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In re John R.

June 11, 2003

IN RE JOHN R., HELEN S., AND DIANA L., ALLEGED TO BE PERSONS SUBJECT TO INVOLUNTARY TREATMENT
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
JOHN R., HELEN S., AND DIANA L., RESPONDENTS-APPELLANTS).



Appeal from the Circuit Court of Madison County. Nos. 01-MH-173, 01-MH-200, & 01-MH-205 Honorable Ralph J. Mendelsohn, Judge, presiding.

The opinion of the court was delivered by: Justice Welch

PUBLISHED

In this consolidated appeal, John R., Helen S., and Diana L. appeal from orders of the circuit court of Madison County, entered December 13, 2001, December 20, 2001, and December 27, 2001, respectively, finding them subject to the involuntary administration of psychotropic medications. The respondents argue that the trial court's findings that they met the statutory criteria for forced medication are against the manifest weight of the evidence. For reasons that follow, we reverse all three orders.

Initially, we acknowledge that the issues raised on appeal from the orders entered in this case, which orders expired 90 days after their entry (405 ILCS 5/2-107.1(a-5)(5) (West Supp. 2001)), could be considered moot. Nevertheless, we will address the questions raised in this appeal because they are capable of repetition yet might evade review because of the short duration of the orders. See In re Richard C., 329 Ill. App. 3d 1090, 1093 (2002).

Psychotropic medications may not be administered to an adult recipient of mental health services against his will unless it has been established by clear and convincing evidence that each of the following factors is present:

A. The recipient has a serious mental illness.

B. Because of that mental illness the recipient exhibits a deterioration of his ability to function, suffering, or threatening behavior.

C. The illness has existed for a period marked by the continuing presence of the above symptoms or the repeated episodic occurrence of these symptoms.

D. The benefits of psychotropic medication will outweigh the harm.

E. The recipient lacks the capacity to make a reasoned decision about the medication.

F. Other less restrictive services have been explored and found inappropriate. 405 ILCS 5/2-107.1(a-5)(4)(A) through ( a-5)(4)(F) (West Supp. 2001).

Clear and convincing evidence has been defined as that quantum of proof that leaves no reasonable doubt in the mind of the fact finder about the truth of the proposition in question. Bazydlo v. Volant, 164 Ill. 2d 207, 213 (1995). Although stated in terms of reasonable doubt, courts consider clear and convincing evidence to be more than a preponderance, while not quite approaching the degree of proof necessary to convict a person of a criminal offense. Bazydlo, 164 Ill. 2d at 213. A reviewing court will not reverse an order allowing the involuntary administration of psychotropic medication unless the trial court's findings are against the manifest weight of the evidence. In re Jakush, 311 Ill. App. 3d 940, 944 (2000). A judgment is considered against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on evidence. In re Jakush, 311 Ill. App. 3d at 944.

While each respondent challenges the trial court's findings with respect to one or more of the factors enumerated in section 2-107.1(a-5) of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/2-107.1(a-5) (West Supp. 2001)), all challenge the trial court's findings with respect to the question of whether the respondents lacked the capacity to make a reasoned decision about the medication. Because we conclude that the trial court's findings in this regard are contrary to the manifest weight of the evidence, we reverse on that basis. The respondents argue that the State failed to prove by clear and convincing evidence that the respondents lacked the capacity to make a reasoned decision about the medication because the State failed to prove that it had complied with section 2-102(a-5) of the Code (405 ILCS 5/2-102(a-5) (West 2000)). Section 2-102(a-5) of the Code requires the treating physician to "advise the recipient, in writing, of the side effects, risks, and benefits of the treatment, as well as alternatives to the proposed treatment, to the extent such advice is consistent with the recipient's ability to understand the information communicated." 405 ILCS 5/2-102(a-5) (West 2000). The respondents argue that a necessary predicate to making a reasoned decision about whether to take psychotropic medication is being informed about the medication's risks and benefits. Thus, before a trial court can determine whether a respondent lacked the capacity to make a reasoned decision about the medication, it must determine by clear and convincing evidence that the respondent was advised of the risks, benefits, and side effects of the medication. According to the respondents, this evidence was lacking in the instant case.

In In re Israel, 278 Ill. App. 3d 24, 37 (1996), this court set forth the following factors that a court must consider in determining whether an individual lacks the capacity to make a reasoned decision ...


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