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In re Francis K.

May 22, 2001

IN RE FRANCES K.
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER- APPELLEE, V. FRANCES K., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Kane County. No. 00--MHK--46 Honorable James C. Hallock, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

Frances K. was a mental health patient. Her psychiatrist filed a petition pursuant to the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/1--100 et seq. (West 1998)) seeking a court order authorizing the involuntary administration of non-emergency psychotropic medication. 405 ILCS 5/2--107.1 (West 1998). The matter proceeded to trial before a jury of six. The jury returned a verdict finding that respondent was a person who qualified for the involuntary administration of psychotropic medication. The trial court entered judgment on the verdict, authorizing the involuntary administration of five specific medications over a period of 90 days. On appeal, respondent asserts that the judgment must be reversed since, in violation of the Mental Health Code, the State improperly commented on her failure to attend the trial; she also asserts that the court's judgment authorizing the administration of specific medications in specific doses was inconsistent with the general verdict. For the following reasons, we reverse.

The following facts were adduced from the record. Respondent was admitted for mental health treatment at the Elgin Mental Health Center on January 20, 2000. She was diagnosed with a schizoaffective disorder, bipolar type, which is a mental illness. During her admission to the Elgin Mental Health Center, respondent exhibited symptoms of psychosis, including hallucinations, paranoid delusions, disorganized thoughts and behavior, and affective symptoms of sleep disturbance, irritability, and affective lability, or mood swings.

While respondent was a resident at the Elgin Mental Health Center, her psychiatrist noticed that she paced the halls continuously while talking loudly to herself and answering under her breath. She would not allow a physician to examine her but insisted that she had "belly" cancer and that wearing a pink knit winter hat helped the cancer. She had delusions of grandeur, characterized by comments that she was a police officer and was going to send the staff at the mental health center to jail. Respondent's psychiatrist characterized her as hostile, distrustful, and irritable. She became angry and verbally threatening to any person who approached her.

Respondent was encouraged to take medication while at the mental health facility. When the subject was broached, she became angry and irritable, yelled, screamed, and raised her arm in a threatening manner. She tore the written authorization for administration of medication and refused to speak about the subject with her psychiatrist.

Respondent's condition deteriorated. Prior to her admission to the mental health center, she had been working, lived independently, and had no contact with the police. During her admission, however, respondent lost her housing, had no money, was not able to get along with others due to her verbal threats and angry disposition, and would not accept medical care. She could not be released because her psychiatrist did not believe she could take care of herself safely.

On January 31, 2000, Elizabeth Tomar, M.D., respondent's psychiatrist, filed a petition seeking the involuntary administration of the following psychotropic medications: Haldol, Cogentin, Risperdal, Zyprexa, and lithium. The matter proceeded to a jury trial on May 8, 2000. Dr. Tomar gave testimony concerning respondent's mental illness, her refusal to take medication, and the risks and benefits of the medications she sought to administer. She also testified that respondent's refusal to attend the trial exemplified respondent's disorganized thoughts or behaviors.

The jury returned a general verdict, finding in favor of petitioner and against respondent and further finding that respondent was a person who qualified for the involuntary administration of psychotropic medication. The trial court entered judgment on the verdict that specifically authorized the involuntary administration of Haldol, Cogentin, Risperdal, Zyprexa, and lithium. The order also authorized lab work for the safe administration of such medications. Respondent timely appealed. Her motion for a stay of the judgment pending appeal was denied.

At the outset, we determine that this case would normally be moot. See In re Nancy M., 317 Ill. App. 3d 167, 172 (2000). The trial court's order granting the petition for involuntary administration of psychotropic medication was entered on May 8, 2000. The terms of the order limited the duration of the administration of medication to 90 days. This time has since passed. At this point, respondent could be forced to take psychotropic medication against her will only if a new petition was filed and a new hearing was conducted. The original judgment no longer has any force or effect. As a result, our review of the propriety of the evidence concerning respondent's failure to attend the hearing or the court's order authorizing the administration of specific medications would not affect the outcome of the controversy.

However, when a challenged action is of short duration and is " 'capable of repetition, yet evading review' " (In re Barbara H., 183 Ill. 2d 482, 491 (1998), quoting In re A Minor, 127 Ill. 2d 247, 258 (1989)), it may be reviewed on the merits, even if otherwise moot, if (1) the duration of the challenged action is too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that respondent would be subjected to the same action again. In re Barbara H., 183 Ill. 2d at 491. Both criteria are satisfied here. By statute, psychotropic medication cannot be administered involuntarily for more than 90 days without an additional hearing. 405 ILCS 5/2-- 107.1(a)(5) (West 1998). This period of time is far too brief to permit appellate review. In virtually every case, the challenged medication orders would expire before appellate review was completed, as occurred here. If the mootness doctrine were applied under such circumstances, recipients of involuntary administration of psychotropic medication would be deprived of legal recourse in challenging the trial court's orders. The right to appeal as provided by the Mental Health Code would be a nullity. 405 ILCS 5/3--816 (West 1998).

The second requirement to apply the exception to the mootness doctrine is also present. Although respondent's current status is not revealed by the record filed on appeal, it does indicate that she had a history of mental illness and hospitalization for such illness as recently as 2½ years prior to the hospitalization at issue. Given this history, it is reasonable to expect that another petition may be filed against her in the future. Therefore, we will address the issues raised on appeal on the merits.

Respondent asserts that she was denied procedural due process when the State introduced evidence that her failure to attend the trial illustrated disorganized thought, a symptom of mental illness. A respondent's presence at any hearing under the Mental Health Act is not mandatory. If the respondent refuses to attend, the hearing may proceed in her absence. 405 ILCS 5/3--806(b) (West 1998). According to the precise terms of the statute, "[n]o inference may be drawn from the recipient's non-attendance." 405 ILCS 5/3--806(c) (West 1998).

The record reflects that Dr. Tomar testified on direct examination, without objection, that respondent's failure to attend the trial demonstrated disorganized thought, a symptom of mental illness. The record further reflects that respondent's own attorney pursued the same line of testimony on cross-examination of Dr. Tomar. Yet, respondent takes issue with the State's reference to such testimony in its closing argument.

When a party does not object to the admission of testimony on direct examination and proceeds to pursue the same line of questioning on cross-examination, any errors concerning the admission of such evidence are waived on appeal. People v. Gully, 151 Ill. App. 3d 795, 799 (1986). However, under the plain error doctrine, this court may address a waived issue if the evidence is closely balanced or the error affects substantial rights. 134 Ill. 2d R. 615(a); People v. McVeay, 302 Ill. App. 3d 960, 966 (1999). Fundamental liberty interests are involved in the involuntary administration of medication for mental health purposes. See In re Barbara H., 183 Ill. ...


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