Appellate Update

In re Craig H., 2020 IL App (4th) 190061 (Opinion filed April 7, 2020)

A power of attorney does not preclude an involuntary treatment petition.

Craig H., Respondent-Appellant, "appeal[ed] from the trial court's order finding him subject to involuntary administration of psychotropic medication pursuant to section 2-107.1 of the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/2-107.1 (West 2018))." ¶ 1. The appellate court affirmed the trial court’s judgment ¶ 2.


In 2018, a petition for administration of psychotropic medication was filed on the basis of the Respondent’s deterioration of ability to function. ¶ 4. At the petition’s filing, Craig H.’s mother was his agent through a health care power of attorney. ¶ 16. However, the psychiatrist's and the agent's preferred treatment options diverged. ¶ 19. The psychiatrist testified that the 82-year-old mother, who had been previously attacked, planned to take Respondent home and lock him in his room. ¶ 19. She did not have "experience watching [R]espondent take medications because she repeatedly stopped his medications." ¶ 16. The psychiatrist further testified that they believed the agent "did not have [R]espondent's best interest at heart." ¶ 16.

At the beginning of the hearing, Respondent’s attorney moved to dismiss the petition, on the basis of Respondent having a valid health care power of attorney, and that the decision of the agent under the power of attorney must be honored. ¶6 The trial court denied Respondent's motion to dismiss and subsequently granted the petition. ¶ 7, 20.
Respondent argued three issues upon appeal: (1) the case fell under an exception to the mootness doctrine; (2) the trial court erred by denying his motion to dismiss; and (3) the court's order stripped him of his right to self-determination under the Powers of Attorney Law (755 ILCS 45/4-1 et seq. (West 2018)), in violation of both the Mental Health Code and the Powers of Attorney Law. ¶ 23.

1. Mootness

The court considered Respondent's case under two recognized exceptions to the mootness doctrine, capable-of-repetition-yet-evading-review and the public interest exception. ¶ 25. It met the “capable of repetition” exception in part because Craig T.’s history of mental health issues and his having a power of attorney. This appeal challenged the interpretation of both the Code and the Powers of Attorney Law; therefore, the resolution of this matter will likely affect future cases involving the Respondent. ¶ 28. This appeal also satisfied the “public interest” exception to mootness in partly because Respondent's claim raised an issue of first impression. ¶ 30

2. Motion to dismiss

The appellate court affirmed the denial of Respondent's motion to dismiss when it affirmed the trial court's rulings with regards to the Mental Health Code and Powers of Attorneys Laws. See ¶ 34, 48. Because this matter is one of statutory interpretation, the court review these issues de novo. ¶ 35.

3. Mental Health Code

"Based upon the plain language of the provisions in the Mental Health Code, the existence of a power of attorney does not preclude the State from filing a petition for the involuntary administration of psychotropic medication." ¶ 38.

Specifically, the court found relevant section § 2-102(a-5)’s language that "pursuant to the provisions of Section 2-107 or 2-107.1 or [] pursuant to a power of attorney for health care under the Powers of Attorney for Health Care Law or a declaration for mental health treatment under the Mental Health Treatment Preference Declaration Act." ¶ 38.(citing § 2-102(a-5)). Noting the "use of the disjunctive 'or'[,]" the court concluded that the decision of a power of attorney does not preclude the filing of a petition under 2-107.1. Id.

The court also noted that the Mental Health Code is silent as to the filing of the treatment petition when the agent objects to the involuntary medication, thus section 2-107.1 controls in this situation. ¶ 39.

Second, the court looked to the plain language of § 2-107.1 (a-5). ¶ 40. Specifically, the court found relevant this section's requirement that, in anticipation of filing a petition for involuntary administration of psychotropic medication, the petitioner "make a good faith effort to determine whether a power of attorney exists and to attach a copy of the instrument . . . to the petition." Id. The court stated that in circumstances where a petitioner identifies a power of attorney, rather than provide for the preclusion of a petition, the statute provides procedural requirements under which a petition may proceed. Id. Therefore the statute contemplates the filing of an involuntary medication petition even with the existence of a power of attorney. ¶ 41.

4. Powers of Attorney Laws

Despite the "broad language" employed in particular clauses of the Powers of Attorney Law (¶¶ 44, 45), the court concludes this does not preclude the State from filing a petition under § 2-107.1. ¶ 45.

