Opinion
No. 1-17-2587
05-10-2019
IN RE LEO M., Alleged to be Subject to Involuntary Medication (THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. LEO M., Respondent-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 2017 COMH 2228 Honorable Paul A Karkula, Judge, Presiding. JUSTICE HALL delivered the judgment of the court.
Presiding Justice Rochford and Justice Hoffman concurred in the judgment.
ORDER
¶ 1 Held: Respondent's appeal from an involuntary medication order was considered on its merits pursuant to the public interest and "capable of repetition yet avoiding review" exceptions to mootness; the circuit court's order to involuntarily medicate respondent was not against the manifest weight of the evidence when the State proved that the benefits of the medication outweighed the harm to respondent and respondent lacked capacity to make medical decisions. ¶ 2 Respondent Leo M. appeals from an order of the circuit court of Cook County granting the State's petition to involuntarily administer psychotropic medication to him. On appeal, respondent contends that although this particular involuntary medication order is moot because it was only effective for 90 days which have since passed, this court can review it under both the collateral consequences and "capable of repetition yet avoiding review" exceptions to the mootness doctrine. Respondent also contends that the circuit court's order for involuntary medication is not supported by clear and convincing evidence that: 1) the benefits of the medication outweigh the harm when respondent's testimony about his side effects was uncontroverted, and 2) respondent lacked capacity to make his own medical decisions, thereby violating his right to refuse medication. Although the State has not filed a brief on appeal, we will consider the appeal pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976). For the following reasons, we consider this appeal under the public exception and "capable of repetition yet avoiding review" exceptions to mootness and affirm.
¶ 3 BACKGROUND
¶ 4 Respondent is a 22-year-old male who was involuntarily hospitalized at Riveredge Hospital in Forest Park, Illinois on June 21, 2017, after police picked him up in a train station based on reports of erratic behavior. He was under the care of Dr. Richard Goldberg, who had previously treated him at Riveredge Hospital between June 14 and June 20, 2017, and also in 2012 when respondent was an adolescent. When respondent was hospitalized on June 21, 2017, and Dr. Goldberg was assigned as his psychiatrist, respondent requested a different doctor. However, another psychiatrist was not assigned to respondent. According to staff at Riveredge, respondent's mother had recently passed away, possibly as the result of suicide. ¶ 5 On June 30, 2017, Dr. Goldberg filed a petition seeking authority to involuntarily medicate respondent with psychotropic medications, specifically Risperdal, Invega Sustenna, and Haldol. An amended petition was filed on July 20, 2017, and a hearing was held on July 27, 2017. ¶ 6 Dr. Goldberg testified that Invega Sustenna is a long-acting injection and is the parent compound for Risperdal that breaks down into Risperdal. He further explained that Invega Sustenna lasts for a month and is a way to deliver Risperdal to an individual who is largely noncompliant with medication. ¶ 7 Dr. Goldberg further testified that he was unsure of respondent's specific mental health diagnosis; he was aware that the original diagnosis was bipolar disorder, but that the diagnosis may have gone through some "possible modifications" since then. He opined that schizoaffective disorder was perhaps more specific to respondent's situation; he believed that respondent "had some delusional ideas that [Dr. Goldberg] harmed his mother as well as [respondent] somehow through his adolescence." ¶ 8 Dr. Goldberg also testified that on the second day of respondent's June 21, 2017, hospitalization, staff informed him that respondent tried to hang himself by putting his hospital gown or a bed sheet around his neck, knotting it and then putting it over the door frame. The staff person who reported the incident did not testify at the hearing. ¶ 9 Dr. Goldberg testified that on July 2, 2017, respondent asked to speak to him and subsequently punched him two or three times in the chest and said "that's for my mother and me." Dr. Goldberg was not physically injured as a result of the incident. After respondent walked away from Dr. Goldberg, staff administered Haldol to respondent. Respondent experienced an adverse reaction to the Haldol. Respondent was prescribed Benadryl four times per day to relieve the side effects of Haldol. ¶ 10 According to Dr. Goldberg, respondent indicated he experienced depression throughout his life and believed he had PTSD. Dr. Goldberg then contradictorily opined that respondent's illness "rendered him in tremendous denial. He doesn't feel he has an illness of any kind and seems to have no appreciation for his situation." Dr. Goldberg also testified