Mental Health Law Newsletter
The newsletter of the ISBA’s Mental Health Law Section

September 2017, vol. 4, no. 1

Summary of appellate opinions

District Court Cases

In re Carol B., 2017 IL App (4th) 160604 (August 24, 2017)

The Fourth District reversed trial court’s orders for involuntary admission and involuntary treatment for “egregious” and “cumulative” violations of section 2-107(a) of the Mental Health and Developmental Disabilities Code (Code). 405 ILCS 5/2-107(a). ¶3, 59, 67.

Background

After 34 days after respondent’s admission to a mental health facility, a hearing on the State’s petitions for involuntary admission and involuntary treatment (psychotropic medication and 12 sessions of electroconvulsive therapy - ECT) commenced. ¶2, 10, 16. A week prior to the hearings, respondent’s counsel pointed out the lengthy period of time respondent had been hospitalized while awaiting a hearing and emphasize the importance of moving forward with the hearings as soon as possible due to the State’s administration of psychotropic medication and ECT without respondent’s consent. ¶13. Respondent’s counsel further argued that the administration of the medication and ECT violated section 2-107 of the Code because no emergency situation necessitated that administration of medication prior to the hearing, as medical records showed respondent was eating regularly with prompting. ¶13. Respondent’s counsel asserted, as a result of the delayed proceedings, the mental health facility would be nearly finished with respondent’s ECT treatments before she received a hearing, which circumvented the provisions of the Code and respondent’s rights. ¶13. Respondent’s counsel also stated that she would ask for a temporary restraining order to prevent the further administration of medication, but suddenly halting the medication would place respondent’s health at risk. ¶13.

Respondent declined to attend the hearings. ¶17, 28. The treating psychiatrist testified that upon respondent’s admission, respondent was delusional and displayed catatonic symptoms (staring, engaging in repetitive behaviors, exhibiting bizarre behaviors, displaying waxing flexibility, and refusing to eat or cooperate with treatment plans). ¶18. One of the psychiatrist’s biggest concerns was respondent’s inconsistent eating, as she would sometimes eat nothing and sometimes would eat everything on her tray. ¶18. “She required prompting from staff to eat.” ¶18. The psychiatrist opined that respondent lacked the capacity to consent to treatment. ¶19. Because she lacked capacity, the psychiatrist determined that she also lacked the capacity to refuse treatment. ¶19. Therefore, starting on the day of her admission, the psychiatrist authorized the administration of three psychotropic medications without respondent’s consent. ¶17, 19. At the time, the psychiatrist admitted respondent’s condition would not cause serious and imminent physical harm to herself or others. ¶19, 33. The psychiatrist provided respondent with written documentation of the side effects of every recommended medication approximately four days after beginning treatment. ¶31.

Thirteen days after respondent’s admission and 21 days prior the hearings, the psychiatrist found respondent posed a risk of serious and imminent physical harm to herself by her failure to eat and engage in basic hygiene. ¶20, 33. He therefore ordered ECT on an emergency basis four days later for three times per week. ¶20. By the date of the hearing, she had completed 8 of 12 rounds of ECT, some of which were administered despite her resistance. ¶20, 33, 35. The psychiatrist opined that respondent lacked the capacity to refuse. ¶35. In justifying the emergency ECT, the psychiatrist explained that a person could die of malnutrition in a matter of weeks or months. ¶21. He testified that respondent’s eating was inconsistent and that from the date of her admission, she had lost 5 pounds – from 160 pounds down to 155 pounds. ¶21. At 5 feet 4 inches tall, respondent’s ideal weight was 120 pounds. ¶21. He testified that respondent’s condition was not so serious as to warrant a feeding tube and that she would eat when prompted. ¶21. Although respondent had developed depressive symptoms such as hopelessness and passive thoughts of death (such as hoping to die), she never expressed any desire or intention to kill herself and did not require any one-on-one monitoring. ¶22.

The trial court found the State violated section 2-107(a) of the Code by administering psychotropic medication to respondent without her consent when there was no threat of serious and imminent physical harm. ¶2, 40, 405 ILCS 5/2-107(a). However, the court found the violation to be harmless and granted both orders for a period not to exceed 90 days. ¶2. Respondent appealed both orders, asserting violations under section 2-107 of the Code. ¶3.

