ent lacks

the capa city to make a r

easone d decision abo

ut the treatment. (F) That other less[-]restrictive services have been explored and found inapp ropriate. (G) If the peti

tion see ks authori

zation for testing and other procedures, that such testing a nd proce dures ar e essen tial for the

safe and effective administration of the treatment." 405 ILC S 5/2-107

.1(a-5)(4) (West 2006). B. Substituted Judgment In In re C.E. , 161 Ill. 2d 200, 204, 641 N.E.2d 345, 347 (1994), the trial court found section 2-107.1 of the Code to be unconstitutional and, therefore, denied a petition, pursuant to th at secti on, to author

ize the involuntary

admini stration o

f psychotropic substances to C.E. The Department of Mental Health and Developmental Disabilities appealed. C.E. ma intained that section 2-107.1 was unconstitutional because it did not specifically require the application of the substituted-judgment test. C.E. , 161 Ill. 2d at 219-20, 641 N.E.2d at 354. Under the substituted-judgment test, the " 'surrogate decision-maker attempt[ed] to establish, with as much accurac y as possible, what decision the patient [would have made] if he [had bee n] competent to do so.' " C.E. , 161 Ill. 2d

at 220, 64 1 N.E.2d a

t 354, quoti ng In re Estate of Longeway , 133 Ill. 2

d 33, 49, 54

9 N.E.2d 292

, 299 (1989). The supre

me court he

ld that alth

ough secti on 2-107

.1 did n ot explic itly- 8 -

adopt the substituted-judgment test, subsections (d)(4) and (d)(6) required proof that the benefits of the psychotropic medication outweighed its harms and that other alternati ves for trea

tment would h

ave been ineffecti ve (405 IL CS 5/2-10 7.1(d)(4), (d)(6) (West 1992)); according to the supreme court, the wishes of the recipient while the recipient was competent would "often be highly pertinent to proof of these two factors." C.E. , 161 Ill. 2d

at 220, 64 1 N.E.2d a

t 354. Thus

, the supre

me court foun

d secti on 2- 107.1 to b

e consistent with th

e substitute

d-judgm ent test: "Consequently, we conclude that section 2-107.1 permits th

e court's c

onside ration of th

e 'substitute

d judgment' of the mental[-]health recipient, and that the court respect the wishes expressed by the mental[-]health patient when the patient was capable of making rational treatment decisi ons in hi

s own beha

lf. When tho

se wishe s have no

t been clearly proven, however, the court should be guided by an objective standard of reasonableness , as shown by the evidenc e prese nted [( i.e. , the best-interests test)]." C.E. , 161 Ill. 2d at 22

0, 641 N.E .2d at 355

. This alte rnative s tandard --"an o bjective standar d of what a

reasona ble perso

n would prefer und

er the ci rcumstan

ces of the

particula

r case" --is kno

wn as the "best-i nterests test." C.E. , 161 Ill . 2d at 221, 641 N.E.2d at354.

In Longeway

, the supreme court explained: "Employing th[e] theory [of substituted judgment], the surrogate first tries to determine if the patient had expressed- 9 - [an] explicit intent regarding this type of medical treatment prior to becoming incompetent. [Citation.] Where no clear intent exists, the patient's personal value system must guide the surrogate: ' "[E]ven if no prior s pecific statemen

ts were mad

e, in the context o

f the indi vidual's entire prior mental life, including his or her philosop hical, r eligious[, ] and mora

l views, li fe goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering[,] and death, th at indiv idual's li kely treatment/nontreatment preferences can be discovered." ' " Longeway , 133 Ill. 2d at 49-50, 549 N.E.2d

at 299-30

0, quoting In re Jobes , 108 N.J. 394

, 415, 529 A

.2d 434 , 445 (1987

), quoting Newman, Treatment Refusals for the Critically Ill: Proposed Rules for the Family, the Phys ician a nd the Sta

te , 3 N.Y.L. Sch. Hum. Rts. Ann. 35, 47 (19

85). C. Harm less Err or If the Re

cord La cks Any I ndicati on That a Power of Attor ney Exi sts In In re Miller , 301 Ill. App. 3d 1060, 1071, 705 N.E.2d 144 , 151 (1998), the respond ent chall enged th

e form of the

petition for involunta

ry admi nistrati on of- 10 -

psychotropic medication in that the petition lacked any allegation that the petitioner had made a good-faith attempt to determine whether the responde nt had executed a power of attorney for health care or a declaration for mental-health treatment. We held as follows: "[Sectio

n 2-107 .1(a)-(1)] pr

ovide[s] th

at the peti

tion sha llstate that the petitioner made a good-faith attempt to determine whether the respondent had executed a power of attorney for he

alth care or a dec laration for mental[- ]health treatment and obtain copies of those instruments if they exist (405 ILC S 5/2-107

.1(a)(1) (West Supp. 1997)). The peti tion in this case did not contain such an allegation. Nonetheless, we agree with the State that any error here was harmless because neither the record before us nor [the] respondent in his brief indicates that such instruments actually existed in this case. Once again

