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People v. Sharkey





APPEAL from the Circuit Court of Lake County; the Hon. WARREN G. FOX, Judge, presiding. MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 9, 1978.

At a hearing before the circuit court of Lake County on May 23, 1977, the respondent was found to be a "person in need of mental treatment" under the provisions of the Mental Health Code of 1967 (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 1-1 et seq.). He was ordered hospitalized at the Downey Veteran's Administration hospital. The cause was also continued to June 20, 1977, at which time further testimony was taken. The respondent was found to be in need of further treatment and he was returned to Downey. The respondent appeals from these orders and has raised three issues for review: (1) whether he was found to be in need of mental treatment by clear and convincing evidence; (2) whether the trial court's order hospitalizing the respondent violated the provisions of the Mental Health Code as well as due process of law where the court failed to require the State to show that all reasonably available, less restrictive alternatives had been exhausted; and (3) whether the respondent was denied the effective assistance of counsel, in violation of the Mental Health Code and the United States Constitution.

The record before us reveals the following pertinent facts. At the hearing on May 23, 1977, both Donald F. Sharkey, the father of the respondent, and Dr. W. John Kenfield, the assistant chief of psychiatry at Downey, testified.

The father, who originated this action, related that on May 10, 1977, the respondent appeared to be in a highly nervous condition and agreed to go to the hospital. The father related that when they arrived at Little Company of Mary hospital the respondent leaped from the car while it was still moving and entered the hospital, but he did not remain therein. The respondent was left at the hospital by his parents who hoped he would admit himself.

On the evening of May 11 the father was notified by the Racine, Wisconsin, authorities that the respondent had been arrested there for disorderly conduct but that he would be released into the father's custody and the charge dropped if he were taken to Downey. The father drove to Racine with the respondent's brother and sister to pick him up. On the return trip the respondent grabbed the steering wheel several times while the car was moving and also stepped on the accelerator at least six or eight times while the father was driving. The father testified that his son was residing at home and was receiving social security disability benefits. He also related that in 1972 the respondent threatened to shoot an alderman in a tavern and when he was arrested he was found to have a stolen gun in his briefcase. The respondent was then found not competent to stand trial and he was committed by court order to the mental health facility at Tinley Park. The respondent subsequently was admitted to Downey on his own request and was eventually released. Except for the arrest in Racine no other incidents had occurred since 1972.

The second witness, Dr. Kenfield, testified that he saw respondent on May 12, 1977, relative to making arrangements for his care. He found the respondent in restraint and uncommunicative. Another staff psychiatrist reported to Dr. Kenfield at that time that the respondent had become physically aggressive and assaultive towards other patients and that it was necessary to physically restrain him. The doctor concluded at that time, after further observation, that the respondent was acutely psychotic but that he did not know if the psychosis were drug induced or an excitement type of catonia schizophrenia. Subsequent tests showed a substantial increase in blood urea nitrogen. That, together with other data, was compatible with a refusal to take food. It was then necessary to infuse fluids intravenously and to feed the respondent by a tube into his stomach. On May 23, the morning of the hearing, the respondent stated that he would take fluids and eat. The tubes were then removed. Dr. Kenfield also testified that the respondent was in need of mental treatment and that special kinds of treatment would be considered. He stated that the treatment could not be handled on an out-patient basis and that the treatment could be performed within 30 days. Therefore he requested an extension of the hearing until that time. Dr. Kenfield further testified that the patient was disoriented and confused and, while the refusal of the respondent to eat caused certain physical problems which were treated, there remained the underlying and still existing question of what caused the respondent to cease his proper intake of food.

On the basis of this testimony the court found that respondent presented a danger to himself and ordered his further hospitalization. The court also set a hearing on June 20, 1977, to review the matter.

At the review hearing on June 20, 1977, Dr. Nedella Krishana, a psychiatrist at Downey, testified that the respondent had been under his care for a month. He stated that initially the respondent was dehydrated, disoriented, confused, uncooperative, did not wish to speak, and was unable to understand that he was mentally and physically ill, even though he was quite sick at the time. Dr. Krishana was of the opinion that the respondent was suffering from an unknown physical condition which was affecting the central nervous system, thus manifesting disorientation, urine incontinence and abnormal bowel movements. E.E.G. tests showed cerebral atrophy. Dr. Krishana testified that the respondent should receive a sophisticated brain scan test and, depending upon the result of that test, specific treatment could be initiated. The doctor could not be specific as to the expected duration of treatment.

The court then inquired whether the respondent had anything to say. The record reflects that respondent then rambled incoherently, as the following colloquy reflects:

"MR. SHARKEY: I don't want to discourage anybody, because I know everyone here perhaps had, some here have my interests at heart, I hope.

THE COURT: You can be sure of that.

MR. SHARKEY: What I mean is, I would like to have —

THE COURT: Let the record reflect that several minutes have passed, and at this time we feel we must proceed."

The court then found the respondent was unable to take care of himself without running the danger of being harmed, and ordered ...

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