that respondent thought that marijuana was the solution for his problems. Based on this opinion, Dr. Goldberg believed that respondent lacked the capacity to make a reasoned decision about taking medication. He wanted to administer Risperdal or Invega Sustenna to respondent as the primary medication. Dr. Goldberg indicated that Risperdal could cause side effects such as tremors; muscle spasms in the eyes or back; a potentially permanent involuntary movement disorder of the lips, face and tongue; and akathisia, a restlessness and inability to sit still. He was unsure whether respondent had taken Risperdal before. Dr. Goldberg also wanted to administer Invega Sustenna as a long-acting means of administering a medication that was "Risperdal type," and did not believe respondent had ever been treated with it before. He wanted to administer Haldol, one of the oldest psychotropic medications, as a backup "short-term approach to hopefully produce enough introduction to allow [respondent] to take the less problematic medication. Haldol being a first generation antipsychotic medication brings with it greater incidence of side-effects." The side effects of Haldol are "the extrapyramidal reaction, muscle spasms, tremors, things like that." Dr. Goldberg testified that respondent had not been treated with Haldol to his knowledge. However, on cross-examination, Dr. Goldberg admitted that respondent's chart noted an allergy to Haldol. Dr. Goldberg also stated that in his opinion, the anticipated benefits of the drugs would outweigh the possible harm. ¶ 11 Dr. Goldberg noted that Haldol had a proven track record for 67 years and was highly effective in controlling psychotic symptoms. The purpose of administering Haldol as a backup in this circumstance was if respondent refused to take Risperdal orally, Dr. Goldberg could not give him Invega Sustenna directly because there needed to be some doses of oral medication in respondent's system in order to test it. He also testified that respondent was given written information regarding the proposed medications, their benefits and side effects, and nonmedical alternatives to the proposed treatment. Dr. Goldberg further stated that respondent's prognosis would be very poor if the petition was not granted and that if the petition was granted, the plan was to implement the medication designated, get a positive response and prepare some meaningful discharge plans: living arrangements, outpatient treatment, structure and support so that respondent could function again safely and to his own advantage. ¶ 12 Respondent testified that he has mental illnesses, specifically manic depressive disorder (also known as bipolar disorder) and post traumatic stress disorder (PTSD). Respondent received his first diagnosis of manic depressive disorder at MacNeal Hospital when he was having suicidal thoughts in January 2016. Although respondent had seen a doctor in 2012 because of suicidal thoughts, he was unsure whether he received an official diagnosis at that time. Respondent indicated that he did not have any symptoms between 2012 and 2016. ¶ 13 Respondent's experience with psychotropic medications began when he was prescribed an antidepressant when he was 12 years old. Since that time, respondent has been prescribed other psychotropic medications, including Zyprexa, Risperdal, and Haldol. Respondent testified that when he was admitted to Riveredge on June 14, 2017, he reported to the charge nurse and Dr. Goldberg that he previously had adverse reactions to Haldol. ¶ 14 Respondent's first experience with Haldol was in February 2017 in the emergency room at St. Joseph Hospital, where he voluntarily took the medications Haldol and Ativan (an antianxiety medication). Respondent had what he believed to be an allergic reaction to Haldol: his jaw contracted and it was hard for him to breathe. Because respondent had taken Ativan previously with no side effects, he attributed his bad reaction to Haldol. In response to his symptoms, the staff at St. Joseph gave him Congentin, which took one to two days to relieve his side effects. ¶ 15 In May 2017, while in the emergency room at Rush Hospital, respondent received an injection of Haldol, and experienced the same reactions of jaw tightening and breathing difficulty. His adverse reaction became worse after leaving Rush, and respondent went to the emergency room at University of Illinois at Chicago Hospital, where staff treated him with Congentin. ¶ 16 Respondent also testified that he took Risperdal for five days in May 2017 while at Kindred Hospital, but did not experience any benefits from it; instead, he experienced increased depression and had tremors and muscle spasms in his limbs. ¶ 17 When he was readmitted to Riveredge on June 21, 2017, respondent again told Dr. Goldberg, the charge nurse and others about his adverse reactions to Haldol. Dr. Goldberg told respondent that he would note that respondent was allergic to Haldol. ¶ 18 Respondent, who did not want to be treated by Dr. Goldberg, stopped talking to him