Appellate Summary

In re Hans T., 2021 IL App (2d) 180387 (August 4, 2021)

The Second District appellate court reversed an order subjecting respondent, Hans T., to involuntary admission on an outpatient basis, under which he was required to reside in a locked unit of a nursing home for 180 days. ¶1. The appellate court agreed with the respondent that the order was essentially an order for involuntary admission on an inpatient basis, without the statutory procedures and findings necessary to impose such an order, and for twice the time permitted for an initial involuntary inpatient admission. ¶1.

Background

Central DuPage Hospital filed documents seeking the involuntary outpatient admission of respondent, alleging that he was a person with a mental illness that, if left untreated, was reasonably expected to result in increase in symptoms to the point that he would meet the criteria for commitment and whose illness had more than once caused him to refuse needed and appropriate mental health services in the community. ¶3. The hospital alleged that respondent had been admitted to inpatient treatment several times and that he returned because he was unable to function in his home, in that he was noncompliant with his medications and aggressive with his mother. ¶3. The State then filed a motion for the care and custody of respondent for community placement, seeking to place respondent in a residential facility upon discharge from the hospital, have his mother named as his custodian, and for him to take all prescribed medication, which it listed. ¶4.

At the involuntary admission hearing, respondent’s mother, respondent’s social worker, and psychiatrist recommended and requested that respondent be placed at Aperion Care Center (Aperion), an intermediate care facility – nursing home, where patients were not allowed to leave freely, for the maximum of 180 days. ¶5-7. Respondent’s attorney moved for a directed finding, arguing that, although the petition was for 180 days of outpatient treatment, the State and hospital were requesting to place respondent in a secure facility on an inpatient basis for 180 days, which the trial court denied. ¶8. Respondent then testified on his own behalf. ¶9. In closing, respondent’s attorney argued, inter alia, that the statute governing outpatient admission allowed someone to be admitted for up to 180 days, because outpatient treatment was a less restrictive setting than inpatient treatment, which the statute governing inpatient admission limited to 90 days. ¶10. The attorney argued that the State was improperly trying to combine the provisions of both statutes. ¶10.

The trial court stated that it was taking judicial notice that respondent was found unfit to stand trial in 2010. ¶11. It stated that the testimony at the hearing was essentially unrebutted and that respondent had made many statements that were divorced from reality and underscored the need for continued treatment. ¶11. The trial court granted the petition. ¶11.

Respondent filed a motion to reconsider, arguing that no reasonable definition of outpatient treatment entailed a person being physically confined to a hospital against his will. ¶12. The trial court stated that it would grant the motion to reconsider to correct certain scrivener’s errors, such as a box being checked next to the statement that the period of “hospitalization” shall not exceed 180 days. ¶12. It stated that the order’s intent was not that respondent be hospitalized but rather that respondent’s mother would be his custodian and that the least restrictive environment for him would be custody by and through his mother at Aperion. ¶12. The trial court did not consider Aperion the same as inpatient hospitalization. ¶12.

Respondent filed a notice of appeal, arguing that (1) his due process rights were violated when the trial court involuntarily committed him to inpatient treatment in a nursing home under the section of the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/1-100 et seq (West 2018)) governing outpatient treatment (section 3-818), which has less stringent standards and is up to 180 days, twice as long as permitted for inpatient commitment; (2) the involuntary admission order was void for lack of statutory authority, because it required him to take medications, including psychotropic medications; (3) he was denied a fair trial when the trial court sua sponte took judicial notice of a matter outside the record after the close of evidence and relied on the information and its findings; and (4) this appeal fell within exceptions to the mootness doctrine. ¶13.

The state thereafter filed a confession of error, agreeing that the trial court’s order should be reversed because the Mental Health Code requires separate hearings for involuntary admission and for involuntary treatment with medications, and also because respondent should not have been committed to an inpatient facility for 180 days after an outpatient commitment proceeding. ¶14. The appellate court initially issued a minute order that accepted the State’s confession of error, reversed the trial court’s order, and served as the mandate. ¶14. Respondent then filed a motion with the appellate court to recall the mandate and issue an opinion. ¶15. Respondent argued that the appellate court should issue an opinion because there was no case law providing guidance about the difference between an order for involuntary inpatient admission and an order for involuntary outpatient admission, nor was there case law addressing the authorization of involuntary medication in an involuntary outpatient order. ¶15.

The appellate court granted respondent’s request to recall the mandate. ¶16. It vacated the minute order and ordered that his request for the new decision to be an opinion would be taken. ¶16.

Analysis

Mootness

The appellate court found that the public interest exception to the mootness doctrine applied to the issue of involuntary inpatient admission versus outpatient admission. ¶21. First, the issue was of public nature, involving construing portions of the Mental Health Code, as opposed to being a case-specific concern. ¶20, 21. Second, there was a need for an authoritative determination to guide public officers, because as the trial court pointed out, there was no case law on this subject. ¶20, 21. Last, a future recurrence of the question was likely because mental health patients often face involuntary commitment to nursing home settings. ¶20, 21.