The court acknowledges that "the plain language of the Powers of Attorney Law suggests that an agent has the unlimited power to make health care decisions for a person." ¶ 44. First, the court highlights the language of an included "purpose" provision. ¶ 43 (internal quotations omitted; internal formatting omitted). This includes the General Assembly's intent to recognize an individual's right "to control all aspects of his or her personal care and medical treatment . . . " ¶ 42. Included as well is a health care provider's duty upon belief a patient lacks capacity to "consult with any available health care agent . . . who then has the power to act for the patient . . . " Id. Second, the court recognizes a "supremacy clause" included in the Powers of Attorney Law. ¶ 43. This clause directs that the law "supersedes all other Illinois Acts or parts thereof . . . to the extent such other Acts are inconsistent with the terms and operation of this Article . . . " Id. However, noting that only two cases reference this provision and neither addresses its relation to the Mental Health Code, the court proceeds to evaluate whether it precludes the State from filing a petition pursuant to § 2-107.1. ¶ 45.

As the Powers of Attorney Law relates to the Mental Health Code, it is the Mental Health Code that prevails given the State's significant interests in providing for those suffering from mental illness and judicial preference for allowing more particular provisions to prevail over conflicting general provisions. ¶ 45, 46. First, the court recognizes that the State "has both a parens patriae interest in providing for those suffering from mental illness . . . and a penological interest in restoring Respondent to fitness to stand trial." ¶ 45 (citing In re C.E., 161 Ill. 2d 200 (1994), Sell v. United States, 539 U.S. 166 (2003). Second, the Mental Health Code anticipates the filing of a petition pursuant to § 2-107.1 even where a respondent has a power of attorney and does not require that health care agent "to acquiesce to treatment before the court can order it." ¶ 46. The court notes "where there are two statutory provisions, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one subject, the particular provision must prevail." ¶ 46 (citing Village of Chatham v. County of Sangamon, 216 Ill. 2d 402 (2005); emphasis added). Thus, the particular language of the Mental Health Code, which specifically addressed involuntary medication petitions permitted the filing of the petition here, irrespective of language in the Powers of Attorney Law ostensibly to the contrary. Id.

In re Robert M., 2020 Ill. App. (5th) 170015 (Opinion filed Feb. 28, 2020)

Involuntary medication order affirmed refines the suffering criteria for involuntary medication.


Robert M. appealed an involuntary medication order raising two issues: 1) the State provided insufficient evidence to establish that he was suffering as a result of his mental illness, and 2) that less restrictive treatments were explored and found to be inappropriate. ¶ 1. The appellate court affirmed the trial court order. ¶ 65.


Respondent, diagnosed with schizoaffective disorder, bipolar type, was admitted to a mental health facility "after being found unfit to stand trial." ¶ 4-5. Additionally, "[at] the time of his admission . . . [Respondent] was experiencing pain from several infected teeth." Id. Respondent indicated to the psychiatrist that he was willing to take an antianxiety medication, but not antipsychotic medication. ¶ 10. Shortly following admission, a petition for the involuntary administration of psychotropic medication was filed pursuant to 405 ILCS 5/2-107.1, claiming that Robert M.’s behavior exhibited all three criteria for involuntary medication (deterioration in his ability to function, exhibiting threatening behavior, and suffering.) ¶¶ 4, 7-9, 36.
At trial, the psychiatrist testified that the Respondent "reported to his treatment team that he was 'in duress with anxiety.'" (quotation in original); ¶ 8. He also stated that Respondent's participation in classes and therapy sessions were alone inadequate to treat his symptoms. ¶ 12. Respondent testified that he was willing to take an antianxiety medication to resolve his irritability (which stemmed from his dental pain), at least until his dental treatment was completed. ¶ 16.

The court then granted the involuntary medication petition, specifically finding that only the suffering criteria had been sufficiently proven and rejecting the other criteria for medication. ¶¶ 18, 22.
Although Respondent filed a motion to reconsider, it did not come to hearing before the order had expired. ¶ 23. Thus, the trial court found the motion to reconsider was moot and dismissed the motion. ¶ 27.


On appeal, Respondent argued that (1) "there was insufficient evidence to support the court's finding that he was suffering (¶ 39), and (2) "there [was] no evidence that the less restrictive alternative of allowing him to voluntarily take [an antianxiety medication] was explored and found to be inappropriate." ¶ 52.

