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01/23/98 WINIFRED BRANNING v. WINIFRED BRANNING

SUPREME COURT OF ILLINOIS


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. Sarma's recommendation that Branning receive 10 treatments of electroconvulsive therapy over a three-week period.

Branning's guardian testified that she was informed of the potential risks and benefits of electroconvulsive therapy. The guardian stated that she consented to treat Branning with electroconvulsive therapy. Since becoming Branning's guardian in 1989, the guardian testified, this is the second time she has consented to electroconvulsive therapy. The guardian stated that she consented for the first time two years ago, and at that time, Branning herself also consented to the therapy. Based on her experience, the guardian believes that Branning is more stable following treatments with electroconvulsive therapy.

On several occasions during the hearing, Branning interrupted the proceedings. During one of these interruptions, Branning stated her desire not to be treated with electroconvulsive therapy. Prior to the end of the hearing, Branning left the courtroom. After consulting with Branning outside the courtroom, Branning's counsel stated that Branning no longer wanted to be present at the hearing. Dr. Sarma stated that he believed it was in Branning's best interest not to be forced to attend the remainder of the hearing. The judge excused Branning's presence for the remainder of the hearing.

Based on the evidence presented, the judge entered an order authorizing the guardian to consent to electroconvulsive therapy. The order was stayed so that Branning could file a notice of appeal. On February 28, 1996, Branning filed a notice of appeal. On March 1, 1996, the Guardianship and Advocacy Commission was appointed as Branning's counsel on appeal.

The appellate court initially found that the case was moot. On March 12, 1996, Branning was discharged from the hospital without having received electroconvulsive therapy. On March 22, 1996, Branning's case was dismissed in the circuit court and the cause was stricken. Thus, any action taken by the appellate court would no longer affect the outcome of the case. The appellate court, however, found that the case was reviewable under two exceptions to the mootness doctrine-the public interest exception and the exception for cases capable of repetition yet evading review.

The appellate court then addressed the merits of the case. The court stated that a ward has a significant liberty interest in refusing unwanted electroconvulsive therapy, psychosurgery, or services of an unusual, hazardous, or experimental nature as described in section 2-110. The court stated that a ward is not by definition unable to make a rational decision regarding the receipt of these services.

In order to overcome a ward's liberty interest in refusing treatment, the appellate court found that the State must demonstrate and the trial judge must find that the ward is unable to make a rational decision regarding the receipt of these services. Section 2-110, however, does not provide for a determination of a ward's capacity to make such a decision. Thus, the appellate court found that section 2-110 violates a ward's substantive due process rights.

The appellate court also found that section 2-110 violates a ward's procedural due process rights. The court stated that section 2-110 fails to: (1) specify what factors a court is to consider in determining whether electroconvulsive therapy or other services shall be administered; (2) specify a burden of proof; (3) require any input from a health care professional; (4) limit the length of time that services may be forced upon a ward; (5) require proof that a ward is unable to make a rational choice regarding the receipt of services; (6) provide for a hearing at which the ward may appear; and (7) provide the ward with competent assistance at the hearing. By failing to provide these procedures to protect a ward's liberty interest in refusing unwanted services, the court found that section 2-110 was unconstitutional.

ARGUMENT(S)

At the outset, we address two preliminary issues. First, like the appellate court, we find that this case is moot. Branning has been released from the hospital and is no longer subject to the order entered on the petition for approval of the guardian's consent to electroconvulsive therapy. However, Branning's guardian has filed two such petitions and nothing precludes the guardian from filing another petition in the future. As these facts demonstrate, issues arising under section 2-110 are "capable of repetition, yet evading review." In re A Minor, 127 Ill. 2d 247, 258, 130 Ill. Dec. 225, 537 N.E.2d 292 (1989). Therefore, we find that this case presents an exception to the mootness doctrine.

Second, the State claims that Branning lacks standing to challenge the constitutionality of section 2-110. The State notes that the trial judge provided many procedural protections not listed in section 2-110 and that these procedures afforded Branning sufficient due process. Assuming that section 2-110 is unconstitutional, the State contends that in this particular case Branning has not suffered a due process violation.

We disagree. "To have standing one must have sustained, or be in immediate danger of sustaining, a direct injury as a result of enforcement of the challenged statute." Messenger v. Edgar, 157 Ill. 2d 162, 171, 191 Ill. Dec. 65, 623 N.E.2d 310 (1993). As explained later in this opinion, we believe that section 2-110 fails to provide sufficient safeguards to protect a mental health patient's liberty interest in refusing electroconvulsive therapy. Despite the procedures used in the trial court, the order authorizing electroconvulsive therapy was not limited in its duration. Instead, the order provided that the guardian was "authorized to consent to one or more of a series of electroconvulsive treatments, *** without further order of the court."

