No. 2-07-0610 Filed: 4-1-10

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

______________________________________________________________________________ In re JONATHAN P., Alleged to be a Person ) Appeal from the Circuit Court Subject to Involuntary

Treatment ) of Ka ne Co un ty. ) ) No. 07--MH--32 ) (The Peo ple of the State of I llinois, ) Honorab le Petitioner-Appellee, v. Jonathan P., ) James C. Hallock, Respondent-Appellant). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE HUTCHI NSON deli

vered th e opinion o f the cou rt: Responde nt, Jonathan P., ap pealed from the trial court's order a uthorizing the involuntary administration of psychotropic med icatio n to respondent for up to 90 day s pursuant to section 2--107.1 of the Me

ntal Hea lth and De

velopmen tal Disab ilities C o de (the Co de) (405 IL CS 5/2--107.1 (West 2006)). Although the order had expired, we found review o f the ca se appro

priate under the capable-of-repetition-y et-evading-review mootness exception, and we r eversed the order. Inre Jonatha

n P. , 386 I ll. App. 3d

981 (2008 ). In

the exerc ise of its supervisory autho rity, our supreme court has directed us to vacate our opinion and reconsider the matter in light of its decision in In re Alfred H.H. , 233 I ll. 2d 345 ( 2009), to d etermine whether a diffe rent re sult is war

rante d

. Having done so, we adhe re to our prior determinat

ion that re

view of the case i s appropr iate under the capable-of-repetition-y et-evading-review mootness exception, and we r everse. At the hear ing on the

involunta

ry treatme nt petition , Dr. Husa

in testifie d that she w as respo ndent 's psychiatris t at the Elg in Mental H ealth Cen

ter. Resp ondent ha

d been dia

gnosed withNo. 2--07--0610

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"bipolar one disorder, unspecif

ied, with r

apid cy cling," a seriou s mental il lness. Due to the ill ness, respondent

su ffere d from grandiose delusions, his mood was volatile, and he exhibited poor judgmen t. Responde

nt had bee n hospital ized twice

inthe past. Respondent was previously ordered to take psychotropic

medication and, as a

result, his behavior improved, he was less disruptive, and he became

fit to stan

d tria l . When respondent discontinued the medication, his condition deteriorated. Inher petition for involuntary tre atment, Husain requested t o ad minister four primary psychotropi c medications and two alternative medications. Specifically, H usain pet itioned to administer

ziprasidone, orally (80 to 160 milligram s per day ), ziprasi done, intr

amuscula rly (10 to 30 milligr ams per day) , clonazepam (2 to 4 milligrams per day ), and valproic acid (1,000 to 2,000 milligra ms per day

). (Be cause the petition listed ziprasidone in pill form and in injectable form

se pa ra te ly, we will treat oral ziprasidone and injectable ziprasidone as separa te medications for purposes of this decision.) The petition a lso listed quetiapine (300 to 800 milligrams per day ) and Prolixin (10 to 25 milligrams per day) as alter native medications if ziprasidone was not effective. At the hea ring, Husain testified that respondent was previously treated with Geodon and risperidone. (Our research revea ls that Geodon is the brand name for ziprasidone.) Respondent benefited from these medications, but he complained of side effects from

risperid one. Thus , Husain testified that she did not

want to ad

minister r isperido ne, but ra

ther was seeking to administe

r 300 to 800 milligrams per day

of Seroquel and 1 0 to 25 m illigrams per day of Prolixin or fluphenazine. (A pp ar en tl y, Seroquel is the brand name for quetiapine, although this was not made clear from the testimo ny; Se roquel and quetiapine are used interchang eably throug hout.) The State then asked Husain: "The other two medications prior to this?" Husain responded: "[z]iprasido ne, 80 to 60No. 2--07--0610

