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09/07/95 ESTATE LUCILLE AUSTWICK v. PATRICK T.

September 7, 1995

IN RE THE ESTATE OF LUCILLE AUSTWICK, A DISABLED PERSON. JOHN B. LOWER, DIRECTOR, LEGAL ADVOCACY SERVICE; GUARDIANSHIP AND ADVOCACY COMMISSION, RESPONDENT-APPELLANT,
v.
PATRICK T. MURPHY, COOK COUNTY PUBLIC GUARDIAN, PETITIONER-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Marjan Staniec, Judge Presiding.

As Modified On Denial of Rehearing October 19, 1995. Rehearing Denied October 19, 1995. Released for Publication November 3, 1995.

The Honorable Justice Sheila O'brien delivered the opinion of the court: Hoffman, P.j. and Theis, J. concur.

The opinion of the court was delivered by: O'brien

MODIFIED ON DENIAL OF REHEARING

The Honorable Justice SHEILA O'BRIEN delivered the opinion of the court:

On November 30, 1993, the Cook County Public Guardian filed an emergency petition pursuant to section 2-110 of the Mental Health and Developmental Disabilities Code (405 ILCS 5/2-110 (West 1992)) seeking authorization to consent to electroconvulsive therapy (ECT) for his ward, 81-year-old Lucille Austwick. Following a hearing, the trial court granted the petition. Mrs. Austwick appeals, and we reverse.

The relevant facts of this case, as gleaned from the PublicGuardian's emergency petition, are as follows. On October 18, 1991, the probate court appointed the Public Guardian as plenary guardian of Mrs. Austwick's person and estate. On November 10, 1993, Mrs. Austwick was voluntarily admitted to the Geriatric Psychiatric Unit of Rush Presbyterian St. Luke Hospital, where Doctors Lazarus and Nabatian diagnosed her as suffering chronic depression and dementia. Doctor Lazarus told the Public Guardian that as a result of her depression, Mrs. Austwick refused to accept medication, nutrition, and hydration. Doctors Lazarus and Nabatian recommended treating Mrs. Austwick with ECT, a procedure in which an electrical stimulus is used to induce a cerebral seizure. They also warned that continued delay in treating Mrs. Austwick's depression would endanger her life.

At the hearing on the petition, Doctor Nabatian testified Mrs. Austwick suffered from "major depression with psychotic feature [and] dementia with agitation." The characteristics of depression with psychotic feature are withdrawal from others, paranoia and suspicion, while the characteristics of dementia with agitation are forgetfulness, impairment of judgment, and inability to distinguish between right and wrong.

Doctor Nabatian initially testified that as a result of her illnesses, Mrs. Austwick refused to take food and medication and was unable to take care of herself. Therefore, he believed ECT was the most appropriate treatment for Mrs. Austwick, despite his further testimony of the possible side effects of ECT including fractures, memory loss, confusion, delirium, and, in rare cases, death.

Later, Doctor Nabatian contradicted his earlier testimony regarding Mrs. Austwick's condition by stating Mrs. Austwick "sometimes" ate her food and she never refused anti-depressant medication. As a result, her health was not at a critical stage. Doctor Nabatian also acknowledged "a lot" of medications existed that could be used to treat Mrs. Austwick, and according to his testimony, those medications have few risks compared to the side effects associated with ECT. Further, when he asked Mrs. Austwick whether she wanted ECT, she refused, saying "I am wise enough to * * * make [the] decision for myself. I don't need anybody to make [the] decision for me." However, Doctor Nabatian testified Mrs. Austwick was unable to distinguish between right and wrong, and therefore she lacked the capacity to make an informed decision regarding whether to accept or refuse ECT.

Rachel Velez Smith, a social worker in the Public Guardian's office, testified that in 1992 or 1993 she spoke with some of Mrs. Austwick's family members, who said Mrs. Austwick had been an "active, popular lady" who led a "full, active life" prior to her illness. However, Ms. Velez Smith gave no testimony regarding whether Mrs. Austwick indicated prior to her illness that she would want ECT administered to her if the need arose.

The trial court granted the Public Guardian's petition, finding (a) Mrs. Austwick did not have the capacity to make an informed decision about whether to accept or reject ECT; (b) no evidence was presented that she ever indicated to anyone during a time prior to her mental illness whether she would or would not accept ECT treatment; (c) it was in her best interests that ECT be administered to her. The trial court ordered the Public Guardian to consent to a maximum of 12 ECT treatments.

Mrs. Austwick, through the Legal Advocacy Service of the Guardianship and Advocacy Commission, appealed from the trial court's order granting the Public Guardian's petition. Subsequent to the appeal, the parties stipulated Mrs. Austwick's condition had improved and her physicians no longer recommended ECT for her; therefore, the case is now moot. However, since Mrs. Austwick's case presents questions of first impression that are of substantial public interest and likely to recur, we issue the present opinion under the public interest exception to the mootness doctrine. See Bonaguro v. County Officers Electoral Board (1994), 158 Ill. 2d 391, 395-96, 634 N.E.2d 712, 199 Ill. Dec. 659.

First, Mrs. Austwick argues that before the trial court can authorize the Public Guardian to consent to ECT for her under section 2-110 of the Mental Health Code, the Public Guardian must prove by clear and convincing evidence she lacked the capacity to decide for herself whether to accept or reject ECT. Mrs. Austwick contends the Public Guardian did not prove by clear and convincing evidence she lacked such decisional ...


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