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12/24/97 HATSUYE T. ALLEGED TO BE A PERSON SUBJECT

December 24, 1997

IN RE HATSUYE T. ALLEGED TO BE A PERSON SUBJECT TO INVOLUNTARY ELECTROCONVULSIVE THERAPY (KEI HARADA, PETITIONER-APPELLEE; HATSUYE T., RESPONDENT-APPELLANT).


APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JAMES HENRY, JUDGE PRESIDING.

The Honorable Justice McNAMARA delivered the opinion of the court. Cerda, P.j., and Wolfson, J., concur.

The opinion of the court was delivered by: Mcnamara

The Honorable Justice McNAMARA delivered the opinion of the court:

On July 24, 1997, petitioner Kei Harada filed a petition for appointment of guardian for disabled person and a petition for temporary guardian for disabled person, naming respondent in this matter, Hatsuye T., as the respondent in both petitions. On July 25, 1997, petitioner filed a petition for involuntary administration of electroconvulsive therapy (ECT) pursuant to section 2-110 of the Mental Health and Developmental Disabilities Code (the Mental Health Code)(405 ILCS 5/2-110 (West 1996)), naming Hatsuye T. as respondent. Following a bench trial, the trial court appointed petitioner as Mrs. T.'s temporary guardian and authorized him to consent to as many as 10 treatments of ECT, despite Mrs. T.'s objections. Respondent appeals from the entry of an order authorizing petitioner to consent to the involuntary administration of ECT. For the following reasons, we reverse. The relevant facts are as follows.

Mrs. T. is an 82-year-old Japanese woman who has suffered from a recurrent mental illness called severe psychotic depression with delusional features since 1983. She was first hospitalized and treated for this illness in December 1983. The initial treatment plan for psychotic depression is for the patient to receive a series of medications to attempt to bring about remission. At that time, Dr. Sidney Wright prescribed a standard course of medications for Mrs. T., but it failed to bring about a remission. Dr. Wright then recommended the next level of treatment, ECT. According to Dr. Wright, Mrs. T. showed marked improvement following the administration of ECT, including a complete remission of the delusional beliefs.

Mrs. T. remained in remission until February 1988, when her delusional beliefs recurred. Mrs. T. was again treated with ECT and went into remission. She remained in remission until December 1994, when her symptoms returned. Mrs. T. was again treated with ECT and remained in remission until July 1995. In July 1995, she again received and benefitted from ECT. According to the testimony of Dr. Wright, Mrs. T.'s clinical symptoms of psychotic depression and her delusional beliefs essentially replicated themselves with each episode of illness. With each episode, Mrs. T. believed that she was guilty of some crime, that the government would come to get her, that her money was not like everybody else's, that she would be arrested and taken away from this country and that she would not be allowed to return to her apartment. On numerous occasions throughout this time, Dr. Wright tried to treat Mrs. T. with medications, but to no avail. On December 26, 1996, Mrs. T. again suffered a relapse and was voluntarily admitted to Northwestern Memorial Hospital (NMH) for treatment of her psychotic depression. Upon admission Mrs. T. signed and the hospital staff accepted an application for voluntary admission, a "Rights of Recipients" form, a consent for treatment, a consent to release confidential information, an assignment of benefits, and a guarantee of payment. In early January 1997, Dr. Wright again tried medication for Mrs. T.'s mental illness, including Wellbutrin, an antidepressant medication, and Zyprexin, an antipsychotic medication, but was again unsuccessful. He then recommended ECT. Mrs. T. refused.

On June 14, 1995, Mrs. T. had executed a health care power of attorney, naming petitioner as her authorized agent for health care decisions. Despite the broad powers given to petitioner under this document, hospital counsel advised Dr. Wright to obtain a court order before proceeding with ECT treatment. Therefore, in January 1997, petitioner initiated guardianship proceedings to obtain judicially approved consent for the administration of ECT. Laurel Spahn was appointed as Mrs. T.'s attorney and Margo Hablutzel was appointed guardian ad litem. On January 31, 1997, Mrs. T. signed a written consent for ECT after she was told by Dr. Wright that her only other option was immediate discharge to a nursing home. Mrs. T.'s husband had died in a nursing home and Mrs. T. feared that she too would die if put in a nursing home. Dr. Wright witnessed the consent, accepted it and was prepared to have the treatments administered.

