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March 29, 1996


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

The Honorable Justice Tully delivered the opinion of the court: Rizzi, P.j., and Greiman, J., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Plaintiffs, James E. Brown and Joseph Radaszewski, individually and on behalf of a class of other similarly situated individuals in the custody of the Illinois Department of Mental Health and Development Disabilities (hereinafter Department), filed this action in the circuit court of Cook County, against defendants, William Murphy, the director of the Department, and Roalda J. Alderman, the facility director at Elgin Mental Health Center (hereinafter Center), seeking to enjoin defendants from acting as plaintiffs' representative payee of Social Security benefits without their informed consent. This issue is one of first impression. In addition, plaintiffs seek the implementation of a procedure to determine whether a patient is competent to give informed consent. Plaintiffs filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-1005 (now 735 ILCS 5/2-1005 (West 1996))). The circuit court granted the motion, and issued an injunction ordering defendants: (1) to conduct a competency determination prior to obtaining a patient's informed consent to act as his representative payee; (2) to inform the patients of all the choices they have in naming a representative payee; and (3) to provide the patient with information about the provisions of 42 U.S.C. § 407 (1988). Defendants filed a motion to stay, which the court denied. It is from the orders granting the injunction and plaintiffs' summary judgment that defendants now appeal to this court pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

For the reasons which follow, we affirm and remand.


Plaintiffs filed this class action suit in the circuit court on March 5, 1991. Count I of the complaint alleges that while Brown and Radaszewski were patients at the Center, they were recipients of Social Security disability benefits. Brown and Radaszewski claim that Alderman (or the Department) was designated as their representative payee without their informed consent. Count II of the complaint alleges that prior to becoming his representative payee, the director of the Department failed to determine whether Brown was competent to give informed consent.

Both named plaintiffs were admitted into the Center, thus becoming eligible to receive Social Security disability benefits pursuant to 42 U.S.C. § 423 (1988), which provides benefits to workers during periods of mental and/or physical disability. Brown was admitted on July 3, 1984, and discharged on November 26, 1986. The Department was Brown's representative payee, collecting his social security disability benefits from early 1985 until November 26, 1986. Brown was readmitted in June of 1987 and once again consented to having the Department act as his representative payee beginning September 1987. On May 25, 1990, the Department resigned as Brown's representative payee. Radaszewski, the other named plaintiff, was admitted on September 16, 1987, and the Department was designated his representative payee in February of 1990 until March 6, 1990, when it resigned. Plaintiffs requested that the circuit court enter an injunction restraining defendants from becoming a representative payee of their social security disability benefits in the absence of informed consent. Plaintiffs further requested that defendants implement procedures for determining a patient's competency to give informed consent to defendants acting as a representative payee.

On October 4, 1991, defendants filed a motion to dismiss plaintiffs' action based on mootness as the Center was no longer the representative payee of either Brown or Radaszewski, and Brown was no longer a patient there. In addition, defendants argued that on February 28, 1990, the Department revised its policies and procedures for obtaining a patient's informed consent prior to becoming a representative payee. The circuit court, however, denied the motion on the grounds that the mootness doctrine does not apply in mental health cases.

On January 23, 1992, plaintiffs filed a motion for certification of the class, consisting of "all patients at [the Center] who are receiving or who are eligible for, Social Security disability benefits and/or Veteran's Benefits." The circuit court certified the class on April 24, 1992, over defendants' objections.

On July 24, 1992, plaintiffs moved for summary judgment. On September 1, 1992, defendants filed a cross-motion for summary judgment. Angelo Campagna, the current acting director for the Center at this time, submitted an affidavit explaining the policies and procedures used when obtaining informed consent from a recipient of social security benefits. Campagna stated that the director of the Center must receive a recipient's written informed consent prior to becoming a representative payee pursuant to the Department's Administrative Directive, which was incorporated into the Department's policies and procedures manual on February 28, 1990.

Under the new regimen, when obtaining a recipient's informed consent, Department officials inform the recipient that: (1) the availability of Department services is not conditioned upon his consent to appoint the director as his representative payee; (2) the representative payee shall make disbursements for treatment service charges and for the purchases of essential living items and will manage the recipient's money in its best interest; (3) the recipient may revoke the authorization at any time; and (4) a written informed consent form must be signed. If a resident is not capable of giving informed consent, a legal guardian or a court-appointed guardian will have the power to consent on his behalf. The parties dispute whether the Center discloses to the patients all material information needed to make an informed decision, since the Center currently does not inform patients that their social security benefits are not subject to attachment or garnishment.

The Center issued regulations and procedures to determine a patient's competency. It is undisputed by the parties that competency must be determined before informed consent can be given. The procedures provide that when a resident is admitted to the Center, he is examined by a physician, who determines his mental and legal status. At this point, the physician finds if the resident is capable of giving informed consent for treatment. If the physician concludes that the resident is incapable of doing so, then the procedure continues. Within 72 hours of a resident's admission, a comprehensive psychiatric evaluation is performed on each resident to determine the resident's legal status. If the psychiatrist concludes that he is incapable of giving informed consent, or is in need of a legal guardian, the Center will not accept the recipient's authorization to act as a representative payee. Within 10 days of admission, each resident is given a psychological assessment by a psychologist to determine the resident's level of functioning and the resident's ability to give informed consent. Moreover, an interdisciplinary treatment team consisting of psychiatrists, psychologists, social workers and nurses assesses the resident's understanding and capacity to make financial and personal decisions. If a resident is incapable of giving informed consent, the guardianship coordinator at Elgin processes a referral for a guardian.

The circuit court subsequently granted plaintiffs' motion for summary judgment, while it denied defendants motion. On January 29, 1993, the trial court issued an injunction judgment order against defendants. It found that defendants failed to obtain the "informed consent" before becoming the representative payee of recipients of social security disability benefits in violation of section 2-105 of the Mental Health and Development Disabilities Code (the Code) (Ill. Rev. Stat. 1991, ch. 91 1/2, par. 2-105 (now 405 ILCS 5/2-105 (West 1996))). Thus, the court entered an injunction: (1) prohibiting the Center from obtaining consents to become a representative payee unless a competency determination is made first; (2) informing the recipients that other individuals could act as a representative payee; and (3) ordering defendants to inform plaintiffs of the provision that prohibits encumbering benefits to pay the recipient's debts (42 U.S.C. § 407 (1988)). The court also found that defendants' denied plaintiffs due process of law as guaranteed by the United States and Illinois constitutions.

On February 18, 1993, the circuit court denied defendants' request for a stay of the order pending appeal. It is from this order and the order granting plaintiffs' summary judgment ...

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