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In re Evelyn S.

April 1, 2003

IN RE EVELYN S., ALLEGED TO BE A PERSON SUBJECT TO INVOLUNTARY ADMINISTRATION OF PSYCHOTROPIC MEDICATION
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
EVELYN S., RESPONDENT-APPELLANT (JAMES E. RYAN, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, AND THE DEPARTMENT OF HUMAN SERVICES, INTERVENORS-APPELLEES)).



Appeal from the Circuit Court of Madison County. No. 01-MH-62 Honorable Ralph J. Mendelsohn, Judge, presiding.

The opinion of the court was delivered by: Justice Chapman

PUBLISHED

Evelyn S. (respondent) was found unfit to stand trial on a charge of first-degree murder, and she was admitted to the Alton Mental Health Facility (Alton). In April 2001, the Madison County circuit court found her to be a person subject to the involuntary administration of psychotropic medication. See 405 ILCS 5/2-107.1 (West 2000). Evelyn S. raises numerous issues on appeal. Because our conclusion that the trial court improperly allowed Evelyn S. to waive her right to counsel and proceed pro se requires a reversal, we need not address her other arguments.

I. BACKGROUND

In September 1999, Evelyn S. was arrested and charged with first-degree murder for the death of her husband. On January 31, 2001, a Cook County court found her unfit to stand trial. On February 21, 2001, she was admitted to Alton for treatment.

On March 19, 2001, the State filed a petition for the involuntary administration of psychotropic medication to Evelyn S. pursuant to section 2-107.1 of the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/2-107.1 (West 2000)). The petition alleged that Evelyn S. suffered from a psychotic disorder, not otherwise specified, and had been exhibiting symptoms including paranoia and aggression since her arrest in 1999. The petition further alleged that Evelyn S. was incapable of making an informed decision regarding psychotropic medication and that the benefits of such medication would outweigh the potential harm.

The matter was initially set for a hearing on March 22, 2001. At that time, the court granted Evelyn S.'s motion for a continuance so she could consult with her criminal attorney in Cook County. The hearing was then set for March 29, at which time Evelyn S. requested a two-week continuance to allow her time to obtain an independent examination, conduct discovery, and arrange for witnesses to appear to testify on her behalf. She also requested a jury trial. The court denied both requests but granted her another one-week continuance to contact the attorney she claimed represented her in Cook County. The court advised Evelyn S. that she was to tell her Chicago attorney to enter an appearance on her behalf by the time the court convened the following week.

On March 30, 2001, Evelyn S. filed a motion to reconsider the denial of her jury demand and, as an alternative, a motion for leave to file a late jury demand. In the motion to reconsider, she contended that her initial jury demand was timely because the hearing had not yet begun. In the motion for leave to make a late jury demand, she contended that, assuming, arguendo, her March 29 jury demand was not timely, (1) any untimeliness was not due to any negligence on Evelyn S.'s part and (2) the State was not prejudiced by any delay.

On April 3, 2001, Evelyn S. served the Alton staff with interrogatories and a request to produce documents. On the same day, she served Dr. M.V. Reddy, her attending physician at Alton, and Dr. Stephen Robinson with notices to appear pursuant to Supreme Court Rule 237(b) (166 Ill. 2d R. 237(b)). Also on April 3, Evelyn S. filed a motion to dismiss the State's petition for a lack of subject matter jurisdiction. She contended that the Cook County court's continuing jurisdiction to determine her fitness to stand trial (see 725 ILCS 5/104-20 (West 2000)) precluded the Madison County court's jurisdiction under the Mental Health Code. The court denied the motion.

On April 5, 2001, the trial judge conducted a hearing at Alton. Because the Chicago attorney had not entered an appearance for Evelyn S., the court informed her that her choices would be to accept her appointed attorney's continued representation or represent herself. Evelyn S. chose the latter option.

Dr. Suresh Chand was the only witness for the State. Dr. Chand admitted that he had not spoken to Evelyn S. prior to the hearing. She had refused to allow him to interview her. His testimony was based on Evelyn S.'s medical records and his discussions with Alton staff members who had worked with her. Dr. Chand testified that Evelyn S.'s mental illness manifested itself in her refusal to eat at least six meals since her admission, her refusal to bathe, and her aggressive and paranoid behavior. He stated that she refused meals, fearing they had been poisoned. He explained the benefits of each prescribed medication in reducing delusional thinking or anxiety or minimizing the side effects of the other medications and stated that these benefits outweighed the potential harm and that less restrictive alternatives to medication were not appropriate for Evelyn S.. Dr. Chand opined that Evelyn S. was incapable of making an informed decision about whether to take the medications.