, however, we caution that because noncompliance w

ith the sta

tute in this case does not result in reversal, it would be incorrect to assume that future instances of noncompliance will yield the same result." (Emphas is in original.) Miller , 301 Ill. App. 3d at 1071, 705 N.E.2d at 151. D. The Foregoing Principles Applied to the Present Case In the present case, the petition lacks any allegation that "the petitioner *** made a good[-]faith attempt to determine whether the recipi ent ha[d] executed a- 11 -

power of attorney for health care *** or a declaration for mental[-]health treatment *** and to obtain copies of these instruments if they exist" (405 ILC S 5/2-107.1(a-5)(1) (West 2006)). The State cites Miller for the proposition that this omission is "harmless because neither the trial record nor respond ent in her brief provided sufficient proof that a power of attorney or [an advanced directive for health care ] actually existed." (Emphasis added.) In Miller , however, we found harmless error not because the respondent failed to adduce "sufficient proof" that such instruments actually existed in his case but because "neither the rec ord before us nor [the] respondent in his brief indicate[d] that such instrumen ts actually

existe d." (Emp

hasis a dded.) Miller , 301 Ill. App. 3d at 1071, 705 N.E.2d at 151. This was a far cry from laying a burden of "sufficient proof" upon

the resp ondent i n that ca

se. Lay ing such a burden

upon him w

ould have been inconsistent with section 2-107.1(a-5)(1), which required of the petitionera goodfaith effor

t to ascer tain wheth

er the re sponden t had ex ecuted a power of atto

rney for health care or a declaration for mental-hea lth treatment and, if such an instrument existed, a good-faith effort to obtain a copy of it so as to attach it to the petition. 405 ILCS 5/2-107.1(a-5)(1) (West 2006).

According to

the supreme

court's interpret ation of se ction 2-107. 1(a-5)( 4) (405 ILCS 5/2-107.1(a-5)(4) (West 2006)), the trial court, if possible, must apply the substituted-judgment test before resorting to the best-interests test. C.E. , 161 Ill. 2d at 221, 641 N. E.2d at 3

55. A power

of attorney

for health

care or a decla ration for

mentalhealth treatment would be essential to the application of the substituted-judgment test. People prepare such documents for the very purpose of expressing their explicit intent regarding certain types of medica l treatment should they become incompetent. See- 12 -

Longeway

, 133 Ill. 2d at 49, 549 N.E.2d at 299. In the present case, both the record and respondent's brief indicate that a power of attorney for health care ex ists. Even if respond ent refuse

d to conse

nt to the rel ease of a

ll her med

ical rec ords, it d oes not follow that she w

as oppos ed to the r

elease of a parti cular doc ument, the power of atto rney for health care. In fact, in the hearing, she stated where the document could be obtained. III. CONCLUSION For the fore

going rea

sons, we r

everse th e trial c ourt's judgm

ent. Reversed. STEIGMANN, J., concurs. COOK, J., dissents.- 13 - JUSTICE COOK, d

issenti ng: I respectfully dissent. While the petition did not state that petitioner made a good-faith attempt to determine whether respondent had ex ecuted a power of attorney for health care, the omission is harmless a s respondent had the opportunity to produce the allege

d power of a

ttorney an

d has no t. Dr. Eberhardt testified that respondent did not have a power of attorney, guardian, or declaration for mental-health treatment and that she ne ver mentioned having any one of those until her outbursts during the hearing. Because responde nt never claimed to have a power of attorney before the hearing, Dr. E berhardt had no way of knowing if respondent had a power of attorney or how to locate it if it existed. Dr. Eberha rdt testifi ed resp

ondent la

cked ca pacity a nd suffere

d from bip

olar affec

tive disorder with severe and mani c psychotic symptoms, euphoric affect, disorgani zed raging thoughts, grandiose delusions, and increa sed spending. The only evidence of respondent's power of attorney is her statement during the

hearin g that she

had a p ower of attor

ney. If re

sponden t did not c

laim to ha

ve a power of a

ttorney be

fore the he

aring a nd if she refused to

consent to the rele

ase of all of her medical records, how was the State supposed to locate the power of attorney if one exists? Unlike

records it has i n its con

trol, the Sta

te has to r

ely on res

pondent fo

r assistance in producing a power of attorney. At the very least, res pondent has to inform the State that it exists before the hearing and dire ct the State as to where it might be found. If such a document actually existed, respondent could have objected when the pleading was filed and the document could have bee n located. Also, respondent was represented at her hearing and is represented on appeal. Neither he r hearing counsel- 14 -

nor her appellate counsel produced a power of attorney. The majority imp lies the document is easy to obtain as respondent stated whe re the document could be obtained in the hearing, yet respondent has not attache d it to her brief. The majority distinguishes respondent's ca se from Miller , which stated "neithe r the rec ord before

us nor [the] r

esponde nt in his brief indicat[ed] that such instrumen

ts actually

existe d," by e mphasi zing tha t in this c

ase res pondent indicated

a power of atto

rney ex ists. (Em

phasis added .) Miller , 301 Ill. A

pp. 3d a t 1071, 7 05 N.E.2d at 151. The only indication of a power of attorney is the statement that one exists ma de during the hearing by one shown to be delusional and lac king capacity. A hearing for involuntary administration of medications should not be deraile d by a la st-seco nd statem

ent of a de

lusional p

atient cl aiming to have a power of attorney when medical professionals testify that the patient never before made such a claim and they had no way of obtaining such a document without the assistance of the patient who had thus far refused to cooperate or even acknowledge her illness.