Appeal from the Circuit Court of Union County. No. 91-MH-226. Honorable D. D. Bigler, Judge, presiding.
Petition for Leave to Appeal Denied December 6, 1995.
The Honorable Justice Goldenhersh delivered the opinion of the court: Welch and Hopkins, JJ., concur.
The opinion of the court was delivered by: Goldenhersh
JUSTICE GOLDENHERSH delivered the opinion of the court:
Respondent, Mark Floyd, appeals from an order of the circuit court of Union County granting a petition to authorize "blood work to safely monitor the administration of psychotropic medication." The trial court found respondent's refusal to allow the withdrawal of his blood for testing in order to ensure a safe dosage of the psychotropic medication analogous to a refusal to receive psychotropic medication. In this cause, respondent contends that (1) the order authorizing the involuntary withdrawal of blood is void for want of statutory authority, (2) the construction of section 2-107.1 of the Mental Health and Developmental Disabilities Code (the Code) (405 ILCS 5/2-107.1 (West 1994)) to include authority to involuntarily withdraw blood violates established rules of statutory construction, (3) the order violates the principle that statutes in derogation of the common law must be strictly construed, (4) the Illinois Administrative Code and Department of Mental Health Policy and Procedure Directive 02.06.01.02 do not require blood tests in conjunction with the administration of psychotropic medication, (5) assuming, arguendo, that section 2-107.1 of the Code authorizes the involuntary withdrawal of blood, such authorization is an unreasonable search and seizure and a violation of the right to privacy, (6) respondent was not accorded due process of law, and (7) the State failed to prove by clear and convincing evidence all the requisite elements for the entry of an order pursuant to section 2-107.1 of the Code. We affirm.
Respondent was admitted to Choate Mental Health Center (hereinafter Choate) on September 29, 1993, on an emergency basis. On October 7, 1993, a hearing was conducted after which respondent was found subject to an involuntary admission. On December 10, 1993, apetition to administer psychotropic drugs to respondent was filed and signed by Dr. Ralph H. Eisaman. Dr. Eisaman was respondent's psychiatrist at Choate. The petition alleged that respondent refused to receive psychotropic medication and to allow lab work to be performed and because of this exhibited a deterioration in his ability to function. Counsel was appointed, and a hearing was set for December 30, 1993. A motion to dismiss was filed by respondent, in which respondent alleged that there was no justiciable matter for the court to decide because respondent had been voluntarily accepting psychotropic medication since the date the State's petition was filed. The matter was continued for one week upon the State's motion, and on January 6, 1994, the State's oral motion to withdraw the petition was granted.
A second petition for the administration of psychotropic medication was filed on January 28, 1994. It alleged that respondent again was refusing psychotropic medication and refusing "monitoring by needed blood testing." Counsel was appointed, and a hearing was set for February 17, 1994. On February 17, 1994, respondent's counsel filed an affidavit stating that respondent's medication administration record indicated that he had not refused any psychotropic medication since January 1, 1994. Thereafter, a hearing on the petition was conducted, at which time the trial court inquired as to whether the assistant State's Attorney handling the matter disagreed with the allegation that respondent had not refused to receive any psychotropic medication. The assistant State's Attorney responded he did not dispute that respondent had taken his medication; nevertheless, it was the State's position that there was still a refusal based upon respondent's refusal to allow blood work to be done, which prevented respondent's medication from being increased. Respondent's attorney replied that the petition only requested authority to administer psychotropic medication, and that the trial court could not enter an order granting the authority to involuntarily withdraw blood from respondent because the statute under which the petition was filed did not so provide. (See 405 ILCS 5/2-107.1 (West 1994).) Ultimately, the trial court determined that the issue before it was whether respondent could be forced to have blood withdrawn. The trial court noted that if testimony was presented by a physician that a patient cannot be effectively medicated without blood work to ensure the safe administration of the medication, he would be inclined to grant the petition. The State then called its only witness, Dr. Eisaman.