Analysis

(1) Mootness

Respondent’s appeal centered on the State’s involuntary administration of medication in violation of section 2-107 of the Code and the consequences that can arise from such a violation. ¶47. The appellate court found that this question is of a public nature and likely to recur in the future, as the State’s application and interpretation of the Code affects any patient involuntarily admitted. ¶47. Thus, there exists a need for an authoritative determination to guide mental health professionals and the State when those professionals decide to administer involuntary treatment prior to the trial court entering an order authorizing the treatment.” ¶47. Respondent argued that the State’s administration of involuntary treatment prior to the involuntary-admission proceedings affected her due-process rights by altering her mood and behavior prior to her opportunity to be heard. ¶49. The appellate court concluded that, under these circumstances, the public-interest exception to the mootness doctrine applied for both the involuntary admission and involuntary treatment orders. 49.

(2) The mental health facility violated section 2-107(a) of the Code

“Involuntary-admission proceedings implicate an individual’s liberty interest.” ¶51, In re Torski C., 395 Ill. App. 3d 1010, 1017 (4th Dist. 2009). “The Code’s procedural safeguards are not mere technicalities but essential tools to safeguard these liberty interests.” ¶51, In re John R., 339 Ill. App. 3d 778, 785 (5th Dist. 2003).

Absent a situation where respondent posed a threat to cause serious and imminent physical harm to herself or others, the psychiatrist lacked a legal basis to administer the medication. ¶54. The psychiatrist began administering three psychotropic medications to respondent on the date of her admission, despite his belief that she was not at risk for serious and imminent physical harm at that time. ¶54. “He did this under the belief that respondent’s lack of capacity rendered her ‘unable to refuse’ treatment.” ¶54. The appellate court found that the psychiatrist’s “opinion that he could administer treatment to respondent because she was incapable of refusing is a gross misinterpretation of section 2-107(a) of the Code.” ¶55. Under the psychiatrist’s logic, “when a patient lacks capacity, regardless of whether that patient’s condition may cause serious and imminent physical harm, he may choose whatever treatment he deems appropriate prior to any court hearings because the patient can neither consent to nor refuse his decision.” ¶55. “Here, because respondent lacked the capacity to consent to treatment and her condition did not require administration of medication to prevent her from causing serious and imminent physical harm to herself or others, the trial court properly found the State violated section 2-107(a).” ¶55, 405 ILCS 5/2-107(a).

(3) Remedy for violation of section 2-107(a) of the Code

The appellate court noted that the Code sets no specific remedies for violation of section 2-107(a). ¶57, 405 ILCS 5/2-107(a). It rejected the State’s argument that section 2-107(a) violation constituted harmless error as to respondent’s involuntary admission where respondent is unable to demonstrate prejudice. ¶57. Instead, it agreed with respondent that “the egregious, cumulative errors” in this case were not harmless and, instead, violated respondent’s due-process rights. ¶59.

First, the psychiatrist administered psychotropic medication when respondent’s condition did not require the administration of medication to prevent respondent from causing serious and imminent physical harm to herself or others. ¶59. Following the harmless-error analysis (citation omitted), the appellate court noted that respondent was not in a position to make a timely objection to the involuntary administration of treatment because, at the time the psychiatrist authorized the medication, the court proceedings and appointment of counsel would not commence for more than three weeks. ¶59. Moreover, in the psychiatrist’s own words, “respondent’s lack of capacity rendered her incapable of refusing any medication he chose to administer.” ¶59. “Given these circumstances, the violation of section 2-107(a) could not be easily cured.” ¶59. As noted by respondent’s counsel, respondent had been administered psychotropic medication for more than three weeks by the first court appearance, and such medication could not be suddenly stopped without placing respondent’s health at risk. ¶59.