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milligra ms orally and [r]ispe

ridone, t wo to 16 mi ll ig ra ms pe r d ay o ra ll y." (P re su ma bl y, this refers to the dosag es Husain

administe

red pre viously to respondent, since Husain specifically testified that she was not se eking to

administer risperidone, due to its side effects.) Husain te stified in consiste ntly

as to which w ere pri

mary medicati ons and wh

ich were alterna ti v e medica

tions. L astly , Husain testified that she was seeking authorization for blood testing to safely administer the medication. Oncross-examination, Husain testified for the first time that she was also petitioning for clonazep am, which initially she stated was the g eneric name for risperidone. She then cla rified that they were tw o differ

ent medic ations. Clonazepam i s an antia nxiety medicati on. Husai

n also tes tifie d that r isper idon e was i nclud ed on t he fir st page of the petition, but she made clear that she was not seekingto administer risperidone, d ue to its side effects. Risperidone appears on pag e two of the petition, a s a medic ation re spondent had rece ived in the past. Husa in gave evidence of what she deemed to be the appropriate maximum and minimum dosages of two medications, namely Ser oquel and Prolixin. She did not testify about valproic acid, and she did not testify about the appr opriate dosages of clonazepam and ziprasidone. The trial court discussed the specifi c statutory factors ne cessary for the involuntary administration of psychotropic medic ationand found that the State proved the factors by c lear and convincing e vidence. The court further found that "the medication to be administered sha ll be as described by the doctor in her

testimony and

in the range of dosages de scribed by the doctor in her testimony." The court also stated that the hospital staff "will be allowed to run blood tests to check the safe administration of the medication." The trial cou

rt enter ed an ord er allow ing Husa into administ

er the f ollowing medicati ons to respondent

for 90 days: " [z]iprasidone 80-160 milligrams po/day, [z]iprasidon e 10 milligra ms-No. 2--07--0610

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30milligr ams IM/day , [q]uetiapine 300- 800 milligrams po/day, [f]luphenazine 10-25 milligrams po/ IM." The orde

r left blank what testing and lab procedure s were authorized. S oon af ter, respondent noticed that the petition was missing the page that requested the testing deemed essential for the safe and ef fective administration of

the psy chotropi c medicati ons. Based on this defect in the petition, respondent made an oral motion to dismiss the petition. The trial court denied the motion to dismiss, granted the State leave to file an amended petition, and continued the matter for "consideration" of the amendme nt. The court staye d the involuntary trea tment order and, on th e order

itself, th e court c

rossed ou t the authorized med

ications. OnMay 25, 2007, the trial court granted the State's motion to amend the petition, finding that "the pleadings now conform to the proof." On June 15, 2007, the court denied respondent's motion to dismiss and motion to reconsider. The court lifted the stay , ruling that the medicati on order would take ef fect imme diately . Responde nt filed a timely notice of appeal. Onappeal, responde

nt conten ds th at the tri al court's order authorizing the involuntary administration of psychotropic medic ation should be reversed because the treatme nt order is lega lly invalid and unsupported by the

evidence. Before addr

essing the merits, we note that the issues are mootbecause the 90-day

period covered by

the trial court's order has expired. See In re Robert S. , 213 Ill. 2d 30, 45 (2004). "An appeal is considered moot where it prese nts no actual controversy

or where the issue s involved inthe trial

court no l onger

exist beca

use inter vening events have rendered it impossible for

the reviewin g court to grant eff ectual relief

to the comp laining part y." Inre J.T. , 221 Ill. 2 d 338, 349- 50 (2006) . Gener all y, c ourts of review do not decide moot questions, render advisory opinions, or conside

r issues w here the result wi ll not be a ffecte d rega rdless of how those issues are decided. In re Bar bara H. , 183 Ill. 2d 482, 491 (19 98) . Reviewing courts, however,No. 2--07--0610

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reco gniz e exception s to the moo tn ess doctrine , such as t he public interest exception , applica

ble where the case presents a question of public importance that will likely recur and whose an swer will guide public of

ficers i n the perfor

mance of their duti es, and a

n exception for ca ses involving eve nts of short duration that are capable of repe tition, yet evading r

eview. J.T. , 221 Ill. 2d at 350. We determine that

this case falls within the capable-of-repetition exception. This exception has two requirements. "First, the challeng ed action must be of a duration too short to be fully litigated prior to it s cessation ." Alfred H.H. , 233 Ill. 2d at 358. " Second, t

here mus t be a re asonable expectation that 'th e same c omplaining party would be subjected

