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01/18/96 JAMES KNESS v. JAMES KNESS

January 18, 1996

IN RE JAMES KNESS, ALLEGED TO BE A PERSON IN NEED OF INVOLUNTARY PSYCHOTROPIC MEDICATION (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
JAMES KNESS, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Kane County. No. 95-MH-130. Honorable James C. Hallock and Roger W. Eichmeier, Judges, Presiding.

The Honorable Justice Rathje delivered the opinion of the court: Bowman and Colwell, JJ., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

Respondent, James Kness, appeals from an order of the circuit court of Kane County, approving the involuntary administration of psychotropic medication to the respondent. Respondent raises the following issues on appeal: (1) whether the State proved by clear and convincing evidence that the respondent lacked the capacity to make a reasoned decision about the medication and that the benefits of the medication outweighs potential harm; (2) whether the trial court erred in failing to consider the substituted judgment standard; (3) whether the trial court's order is void for lack of subject matter jurisdiction; and (4) whether respondent was denied the effective assistance of counsel.

During the pendency of this appeal, the respondent filed a motion to strike certain portions of the State's brief. We ordered the motion taken with the case and will discuss its merits upon our disposition of the issues raised.

On April 21, 1995, a hearing was held on two petitions involving respondent, namely, a petition for respondent's involuntary admission and a petition for involuntary administration of medication. The hearing had originally been scheduled for April 5, 1995, but was continued at the request of the respondent. Prior to the commencement of the hearing, the public defender assigned to represent the respondent informed the court that the respondent did not wish her to represent him. The respondent advised the trial court that he did not feel he had received an adequate explanation of the proceedings and that he wished to obtain his own attorney; however, he had not taken any steps to hire an attorney. According to the respondent, although he had spoken to the public defender, both two weeks before and just prior to the instant proceedings, he was not aware that he could have witnesses brought in to testify on his behalf. The public defender explained to the trial court that it was difficult to explain the procedures to the respondent and that she was unsure as to whether she had informed him that he could have witnesses testify on his behalf. However, she indicated that she was prepared to proceed with the hearing at that time.

Having ascertained that the State opposed a continuance to allow the respondent to obtain another attorney and based upon its questioning of the respondent, the trial court denied respondent's request for a continuance, stating as follows:

"The Public Defender's Office has been appointed pursuant to an administrative order to represent you. This attorney is the one that would be assigned to this courtroom and she is the one that would represent you. I believe that she has had an opportunity to appear and I believe that she has explained everything to you to the best of her ability.

You may not understand what your rights are, but I believe in her representation that she explained that to you adequately. For that reason we will proceed."

At that time the assistant public defender made a motion for a continuance based on the respondent's desire to call witnesses on his behalf. The trial court inquired of respondent whom he would wish to call to testify on his behalf, to which respondent replied that he would have to think about it and would need to contact and ask these individuals to testify. The trial court concluded that the respondent did not have any witnesses and that the request for the continuance was a delaying tactic. The trial court then denied the motion for continuance.

Ms. Eve Dwyer, respondent's mother, testified that respondent had resided with her for a period of five years up to March 28, 1995. On that date, she returned home from work to find the respondent extremely agitated and angry over the loss of his job as a truck driver. He accused her of being part of the system that caused him to lose his job. Ms. Dwyer went upstairs to her bedroom, followed by the respondent. He stood in the doorway of her bedroom, shaking his finger in her face. Ms. Dwyer was afraid because respondent was angry and loud and appeared out of control. When she informed the respondent that she wished to leave her bedroom, he placed his hands on her shoulders and pushed her saying that she was not leaving until he was finished talking to her. Respondent continued to repeat that she was part of the system that had caused him to lose his job.

Ms. Dwyer testified further that in January 1995 respondent told her that he was having trouble sleeping because he felt as if someone were probing his brain. In August 1994, respondent told her that he could not drive a truck anymore because certain vehicles he would pass on the road emitted rays. The rays gave him headaches which scared him, and as a result, he could not drive. This caused him to lose his job. In March 1995, while respondent was not working, he would watch television. While he was watching television, he would talk back to the television or talk out loud even though he was alone. Also, in March 1995, he took apart an electrical outlet because he wanted to see from where the "rays and things" were coming.

On cross-examination, Ms. Dwyer admitted that she laughed out loud while watching television but never yelled back at the television. During the August 1994 incident and the January 1995 incident, respondent never harmed her or threatened to harm himself.

On redirect examination, Ms. Dwyer testified that on December 9, 1994, she took the respondent to their family doctor, hoping the doctor could persuade the respondent to take some antidepressant and antipsychotic medication that had been prescribed for him. In response to the doctor's questions, respondent denied that he was going to kill himself or had any plans to do so. On the way home, respondent told Ms. Dwyer that he heard voices that told him that suicide would not be a bad idea. On re-cross-examination, Ms. Dwyer stated that respondent did not attempt to harm her or himself on that date.

Herbert Rohr, a psychiatrist at the Elgin Mental Health Center (Center), testified that he examined the respondent upon his admission to the Center. Since that examination, he spoke with the respondent and observed him around the unit. He also spoke to respondent's family and other staff about respondent. Based upon his examination and the information he obtained, Dr. Rohr diagnosed respondent as suffering from schizo-affective disorder, depressive type, which is considered a serious mental illness. Dr. Rohr described the characteristics of the disorder as consisting of "delusions or hallucinations or deteriorations of function as nature, things that persist when the present or manic episodes are not present. The depressive part would be suicidal thoughts, lack of care for himself, difficulty with sleeping and with eating." Respondent had suffered this condition for at least one year.

Dr. Rohr testified further that respondent displayed specific symptoms, such as delusions. Respondent did admit to Dr. Rohr that he believed someone was "taping things" at home and that he had been unable to work for a year due to a fever but refused to discuss any other delusions with the doctor. Most of the information regarding respondent's delusions came from respondent's mother. Through respondent's mother, Dr. Rohr was made aware of respondent's talking to the television, rays from other vehicles, hearing voices, and thoughts of suicide, as well as the fact that respondent had been seen by a psychiatrist for treatment for depression, as well as psychosis. Also, according to his mother, respondent was not bathing or caring for himself because he believed that the shampoo was poisoned.

Dr. Rohr opined that respondent was mentally ill and could reasonably be expected to inflict serious physical harm on himself or someone else in the near future. The delusions that respondent had were likely to cause him to act out against whomever he felt responsible for his problems. His depression and apparent inability to function outside of a controlled environment, such as the Center, created a significant threat that he might harm himself. Dr. Rohr further opined that, because of his mental illness, respondent was unable to provide for his personal needs and to guard himself from serious harm, given that he had not been able to work for an extended period of time.

Dr. Rohr further testified that, although respondent had been eating and sleeping, he required prompting to take care of his basic hygiene. The Center was the least restrictive environment; due to his lack of cooperation, generally, not taking his medication, a halfway house would not accept him. Dr. Rohr ...


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