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Rule 23 Order filed NO. 5-05-0407 

December 9, 2005;

Motion to publish granted IN THE 

January 13, 2006. 

 APPELLATE COURT OF ILLINOIS 

 FIFTH DISTRICT 

___________________________________________________________________________ 

In re JAMES E. ) Appeal from the Circuit 

) Court of Madison County. 

(James E., Petitioner-Appellant, v. The People of the ) 

State of Illinois, Respondent-Appellee). ) No. 05-MH-91 

 ) 

) Honorable Barbara Crowder, 

) Judge, presiding. ___________________________________________________________________________ 

JUSTICE CHAPMAN delivered the opinion of the court: 

James E., the petitioner, appeals from the denial of his petition for a declaratory 

judgment and the denial of his posttrial motion by the circuit court of Madison County. He 

contends that the court misinterpreted the Mental Health and Developmental Disabilities 

Code (the Code) (405 ILCS 5/1-100 et seq. (West 2004)) when it ruled that he was required 

to tell the personnel at Gateway Regional Medical Center (Gateway) that he did not wish to 

reaffirm his voluntary admission status before the facility was obligated to either discharge 

him or file a petition seeking his involuntary admission. He seeks the reversal of the trial 

court's judgment. 

 BACKGROUND 

On May 17, 2005, the petitioner was admitted as an inpatient to Gateway, purportedly 

as a voluntary admission. The State filed a petition for the involuntary administration of 

psychotropic medication under section 2-107.1 of the Code (405 ILCS 5/2-107.1 (West 

2004)) on May 20, 2005. On June 23, 2005, the petitioner filed a petition in which he 

asserted that he was being unlawfully held. He sought a declaration of his rights and a 

judicial determination that his continued confinement in Gateway was unconstitutional. He 
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asserted that he was entitled to a discharge from the facility because the director of the 

facility had failed to consult with him 30 days after his admission to determine whether he 

wanted to continue as a voluntary inpatient, as required by section 3-404 of the Code (405 

ILCS 5/3-404 (West 2004)). 

The petition was heard on June 28, 2005. The petitioner's counsel argued that it was 

too late for the State to make the inquiry that was required under section 3-404 of the Code 

and that the petitioner had become entitled to an immediate discharge from Gateway as of the 

thirty-first day after his admission in the absence of an inquiry by the director and an 

expressed desire on his part to continue as a voluntary inpatient. He also contended that he 

was entitled to a discharge because the director did not file a petition for involuntary 

admission within 5 business days of the expiration of the 30-day period of voluntary 

admission. The court held that the petitioner was required to make an affirmative request for 

his discharge in order to trigger a duty for Gateway to either file a petition for involuntary 

commitment or discharge him. The petitioner told the court that he did not want to remain at 

Gateway and that he did not want to be medicated. The court went on to rule that the 

petitioner's oral request in court for a discharge began the running of the five-day period 

during which Gateway was required to either seek his involuntary commitment or move to 

discharge him, and it denied the petition for a declaratory judgment. The court also 

considered and granted the motion for the involuntary administration of psychotropic 

medication. 

On June 29, 2005, the petitioner filed a motion for reconsideration or a new trial, with 

a supporting memorandum, and he followed it some days later with the citation of additional 

authority for his position. The motion was denied on July 5, 2005. On July 6, 2005, the 

petitioner filed a motion to reconsider the court's denial of his June 29, 2005, filings. He 

stated that he was entitled to a new trial on his amended petition for a declaratory judgment 
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because had he been aware that the court would rule that the effective date of his failure to 

reaffirm his voluntary status would be the date on which he notified Gateway of his desire to 

leave, he would have introduced evidence that he had, in fact, made known his desire to leave 

"numerous times in the three weeks prior to the June 28, 2005[,] hearing." 

On July 7, 2005, the petitioner filed an emergency second petition for a declaratory 

judgment seeking his discharge from Gateway. He reiterated his previous contentions and 

asserted that even if the trial court's June 28, 2005, decision was correct, he was indisputably 

being held unlawfully because more than five days had passed since he expressed his desire 

to be discharged and the State had neither released him nor named him in a petition for 

involuntary admission. The petition was heard on July 15, 2005, and found to be moot due to 

the petitioner's July 11, 2005, discharge from Gateway. On July 14, 2005, the petitioner filed 

an appeal from the June 28, 2005, denial of his petition for a declaratory judgment and the 

July 5, 2005, denial of his posttrial motion. 

 CONTENTIONS ON APPEAL 

On appeal, the petitioner contends that he became entitled to an immediate discharge 

from Gateway on the thirty-first day of his confinement because the director of the facility 

had failed to make the required inquiry into his willingness to remain a voluntary patient after 

the petitioner had been admitted for 30 days and, thus, he did not reaffirm a desire to 

continue in treatment as a voluntary patient. He argues that the court erroneously found that 

he was required to affirmatively notify Gateway that he did not intend to reaffirm his desire 

for a voluntary admission despite the fact that the Gateway director had failed to perform a 

mandatory duty. The State has filed a waiver of answer in which it describes the petitioner's 

argument and interpretation of section 3-404 as well-taken. It asks that the case be taken 

under advisement on the strength of the petitioner's brief without a brief from the State. 