The appellate court rejected the State’s assertion that the violation of section 1-107(a) made no difference in the end, as the trial court granted the petitions. ¶60. The appellate court was not willing to accept the argument that “the ends justify the means” in this situation. ¶60. It noted that by placing respondent on psychotropic medication when she did not pose a risk to cause serious and imminent physical harm to herself or others, the trial court lost the ability to determine respondent’s mental capacity for itself. ¶60. “In this situation, we have evidence the medication altered respondent’s mood and behavior” and “we cannot say the premature administration of medication ‘made no difference.’” ¶60. The court noted, for example, that although respondent self-reported as “happy” at the time of her admission, by the hearing date, her mental state had declined to the point that she hoped to die. ¶60.

Second, the appellate court found that the State’s delay in filing its amended petition left respondent involuntarily admitted for more than a month before she received a hearing date. ¶61. During this time the psychiatrist subjected respondent to psychotropic medications in the face of no evidence that the medication was necessary to prevent respondent from causing serious and imminent physical harm and subjected respondent to undergo eight rounds of ECT – which required anesthesia and triggered seizures – on the basis that she was a serious and imminent threat to herself, as she was not eating properly or bathing regularly. ¶61.

The appellate court held that the legislature could not have contemplated that a patient would wait over a month for a hearing, all the while being administered medication involuntarily. ¶62. “Where a respondent lacks the capacity to consent, she relies on the Code to protect her rights.” ¶62. A delay of over a month nearly permitted the mental health facility to circumvent the Code by treating and releasing respondent before she had the opportunity for a hearing. “Such a delay is inexcusable and shows a complete disregarding for respondent’s liberty interests.” ¶62.

Third, the psychiatrist admitted that he did not initially provide respondent with written information regarding the risks, benefits, side effects, and alternative treatment prior to starting the psychotropic-treatment regimen when respondent was first admitted. ¶64. The appellate court rejected the State’s argument that the delay was de minimis, as she received the written documentation prior to her hearing. ¶64. It noted that the psychiatrist failed to gather that “[t]he rights provided in the statute were not placed in the Code to ensure that a respondent understands a medication’s side effects but to ensure a respondent’s due process rights are met and protected.” ¶64, In re John R., 339 Ill. App. 3d 778, 784 (5th Dist. 2003).

The appellate court found that the trial court was charged with determining whether respondent possesses the capacity to make a reasoned decision about her treatment. ¶65. Here, respondent was deprived of her opportunity to refuse the medication, and because she was already on medication for a significant period of time prior to the long-delayed hearing, the trial court had no way of determining whether respondent lacked the capacity to consent at the time of her admission. ¶65. The appellate court also found that whether the side effects of the medications were worth the risk was an issue for the trial court, yet the psychiatrist took it upon himself to decide that the possible side effects—which included death for dementia patients, heart attack, and suicidal behavior—were worth the risk. ¶66. “Respondent was entitled to her day in court before the long-term administration of mind—and behavior—altering medication.” ¶66.

Conclusion

The appellate court declined to find the error harmless, and accordingly reversed the trial court’s involuntary-admission order. ¶67. Further, because the appellate court reversed the trial court’s involuntary-admission order, respondent no longer qualified as a “[r]ecipient of services” for the administration of involuntary treatment under section 1-123 of the Code. ¶67, 405 ILCS 5/1-123, citing In re John N., 364 Ill. App. 3d 996, 998 (3rd Dist. 2006). The appellate court therefore also reversed the court’s involuntary-medication order. ¶67.

People v. Gunderson, 2017 IL App (1st) 153533 (June 20, 2017)

The First District Court affirmed a trial court’s denial of Petition for Discharge from the custody of Department of Human Services (DHS) for a recipient found not guilty by reason of insanity on an attempted murder charge. 1. Gunderson-petitioner argued that section 5-2-4(g) of the Unified Code of Corrections (Code) violated his right to due process, because it requires him to prove by clear and convincing evidence that he no longer suffers from a mental illness. 1, 730 ILCS 5/5-2-4(g). The appellate court found the statute constitutional. 1.

