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05/19/94 C.E. ASSERTED TO BE A PERSON NEED

May 19, 1994

IN RE C.E., ASSERTED TO BE A PERSON IN NEED OF INVOLUNTARY PSYCHOTROPIC MEDICATION (C.E. ET AL., APPELLEES; THE DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, APPELLANT).


McMORROW

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

Section 2-107.1 of the Mental Health and Developmental Disabilities Code (hereinafter the Mental Health Code) (405 ILCS 5/2-107.1 (West 1992)) permits the trial court to authorize the involuntary administration of psychotropic medication to a person receiving mental health treatment when the court finds by clear and convincing proof, following a full hearing, that the recipient of mental health services is incapable of making the drug-treatment decision on his own behalf and is suffering from one or more of the conditions specified in the statute. (See 405 ILCS 5/2-107.1(d) (West 1992).) Although petitioned to authorize the involuntary administration of psychotropic substances under section 2-107.1, the trial court in the instant cause refused to do so, reasoning that section 2-107.1 was void as unconstitutional on its face. The Attorney General, on behalf of the Department of Mental Health and Developmental Disabilities, appeals from this ruling. (134 Ill. 2d R. 302(a).) We conclude that section 2-107.1 is not facially invalid on the constitutional grounds advanced in this appeal. Accordingly, we reverse and remand.

I

The recipient of mental health services in this case is C.E., an adult male whom the circuit court found subject to involuntary admission to a hospital for treatment and evaluation in August 1991. At this initial commitment hearing, the court determined the evidence showed, by clear and convincing proof, that appointment of a temporary guardian was necessary for C.E.'s welfare and protection because of his psychotic condition. The court specifically found that C.E.'s refusal to accept and take prescribed medical and psychiatric tests and treatments was a product of his psychotic state.

On the basis of these findings, the court appointed C.E.'s father, L.E., as C.E.'s temporary guardian. The court granted L.E. the power to give informed consent to the administration of generally accepted medical and psychiatric treatment, including but not limited to psychotropic medication. The trial court determined that the provisions of section 2-107.1 did not apply to the proceedings before it, because the statute was not in effect when L.E.'s petition was initially filed. However, the trial court's order further provided that L.E., as guardian for C.E., could not authorize psychotropic medication until all of the following conditions were met:

"(a) the treating physician has first conducted the appropriate screening tests for such medication; (b) the treating physician has confirmed that [C.E.] has been medically cleared for the administration of psychotropic medication; and (c) the attorney for [C.E.] and the Guardian Ad Litem have determined to their satisfaction that [C.E.] has been properly medically cleared for the administration of psychotropic medication."

When L.E.'s temporary guardianship powers under the trial court's order were about to expire, L.E. filed a petition to renew his broad guardianship powers under the original order issued by the probate court which allowed forced administration of psychotropic medication. Because L.E. believed that his broad guardianship powers would be improperly restricted under section 2-107.1 of the Mental Health Code (405 ILCS 5/2-107.1 (West 1992)), L.E. filed a petition that the court declare section 2-107.1 unconstitutional.

Thereafter, the trial court appointed the Guardianship and Advocacy Commission as attorney for C.E. The Attorney General appeared on behalf of the Department of Mental Health and Developmental Disabilities, in order to defend the constitutionality of the statute, and filed a motion to dismiss the father's petition to declare section 2-107.1 unconstitutional. The Attorney General also filed a motion to dismiss L.E.'s petition on the ground that L.E. lacked standing to challenge the constitutionality of the statute. Later, counsel for C.E. filed a petition for declaratory relief and requested that the trial court declare section 2-107.1 unconstitutional.

Following briefing and argument, the trial court determined that L.E. had standing to challenge the constitutionality of section 2-107.1. In a lengthy memorandum opinion, the court found section 2-107.1 facially unconstitutional and held the section null and void. The Attorney General, on behalf of the Department of Mental Health and Development Disabilities, filed a direct appeal from the trial court's order. 134 Ill. 2d R. 302(a).

II

Generally, under the Mental Health Code (405 ILCS 5/2-100 et seq. (West 1992)), an adult recipient of mental health services or the recipient's guardian has the authority and the right to refuse recommended mental health services, including medication. (405 ILCS 5/2-107 (West 1992).) If the recommended services are refused, the recipient or guardian must be informed of alternative services also available, as well as the risks of such alternatives, and must additionally be advised ofthe possible consequences of refusing the services. 405 ILCS 5/2-107 (West 1992).