Evelyn S. called her brother, Peter Popovich, to testify on her behalf. He testified that she had always been devoutly religious and had professed to believe in faith healing rather than medication long before the murder charge was filed against her. Popovich further testified that he had never known his sister to refuse to bathe or keep clean, nor had he known her to accuse anyone of trying to poison her.

Evelyn S. testified that she had never told the staff at Alton that she feared her food was being poisoned but that she never told them she was fasting and praying for Lent because "[i]t's supposed to be done in silence and a very private thing." She stated that the staff documented that she refused to bathe because she wanted to wait for a phone call from her attorney in Chicago and bathe later. She further testified that she was not mentally ill but was grieving for her husband. A friend who ran a psychiatric outpatient clinic in Chicago had explained to Evelyn S. that the symptoms of grief can be similar to those of mental illness.

The court asked Dr. Chand if the side effects of the medications sought to be administered to Evelyn S. would be made worse if she were given the drugs while she was fasting. Dr. Chand stated that any side effects could be reduced by reducing the dosages.

At the end of the hearing, the court found Evelyn S. to be a person subject to the involuntary administration of psychotropic medication, and the court entered an order authorizing the staff at Alton to administer Risperdal, Haldol, lorazepam, Cogentin, Benadryl, and Haldol decanoate to Evelyn S. and conduct the testing necessary to monitor any adverse reactions. The order was to go into effect on April 16, 2001, to coincide with the end of Lent so as to minimize the potential adverse effects from taking the medications while fasting.

Evelyn S. filed the instant appeal the same day. She contends that the trial court erred by (1) allowing her to waive counsel despite evidence she was not competent to do so, (2) denying her request for a jury (see 405 ILCS 5/3-802 (West 2000)), (3) denying her request for a continuance to conduct discovery (see 405 ILCS 5/2-107.1(a-5)(2)(i) (West Supp. 2001)), (4) denying her request for an independent examination (see 405 ILCS 5/3-804 (West 2000)), (5) finding her subject to the involuntary administration of psychotropic medication without the testimony of at least one psychiatrist who had actually examined her (see 405 ILCS 5/3-807 (West 2000)), (6) failing to employ a "substituted judgment test" to determine her expressed desires regarding her care when she was competent, and (7) authorizing the maximum dosages of medication requested in the petition, which exceeded those suggested by the State's only witness. She also argues that section 2-102(b) of the Mental Health Code (405 ILCS 5/2-102(b) (West 2000) (allowing the withholding of medical treatment to members of any "well-recognized religious denomination" where it is necessary to respect their religious beliefs)) is unconstitutional because it impermissibly entangles the state with religion by requiring courts to decide what denominations are "well-recognized." She finally contends that if section 2-102(b) is void, section 2-107.1 is unconstitutional without it. See In re C.E., 161 Ill. 2d 200, 224, 641 N.E.2d 345, 356 (1994) (rejecting a constitutional challenge to section 2-107.1 partly on the basis of section 2-102).

On April 12, 2001, this court entered an order staying the trial court's order pending appeal. On April 23, 2001, the State filed a motion to dismiss Evelyn S.'s appeal, contending that this court lacks jurisdiction to consider it because it was an interlocutory order merely effectuating the Cook County court's order for Evelyn S. to undergo treatment. We ordered the State's motion taken with the case. On July 27, 2001, we granted the Attorney General's motion to intervene on behalf of the Illinois Department of Human Services (Department) to defend against Evelyn S.'s constitutional challenge and respond to the State's motion to dismiss. On January 2, 2002, just days before oral argument in this case, the Attorney General filed a motion to dismiss this appeal on the ground of mootness because the Department intended to recommend that Evelyn S. be found fit to stand trial. We ordered the motion taken with the case. On March 15, 2002, the Cook County trial court found Evelyn S. fit to stand trial. She has been transferred to the Cook County jail to await trial on the murder charges.

For the reasons that follow, we deny both motions to dismiss and reverse the ...


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