Background

In 2002, following a bench trial, petitioner was found not guilty by reason of insanity on attempted murder and aggravated battery charges. 2. In 2015, Gunderson filed a motion for discharge from DHS, or for on-grounds pass privileges. 4. At the hearing on the motion, petitioner’s mother testified that she believed that he had recovered from his illness, that he did not present a threat of harm to anyone, and that he could live with his parents. 4. Petitioner’s treating psychiatrist recommended on-grounds pass privileges. 5. The treating psychiatrist testified that petitioner no longer showed any symptoms of mental illness – with schizophrenia in remission, that he was not prescribe any medication, and that he progressed well without medication since 2011. 5. Petitioner’s social worker testified that although no one on the treatment team recommended discharge for him, she never saw petitioner act aggressively, saw no signs or symptoms of schizophrenia, and signed onto the recommendation for on-grounds passes to assess how well defendant could handle increased freedom. 6. A psychologist, who reviewed the treatment team’s recommendations, agreed that petitioner should have on-grounds passes and that petitioner presented little risk of violent behavior. 7. Another psychiatrist who examined petitioner in 2003 and 2004 and briefly in 2015, opined that schizophrenia is always a lifelong illness that patients can control only with antipsychotic medication. 8. The psychiatrist did not know of any studies that support his assertions, but he knew of no instance in which a schizophrenic patient recovered without remaining on antipsychotic medication for life. 9. He found that petitioner showed several signs of continuing schizophrenia and opposed the request for on-grounds pass privileges. 8, 9. Finally, a clinical psychologist testified that according to every controlled study of patients treated for schizophrenia for more than one year showed that schizophrenic patients given minimal medication, or no medication at all, had much better recovery rates than patients treated regularly with antipsychotics. 10. The clinical psychologist tested and interviewed petitioner, found that he no longer met the criteria for a diagnosis of schizophrenia. 12. He opined that petitioner presented only a low level of risk for adverse behavior with more freedom and concurred with the recommendation for on-grounds passes to assess his response to increased freedom. 12.

The trial judge found the clinical psychologist not credible and gave little weight to the testimony of his treatment team. 13. Instead the judge relied on his interpretation of petitioner’s body language and the testimony of the second psychiatrist. 13. Although the judge relied on the second psychiatrist’s opinion, the judge expressly said that he was not convinced that patients must have antipsychotic drugs for life to control schizophrenia. 13. The judge denied the motion for on-grounds passes and the motion for discharge. 13.

Issue Appealed

Whether section 5-2-4 of the Code, which requires petitioner found not guilty by reason of insanity to present clear and convincing evidence that he no longer meets the criteria for involuntary commitment before he can obtain discharge, is unconstitutional. 730 ILCS 5/5-2-4(g). 16, 26. Petitioner abandoned his pursuit of on-grounds passes. 16.

Analysis and conclusion

The appellate court found that petitioner presented a prima facie showing that he no longer suffered from a mental illness. ¶18. (While the treating psychiatrist diagnosed petitioner’s condition as schizophrenia in remission, that diagnosis remained compatible with a finding that he no longer suffered from a mental illness. ¶17, Levine v. Torvik, 986 F.2d 1506, 1513-14 (6th Cir. 1993) overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99, 111 (1995). See also Foucha v. Louisiana, 504 U.S. 71, 85 (1992). ¶18.) However, section 5-2-4(g) requires a petitioner who seeks discharge to prove, by clear and convincing evidence, either that he has no mental illness or that he is not dangerous. ¶19. See People v. Wolst, 347 Ill. App. 3d 782, 790 (2004). The appellate court agreed with the Wolst court and its underlying reason under United States v. Wattleton, 296 F.3d 1184 (11th Cir. 2002), and held that section 5-2-4 of the Code does not violate petitioner’s right to due process. ¶21, 26. Affirmed. ¶27.

People v. Jackson, 2017 IL App (1st) 142879 (June 27, 2017) (Corrected July 24, 2017)

Background

After Jackson-defendant called 911 for an ambulance, paramedics arrived to find him “agitated,” “nervous,” “irrational,” and “very uncooperative,” suffering from some type of psychological issue and with an “altered” mental state. 1. The paramedics then called for police assistance. 1. After the police arrived, defendant screamed and flailed. 1. One police officer used his 50,000 volts taser on defendant, striking him 10 times, and the other officer tried to grab defendant and was kicked in the shins. 1, 3. Ultimately, the police subdued him and placed him into an ambulance to be transported to a hospital. 1. Defendant was charged with battery and resisting arrest, and after a jury trial, was convicted of the charges. 1.