In addition, although evidence was presented concerning Branning's capacity to make a rational decision regarding treatment, the mental condition which required treatment, the potential benefits and harms of treatment, and the availability of alternative treatments, the court order lacked findings concerning these matters. Further, while some protections were provided here, the statute does not require that those protections be given in the future. Thus, Branning has sustained, and is in danger of sustaining, an injury to a legally cognizable interest and has standing to challenge section 2-110 of the Mental Health Code.

On the merits, the State argues that the appellate court erred in finding section 2-110 of the Mental Health Code unconstitutional. The State notes that a statute is presumed to be constitutional (see People v. Hickman, 163 Ill. 2d 250, 257, 206 Ill. Dec. 94, 644 N.E.2d 1147 (1994)), and when construing a statute, a court should uphold the statute's validity if reasonably possible (see People v. Jeffries, 164 Ill. 2d 104, 111, 207 Ill. Dec. 21, 646 N.E.2d 587 (1995)). Also, the State notes that a statute will not be found unconstitutional on its face unless " 'no set of circumstances exists under which the [statute] would be valid.' " In re C.E., 161 Ill. 2d 200, 211, 204 Ill. Dec. 121, 641 N.E.2d 345 (1994), quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987).

With these standards in mind, the State claims that section 2-110 of the Mental Health Code is constitutional. The State argues that section 2-110 provides adequate procedures when construed in conjunction with provisions of the Probate Act of 1975 (the Probate Act) (755 ILCS 5/1-1 et seq. (West 1994)) governing petitions to modify or terminate a guardian's duties. See 755 ILCS 5/11a-19, 11a-20, 11a-21 (West 1994). When a petition to modify or terminate a guardian's duties is filed, a ward is entitled to a hearing, to be represented by counsel, to demand a jury of six persons, to present evidence, and to cross-examine all witnesses. See 755 ILCS 5/11a-21 (West 1994).

The State argues that the procedures found in section 11a-21 of the Probate Act should apply to section 2-110 of the Mental Health Code because a request for court approval of electroconvulsive therapy is a request for modification of a guardian's duties. The State notes that "statutes should be construed in conjunction with other statutes addressing the same subject." People v. Badoud, 122 Ill. 2d 50, 55, 118 Ill. Dec. 407, 521 N.E.2d 884 (1988). Thus, the State claims that the procedures found in section 11a-21 of the Probate Act should be read into section 2-110 of the Mental Health Code and that in combination these sections provide a mental health patient with sufficient due process.

We disagree with the State's claim that the procedures provided in section 11a-21 of the Probate Act should be read into section 2-110 of the Mental Health Code. Section 11a-21 of the Probate Act provides procedures and a hearing specifically for "a petition filed under Section 11a-20." 755 ILCS 5/11a-21(a) (West 1994). By its terms, section 11a-21 applies only to a petition to modify or terminate a guardian's duties; the section does not apply to a petition to authorize electroconvulsive therapy under the Mental Health Code.

Furthermore, we do not believe that sections 11a-20 and 11a-21 of the Probate Act address the same subject as does section 2-110 of the Mental Health Code. Sections 11a-20 and 11a-21 of the Probate Act address potential changes in the duties of a guardian and the court procedures for determining those changes. Section 2-110 of the Mental Health Code addresses the conditions under which a ward may be forced to undergo electroconvulsive therapy or other services. Because of the different subjects addressed, we do not believe that these statutory sections may be construed together so that the procedures outlined in section 11a-21 of the Probate Act can be read into section 2-110 of the Mental Health Code.

We also disagree with the State's claim that section 2-110 of the Mental Health Code is constitutional as currently enacted. An examination of In re C.E., 161 Ill. 2d 200, 204 Ill. Dec. 121, 641 N.E.2d 345 (1994), supports our conclusion. In In re C.E., C.E., an adult male, was involuntarily admitted to a mental health facility and his father was appointed as temporary guardian. In re C.E., 161 Ill. 2d at 205. Prior to the expiration of the guardianship, C.E.'s guardian filed a new guardianship petition. The guardian believed that his power to provide informed consent to treat C.E. with psychotropic medication was unconstitutionally restricted by section 2-107.1 of the Mental Health Code (405 ILCS 5/2-107.1 (West 1992)) governing the involuntary administration of psychotropic medication. In re C.E., 161 Ill. 2d at 205-06. Accordingly, C.E.'s guardian challenged the constitutionality of the statute.

After reviewing several decisions of the United States Supreme Court, we upheld the validity of section 2-107.1 and stated "it appears that persons who are mentally ill or developmentally disabled have a Federal constitutionally protected liberty interest to refuse the administration of psychotropic drugs." In re C.E., 161 Ill. 2d at 214. Two fundamental concerns supported our determination that a mental health patient has a right to refuse unwanted psychotropic medication. Our first concern was "the substantially invasive nature of psychotropic substances and their significant side effects." In re C.E., 161 Ill. 2d at 214. Our second concern was that "psychotropic substances may be misused by medical personnel, and subverted to the objectives of patient control rather than patient treatment." In re C.E., 161 Ill. 2d at 215.