to the same ac tion again.' " Alfred H.H. , 233 Ill. 2d at 358, quot ing Barbara H. , 183 Ill. 2d at 491. "This means that the prese nt action and a potential future action must have a substantial enough re lation that the resolution of the issue inthe present case would have some bearing on a similar issue presented in afuture case involving the respondent ." In re Val Q. , 396 Ill . App. 3d 155 , 160 ( 2009) , citi ng Alfred H.H. , 233 Ill. 2d at 360. First, the challenged action was obviously too shortto be fully litigated dur ing the pendency of the order. See Alfred H .H. , 233 Ill. 2d at 358. Second, the issues presented he re, and any resolution thereof, would bea r on a subs e quent case involving respondent. I n Alfred H.H. , our supreme court found that the capable-of-repe tition mootne ss exc eption did not apply in that involuntary

commitment case, because the re spondent challenged whether the sp ecific facts that were established

during the hear

ing wer e suffic ient to prove that th e respon dent was a dang er to himse lf

or to others. Alfred H.H. , 233 Ill. 2d at 360. Because the facts would necessarily be different in any future commitmenthearing , the cour t found tha

t the issue s presen

ted in the casebefore it would haveNo. 2--07--0610

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no bearing on similar sufficiency -of-the-evidence issues present ed in subse quent ca ses. See Alfred H.H. , 233 I ll. 2d at 36 0; Val Q. , 396 Ill. App. 3d at 160-61. This cas e, however, is distinguishable. First, respondent makes two ar guments that challeng e the interpretation

of the statute by conte

nding that the order violated theCode. See Alfred H.H. , 233 Ill. 2d at 360. Second, although respondent's rema ining arguments contest the sufficiency of the evidence, he specifically a rgues that the treatment order improperly varied from the petition and that it authorized dosages that

were stated in the petition but were not in the testimony . Unlike the issue in Alfred H.H. , it is rea sonably likely that the r esolution of these issues wou

ld affe ct future

case s involving responde

nt, because

responde nt will like ly a

gain be subject to involuntary trea tment and the court will likely ag ain commit the same alleged errors. See Val Q. , 396 I ll. App. 3d at 161; In re Robin C. , 395 Ill. App. 3d 958, 963-64 (2009) (apply ing capable-of-repe

tition exception where the resolution of the respondent's statutory compliance issue would have some bearing on a subsequent case involving respondent). Review is, theref ore, appropriate. Turning to the merits, respondent first argues that the trial court's orde r violated the Code for failing to include the testing authorized to m onito r administration of the medications and for crossing outthe approved medications. Whether the order complied with the Code presents a question of law, which we review de novo . See In re L eslie H. , 369 Ill. App. 3d 854, 856 (2006). Section 2--107.1(a--5)(6) of the Code, which dicta tes the content of involuntar y treat ment orders, states as

follows: "(6) An order issued under this subsection (a--5) shall desig nate the persons authorized

to administ

er the au thorized involuntary treatment under the standards and procedures of this subsection (a--5). Those persons shall have compl ete discretion no t toNo. 2--07--0610

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administer

any trea tment authorized under this Section. The order shall al so specify the medications and the anticipated range of dosag es that have been authorize d ***." 4 05 IL

CS 5/2--107.1(a--5)(6) (West 2006). Section (a--5)( 6) does no t require that an order include the testing author ized to monitor administration of

the medication (see In re Barry B. , 295 I ll. App. 3 d 1080 , 1088 (1998 )), al thou gh the " petition may include a r equest that that court authorize such testing and procedure s as may be essential for the safe and effective administration of the authorized involuntary treatment sought to be administe

red" ( emp hasis added) (405 ILCS 5/2--107.1(a--5)(1) (West 2006)). Thus, the order

e ntered here was not legally

insufficient for failure to specify the precise tests to be administered. See Barry B. , 295 I ll. App. 3d at 1088. We

note, how ever, that the better pra cti ce would be t o include in th e order

the tests to be administered to monitor medication levels. This would ensure that the provider of medi cal c are has strict guidance for the treatment of a patient receiving psychotropic medica

tion involuntarily. Barry B. , 295 Ill. App. 3d at 1088. The parties' cited authority is not on point, because the cited cases address the co u rt's authority to order blood test s. Se e In re Jill R. , 336 Ill. App. 3d 956, 964 (2003) (trial court had authority to order medical testing even t hough not requested in the petition for involuntary administration of psy

chotropi c medica

tion); In r e F lo yd , 274 Ill. App. 3d 855, 8 60 (1995 ) ("Respondent *** contends that the order authorizing the involuntary withdrawa

l of blood is voi d for want of st

atutory authority"). He

re, the i ssue is whether, after thecourt autho rized bloo d test ing, it was reversible error

to omit this information from the treatment order. We have determined that it was not.No. 2--07--0610