Analysis

(1) The State did not prove defendant’s mens rea or mental state

The appellate court found that the evidence was insufficient to support a finding that defendant had the requisite mental state to commit the crimes of battery and resisting a peace officer. ¶24, 26. Rather, there was an abundance of evidence – almost all of it from the State witnesses – defendant was not “knowingly” acting during the incident. ¶26. Both paramedics, observed, on their arrival, that defendant was “nervous” and “agitated”. ¶26. One paramedic though defendant was suffering from some type of psychological issue and the other paramedic though that defendant’s mental state was altered. ¶26. For example, though the paramedics were in uniform, and driving a vehicle distinctively marked as an ambulance, defendant repeatedly denied they were paramedics and continued to call 911. ¶26. Although defendant exhibited verbal coherence, it does not indicate a “knowing” state of mind indicating that he understood what was happening to him. ¶26. The appellate court did not know the cause of defendant’s behavior (i.e., epilepsy, drug intoxication, some undiagnosed mental illness, or being tasered 10 times), but did not need to know. ¶27. The appellate court found the State’s evidence establishing defendant’s mens rea or mental state, here his knowledge, was so conflicting, so unsatisfactory, as to create reasonable doubt of defendant’s guilt. ¶31. Accordingly, the evidence was insufficient to support defendant’s conviction. ¶31.

(2) The trial court neglected to ask potential jurors proper questions during jury selection

Supreme Court Rule 431(b) mandates that a trial court ask potential jurors whether they “understand [ ] and accept [ ]” these four principles: (i) the defendant is presumed innocent; (ii) the State must prove the defendant guilty beyond a reasonable doubt; (iii) the defendant is not required to offer any evidence on his or her own behalf; and (iv) the defendant’s failure to testify cannot be held against him or her. ¶37, Ill. Sup. Ct. R. 431(b), People v. Thompson, 238 Ill.2d 598, 606-07 (2010). Failure to question the jurors on each of these four principles violated the rule. ¶37, citing Thompson 238 Ill. 2d 607. During voir dire, the trial court neglected to use the words “understand and accept,” but rather asked potential jurors if they disagreed with the four principles or would be unable to follow them. ¶38. The appellate court found that the State rightly conceded error on this issue. ¶38.

(3) Admission of testimony of possible marijuana usage was plain error

“Other-crimes” evidence may not be admitted to prove a defendant’s propensity to commit a crime because a jury might convict the defendant not based on the evidence, but that the defendant deserves punishment. ¶40, People v. Placek, 184 Ill.2d 370, 385 (1998). Nonetheless, this type of evidence can be admitted to prove intent, modus operandi, identity, motive, absence of mistake, or any material fact other than propensity that is relevant to the case. ¶40, People v. Donoho, 204 Ill.2d 159, 170 (2003). Even when the evidence is admissible, the trial court must weigh its prejudicial effect versus its probative value, and exclude it if too prejudicial ¶40, Placek, 184 Ill.2d 385.

Although the State argued that the testimony regarding a cannabis smell was relevant to the “continuing narrative” of defendant’s arrest as it informed the actions of both the police and paramedics, the appellate court found that none of the evidence presented regarding the cannabis smell was, in fact, part of any continuing narrative. ¶41. Even crimes that occur in close proximity will not be admitted as part of a continuing narrative “if the crimes are distinct and undertaken for different reasons at a different place at a separate time.” ¶41, (internal quotations and citations omitted) People v. Adkins, 239 Ill.2d 1, 33 (2010). The appellate court found that assuming the cannabis smell indicated that defendant had illegally used marijuana, no medical evidence was introduced as to when or where he had used it, or that he was still under its influence during the incident. ¶41. There was nothing linking possible marijuana use with defendant’s behavior, and there was nothing to indicate that the marijuana smell impacted anyone’s actions, either the defendant’s, the police’s and the paramedics’. ¶41, 42. The witnesses consistently testified that defendant was irrational, uncooperative, and agitated, and that they were not sure why he was behaving the way he did. ¶42. “Admission of this evidence was error.” ¶43.

