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01/23/98 WINIFRED BRANNING v. WINIFRED BRANNING

January 23, 1998

IN RE WINIFRED BRANNING, A DISABLED PERSON (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
WINIFRED BRANNING, APPELLEE).



The Honorable Justice Miller delivered the opinion of the court.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

Because of mental illness, Winifred Branning is under the guardianship of her sister, Gwendolyn Lewis. After consulting with a psychiatrist, the guardian consented to the treatment of Branning with electroconvulsive therapy. The guardian filed a petition in the circuit court of Sangamon County seeking approval of her consent under section 2-110 of the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/2-110 (West 1994)). Section 2-110 provides:

"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).

The trial judge entered an order approving of the guardian's informed consent to treat Branning with electroconvulsive therapy.

Branning appealed. The appellate court vacated the trial judge's order. See 285 Ill. App. 3d 405, 674 N.E.2d 463, 220 Ill. Dec. 920. The appellate court found that section 2-110 of the Mental Health Code facially violates the due process clause of the United States Constitution (U.S. Const., amend. XIV, § 1) and the due process clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 2).

The State filed a petition for leave to appeal. 166 Ill. 2d R. 315(a); 134 Ill. 2d R. 317. We allowed the State's petition.

BACKGROUND

Winifred Branning was born in 1926 and began to suffer from mental illness as a teenager. Since that time, Branning's mental illness has been treated periodically with medication and electroconvulsive therapy. In 1989, Branning's sister, Gwendolyn Lewis, was appointed by the court as plenary guardian of the estate and person of Branning. See generally 755 ILCS 5/11a-1 et seq. (West 1994) (providing for guardians of disabled adults). Prior to the events giving rise to this case, Branning was being cared for in a nursing home and her mental illness was being treated with medication.

On February 13, 1996, Branning was admitted to the hospital due to her deteriorating mental health. The record is unclear as to whether Branning was admitted to the hospital on a voluntary or involuntary basis. See generally 405 ILCS 5/3-100 et seq. (West 1994) (providing for informal, voluntary, and involuntary admissions to mental health facilities). The next day, Branning's guardian filed a petition in the circuit court seeking approval of her consent to treat Branning with electroconvulsive therapy. On February 15, 1996, the trial judge appointed counsel for Branning and set a hearing for February 16, 1996.

At the hearing, Branning's counsel requested a continuance in order to obtain an independent psychiatric examination of Branning and a determination of whether Branning lacked the capacity to consent to electroconvulsive therapy. The State, represented by a Sangamon County assistant State's Attorney, objected to an independent examination because section 2-110 does not provide for such an examination. We note that the record does not reveal the basis for the State's involvement in this case. Unlike section 3-101 of the Mental Health Code which requires the appearance of the State in proceedings where a person is admitted, transferred, or discharged from a mental health facility and in proceedings involving the involuntary administration of psychotropic medication, the Code does not require a State's Attorney to appear in electroconvulsive therapy cases. See 405 ILCS 5/3-101 (West 1996).

The trial judge granted a continuance and requested that the parties submit authority in support of their respective positions prior to the next hearing. On February 23, 1996, a hearing was held on the guardian's petition for approval of her consent to treat Branning with electroconvulsive therapy. Present at the hearing were Branning, Branning's counsel, the guardian, a Sangamon County assistant State's Attorney, and Dr. Sarma, the psychiatrist who was treating Branning. The judge denied Branning's request for an independent examination. Following this ruling, Dr. Sarma and the guardian testified as to Branning's mental health.

Dr. Sarma testified regarding Branning's mental health history and her current condition. Dr. Sarma stated that Branning's mental health was deteriorating and that she was not responding to medication. Dr. Sarma believed that Branning did not have the capacity to decide whether or not to proceed with electroconvulsive therapy. Dr. Sarma described electroconvulsive therapy and the potential risks and benefits of the therapy. It was Dr. ...


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