The Mental Health Code further provides that the recommended mental health services may be administered against the wishes of the recipient or guardian when "such services are necessary to prevent the recipient from causing serious harm to himself or others." (405 ILCS 5/2-107 (West 1992).) In In re Orr (1988), 176 Ill. App. 3d 498, 125 Ill. Dec. 885, 531 N.E.2d 64, the court held that this provision allows the involuntary adminstration of pyschotropic medication either where the mental health recipient is incapable of making the decision in his own behalf, or where the recipient poses an immediate threat of serious physical harm to himself or others. Orr, 176 Ill. App. 3d at 510.

In light of the court's decision in Orr, the circuit courts in some counties, such as the circuit court of Cook County in the instant appeal, undertook to describe those circumstances under which a guardian could consent to the administration of psychotropic medication when the ward was incapable of making this treatment decision in his own behalf. A Commission appointed by the Governor in 1989 to revise the Mental Health Code found serious flaws in the failure to provide adequate guidelines for the involuntary administration of psychotropic substances. The Commission also found numerous shortcomings in the use of guardianship proceedings to determine whether involuntary administration of psychotropic medication should be ordered. (See Report of the Governor's Commission to Revise the Mental Health Code of Illinois 44-47 (1989).) The Commission recommended that the Mental Health Code be amended to specifically provide for the involuntary administration of psychotropic medication in nonemergency settings.

Section 2-107.1, which was adopted and took effect on August 13, 1991 (see Pub. Act 87-124, § 1), delineatesthe nonemergency circumstances under which psychotropic medication may be administered against the wishes of the recipient. Under section 2-107.1, psychotropic medication may be administered to one who is receiving mental health services, even though the recipient may not consent to such treatment, provided the standards and procedures set out in the section are satisfied. 405 ILCS 5/2-107.1 (West 1992).

In order to authorize such a procedure under section 2-107.1, a petition must be filed in the circuit court requesting a court order to administer the medication. This petition may be filed by any person at least 18 years of age. (405 ILCS 5/2-107.1(a) (West 1992).) In addition, section 2-107.1 directs that forced administration of psychotropic medication is only authorized if the court finds evidence of each of the following elements, by clear and convincing proof:

"(1) That the recipient has a serious mental illness or developmental disability.

(2) That because of said mental illness or developmental disability, the recipient exhibits deterioration of his ability to function, suffering, or threatening or disruptive behavior.

(3) That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in paragraph (2) [above] or the repeated episodic occurrence of these symptoms.

(4) That the benefits of the psychotropic medication will outweigh the harm.

(5) That the recipient lacks the capacity to make a reasoned decision about the medication.

(6) That other less restrictive services have been explored and found inappropriate." 405 ILCS 5/2-107.1(d) (West 1992).

Once the petition for authorization of forced administration of the medication is filed, the circuit court is directed to hold a hearing within 30 days. (405 ILCS 5/2-107.1(b) (West 1992).) Section 2-107.1 limitsorders authorizing involuntary administration of medication to duration of 90-day intervals, although additional 90-day periods may be authorized "without limitation" provided additional hearings are held in compliance with the provisions of the statute. (405 ILCS 5/2-107.1(e) (West 1992).) The court's order must designate the individuals who are authorized to administer the medication. (405 ILCS 5/2-107.1(f) (West 1992).) In addition, a guardian is authorized to consent to the administration of psychotropic medication only in accordance with the standards and procedures of the section. 405 ILCS 5/2-107.1(g) (West 1992).

III

We first address the parties' arguments with respect to whether L.E., the father of the respondent C.E., has standing to challenge the constitutionality of section 2-107.1.

Generally, in order to have standing to pursue a declaratory judgment action, a party must be "interested" in the matter in controversy. (See 735 ILCS 5/2-701 (West 1992) (standing to pursue declaratory judgment action).) To be "interested," one "must possess a personal claim, status, or right which is capable of being affected. [Citations.]" Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 376, 5 Ill. Dec. 827, 362 N.E.2d 298; see also Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 492-93, 120 Ill. Dec. 531, 524 N.E.2d 561.

This court considered a similar question in In re Estate of Longeway (1989), 133 Ill. 2d 33, 139 Ill. Dec. 780, 549 N.E.2d 292. In that case, a guardian filed a petition for a declaratory judgment to determine whether the guardian had the power to authorize the withdrawal of artificial hydration and nutrition onbehalf of the ward. This court held that the guardian had the standing to file such a request for declaratory judgment relief. This court found it significant that the guardian's suit was not instituted on behalf of the ward, but "merely petitioned the court for authority to perform an act which [was allegedly] within the implied authority granted [to the guardian] by the Probate Act." Longeway, 133 Ill. 2d at 46 ...


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