Although the trial court found the issues raised to be moot due to the petitioner's 
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discharge from Gateway, the scenario presented on appeal is one that is both capable of 

repetition and incapable of resolution on appeal within a constricted time frame. For that 

reason, we will entertain the appeal. See In re Linda W., 349 Ill. App. 3d 437, 442, 812 

N.E.2d 49, 53 (2004). 

 STANDARD OF REVIEW 

Questions regarding statutory construction are subject to de novo review. In re Robert 

S., 213 Ill. 2d 30, 45, 820 N.E.2d 424, 433 (2004). 

 DISCUSSION 

Because involuntary mental health services entail a " 'massive curtailment of liberty,' " 

Illinois courts have repeatedly recognized the importance of "the procedures enacted by our 

legislature to ensure that Illinois citizens are not subjected to such services improperly." In 

re Barbara H., 183 Ill. 2d 482, 496, 702 N.E.2d 555, 561-62 (1998) (quoting Vitek v. Jones, 

445 U.S. 480, 491, 63 L. Ed. 2d 552, 564, 100 S. Ct. 1254, 1263 (1980)). This court 

observed as follows in In re Linda W.: "[T]he Code's procedural safeguards are not mere 

technicalities. Rather, they are essential tools to safeguard the liberty interests of respondents 

in mental health cases." In re Linda W., 349 Ill. App. 3d at 443, 812 N.E.2d at 53-54. These 

safeguards also shield the recipient of psychiatric treatment from "the stigma of involuntary 

commitment" by encouraging voluntary commitment on the part of the mentally ill. See In re 

Meyer, 107 Ill. App. 3d 871, 874-75, 438 N.E.2d 639, 642 (1982). 

Section 3-404 of the Code provides: 

"Thirty days after the voluntary admission of a recipient, the facility director 

shall review the recipient's record and assess the need for continuing hospitalization. 

The facility director shall consult with the recipient if continuing hospitalization is 

indicated and request from the recipient an affirmation of his desire for continued 

treatment. The request and affirmation shall be noted in the recipient's record. Every 
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60 days thereafter a review shall be conducted and a reaffirmation shall be secured 

from the recipient for as long as the hospitalization continues. A recipient's failure to 

reaffirm a desire to continue treatment shall constitute notice of his desire to be 

discharged." (Emphasis added.) 405 ILCS 5/3-404 (West 2004). 

Section 3-403 sets out the procedure by which a voluntary patient may seek discharge 

from a mental health facility at any time: 

"A voluntary recipient shall be allowed to be discharged from the facility at the 

earliest appropriate time, not to exceed 5 days, excluding Saturdays, Sundays[,] and 

holidays, after he gives any treatment staff person written notice of his desire to be 

discharged[,] unless he either withdraws the notice in writing or unless within the 

5[-]day period a petition and 2 certificates conforming to the requirements of [the 

paragraph governing involuntary admission] are filed with the court. Upon receipt of 

the petition, the court shall order a hearing to be held within 5 [business] days ***." 

405 ILCS 5/3-403 (West 2004). 

Absent a notification from a voluntary admittee that he wants to be discharged, the facility 

cannot file a petition for the involuntary commitment of that person. In re Hays, 102 Ill. 2d 

314, 320, 465 N.E.2d 98, 100-01 (1984). The court in In re Lawrence, 239 Ill. App. 3d 424, 

427, 607 N.E.2d 659, 661 (1993), held that "a failure to reaffirm [a desire to remain a 

voluntary admittee], if accurately and adequately recorded, may, in some instances, satisfy 

the 'written notice of [a] desire to be discharged' requirement set forth in section 3-403" but 

that the record in In re Lawrence was insufficient to reach the conclusion that the petitioner 

had failed to reaffirm that he wanted to voluntarily remain in the facility. 