Surprised to hear of Mrs. T.'s consent, given that she had been so determined to refuse the treatment, Spahn and Hablutzel visited Mrs. T. on the afternoon of January 31, 1997, and explained her rights to her. They also informed Mrs. T. that she had the option of refusing the ECT and returning to her apartment since she was voluntarily committed to NMH. Mrs. T. then revoked her consent to ECT, made a written request for discharge, and executed an amendment to her health care power of attorney. The amendment limited the powers of the agent by excluding the right to consent to ECT and to consent to hospitalization or nursing home placement for Mrs. T. Both attorneys witnessed the amendment and later testified at trial that Mrs. T. was competent to execute the document. Mrs. T. was discharged and sent home to her apartment and the guardianship petition was voluntarily withdrawn.

Mrs. T.'s medical condition worsened in July and on July 10, 1997, Mrs. T. was involuntarily committed to NMH. Dr. Wright again recommended ECT. Mrs. T. refused. The guardianship proceedings were reopened and the petition for involuntary administration of ECT was filed. A bench trial was held from August 5 through August 7, 1997, during which the trial court heard the testimony of petitioner, the named agent under Mrs. T.'s power of attorney; petitioner's wife, the named successor agent under Mrs. T.'s power of attorney; Dr. Wright, Mrs. T.'s treating psychiatrist for 14 years; Spahn; Hablutzel; and Dr. Stephen Fox, an osteopathic physician appointed by the court to examine Mrs. T. On August 7, 1997, the trial judge entered an order appointing petitioner the temporary guardian of Mrs. T. and allowing petitioner to consent to up to 10 ECT treatments over Mrs. T.'s objections. Mrs. T. appeals from the portion of the order authorizing petitioner to consent to the involuntary administration of ECT. We note that this court has stayed the trial court's August 7, 1997, order pending resolution of the merits of this appeal. Mrs. T. is presently involuntarily committed to Warren Barr Pavilion nursing home.

On appeal, respondent contends that the trial court's order for the involuntary administration of ECT is void for lack of subject matter jurisdiction. Respondent further contends that the trial court erred in entering said order because involuntary ECT is not the least restrictive treatment available. Finally, respondent contends that section 2-110 of the Mental Health Code violates the Illinois constitutional guarantees of privacy, substantive due process, and procedural due process. *fn1

Respondent first contends that the trial court's order is void for lack of subject matter jurisdiction because section 2-10 of the Durable Power of Attorney Law (755 ILCS 45/2-10 (West 1996)) and section 11a-17 of the Probate Act of 1975 (755 ILCS 5/11a-17 (West 1996)) both prohibit a guardian from exercising authority over matters covered by a power of attorney. Specifically, respondent contends that Mrs. T. amended her power of attorney in January 1997 and specifically excluded the right to consent to ECT. Therefore, the trial court had no authority to authorize petitioner to consent to up to 10 involuntary ECT treatments for Mrs. T., in direct conflict with her wishes as expressed in the January 1997 amendment.

Petitioner initially counters that this argument has been waived by Mrs. T. because it was not raised in the trial court. However, the law is clear that lack of subject matter jurisdiction may be raised at any time, even for the first time on appeal. City of Marseilles v. Radke, 287 Ill. App. 3d 757, 679 N.E.2d 125, 223 Ill. Dec. 181 (1997); Randall v. Wal-Mart Stores, Inc., 284 Ill. App. 3d 970, 673 N.E.2d 452, 220 Ill. Dec. 540 (1996); Muller v. Jones, 243 Ill. App. 3d 711, 613 N.E.2d 271, 184 Ill. Dec. 244 (1993). Therefore, we reject petitioner's contention that this argument has been waived.

In section 4-1 of the Powers of Attorney for Health Care Law (755 ILCS 45/4-1 (West 1996)), the Illinois General Assembly recognized the right of an individual to control all aspects of his or her personal care and medical treatment. 755 ILCS 45/4-1 (West 1996). Included in this right is the right to appoint an agent to make personal and health care decisions for an individual throughout his or her lifetime, including during periods of disability, that will be honored by third parties at all times. 755 ILCS 45/2-1 (West 1996). Specifically, pursuant to section 4-3 of the Powers of Attorney for Health Care Law, an individual may delegate to her agent "all powers an individual may have to be informed about and to consent to or refuse or withdraw any type of health care for the individual." 755 ILCS 45/4-3 (West 1996).

In general, "absent court order directing a guardian to exercise powers of the principal under the agency, a guardian will have no power, duty or liability with respect to *** any personal or health care matters covered by the agency." 755 ILCS 45/2-10 (West 1996). Once a valid power of attorney has been executed, a guardian cannot exercise authority over matters that are covered by the power of attorney. 755 ILCS 5/11a-17(c)(West 1996)(absent court order pursuant to the Illinois Power of Attorney Act, a guardian has no power, duty or liability with respect to any health care matters covered by the agency); In re Guardianship of Mabry, 281 Ill. App. 3d 76, 666 N.E.2d 16, 216 Ill. ...


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