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Next, respondent argues that the order violate d the statute b ecause the authorized medicat ions

are crossed

out. Respondent like

ns the cr oss ing o ut of the a

pproved medicati ons to the f

ailure to include this information in the first place. See In r e G we nd ol yn N. , 326 Ill. App. 3d 427, 429 (2001) (noncompliance with the Cod e provis ion requiring the order to specify the approved medications and d osages mandated reversal). The cross-out on the tre atment order is troublesome, as the c rossin g outof material would generally indicate a

deletion or correction. See Geiser v. Geiser , 115 A.D.2d 373, 375, 495 N .Y.S.2d 40 1, 403 (19 85) (whe re a par agrap h is cross ed out, it is to be read as the deliber ate deletion of the paragraph). B ut, under the unique circumstances of this ca se, it appears that the cross-out was meant to indicate a stay of the order. The subsequent order lifted the stay and clarified that the treatment order

was to take effect immediately . Thus, the treatment order was not legall y in sufficie

nt on this ba sis. Respo ndent 's rema ining two argumen ts raise issues regarding the suff iciency of the

evidence. Respondent

complains of Husain's failure to testify regarding all petitioned-for me dications and failure to testify to the appropriate dosages for several medications. Whether there was suff icient evidence regarding

the type of medica

tions sought to be administered and their anticipated dosages goes to the issue of

whether the State proved by c lear an

d convinc ing evid

ence tha t the bene fits of the treatme

nt outweig

h the har m. See 405 IL CS 5/2--107.1(a--5)(4)(D) (West 2006); see also In re A.W. , 381 Ill. App. 3d 950, 958 (2008) ( to prove by c lear an

d convinc ing evid

ence tha t the bene fits of the trea tment outw eigh the

harm, the State must present evidence as to the anticipated rang e of dosages of the proposed psy chotropic medication); In re Gail F. , 365 Ill. App. 3d 439, 446 (2006) (where doctor failed to testify to all requested medications, evidence was insufficient to deter mineNo. 2--07--0610

1 We note that

the Code d

oes not re quire th at an involuntary-tre atment petition or an involuntary-trea

tmen t order set forth proposed nonpsy chotropi c medicati ons ( A.W. , 381 Ill. App. 3d at 959-60), but the petition id entifies clonazep am and va

lproic acid as psychotropic medica tions and our research has revea

led the same. See Davis v. Hubbard , 506 F. Su pp. 915, 92 7 (N.D. O hio 1980) ("The t

erm psy chotropi c, or ' mood alte

ring'drug de scrib es sever al categories of major tranquilizers (also ca

lled antip syc

hotic or neurolep tic drug s) , antianxiet y drug s (minor tranquilizers), antidepressants, sedatives (e.g., barbitura tes), and hypnotics" ).

-9- whether the bene fits of the

treatme nt outweig

hed the ha

rm). To th ese ques t ions, we apply the manifest-weight-of-the-evidenc e standard. Gail F. , 365 Ill. App. 3d at 446. Here, Husain did not testify to the appropriate dosages for clon azepam and injectab le zip rasidone. 1 Respondent appears to believe that Husain's testimony was adequate a s to th e appropr iate dosage for

oral ziprasidone, but we do not find that to be the case. While discussing the requested medicati ons, the State asked Husain an ambiguous question: "The other two medications prior to this?" Husain responded: "[z]iprasidone, 80 to 60 millig rams orally and [r]isperidone, two to 16 milligrams per day orally." B ecause Husain testified that she previously administered ziprasidone and rispe

ridone to respondent, and she stated numerous times that she was not seeking to administer risperidone, the ab ove testimony logica lly refers t o the dosa

ges previous ly

administered to respondent. I

n a ny event, H

usain nev er testif

ied to the

appropr iate dosa ge for injectab le ziprasidone, although the court authorized 10 to 25 milligrams in injectable form. Becau se of these omissions, Husain's testimony did not support the trea tment order. See A.W. , 381 I ll. App. 3d at 958No. 2--07--0610

