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In re Len P.

February 01, 1999

IN RE LEN P., ALLEGED TO BE A PERSON IN NEED OF INVOLUNTARY PSYCHOTROPIC MEDICATION (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. LEN P., RESPONDENT- APPELLANT).


Appeal from the Circuit Court of Kane County. No. 97--MH--429 Honorable James C. Hallock, Judge Presiding.

The opinion of the court was delivered by: Justice Geiger

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

The respondent, Len P., appeals the circuit court's order authorizing the involuntary administration of psychotropic medication. On appeal, the respondent contends that the order must be reversed because (1) the State's petition fails to allege that a good-faith effort had been made to determine whether the respondent had executed an advance directive for health care (ADHC); (2) the State made no attempt to prove that the respondent would have consented to psychotropic medication if he were competent, pursuant to the constitutionally mandated "substituted judgment" standard; and (3) the order does not specify the type or dosage of medication to be administered.

On December 15, 1997, the State filed a petition for the involuntary administration of non-emergency psychotropic medication to the respondent. At trial, Chandragupta Vedak testified that he was a psychiatrist at Elgin Mental Health Center, where the respondent was a patient. Vedak had interviewed the respondent and talked with staff members who treated him. Based on this information, Vedak diagnosed the respondent as suffering from a psychosis, not otherwise specified. The respondent was delusional, believing that his mother and others were trying to kill him. Since his admission, the respondent had become agitated when asked to participate in group activities or to take medication. At times, he would clench his fists and tighten his jaws, showing signs of "impending threatening violent behavior." He had not, however, actually become violent or required restraints.

Vedak opined that the respondent did not have the capacity to make a reasoned decision about the use of psychotropic medication. The basis for this opinion was that the respondent did not believe he had an illness and equated all drugs with "street drugs."

Vedak wanted to prescribe Haloperidol to control the respondent's delusions. Haloperidol's side effects include dry mouth, constipation, sedation, tremors, a "feeling of uneasiness," and tardive dyskinesia. The doctor briefly mentioned newer drugs, such as Risperidol or Zyprexa, which have fewer side effects but which are available only in pill form.

Although the respondent had never taken psychotropic medications before, Vedak believed that their benefits would outweigh their side effects. With medication, the respondent's thought disorder would improve and his paranoia lessen. As a result, the respondent could possibly function at his former higher level and again find employment. At the hospital, the respondent had the opportunity to participate in individual and group counseling; however, neither alternative had been effective.

The respondent presented no evidence. The trial court ordered the administration of psychotropic medication for not more than 90 days. The respondent timely appeals.

The respondent first contends that the trial court's order must be reversed because the State's petition fails to allege that it made a good-faith effort to determine whether the respondent had executed an ADHC. The respondent acknowledges that he failed to object to the alleged pleading defect in the trial court and that this would normally result in the waiver of the issue on review. However, he contends that the defect is jurisdictional, rendering the trial court's order void. The respondent contends that because the involuntary administration of psychotropic medication is a special statutory remedy, any failure to comply with the statute's requirements deprives the circuit court of jurisdiction and renders any resulting order void.

The State responds that, even in a special statutory action, not every failure to comply with the statute renders the proceeding void. In In re Splett, 143 Ill. 2d 225 (1991), a mental health respondent objected, for the first time on appeal, to his lack of formal notice of the proceedings. The supreme court stated that the respondent: "[S]hould not be permitted to take part in a hearing on the merits and, if [he does] not prevail, obtain a new hearing by complaining of a procedural defect 'that could and should have been objected to immediately, could have been easily cured if timely objected to, and made no difference anyway.' " Splett, 143 Ill. 2d at 231, quoting In re J.W., 87 Ill. 2d 56, 62 (1981). The court held that the statute does not require the performance of an "empty formality" where the legislative intent has otherwise been achieved. Splett, 143 Ill. 2d at 231-32; see also In re Nau, 153 Ill. 2d 406, 418-19 (1992); In re Robinson, 151 Ill. 2d 126, 137 (1992). This court recently determined that the requirement of a verbatim transcript of the jury selection in an involuntary psychotropic medication proceeding was subject to waiver. In re Timothy H., No. 2-- 97--0910, slip op. at 5-6 (Ill. App. December 28, 1998).

The omission here is the type of procedural defect that can be waived under Splett. The omission should have been obvious at the time the pleading was filed. Had the respondent objected in the trial court, the defect could have been easily corrected. Moreover, it does not appear that the purpose of the requirement has been frustrated.

The Appellate Court, Fourth District, recently decided this precise issue. The court held that the failure to allege that the State had made a good-faith effort to determine whether the respondent had executed an ADHC was harmless because neither the record nor the respondent in his brief showed that such a document actually existed. In re Miller, No. 4--98--0185, slip op. at 21 (Ill. App. December 31, 1998). We agree with Miller that the statutory formalities should be followed, but, as in that case, we cannot find that the failure to do so in this instance prejudiced the respondent.

The statute's apparent purpose is to help ensure that a respondent is not administered psychotropic drugs contrary to his wishes expressed while he was competent. Here, the respondent did not object in the trial court and, even on appeal, does not suggest that an ADHC actually exists. We decline to find the trial court's order void on the basis of a procedural defect that could easily have been cured if objected to in the trial court.

The respondent next contends that the court's order is erroneous because the court failed to consider the "substituted judgment" standard in determining whether the respondent should receive psychotropic drugs. Under this standard, the surrogate decision maker attempts to establish what decision the ...


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