altogether after the petition for involuntary medication was filed. ¶ 19 At the end of the hearing, the circuit court found that respondent was previously diagnosed with a severe bipolar disorder which appeared to have advanced to schizoaffective disorder. The court found that the doctor noted three extreme examples of respondent's mental illness that occurred within the last 30 days, namely respondent's suicidal thoughts and suicide attempt, and respondent's attack on Dr. Goldberg. The court also found that respondent was a very unstable young man who was diagnosed with mental illness early and in the last few years, respondent had been either in the emergency room or hospitalized at Rush, UIC, MacNeal, St. Joseph and Riveredge; noting that the prior Riveredge visit was from June 14 to June 20 and "not even out 24 hours before he was readmitted on June 21 and remains there to this day." The circuit court determined that everything Dr. Goldberg testified to was "absolutely in respondent's best interest and very credible." ¶ 20 Accordingly, the court granted Dr. Goldberg's petition on July 27, 2017, in a pre-printed written order, and entered a 90-day order for involuntary medication along with the following tests: CBC, Comprehensive Metabolic Profile and an EKG. This timely appeal followed.
"Extrapyramdial" side effects are physical symptoms, including tremors, slurred speech, akatheisa, dystonia, anxiety, distress, paranoia, and bradyphrenia that are primarily associated with improper dosing of or unusual reactions to antipsychotic medications. https://medicinenet.com/script/main/art.asp?articlekey=11354
So known under the current nomenclature, Web MD, Bipolar Disorder, at https://www.webmd.com/depression/guide/bipolar-disorder-manic-depression#1
Zyprexa is also known under the brand name of Olanzapine; Risperdal is also known under the brand name of Risperidone, and Haldol is also known under the brand name of Haloperidol. All three are antipsychotic medications. Zyprexa and Risperdal are second generation or "atypical" antipsychotics, while Haldol is a first generation or "typical" antipsychotic medication. https://www.nimh.nih.gov/health/topics/mental-health-medications/index.shtml#part 149866.
CBC was not defined in the order, but means complete blood count. --------
¶ 21 ANALYSIS
¶ 22 On appeal, respondent contends that although this particular 90-day involuntary medication order is moot because its effective period has expired, this matter is reviewable under both the collateral consequences and "capable of repetition yet avoiding review" exceptions to the mootness doctrine. Additionally, respondent contends that the trial court's order is not supported by clear and convincing evidence that the benefits of the medication outweigh the harm where respondent's testimony about his side effects was uncontroverted and there was not clear and convincing evidence that he lacked the capacity to make his own medical decisions, thereby violating his right to refuse medication.
¶ 23 A. Mootness
¶ 24 Respondent first contends that although the subject matter of this appeal is moot as the 90-day order for involuntary medication has expired, this matter is reviewable under both the collateral consequences and "capable of repetition yet avoiding review" exceptions to the mootness doctrine. Specifically, respondent maintains that the collateral consequences exception permits review when a mental health order has ended because the respondent may suffer collateral legal consequences that are likely to be redressed by reversal of the order, and would preclude any future, forcible injection of Haldol into his body. Additionally respondent maintains that the capable of repetition yet avoiding review exception applies because the issue raised could recur should he face future proceedings, and the 90-day period of the involuntary medication order is a period too short to permit litigation. ¶ 25 No dispute exists that respondent's appeal is rendered moot by the expiration of the 90-day treatment period. See In re Rita P., 2014 IL 115798, ¶ 29. Section 2-107.1(a-5)(5) of the Mental Health and Disabilities Code (Code) provides that in no event shall an order for the involuntary administration of psychotropic medication be valid for more than 90 days. 405 ILCS 5/2-107.1(a-5)(5) (West 2016). Here, the circuit court's order was entered on July 27, 2017. Because 90 days have passed since the entry of that order, it no longer has any force or effect, and this court cannot grant effectual relief to either party. In re Bobby F., 2012 IL App (5th) 110214, ¶ 13. ¶ 26 While respondent contends that the collateral consequences mootness exception applies to this case, our supreme court has found that the collateral consequences exception cannot rest upon a single involuntary admission or treatment order that was entered, or upon a vague, unsupported statement that collateral consequences might plague the respondent in the future. Rita P., 2014 IL 115798, ¶ 34. As there is no evidence of prior involuntary