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(involuntary

treatment order reversed bec ause, inter ali a , it authorized specific dosages o f psychotropic medica

tions that were not supported by e vidence). Last , Husain failed to offer an y t estimony reg arding the petitioned-for valproic acid, a nd, altho ugh Husain testified regarding her request for

clon azep am, the tri al court f aile d to a uthor ize it. Respondent

notes this error but

fails to de

velop an a

rgumen t or cite su ff ic ie nt su pp or ti ng au th or it y. However, our research has revea led th e case of Gail F. , 365 Ill. App. 3d at 447, where this court concluded

that the tr

ial court ca nnot approve fewer than all the medications listed on the petition unless the treating phy sician is s eeking

authoriza tion for f ewer tha n all. In Gail F

. , the S tate petitioned for the administration of 12 medications. The treating psychiatris toffered testimony regarding onl y 10 of those medica tions. The court, however, authorized

th e administration of all 12 medications. On appeal, both parties agree d that this was

error. The State , howeve r, arg ued th at the lack of evidence affecte d only the approval of the 2 medications and that the order could be modified to authorize the 10 medications that were supported by testimony . We rejected that argument. The lack of evidence on all petitioned-for medications was fatal to the entire petition. See Gail F. , 365 Ill. App. 3d at 447. We reasoned that

a modification of the treatment plan embodied

inthe petiti on must be a

matter of medical j udgmen

t, not lega l:

" 'As this cour

t has rec ognized, *** the dia gnosis a nd treat ment of me

ntal hea lthdisorders is a " 'highly

specialized area of medicine which is better left to t he ex perts.' " [Citation.] Indeed, section 2 --107.1 v ests the phys ic ian auth orized to administer the involuntary treatment "complete di scretion" notto administ er the tr eatment. [Citation.] It is thus not for the trial cou

rt or the j ury

to "deve lop a cour

se of treatment and then dictate that course to theNo. 2--07--0610

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treatingphy sician. T

hat would constitute

role reversal." [Citation.] In thewords of amici curiae , allowing the layperson jury to determine which of

the various medications should be involunta rily administered

"dangerously

approaches the practic e of medi cine." ' " (E mphasis inoriginal.) Gail F. , 365 Ill . App. 3d at 4 47, qu otin g Inre Mary Ann P. , 202 Ill. 2d 393, 406 (2002). The Code does

not permit

the fac t finder " to parse the rec ommended

treatme nt an d selectiv ely

authoriz e only certain request ed medicati ons." Mary Ann P. , 202 I ll. 2d at 407. "[W]here

*** the rec ommended

treatme nt consists

of multiple

medicati ons--som e 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 eff ects--i t is only this treatment, in its ent irety, that may be authoriz ed." Mary Ann P. , 202 Ill. 2d at 405-06. While the rule in Mary

Ann P. does not create an absolute bar on a court's approval of fewe r thanall of the

medicati ons listed i

n a petition, it requires that any va riance from the petition be made at the behest of the treating phy sician. Gail F. , 365 Ill. App. 3d at 447. However, "[w]e do not deem

a simple failure to testify a

bouta medication to suggest the treating physician' s judgment, as failure to present evidence may

reflect legal error rather th an medical j udgment." Gail F. , 365 Ill. App. 3d at 447. Here, the petition requested six psychotropic medications. Husain testified in regard to five medicati ons. And the trial court's ord er ulti mately approve d four medications. Specifically , the order did not approve valproic acid, likely because Husain ne glecte d to testif y to it, and, despite her testimony regarding clonazepam, the or der did not approve it. Beca

use Husa in did not r

equest th ese variances from the petition, selective authorization by the court wa s improper. See GailF. , 365 I ll.No. 2--07--0610

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App. 3d at

447. Thus, the order must be reversed. See Inre Richa rd C. , 329 Ill. App. 3d 1090, 1094 (2002). A remand is not necessary , since the administration of the medications has been terminated according to the terms of the court' s order. See Richard C

. , 329 Ill. App. 3d at 1094. Fo r t he fo re go in g r ea so ns , w e r ev er se th e j ud gm en t o f t he ci rc ui t c ou rt of Ka ne Co un ty. Reversed. BOWMAN and BURKE, JJ., concur.