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December 18, 1996


Appeal from Circuit Court of Sangamon County. No. 96MH37. Honorable Theodis P. Lewis, Judge Presiding.

As Corrected December 19, 1996. Released for Publication January 17, 1997. As Corrected February 24, 1997.

Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable James A. Knecht, J. - Concur. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

In this case we pass upon the constitutionality of section 2-110 of the Mental Health and Developmental Disabilities Code (Code), which states as follows:

"No recipient of services shall be subjected to electro-convulsive therapy, or to any unusual, hazardous, or experimental services or psychosurgery, without his written and informed consent.

If the recipient is a minor or is under guardianship, such recipient's parent or guardian is authorized, only with the approval of the court, to provide informed consent for participation of the ward in any such services which the guardian deems to be in the best interests of the ward." 405 ILCS 5/2-110 (West 1994).

We hold that the second paragraph of section 2-110, on its face, violates the due process clauses of the United States Constitution (U.S. Const., amend. XIV, § 2) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 2) because it permits invasion of the liberty interests of wards in choosing whether to undergo the treatment provided without providing adequate safeguards.

On February 14, 1996, Gwendolyn Lewis, guardian of the person and estate of respondent Winifred Branning, filed a petition in the circuit court of Sangamon County requesting approval of her consent to electroconvulsive therapy (ECT) on behalf of her ward, Branning. Court-appointed counsel for the ward requested an examination by an independent psychiatrist but the request was denied. After a hearing, the circuit court entered an order on February 26, 1996, authorizing ECT. Respondent has appealed pointing out various weaknesses in the civil procedure used. We requested the parties to brief the question of the constitutionality of section 2-110 of the Act. Because we find section 2-110 wanting in that respect, we vacate the order.

The record indicates the circuit court order granting consent was stayed and on March 12, 1996, Branning was discharged from psychiatric care and never received ECT. Presumably she would no longer be subject to the order. Accordingly, the case could be dismissed as moot. However, mootness generally does not preclude review of proceedings under the Code. In re Katz, 267 Ill. App. 3d 692, 694, 642 N.E.2d 893, 895, 205 Ill. Dec. 28 (1994). We find this case is reviewable under both the "public interest exception" ( In re A Minor, 127 Ill. 2d 247, 257, 537 N.E.2d 292, 296, 130 Ill. Dec. 225 (1989)) and the exception for cases "'"capable of repetition, yet evading review"'" ( Minor, 127 Ill. 2d at 258, 537 N.E.2d at 296, quoting Madison Park Bank v. Zagel, 91 Ill. 2d 231, 236, 437 N.E.2d 638, 640, 62 Ill. Dec. 950 (1982), quoting Sosna v. Iowa, 419 U.S. 393, 399-400, 42 L. Ed. 2d 532, 540, 95 S. Ct. 553, 557 (1975)).

Three factors determine whether the public interest exception applies: "(1) the public nature of the question, (2) the desirability of an authoritative determination for the purpose of guiding public officers, and (3) the likelihood that the question will generally recur." Minor, 127 Ill. 2d at 257, 537 N.E.2d at 296. The only other case construing section 2-110 of the Code found this exception applicable. See In re Estate of Austwick, 275 Ill. App. 3d 769, 772, 656 N.E.2d 779, 782, 212 Ill. Dec. 182 (1995). It also applies here. Whether a guardian may authorize ECT or psychosurgery on behalf of a ward with only the requirement of court "approval" is a question of a public nature. An authoritative determination is very important because of the important interests at stake under the statute and the potential irreversible effects of incorrect decisions. And there can be little doubt that the question will generally recur, despite the paucity of appellate cases considering section 2-110 of the Code.

For the "capable of repetition, yet evading review" exception to apply, the reviewing court must find "(1) the challenged action is in its duration too short to be fully litigated prior to its cessation[,] and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again." Minor, 127 Ill. 2d at 258, 537 N.E.2d at 296. Again, both elements are satisfied. The treating physician in this case testified patients received between 8 and 12 ECT treatments, at a rate of three treatments per week, leaving far too short a time for a dispute to be fully litigated. Uncontradicted testimony at the hearing established that Branning had received ECT throughout her life, from when she was 14 or 15 years old to approximately two years before the hearing (at which time she was 70). It is reasonable to expect it might be determined that she would need ECT again, and--given her strenuous objections in this case--it is reasonable to expect she would not consent to any further treatments.

Accordingly, we elect to reach the merits of the case.

A statute is facially unconstitutional only if "'no set of circumstances exists under which the Act would be valid. The fact that the [statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid'" except in the context of the first amendment. In re C.E., 161 Ill. 2d 200, 210-11, 641 N.E.2d 345, 350, 204 Ill. Dec. 121 (1994), quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987). Courts presume statutes are constitutional and will construe them so as to uphold them when it is reasonably possible to do so. Wilson v. Department of Revenue, 169 Ill. 2d 306, 310, 662 N.E.2d 415, 417, 214 Ill. Dec. 849 (1996). However, while "useful in close cases," this rule is "'"not a license for the judiciary to rewrite language enacted by the legislature."'" Chapman v. United ...

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