admission or treatment in this case and only general collateral consequences alleged, this exception to mootness does not apply to this case. ¶ 27 However, our supreme court has previously determined that involuntary medication procedures involve matters of "substantial public concern" because the period for involuntary administration of medication is of short duration, similar litigation will likely recur, and an authoritative determination is desirable. Rita P., 2014 IL 115798, ¶ 36. Thus, a review of the circuit court's order in this case is appropriate under the public-interest exception to the mootness doctrine. See Rita P., 2014 IL 115798, ¶ 35, Bobby F., 2012 IL App (5th) 110214, ¶ 13. ¶ 28 Additionally, this court has also determined that issues related to orders entered in involuntary medication cases are reviewable under the "capable of repetition yet avoiding review" exception to mootness because of the short duration of the orders. In re John R., 339 Ill. App. 3d 778, 781 (2003). This exception applies when the duration of the challenged action is too short to be fully litigated prior to its cessation, which in this case is 90 days; and there is a reasonable expectation that respondent would be subjected to the same action again. See In re Richard C., 329 Ill. App. 3d 1090, 1093 (2002). Both requirements are present here. We therefore address this appeal on the merits.
¶ 29 B. Order for Involuntary Medication
¶ 30 Respondent contends that the circuit court's order for involuntary medication is not supported by clear and convincing evidence that the benefits of the medication outweighed the harm or that he lacked capacity to make his own decision.
¶ 31 1. Standard of Review
¶ 32 There is no question that involuntary mental health services, including the involuntary administration of psychotropic drugs, involve a "massive curtailment of liberty." In re Robert S., 213 Ill. 2d 30, 46 (2004), quoting Vitek v. Jones, 445 U.S. 480, 491 (1980). The United States Supreme Court has also described the forced administration of psychotropic drugs as a " 'particularly severe' " interference with a person's liberty. Robert S., 213 Ill. 2d at 46 (citing Riggins v. Nevada, 504 U.S. 127, 134 (1992)). Pursuant to the fourteenth amendment's due process clause, persons who suffer from mental illness have constitutionally protected liberty interests that permit them to refuse the involuntary administration of psychotropic medications. In re C.E., 161 Ill. 2d 200, 213 (1994); Bobby F., 2012 IL App (5th) 110214, ¶ 14. ¶ 33 Illinois courts have repeatedly recognized the importance of the procedures enacted by our legislature to ensure that citizens are not subjected to such services improperly. Bobby F., 2012 IL App (5th) 110214, ¶ 14. Strict compliance with the Code's procedural safeguards is required to ensure that the mental health system does not become a tool to oppress rather than to serve society. Bobby F., 2012 IL App (5th) 110214, ¶ 14 (citing John R., 339 Ill. App. 3d at 785). ¶ 34 Pursuant to section 2-107.1(a)(4) of the Code, the involuntary administration of psychotropic medication may be ordered if the State proves, by clear and convincing evidence, the presence of the following factors: 1) the respondent has a serious mental illness; 2) because of that mental illness, the respondent exhibits any one of the following: a) deterioration of his ability to function, b) suffering, or c) threatening behavior; 3) the illness has persisted for a period marked by the continuing presence of symptoms or the repeated episodic occurrence of these symptoms; 4) the benefits of the treatment outweigh the harm; 5) the respondent lacks the capacity to make a reasoned decision about the treatment; and 6) other, less-restrictive services have been explored and found inappropriate. 405 ILCS 5/2-107.1(a)(4) (West 2016); In re A.W., 381 Ill. App. 3d 950, 956 (2008). ¶ 35 Clear and convincing evidence has been defined as that quantum of proof that leaves no reasonable doubt in the mind of the fact finder about the truth of the proposition in question. John R., 339 Ill. App. 3d at 781. Although stated in terms of reasonable doubt, courts consider clear and convincing evidence to be more of a preponderance, while not quite approaching the degree of proof necessary to convict one of a criminal offense. John R., 339 Ill. App. 3d at 781 (citing Bazydlo v. Volant, 164 Ill. 2d 207, 213 (1995)). ¶ 36 The circuit court must find clear and convincing evidence of each statutory element to authorize the involuntary administration of psychotropic medication. A.W., 381 Ill. App. 3d at 957. We will not reverse the circuit court's determination as to the involuntary administration of psychotropic medication unless it is against the manifest weight of the evidence. A.W., 381 Ill. App. 3d at 957. A judgment is considered against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on evidence. A.W., 381 Ill. App. 3d at 957. ¶ 37 With these principles in mind, we turn to respondent's contentions on appeal.