Dr. Eisaman testified that respondent suffers from chronic schizophrenia and also "has a secondary axis diagnosis, ethanol abuse, not in compliance with medical treatment." He stated that respondentwas being treated with the psychotropic drug navane and was receiving 40 milligrams per day, but that dosage was not helping respondent. Medical records provided in the record indicate that respondent was receiving 60 milligrams of navane (thiothixene) daily since January 25, 1994. Dr. Elsaman testified that respondent was in Choate from September 29, 1991, through September 14, 1993. After his discharge, respondent was readmitted on September 28, 1993. Dr. Eisaman stated that at the present time respondent was not being treated effectively, and that there may be the need to change to other medications. He specifically stated: "We are having trouble getting any sort of reasonable control, and he certainly can't be put in a less restrictive environment. That was a disaster the last time." Dr. Eisaman testified that respondent needed blood work: "Because without monitoring the blood work, I may be endangering the patient. I am giving him the maximum dosage right now that I can, and that is not helping him. And because of that, you know, he is just going to stay here."
Dr. Eisaman explained that all hospitals are different, but he stated: "[It is] commonly accepted that approximately 60 milligrams of navane a day is about the max. I can go to 150 here." Dr. Eisaman related that sometimes with a much larger dosage of medication, he can get the same therapeutic levels, which may be the case with respondent. He wanted to give respondent a higher dosage but needed the blood work in order to establish the level in respondent's blood and, therefore, be able to protect respondent from side effects. Dr. Eisaman testified that respondent repeatedly refused blood tests, but Dr. Eisaman admitted on cross-examination that respondent allowed his blood to be withdrawn on February 7 and February 12, 1994. Dr. Eisaman explained, however, that respondent had previously refused on January 30, February 3, and February 6, 1994. According to Dr. Eisaman, it was not acceptable to draw blood on respondent's timetable, but that it must be done at least weekly in order to effectively monitor the levels. Dr. Eisaman also stated that respondent was drinking too much water, which dilutes respondent's blood levels and causes a failure to obtain "adequate results."
Dr. Eisaman opined that respondent exhibited a deterioration in his ability to function and caused disruptive behavior by threatening to attack and actually attacking the staff at Choate. Dr. Eisaman stated that the possible benefits of psychotropic medication outweighed the risk of harm in this case, and, likewise, the benefits of doing a blood test outweigh the potential harm. In Dr. Eisaman's opinion, respondent lacked the capacity to make a reasoned decision about the medication and blood tests. Dr. Eisaman also testified thatother less restrictive services had been explored and found inappropriate. By increasing respondent's dosage, Dr. Eisaman hoped to stabilize respondent enough so that he could be put in a less structured and restrictive environment, i.e., a nursing home. According to Dr. Eisaman, the last time something less restrictive was attempted, respondent escaped and was gone approximately 14 days, spending at least one night out in the cold.
After Dr. Eisaman finished testifying, the trial court stated: "It appears from the testimony that he is receiving medication but not receiving what he should because of his refusal to allow the blood to be taken. For his own protection, they need to take the blood level to see what to administer -- what portion or amount of medication to administer."
The trial court then entered an order finding that respondent refused to "allow blood work to safely monitor the administration of psychotropic medication which was a refusal to receive psychotropic medication." The order also contained findings that all of the six elements of section 2-107.1 of the Code were present. The order granted the petition and ordered respondent to receive psychotropic medication and to have blood drawn by the staff at Choate for a period not to exceed 90 days. This appeal followed.
Respondent first contends that the order authorizing the involuntary withdrawal of blood is void for want of statutory authority and cites to In re Orr (1988), 176 Ill. App. 3d 498, 531 N.E.2d 64, 125 Ill. Dec. 885. Along these same lines, respondent also contends that the construction of section 2-107.1 of the Code to include authority to involuntarily withdraw blood violates established rules of statutory construction. We disagree.
In Orr, the respondent appealed an order which allowed him to be involuntarily admitted to a mental health facility and authorized the State to administer medication. As part of its opinion, the Orr court discussed the extent to which a person involuntarily committed to a mental health facility can refuse care under section 2-107 of the Code. (Ill. Rev. Stat. 1985, ch. 91 1/2, par. 2-107 (now 405 ILCS 5/2-107, as amended (West 1994)).) Section 2-107 of the Code provided, in pertinent part:
"§ 2-107. An adult recipient of services, or, if the recipient is under guardianship, the recipient's guardian, shall be given the opportunity to refuse generally accepted mental health or developmental disability services, including but not limited to medication, unless such services are necessary to prevent the recipient from causing serious harm to himself or others. If suchservices are refused, they shall not ...