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In re Richard C.

May 13, 2002

IN RE RICHARD C.
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
RICHARD C., RESPONDENT-APPELLANT).



The opinion of the court was delivered by: Justice McLAREN

UNPUBLISHED

Respondent, Richard C., appeals the trial court's order finding him to be a person subject to the involuntary administration of psychotropic medication. We reverse.

On October 2, 2001, the State filed a petition naming respondent and seeking the authorization for the involuntary administration of the psychotropic medication haloperidol decanoate IM (Haldol) to him.

On October 2, 2001, a notice of hearing was prepared, and the record shows that the notice of hearing was served upon respondent on October 3, 2001. The return of service is signed by the Winnebago County sheriff and a deputy.

At the hearing on the petition, counsel for respondent moved to dismiss the petition on the basis that there was no proof that the petition was served on respondent. The clerk, present in the courtroom, explained that in medication hearings the respondent is served with a copy of the petition along with the notice of the hearing. The trial court then denied the motion to dismiss.

Howard Paul, M.D., testified that he was respondent's attending psychiatrist. Dr. Paul testified that respondent suffered from paranoid schizophrenia. Dr. Paul decided early in his treatment of respondent to switch medication from prolixin decanoate to a drug that would have fewer side effects, would be safer for respondent's heart condition, and would help respondent gain weight. Dr. Paul wanted respondent to take a low dose of Haldol and have his heart monitored so that respondent could take in some nutrition and gain some strength.

Dr. Paul stated that he repeatedly tried to explain the benefits and side effects of Haldol to respondent. But respondent launched into paranoid tirades and said that drugs were poison. Dr. Paul stated at trial that the drug respondent was receiving previously was essentially poisoning respondent. Dr. Paul did not provide respondent with a written statement of the side effects of Haldol. Dr. Paul stated that he would give respondent the side effects in writing after the State obtained a court order to administer the medication.

At the close of the State's case, respondent's counsel moved for a directed finding. The trial court denied the motion, and at the close of the hearing, on October 18, 2001, the court granted the State's petition, ordering that respondent be administered the psychotropic medication Haldol at a range of 12.5 to 100 milligrams a month for a period up to 90 days. Respondent filed this timely appeal.

Initially, we determine that, contrary to the State's assertion, this case is not moot, even though the time to administer the medication provided in the order has passed. When a challenged action is of short duration and is " 'capable of repetition, yet evading review,' " 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 482, 491 (1998). Both criteria are met here. 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 too brief to permit appellate review. To apply the mootness doctrine under such circumstances would effectively deprive those subject to the involuntary administration of psychotropic medication of the right to appeal as provided by the Mental Health and Developmental Disabilities Code. 405 ILCS 5/3--816(b) (West 1998).

The second requirement to apply the exception to the mootness doctrine is also present. The record indicates the respondent was prescribed psychotropic medications in the past and is likely to be prescribed these medications in the future. Respondent's refusal to take the medication may result in severe weight loss. Given this history, it is reasonable to expect that respondent would be subjected to the same action again. Therefore, we will address the issue on the merits. See In re Cynthia S., 326 Ill. App. 3d 65, 67 (2001).

On appeal, respondent first maintains that the trial court erred by denying his motion to dismiss, arguing that the State could not prove that it served respondent with the petition. Although the return of service indicates that only the notice of hearing was served upon respondent, a clerk informed the court that it was the county's practice to serve the petition along with the notice of hearing. This statement was sufficient, if believed by the court, to infer that respondent was properly served. There was no affirmative statement by respondent to rebut this reasonable inference. Although the better practice would be to have the sheriff be more specific about what was served, the trial court did not err by denying respondent's motion to dismiss for lack of service.

The case cited by respondent, In re Delong, 289 Ill. App. 3d 842 (1997), is distinguishable from this case because in Delong there was no evidence that the respondent was served. Here, however, a clerk stated that the standard practice was to serve the petition along with the notice of hearing, and there was nothing affirmative to refute this. Thus, Delong, does not apply.

Respondent also argues that the order must be reversed because it fails to state who is to administer the medication. Although respondent failed to raise this issue in the trial court, it affects a substantial right and, therefore, we will address it as plain error. See 134 Ill. 2d R. 615(a); Cynthia S., 326 Ill. App. 3d at 67-68.

Section 2--107.1(a) of the Mental Health and Developmental Disabilities Code (Code) provides, "[a]n order issued under this subsection (a) shall designate the persons authorized to administer the authorized involuntary treatment." 405 ILCS 5/2--107.1(a)(6) (West 1998). This court held in Cynthia S., 326 Ill. App. 3d at 69, that the failure to name specific individuals who were authorized ...


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