¶ 38 2. Whether Benefits Outweighed Harm
¶ 39 Respondent first contends that the circuit court's order is not supported by clear and convincing evidence that the benefits of the medication outweighed the harm where his testimony about his side effects was uncontroverted. He argues that the evidence presented at the hearing showed that he suffered adverse reactions to Haldol and Risperdal and Dr. Goldberg, the State's expert, was not familiar with respondent's treatment history, thus the State failed in its burden of proof. Specifically, respondent asserts that there is insufficient evidence in the present case that he ever benefitted from Haldol or Risperdal while there is evidence that he suffered side effects from those medications. Respondent further asserts that Dr. Goldberg did not have the facts to support his opinion that the benefits of the medication would outweigh the harm and offered only a generic opinion that was not specific to respondent. ¶ 40 Although respondent failed to raise the issue in the trial court, it affects a substantial right and therefore, we review it for plain error. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); In re Cynthia S., 326 Ill. App. 3d 65, 68 (2001) (Fundamental liberty interests are involved in the involuntary administration of medication for mental health purposes); In re Suzette D., 388 Ill. App. 3d 978, 984 (2009). ¶ 41 Given the invasive nature of psychotropic medications and the possibility of significant side effects associated with the medications, courts must be cautious in entering orders allowing hospital staff to involuntarily administer these medications. Suzette D., 388 Ill. App. 3d at 984. The Code requires specific evidence of the benefits and risks of each medication so that the trial court may determine whether the State can show by clear and convincing evidence that the benefits of the proposed treatment outweighs the potential harm. Suzette D., 388 Ill. App. 3d at 985. Thus the State must introduce evidence of the benefits of each drug sought to be administered as well as the potential side effects of each drug. Suzette D., 388 Ill. App. 3d at 985. If the State fails to produce such evidence, we must reverse the involuntary medication order. Suzette D., 388 Ill. App. 3d at 985. ¶ 42 The procedural safeguards of the Code must be strictly construed in favor of the respondent, and strict compliance is required because liberty interests are involved. In re Richard C., 329 Ill. App. 3d 1090, 1095 (2002). ¶ 43 First we note that the State petitioned for, and the circuit court approved, the administration of Risperdal, Invega Sustenna and Haldol. Dr. Goldberg's testimony noted the side effects of each medication and discussed why those particular medications were chosen. He stated that Haldol, being one of the oldest medications, had a proven 67-year track record in treating psychotic symptoms. Haldol and Risperdal were offered as short term solutions in order for respondent to eventually take the "less problematic" Invega Sustenna. Dr. Goldberg testified as to the side effects of each drug and stated multiple times that he believed that the anticipated benefits would outweigh the harm of administering the medications to respondent. A State's expert opinion need not include factual support. Matter of Perona, 294 Ill. App. 3d 755, 767 (1998). An expert's opinion alone is prima facie proof that the benefits of a medication plan outweigh the harm. Perona, 294 Ill. App. 3d at 767. Although respondent testified that he previously experienced allergic reactions to Haldol and Risperdal, he also testified that he was taking Benadryl four times per day to relieve the side effects of those medications. Accordingly, we find that the circuit court properly relied on Dr. Goldberg's opinion as evidence that the benefits of the medication outweighed the harm to respondent. The circuit court's finding_was not against the manifest weight of the evidence.
