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

June 2018, vol. 4, no. 4

Appellate updates

In re Jian L., 2018 IL App (4th) 170387 (Opinion filed January 29, 2018).

Jian L., Respondent-Appellant, was voluntarily admitted to a mental health facility. He later filed a request to be discharged. The same day he filed a request to be discharged, the state filed a petition for involuntary admission under section 3-601 of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/3-601). Respondent withdrew his request to be discharged and argued that the state’s petition for involuntary admission was no longer necessary. The trial court rejected that argument and, after a hearing, granted the state’s petition for involuntary admission.
           
On appeal, Respondent argued that (1) the trial court erred by adjudicating the petition for involuntary admission after she withdrew her request to be discharged or, in the alternative, 2) the certificates attached to the state’s petition failed to comply with section 3-203 of the Code, which provides that every petition, certificate, and proof of services be executed under penalty of perjury as though under oath or affirmation.

Appellate court affirmed the trial court’s judgment.

Analysis

Adjudicating a petition for involuntary admission after Respondent has rescinded his request for discharge.

Respondent argued that the state may no longer proceed on its petition for involuntary admission once a patient has abandoned his request for discharge under section 3-403 of the Code.1

The appellate court cited In re Splett,2 which held that when a patient voluntarily admits himself under section 3-403 of the Code, the state cannot file a petition for involuntary admission until the patient has made a written request for discharge. It noted that the rule furthers the Code’s purpose of encouraging voluntary admission.

However, the appellate court held that the Code does not prohibit the state from continuing on a properly filed petition for involuntary admission after a respondent has withdrawn his request for discharge. The appellate court declined to read such a limitation into the Code.3

The appellate court concluded that proceedings on a petition for involuntary admission filed under section 3-403 of the Code may continue despite the respondent’s withdrawing his request for discharge from voluntary admission.

Requirement that certificates be executed under penalty of perjury.

Respondent argued that because the doctor’s certificates were not executed under penalty of perjury under sections 3-403 and 3-203 of the Code, the trial court’s judgment must be reversed.4

Citing In re Wheeler,5 it held that any deficiencies in the certificates attached to the state’s petition did not prevent the court from adjudicating the petition. The appellate court noted that the allegations in the petition were attested to, under oath, at the hearing, respondent did not challenge the sufficiency of the evidence, and based upon the testimony of the hearing, the allegations of the petition were brought in good faith. The appellate court “decline[d] to disturb the trial court’s judgment because of a supposed technical violation in the certificates attached to the state’s petition.”

In re Wilma T., 2018 IL App (3d) 170155 (Opinion filed April 24, 2018).

Wilma T., Respondent-Appellant, voluntarily admitted herself to a mental health facility. A petition for respondent’s involuntary admission was filed stating that respondent had been a voluntary admittee, but had “submitted written notice of [her] desire to be discharged.” Respondent’s request for discharge was not signed by respondent, but stated “[p]atient requesting discharge, but refusing to sign” and was signed by three nurses. A petition for involuntary treatment (psychotropic medication) was simultaneously filed.

At the hearing for involuntary admission, a psychiatrist testified that “She [respondent] would not sign a five-day notice for discharge. *** but she would say that she might want to leave but then she would change her mind, so it would be considered voluntary.” He further testified, “She would not sign the form, but there were two witnesses to her request to leave.” The court granted the petition for involuntary admission.
           
The case then proceeded to a hearing on the petition for involuntary treatment. Although the psychiatrist testified that respondent was given written information regarding the side effects, benefits, and risks of the proposed medication, there was no indication that respondent was given written information regarding alternatives to the treatment. The court granted the treatment petition.

On appeal, Respondent argued the court erred by granting (1) the order for involuntary admission where she was a voluntarily admitted patient and did not file a written request for discharge, and (2) the order for involuntary treatment where respondent was not presented written information about less restrictive alternatives to medication.

The appellate court reversed the trial court’s judgment.

Analysis

Mootness.

The appellate court considered respondent’s appeal under the capable of repetition yet evading review exception to mootness. “To satisfy this criterion, there must be ‘a substantial likelihood that [an] issue presented in the instant case, and any resolution thereof, would have some bearing on a similar issue presented in a subsequent case’ involving respondent.” Here, respondent had a long history of mental illness, including prior hospitalizations in the same hospital. Respondent challenged the circuit court’s interpretation of section 3-403 of the Mental Health and Developmental Disabilities Code (Code) regarding the petition for involuntary commitment filed while she was a voluntary patient. It was substantially likely that such an issue will affect respondent in the future.

Moreover, the appellate court took judicial notice of its own recent case in which respondent challenged one of the same issues involved in this appeal: the failure to provide her with written notification of the alternatives to the proposed treatment. “The fact that the same problem has affected respondent twice, shows that his issue could affect her again in future proceedings.”

Commencement of an involuntary admission proceeding when respondent did not submit a written request for discharge under section 3-403 of the Code.

The state conceded that respondent did not file a written notice of her desire to be discharged and that section 3-403 of the Code was not satisfied.6 The general rule is that “a written request for discharge must precede the instituting of emergency commitment proceedings against voluntarily admitted patients.7 An oral request is not sufficient “to activate the statutory requirements for initiating an involuntary admission proceeding.”8 “Where the record fails to show that the respondent submitted a written request for discharge prior to the initiation of involuntary admission proceedings, the involuntary admission order is invalid.”9 Here, respondent was a voluntary patient and did not file a written notice for discharge. “Consequently, the involuntary admission proceedings should not have been commenced.” The appellate court accepted the state’s concession and found that the involuntary commitment order was invalid.

Written information regarding alternatives to proposed treatment under section 2-102(a-5) of the Code.

Respondent did not receive written information regarding alternatives to the proposed medication treatment. Although the state argued that respondent lacked the ability to understand any written information that may have been communicated regarding alternative treatment options and there was no evidence to show that she understood the information provided, the appellate court held that “Section 2-102(a-5) of the Code must be strictly complied with, so as to secure the liberty interest that a respondent has in refusing invasive medication.10 Because of this, verbal notice does not constitute compliance with section 2-103(a-5) of the Code, and respondent cannot waive his [or her] right to written notice. If such notice is not given, then the state cannot establish that a respondent lacks the capacity to make a ‘reasoned decision’ about treatment, because the written notice forms the basis upon which such a decision can be made.”11 Strict compliance is required. “Thus, the State cannot establish that a respondent lacks the capacity to make a reasoned decision without the respondent receiving prior written notice.”

The appellate court stated that it would be remiss if it did not note that this was the second time it had determined that respondent’s involuntary administration of psychotropic medication order was improper for the same reason.12 “Hopefully, the parties will take the necessary steps to ensure strict compliance occurs from this point forward.”

Andreas Liewald is a staff attorney with the Illinois Guardianship and Advocacy Commission, West Suburban (Hines) Office.

1. 405 ILCS 5/3-403.

2. In re Splett, 143 Ill.2d 225, 234 (1991).

3. See People v. Shinaul, 2017 IL 120162, ¶17 (“Absent express language in the statute providing an exception, we will not depart from the plain language and read into the statue exceptions, limitations, or conditions that the legislature did not express.”).

4. 405 ILCS 5/3-403.

5. In re Wheeler, 152 Ill. App. 3d 371, 373 (2d Dist. 1987).

6. 504 ILCS 5/3-403.

7. In re James E., 207 Ill.2d 105, 114 (2003).

8. Splett, supra note 2.

9. Id.

10. 405 ILCS 5/2-103(a-5).

11. In re Katarzyna G., 2013 IL App (2d) 120807.

12. In re Wilma T., 2018 IL App (3d) 170155.