We believe that treating a ward with electroconvulsive therapy or any unusual, hazardous, or experimental services or psychosurgery is of the same character as treating a ward with psychotropic medication. See In re Guardianship of Roe, 383 Mass. 415, 436-37, 421 N.E.2d 40, 53 (1981) (treating psychotropic drugs in the same manner as psychosurgery or electroconvulsive therapy); In re Mental Health of K.K.B., 609 P.2d 747, 749 (Okla. 1980) (same).

Both types of treatment are mind-altering, invasive, and present significant side effects. Both types of treatment have the potential for misuse by medical personnel for the purposes of patient control rather than patient treatment. See In re C.E., 161 Ill. 2d at 215-16 (discussing potential misuse of psychotropic drugs); 2 M. Perlin, Mental Disability Law: Civil and Criminal § 5.57, at 400-01 (1989) (discussing potential misuse of electroconvulsive therapy). Both types of treatment may be administered to a ward without the ward's express consent. As in In re C.E., where we found that a ward has a constitutional right to refuse unwanted psychotropic medication, we find here that a ward has a constitutionally protected liberty interest in refusing unwanted electroconvulsive therapy.

However, we also believe that the State has an interest in providing treatment for those who lack the capacity to make rational decisions for themselves regarding electroconvulsive therapy or other services. As we stated in the context of psychotropic medication, the State has a parens patriae interest "in providing for persons who, while suffering from a serious mental illness or developmental disability, lack the capacity to make reasoned decisions concerning their need for medication." In re C.E., 161 Ill. 2d at 217.

In In re C.E., we balanced the liberty interest of the individual with the State's interest in providing treatment for those who lack the capacity to make rational decisions by examining whether section 2-107.1 bears an important and substantial relationship to the State's interest. See In re C.E., 161 Ill. 2d at 217-19. We found it "especially significant" that the procedures found in section 2-107.1 are "narrowly tailored to specifically address" only those mental health patients who are unable to make rational decisions for themselves regarding psychotropic medication. In re C.E., 161 Ill. 2d at 218.

We noted that section 2-107.1 provides for a hearing prior to the involuntary administration of psychotropic medication. At the hearing, the trial judge must find by clear and convincing evidence that several strict standards have been satisfied. These standards include: a determination of a patient's incapacity to make a reasoned decision regarding medication; a determination that a patient suffers from a specific condition requiring medication; a determination that the benefits of medication outweigh the potential harm; and a determination that less restrictive treatments have been considered and found ineffective. In addition, we found it important that section 2-107.1 provides a 90-day time limit for the involuntary administration of psychotropic medication. See In re C.E., 161 Ill. 2d at 218-19.

In light of these narrowly tailored procedures, we concluded that section 2-107.1 bears an important and substantial relationship to the State's interest in treating those mental health patients who are unable to make rational decisions for themselves regarding psychotropic medication. Thus, section 2-107.1 did not impermissibly burden C.E.'s constitutionally protected liberty interest. See In re C.E., 161 Ill. 2d at 219. With these considerations in mind, we examine section 2-110 of the Mental Health Code to determine whether this section bears an important and substantial relationship to the State's interest to provide treatment for mental health patients who lack the capacity to make rational decisions for themselves regarding electroconvulsive therapy or other services.

Section 2-110 of the Mental Health Code does not explicitly provide for a court hearing. We believe, however, that a hearing is implicit in the statute's requirement that a guardian's consent be authorized "only with the approval of the court." 405 ILCS 5/2-110 (West 1994). Except for a hearing, section 2-110 fails to provide any of the other procedures that we found especially significant in advancing the State's interest in In re C.E. (161 Ill. 2d at 218-19).

Section 2-110, for example, does not provide for a standard of proof, provide for a determination regarding a patient's capacity to make a rational decision regarding treatment, list specific conditions which may require treatment, provide for a determination that the benefits of treatment outweigh the potential harm, provide for a determination that less restrictive treatments have been considered and found ineffective, or provide a time limit for the termination of treatment. Despite the disparity of procedures provided in sections 2-107.1 and 2-110, the State's interest is similar under each of these sections of the Mental Health Code-to provide mental health treatment to those who lack the capacity to make rational decisions for themselves regarding treatment.

Because section 2-110 lacks the procedures we found significant in determining the constitutionality of section 2-107.1 in In re C.E., we do not believe that section 2-110 is tailored narrowly enough to withstand the constitutional challenge presented here. Accordingly, we find that section 2-110 of the Mental Health Code, as currently enacted, is unconstitutional on its face.

HOLDING(S)

For the foregoing reasons, we find that section 2-110 of the Mental Health Code (405 ILCS 5/2-110 (West 1994)) is unconstitutional as enacted. Accordingly, the judgment of the appellate court is affirmed.

Affirmed.

19980123

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