However, the appellate court did not find the public interest exception to the issue of whether the trial court lacked authority to order medication as part of its involuntary admission order because the appellate case law is clear that the trial court must hold separate hearings on petitions to involuntary administer psychotropic medication and for involuntary admission. Citing 405 ILCS 5/2-107.1; In re David M., 2013 IL App (4th) 121004, ¶¶35-38; In re E.F., 2014 IL App (3d) 130814, ¶48; and In re Sharon H., 2016 IL App (3d) 140980, ¶31. ¶22. An involuntary admission hearing can be for admission on either an inpatient basis or an outpatient basis. Citing 405 ILCS 5/119 and 119.1 (West). ¶22. The appellate court also did not find the capable of repetition yet avoiding review exception to be applicable to this issue because the State had already conceded error on this issue as it pertains to respondent, so it was very unlikely that the issue would recur with him. ¶23.

Finally, the appellate court held that because respondent did not argue the issue that the trial court erred in sua sponte taking judicial notice of respondent previously being found unfit to stand trial in his motion to recall the mandate, it would not address the issue. ¶24.

Involuntary Inpatient Admission Versus Involuntary Outpatient Admission

The appellate court agreed with respondent that the nursing home to which respondent was ordered was a licensed private hospital under the Mental Health Code, the statutes defining “mental health facility” and “licensed private hospital”, and consistent with Muellner v. Blessing. ¶31, 35. Citing 405 ILCS 5/1-112, 113, and 114 (West 2018); and Muellner v. Blessing Hosp., 335 Ill. App. 3d 1079, 1083 (4th Dist. 2002). The appellate court held that the order for care and custody thus could not give respondent’s mother the authority to require respondent to stay at a nursing home facility under the terms set forth by the court, which effectively ordered respondent’s “hospitalization.” ¶35.

The appellate court found that the trial court ordered the respondent be involuntarily admitted on an inpatient basis to Aperion, a nursing home, even though Central DuPage Hospital filed a petition for involuntary outpatient admission. ¶33. As respondent highlighted, the statute governing involuntary inpatient admission contains stricter criteria than that for involuntary outpatient admission, in that it requires a showing that respondents would otherwise be reasonably expected to place themselves or others in physical harm, are incapable of independently caring for their basic physical needs so as to prevent serious harm to themselves, or do not understand the need for and refuses treatment such that they are reasonably expected to suffer mental or emotional deterioration to the extent that they meet one of the first two criteria. Citing 405 ILCS 5/1-119 (West 2018). ¶33. Because involuntary inpatient admission severely curtails a person’s liberty, initial commitment orders are limited to 90 days. Citing In re Barbara H., 183 Ill. 2d 482, 496 (1998) and 405 ILCS 5/3-813(a)(West 2018).

The appellate court found, in contrast, involuntary admission on an outpatient basis requires a showing that either (1) a person would meet the criteria for inpatient admission without treatment on an outpatient basis and for whom such treatment can be reasonably ensured only through court order, or (2) a person has a mental illness that, without treatment, is reasonably expected to progress to the point that the person would meet the criteria for involuntary inpatient admission, and whose mental illness has previously caused the person to refuse necessary mental health services. Citing 405 ILCS 5/1-119.1 and 5/3-813. ¶34. “As outpatient treatment does not involve overnight hospitalization, it is not as severe an impairment to a person’s liberty as inpatient treatment, and thus an initial order of commitment on an outpatient basis may be for a longer period of time, specifically up to 180 days. ¶34. The appellate court accordingly found that the trial court erred by granting the petition for involuntary outpatient admission where the treatment ordered fell within the category of involuntary inpatient admission.” ¶34.

The appellate court agreed with the respondent that the fact that the trial court entered an order placing respondent in the care and custody of his mother did not affect the above analysis. ¶35. Section 3-812(a) of the Mental Health Code states

“If a respondent is found subject to involuntary admission on an outpatient basis, the court may issue an order: (i) placing the respondent in the care and custody of a relative or other person willing and able to properly care for him or her; or (ii) committing the respondent to alternative treatment at a community mental health provider.” 405 ILCS 5/3-812(a). ¶35.

“First, the statute applies if the trial court finds that a respondent is subject to involuntary admission on an outpatient basis, whereas here the trial court effectively ordered respondent committed on an inpatient basis. Second the statute states that the trial court may order the respondent to either be placed in the care and custody of an individual willing to properly care for him or her or be committed to alternative treatment at a community mental health provider. Here respondent was placed in the care and custody of his mother, but she testified that she was not willing to care for him. The statute additionally states that the order may grant the custodian the authorization to hospitalize the respondent if he or she fails to comply with the order’s conditions, but such hospitalization is limited to 24 hours, excluding weekends and holidays. Citing 405 ILCS 5/3-812(b). Indeed, the statutory definition of ‘care and custody’ expressly excludes the authority to require hospitalization of respondent.” ¶35.

The appellate court also held that the trial court’s amended order stating that, in addition to being in the care and custody of his mother, respondent was ordered to reside at the nursing home as a community placement, unless otherwise decided by his mother, who could place him in another “intermediate care facility,” violated the Mental Health Code because it required respondent’s involuntary inpatient admission based on a petition and the criteria for involuntary outpatient admission. ¶36.

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