 

(4) The admission into evidence of “lay opinion” testimony from paramedics that defendant did not suffer from a seizure constituted error

Lay witnesses can testify based on a rational perception if it is helpful for the determination of a fact in issue. ¶48, Ill. R. Evid. 701(a), (b); People v. Donegan, 2012 IL App (1st) 102325, ¶42. But, lay witnesses cannot testify to an opinion based on scientific, technical, or other specialized knowledge. ¶48, Ill. R. Evid. 701 (c); Donegan, 2012 IL App (1st) 102325, ¶42. The paramedics’ lay opinion testimony was improper under Illinois Rule of Evidence 701, since they were not properly qualified as an expert witness on seizures. ¶51, 53, Ill. R. Ev. 702. If the paramedics had limited their testimony to their own observations or defendant’s behavior, it would have been admissible. ¶54. The appellate court held that the admission of these lay opinions was error because it violated Illinois Rule of Evidence 701 and went to the ultimate question of fact to be decided by the jury. ¶57, People v. Brown, 200 Ill. App. 3d 566, 579 (1st Dist. 1990).

(5) The prosecutor made improper comments during closing argument.

The appellate court found that the prosecutor made improper comments during closing argument about the marijuana smell and the opinion testimony. 75. However, it was not so serious that they denied defendant a fair trial or cast doubt on the reliability of the judicial process. 75.

Conclusion

The appellate court reversed the trial court’s conviction. 81. The appellate court noted that battery against a police officer is a serious charge, but being kicked in the legs by a mentally unstable person (causing no serious injury) is not the type of touching that requires either specific or general deterrence. 3. The appellate court also noted that the officers should receive training in how to de-escalate such a situation and that the prosecution was a waste of time and money. 3, 4.

In re Tara S., 2017 IL App (3d) 160357 (August 3, 2017)

The Third District Court reversed orders for involuntary admission and for administration of psychotropic medication. ¶1. The appellate court found that respondent’s counsel’s performance was deficient for not objecting to State’s omission of testimony of an expert who had not personally examined respondent. ¶23. The State’s expert psychiatrist testified that she had not personally examined respondent. ¶23. Counsel’s omission prejudiced the outcome of proceedings, as respondent could not be subject to involuntary admission without testimony of expert who had personally examined her. ¶23. Counsel’s performance was also deficient for not raising omission of any written information on one of the medications (lithium) it had ordered. ¶26.

Background

On the date of the hearing for involuntary admission, a psychiatrist, the State’s expert witness, testified that although the expert witness had reviewed respondent’s medical records, she had not personally examined respondent. ¶6. The trial court found respondent subject to involuntary admission and then proceeded to a hearing on the State’s petition for involuntary treatment. ¶9. After a hearing involving the testimony of the same psychiatrist, the trial court found respondent subject to involuntary treatment for a period of up to 90 days. ¶10-12. There was no record that respondent was given written information about one of the medications (lithium) ordered by the circuit court. ¶26. Respondent appealed. ¶12.

Analysis and Conclusion

1. The appellate court reviewed this case under the capable of repetition yet avoiding review exception to mootness

In addressing the mootness issue, the appellate court emphasized the importance of respondent’s legal counsel in mental health proceedings. ¶17. “Absent ineffective assistance of counsel review, the statutory guarantee of counsel is rendered a ‘ “hollow gesture serving only superficially to satisfy due process requirements.” ’ ” ¶17, In re Carmody, 274 Ill. App. 3d 46, 55 (4th Dist. 1995) (quoting In re Commitment of Hutchinson, 421 A.2d 261, 264 (Pa. Super. Ct. 1980)). ¶17. “Counsel’s actions protect respondent’s constitutionally protected liberty interest to refuse the administration of psychotropic drugs.” ¶17, U.S. Const., amend. XIV; see also In re C.E., 161 Ill.2d 200, 214 (1994) (holding that “mentally ill or developmentally disabled [persons] have a Federal constitutionally protected liberty interest to refuse the administration of psychotropic drugs”); In re Benny M., 2015 IL App (2d) 141075, ¶ (noting “like defense counsel in a criminal proceeding, the respondent’s counsel in a mental health proceeding plays an essential role in ensuring a fair trial”).