¶ 44 3. Whether Respondent Lacked Capacity
¶ 45 Respondent next contends that the trial court erred when it found that he lacked capacity to make his own medication decision. He argues that the six factors articulated by this court in In re Israel, 278 Ill. App. 3d 24, 37 (1996) to determine whether an individual lacks capacity weigh in his favor. Respondent maintains that: he understood that he had a choice to make and chose not take Risperdal or Haldol, but took the anti-anxiety medication Ativan while at Riveredge when he felt anxious; he understood available treatment options and their benefits and disadvantages - he knowledgably spoke about Haldol and Risperdal and that he experienced no benefits but only adverse side effects from their administration. Respondent spoke about the medications he took in the past and his experiences with them; and the record does not show that respondent had interfering pathological perceptions that prevented his understanding of the risks and benefits of medication and that he testified that he has a mental illness. Respondent contends that his testimony at the hearing shows he had side effects from the medications included in the petition and did not want to take them; additionally, he did not have a good relationship or therapeutic alliance with Dr. Goldberg, who did not make an effort to learn about his personal or treatment history. He asserts that Dr. Goldberg's conclusion that he lacked capacity to make his medical decisions and the resulting order for involuntary medication were against the manifest weight of the evidence. ¶ 46 There is a federal constitutional right to refuse psychotropic medication under the liberty interests recognized in constitutional jurisprudence. In re Larry B., 394 Ill. App. 3d 470, 476 (2009). Under the doctrine of parens patriae, however, the State may act in its capacity "as the provider of protection for those who are unable to care for themselves" and administer medical treatment where adequate judicially supervised protection for an incompetent person has been obtained. Larry B., 394 Ill. App. 3d at 476, (quoting In re Estate of K.E.J., 382 Ill. App. 3d 401, 414 (2008)). ¶ 47 In Israel, this court set forth the following factors that a court must consider in determining whether an individual lacks the capacity to make a reasoned decision concerning the administration of psychotropic medication: 1) the person's knowledge that he has a choice to make; 2) the person's ability to understand the available options and their advantages and disadvantages; 3) whether the commitment to a mental health facility is voluntary or involuntary; 4) whether the person has previously received the type of medication or treatment at issue; 5) if the person has received similar treatment in the past, whether he can describe what happened as a result and how the effects were beneficial or harmful; and 6) the absence of any interfering pathological perceptions or beliefs or interfering emotional states that might prevent an understanding of legitimate risks and benefits. Israel, 278 Ill. App. 3d at 37. None of these factors are dispositive, nor are they exclusive. John R., 339 Ill. App. 3d at 782. ¶ 48 We give great deference to the circuit court's factual findings because that court stands in the best position to weigh the credibility of the witnesses and we will disturb the circuit court's decision only if it is manifestly erroneous. In re Barry B., 295 Ill. App. 3d 1080, 1085 (1998). A court's decision is not manifestly erroneous unless the error is clearly evident, plain, and undisputable. Barry B., 295 Ill. App. 3d at 1085. ¶ 49 We now consider respondent's argument. Respondent testified clearly as to his mental illness, that he had a choice to make and did not wish to take Haldol and Risperdal due to his adverse reactions to prior ingestion of those medications, including feeling depressed and suicidal. Respondent also testified that he did not experience any benefits from previous administration of those medications. The evidence did not establish whether his hospital stay was voluntary or involuntary. Dr. Goldberg testified regarding respondent's several hospitalizations in close proximity to the June 21, 2017, hospital stay; the last ending just one day prior to the current hospitalization. There was also evidence presented that respondent attacked him and attempted to commit suicide during the current hospitalization. Dr. Goldberg also testified that Haldol had proven long-term benefits, while acknowledging that it had adverse side effects. Additionally, Dr. Goldberg testified that the Haldol would only be prescribed on a short-term basis and then the Invega Sustenna would be the primary medication that would eventually break down into Risperdal. There was evidence presented that respondent was taking Benadryl four times a day to counteract the side effects of the Haldol medication. Based on all of the evidence presented, we can not say that the circuit court's decision was against the manifest weight of the evidence.
¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, we affirm the decision of the circuit court. ¶ 52 Affirmed.