1. Mootness

The court noted that as the trial court's order had expired, the appeal was technically moot. ¶ 30. However, it found that the public interest exception to the mootness doctrine applied, thus permitting consideration of the appeal. ¶ 33. In particular, the court determined that Respondent's claim regarding suffering "turn[ed] on what type of evidence will support a finding that a respondent is exhibiting suffering." ¶ 33. "Similarly, [Respondent's] [claim regarding less restrictive services] turn[ed] on the question of whether, and under what circumstances, a respondent's willingness to voluntarily take some of the proposed medications constitutes a less restrictive form of treatment." Id. Thus, both claims presented questions of sufficient public concern. Id. After determining there was a need for an authoritative determination and likelihood of recurrence, the court considered both of Respondent's claims under the public interest exception. Id.

2. Suffering

Respondent argued that, inter alia, the trial court's finding that his symptomology in and of itself constituted suffering conflicted with established precedent. ¶ 39. Relying on Debra B., Respondent argued such a holding was untenable as it was "tantamount to holding that any patient with a serious mental illness is subject to involuntary administration of medication." Id.; see Debra B., 2016 Ill. App. (5th) 130573 at ¶ 45; (internal quotations omitted). However, the court found Debra B. was distinguishable from the present appeal. ¶ 40.

Here, however, the court found the psychiatrist's testimony of Respondent's symptoms supported a finding of suffering. ¶ 47. Robert M. himself admitted that he was experiencing anxiety ¶ 40. Among the symptoms testified to by the psychiatrist were Respondent's belief that "his fever was cooking his brain and that his dental infection was spreading throughout his bloodstream" (¶ 47; (internal quotations omitted)), paranoia surrounding facility staff and antibiotic medications which may have alleviated his tooth pain, angry behavior, and self-reported anxiety. Id. The court noted that "if there is a clear nexus between the symptoms themselves and a respondent's suffering, the symptoms themselves may be enough to support a finding of suffering." ¶ 45; citing Debra B., 2016 Ill. App. (5th). It also reasoned that "it was easy to understand why such beliefs would cause fear and anxiety" (¶ 47), and further stated the psychiatrist's testimony was "precisely the type of evidence [the court] said the State could present to support a finding of suffering in Debra B." ¶ 48.

3. Less restrictive services

In finding that Respondent's willingness to take an antianxiety medication did not constitute a less restrictive alternative to the medications being sought to be administered involuntarily, the court distinguished the present appeal from In re Torry G., the only other Illinois case to squarely address the precise question presented. ¶ 53; see In re Torry G., 2014 Ill. App. (1st) 130709.

In Torry G., a psychiatrist sought to involuntarily administer "two primary medications and seven alternate medications to [respondent]." ¶ 59; citing Torry G., 2014 Ill. App. (1st). While there was evidence Respondent refused to take two of the proposed medications, there was no evidence regarding his willingness to take any of the others or their appropriateness as substitutions. Id.; citing Torry G., 2014 Ill. App. (1st). Referencing the established preference for voluntary over involuntary treatment in the context of admission proceedings, the court "found the same principle to be applicable in the case of proceedings for involuntary medication . . . " ¶ 58; citing Torry G., 2014 Ill. App. (1st). As "there was no testimony establishing that the medications [Respondent] was willing to take could not effectively treat his mental illness . . ." the State had not met its burden to demonstrate that this less restrictive alternative had been explored and found to be inappropriate. ¶ 61; citing Torry G., 2014 Ill. App. (1st); (internal quotations omitted).

In short though Robert M. was willing to take one medication, the court found that it would not be a sufficient substitute for all of the petitioned for medications. ¶ 63. Here, "the record . . . establishes that it was not appropriate to administer only an antianxiety medication without also administering antipsychotic medication to treat [Respondent's] other symptoms." ¶ 63. The court stated that "the question is not simply whether voluntarily taking those medications is appropriate for the patient at all, but whether taking those medications in lieu of the medications requested in the petition is appropriate." ¶ 62. Thus, the court concluded "the instant case [stood] in stark contrast to Torry G." Id. See also, In re Israel, 278 Ill. App. 3d 24 (1996). As such, here, the evidence was sufficient to "prove that less restrictive services were explored and found to be inappropriate." ¶ 63.
Trial court order affirmed.

Pat Graham is a 2021 J.D. candidate studying at St. Louis University School of Law. He is working with the Illinois Guardianship and Advocacy Commission under the supervision of Barbara Goeben, pursuant to Illinois Supreme Court Rule 711. He can be contacted at

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