“Generally, court of review do not decide moot questions.” ¶16, In re Alfred H.H., 233 Ill. 2d 345, 351 (2009). “However, the ‘capable of repetition yet avoiding review’ exception permits review of an otherwise moot issue.” ¶16, Id. At 358. This mootness exception has two elements: (1) the challenged action is of a duration too short to be fully litigated prior to its cessation; and (2) there is a reasonable expectation that the complaining party will be subject to the same action again. ¶16, Id. At 358. The parties agreed that the present issue (ineffective assistance of counsel) satisfied the first prong. ¶16. However, the State argued that there was not a reasonable expectation that respondent would be subject to the same action again. ¶16.

The appellate court found that respondent’s ineffective assistance of counsel issue satisfied the second prong. ¶17. The record established that respondent had a 10-year history of mental illness, which included two prior hospitalizations. ¶17. The appellate court noted that there was no evidence presented that the proposed treatment plan would alleviate respondent’s mental illness entirely. ¶17. “Rather, the evidence showed that her cognitive function would be stabilized once the treatment was in full effect.” ¶17. However, respondent had discontinued treatment in the past. ¶17. “Therefore, it is very likely that respondent will face future involuntary hospital admission or involuntary administration of psychotropic medication proceedings.” ¶17. “As respondent is statutorily entitled to counsel during these proceedings (405 ILCS 5/3-805), ineffective assistance of counsel issues are likely to recur.” ¶17.

 

(2) Respondent received ineffective assistance of counsel when counsel failed to object that the expert witness testifying did not personally examine her and when counsel failed to raise to the trial court that respondent was not given written information about one of the medications ordered

(A) Examination of Medical Expert

Section 3-807 of the Mental Health and Developmental Disabilities Code (Code) provides, “No respondent may be found subject to involuntary admission on an inpatient or outpatient basis unless at least one psychiatrist, clinical social worker, clinical psychologist, or qualified examiner who has examined the respondent testifies in person at the hearing. The respondent may waive the requirement of the testimony subject to the approval of the court.” ¶21. (Emphasis added.) 405 ILCS 5/3-807.

In this case, the expert’s testimony established that she had not personally examined respondent. ¶23. Respondent did not waive the testimony of the expert and the expert’s review of respondent’s medical records did not satisfy this statutory requirement. ¶23, In re Michelle J., 209 Ill. 2d 428, 437 (2004) (reviewing a respondent’s medical records does not satisfy the statutory requirement that the expert examine the respondent prior to the hearing). “Therefore, counsel’s performance was deficient for not objecting to the State’s omission of testimony of an expert who had not examined respondent.” ¶23. Counsel’s omission prejudiced the outcome of the proceedings as respondent could not be subject to involuntary admission without testimony of an expert examiner who actually examined her. ¶23, 405 ILCS 5/3-807.

(B) Written Medication Requirement

“Section 2-102 of the Code requires that State to notify the recipient of involuntarily administered psychotropic medication with written notice of the “side effects, risks, and benefits of the treatment as well as alternatives to the proposed treatment.”” ¶25, 405 ILCS 5/2-102(a-5). Such information is required for respondent to make an informed decision on treatment and verbal advice does not satisfy this statutory requirement. ¶25, In re Vanessa K., 2011 IL App (3d) 100545, ¶20.

The State conceded that respondent did not receive written information about one of the medications (lithium) it was requesting. ¶26. The appellate court accepted the State’s confession and found that there was no indication that respondent received written notice of the side effects, risks, benefits, and alternative treatments of lithium. ¶26. “As respondent could not be compelled to take lithium without receiving the statutorily required written information, counsel’s performance was deficient for failing to raise this issue.” ¶26, 405 ILCS 5/2-102(a-5).

Reversed. ¶23.