The courts resort to the plain language of a statute as their first source of information 

about legislative intent, and the use of the term "shall" is indicative of the legislature's 

intention that the statutory provision is meant to be mandatory, not directory. Read v. 
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Sheahan, 359 Ill. App. 3d 89, 93, 833 N.E.2d 887, 891 (2005). If a statute is mandatory, 

strict compliance therewith is required. Andrews v. Foxworthy, 71 Ill. 2d 13, 19, 373 N.E.2d 

1332, 1334 (1978). There are times, however, when "shall" is viewed as a directive term, not 

one that is indicative of an intention of the legislature that the statute be interpreted as a 

mandatory one: "while 'shall' ordinarily indicates a mandatory legislative intention, it may be 

construed as permissive if the context so indicates." Fumarolo v. Chicago Board of 

Education, 142 Ill. 2d 54, 96, 566 N.E.2d 1283, 1301 (1990). The Andrews court considered 

the use of "shall" in statutory language and held as follows: 

"[W]hen a statute prescribes the performance of an act by a public official or a 

public body, the question of whether it is mandatory or directory depends on its 

purpose. If the provision merely directs a manner of conduct for the guidance of the 

officials or specifies the time for the performance of an official duty, it is directory, 

absent negative language denying the performance after the specified time. If, 

however, the conduct is prescribed in order to safeguard someone's rights, which may 

be injuriously affected by failure to act within the specified time, the statute is 

mandatory." Andrews, 71 Ill. 2d at 21, 373 N.E.2d at 1335. 

As noted above, the right of a mental health care patient to be free from involuntary 

commitment or the administration of psychotropic medication is a core right of individual 

liberty. It is clear that in section 3-404, the legislature drafted a statute that was intended to 

protect the rights of recipients of mental health care. It absolutely mandated that the director 

of a mental health facility first review the file of a voluntarily committed patient 30 days after 

his admission to the facility and then assess his need for further inpatient treatment, discuss 

the options with the patient, and obtain his express agreement to continue as a voluntary 

inpatient. The patient's responseBthat he wishes to remain a voluntary patient or that he 

wants to leave the facilityBwill compel the director to either (1) continue the patient to be 
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treated as a voluntary patient or (2) discharge the patient from the treatment facility or (3) file 

within five days a petition for involuntary admission pursuant to section 3-600 of the Code 

(405 ILCS 5/3-600 (West 2004)). Section 3-404 places the burden of action on the director 

of the facility, not the patient. Moreover, the statute does not require a voluntary admittee to 

put his desire to leave a facility in writing, as evidenced by the statutory provision, "A 

recipient's failure to reaffirm a desire to continue treatment shall constitute notice of his 

desire to be discharged." (Emphasis added.) 405 ILCS 5/3-404 (West 2004). The director's 

failure to fulfill his mandatory duty 30 days after a patient is voluntarily admitted causes the 

5-day period for discharge or the filing of a petition for involuntary admission to begin to run 

without imposing any burden on the recipient of mental health care to perform a positive act. 

 Obviously, if the patient wants to remain in the facility, he may agree to a new period of 

voluntary commitment. 

The record in the instant case is devoid of any indication that the director fulfilled his 

mandatory duty under section 3-404 of the Code. The State did not present any evidence at 

the June 28, 2005, hearing to rebut the petitioner's counsel's assertion that no reaffirmation 

had been solicited or made. The State's counsel looked through the petitioner's chart and 

concluded that the director had in fact not asked the petitioner if he wanted to continue as a 

voluntary admission. The petitioner was thus entitled to the grant of his motion for a 

declaratory judgment, and the trial court committed reversible error by finding that he was 

required to make a demand for discharge. 

Moreover, the court treated the petitioner's June 28, 2005, in-court demand for 

discharge from Gateway as a formal request for his discharge, despite the fact that it was not 

in writing. The State was on notice as of that date that the petitioner wanted to be 

discharged, and yet it neither discharged him nor filed a petition for his involuntary 

commitment within five days of that request. Given that even if the trial court had properly 
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found that he was not entitled to a discharge due to the director's failure to make the 

mandatory inquiry, the petitioner was entitled to a discharge as of June 16, 2005, and any 

petition for an involuntary admission would have been untimely even had it been filed on that 

date. See In re Guthrie, 196 Ill. App. 3d 352, 354, 553 N.E.2d 735, 736 (1990). 

We find that under section 3-404 of the statute, a patient need not perform an 

affirmative act to preserve his right to be discharged from a facility, because it is the 

responsibility of the director to seek him out at the end of the first 30 days of hospitalization 

and request that the patient reaffirm his desire to continue voluntary treatment. If the director 

fails to comply with section 3-404, the voluntary patient becomes entitled to a discharge from 

treatment on the thirty-first day following his voluntary admission without giving written 

notice of his desire for a discharge. The facility must, within five days of the thirtieth day of 

his first voluntary admission, either discharge him from treatment or file a petition for 

involuntary admission. It follows that if a voluntary admittee affirms his desire to voluntarily 

remain in the facility within 30 days of his admission and does not thereafter seek a discharge 

from the facility pursuant to section 3-403 of the Code, he is entitled to a discharge from 

treatment at the end of each of the successive 60-day periods of voluntary admission 

provided for by the statute if the director fails to perform the statutorily mandated duty of 

inquiry. 

 CONCLUSION 

For the foregoing reasons, we find that the denial of the petition for a declaratory 

judgment was erroneous, and it is therefore reversed. 

Reversed. 

WELCH and McGLYNN, JJ., concur.