Appellate update

In re Christopher C., 2018 IL App (5th) 150301  (Rule 23, Oct. 18, 2018, motion to publish granted Nov. 16, 2018)

This case was an appeal of an involuntary medication order. The fifth district reversed for two reasons: First, that the state failed to prove by clear and convincing evidence that the proposed testing was necessary for the safe and effective administration of treatment, and second, that the state failed to provide evidence of the designated treatment administrators (doctors).¹ The court did not consider the other raised argument regarding ineffective assistance of counsel.² Reversed.

Because the 90-day medication order expired,³ the court considered this appeal under the “capable of repetition, yet evading review” exception to mootness.⁴ This was “due to the short duration of involuntary treatment orders and the respondent’s ongoing mental health issues and unwillingness to take medication.”⁵ Though the respondent “raises sufficiency-of-the-evidence claims that may have no bearing on future proceedings” this appeal will still be considered because the respondent’s “claims also involve issues of statutory compliance that could affect the outcome of a future case.”⁶

The court then considered whether the state proved by clear and convincing evidence that the tests and other procedures ordered were essential for the safe and effective administration of the medication.⁷ Since the testifying doctor offered no specific testimony regarding the procedure, or frequency of the requested blood draws or tests (or even specified the tests requested), the state failed to prove this element by clear and convincing evidence, thus warranting reversal.⁸

The next issue was whether the treatment order’s designation of the persons authorized to administer the treatment was supported by evidence presented at the hearing and whether this is reversible error.⁹ While noting this is a case of first impression,¹⁰ the fifth district—citing in part to the Code’s requirement under 2-107.1(f) that annual trainings be provided for physicians and nurses in state-operated mental health facilities regarding the appropriate use of psychotropic medication—held that the order must be supported by evidence.¹¹ This requirement helps to ensure that only a limited number of designated individuals will be able to administer the medications.¹² Since the state presented no evidence—either through testimony or judicial notice—of who would administer the treatment (besides the testifying doctor), the circuit court should not have authorized those persons to administer the treatment.¹³

There was one dissent in this opinion, Justice Cates, who noted that this appeal is moot and therefore should have been dismissed; she further stated that the state presented sufficient evidence to support the involuntary medication order.¹⁴

In re Bonnie S., 2018 IL App (4th) 170227 (December 3, 2018, petition for rehearing denied)

This case was an appeal of an involuntary medication and an involuntary commitment order. The fourth district affirmed the orders finding that the state sufficiently complied with the Code’s procedural and evidentiary requirements.¹⁵

Concerning the threshold mootness question, the court considered this appeal under the “capable of repetition” exception to mootness.¹⁶

With regards to the involuntary commitment order, the respondent raised two issues: 1) that the state failed to promptly file the second certificate as required by sections 3-610 and 3-611 of the Code; and 2) the state failed to disclose treatment timeframes in the treatment plan as required by section 3-810.¹⁷

Here, the examination for the second certificate occurred on February 28, 2017, however the second certificate was then filed on the day of the hearing, March 13, 2017.¹⁸ The issue then is whether this is considered a prompt filing as required by section 3-610 and 3-611.  As for the “prompt” filing of the second certificate, the fourth district held that since the Code does not state the consequences of failing to promptly file the second certificate, it is a directory, rather than a mandatory requirement.¹⁹ Though the court did not condone or express approval of the long delay between the examination and the filing, which occurred here, it determined that because the delay was not unreasonable and because it did not prejudice the respondent, reversal is not warranted.²⁰

The second argument on the commitment case was whether section 3-810 of the Code was complied with because of the treatment plan’s failure to provide a projected timeline for the treatment attainment.²¹ Though the state conceded that the predisposition report did not include a treatment timetable, it argued that the doctor’s testimony (that the respondent, because of the severity of her illness, needs “long-term treatment” and the maximum period for commitment) constitutes substantial compliance with this requirement.²² The court agreed with the state’s substantial compliance argument and affirmed the commitment order.²³

As for the involuntary treatment order, the respondent raised two issues that the Fourth District also rejected: 1) that the state failed to prove by clear and convincing evidence that the Respondent received the required written information about alternative forms of treatment; and 2) that the order for involuntary treatment was unsupported by evidence as to who would administer the treatment.²⁴

As to the written information regarding alternative treatment requirement prior to involuntary treatment as required by section 2-102(a-5) of the Code, the fourth district determined that this requirement is only necessary when there are reasonable, viable alternatives.²⁵ Here, since the doctor testified that there were no alternative treatments other than medication, and because of the severity of the respondent’s illness, the record “demonstrates any type of counseling or therapy was not reasonable without medication.”²⁶ The court therefore concluded that the state demonstrated it provided proper written notice of all reasonable alternative treatments to the respondent.²⁷

The final issue considered was the failure to provide evidence regarding the people authorized to administer the medication.²⁸ Though noting that the treatment order must designate who is authorized to administer the treatment, the court held that the Code “does not indicate that specific evidence must be presented regarding who is authorized to administer treatment, and we decline to read such a requirement into it.”²⁹ It did note that sound practice would be to present this evidence and that the order specify the authorized treatment administrators.³⁰ Judgment affirmed.³¹

Barbara Goeben is a staff attorney with the Illinois Guardianship and Advocacy Commission, Metro East Regional Office in Alton.

1. In re Christopher C., 2018 IL App (5th) 150301 at ¶¶ 19-20.