Appeal from the Circuit Court of Madison County. No. 03-MH-81 Honorable Clarence W. Harrison II, Judge, presiding.
The opinion of the court was delivered by: Justice Hopkins
Rule 23 order filed March 11, 2004; Motion to publish granted April 20, 2004
The respondent-appellant, Margaret S., had resided in a nursing home since May 2000. In mid-July 2003, she was transferred to Gateway Regional Medical Center (Gateway) with diagnoses of dementia and psychosis.
On July 21, 2003, psychiatrist Dr. Narishma Muddasani filed a petition for the involuntary administration of psychotropic medication. The respondent countered with a motion for an independent medical examination. The circuit court granted the respondent's motion for the independent examination but denied her motion to continue the hearing on the petition for involuntary medication pending the outcome of the independent examination and, immediately following the hearing, granted the petition. The respondent appeals the order allowing involuntary medication. The State has filed a confession of error. We reverse the order as manifestly erroneous. In re John R., 339 Ill. App. 3d 778, 781, 792 N.E.2d 350, 353 (2003).
The petition for involuntary medication sought to treat the respondent with Risperdal, Lexapro, Haldol, and Prozac. The petition alleged that the respondent had become disoriented as to time and place and that she was delusional because she believed that people were trying to harm her and would not allow the nursing staff to touch her. She had made vague threats to staff members. The petition alleged that the administration of the designated drugs would reduce her confusion and paranoia and allow her to return to a nursing home.
On July 22, 2003, the respondent filed a motion to dismiss the petition on the basis that it had not been served on the respondent's agent named in her power of attorney for health care. Also on that date, the respondent filed a motion for an independent examination pursuant to section 3-804 of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/3-804 (West 2002)). The motion alleged that, given the potentially deadly side effects of Risperdal when administered to elderly patients, counsel could not prepare an adequate defense without the aid of an independent expert.
The motion to dismiss and the petition for involuntary medication were consolidated for a hearing on July 24, 2003. Prior to the taking of testimony, the respondent's counsel withdrew his motion to dismiss because the respondent's agent had been given actual notice and was present at the proceeding. Counsel then called the court's attention to his motion for an independent medical examination and requested a continuance of the hearing until the examination was completed. The court denied the continuance, noting the respondent's advanced age, 95, and the Code's interest in expediting petitions for involuntary medication.
Dr. Muddasani testified that when admitted to Gateway, the respondent had been extremely suspicious and paranoid and afraid that people were going to attack her. She picked fights and assaulted staff when they tried to help her. She had also experienced feelings of helplessness, worthlessness, dementia, and depression. These symptoms had persisted for approximately two months. She had been treated with an antidepressant, Celexa, but the doctor opined that Celexa would not treat psychosis or dementia. The doctor believed that treatment with Risperdal would decrease or eliminate the paranoia, suspiciousness, and aggression exhibited by the respondent; an alternative to Risperdal would be Haldol. The doctor admitted that there were risks or dangers with respect to all four of the medications sought. Risperdal could precipitate a stroke in elderly patients. Furthermore, it increased the chance of diabetes, weight gain, extrapyramidal symptoms like tardive dyskinesia (involuntary twitching of the face and the tongue), and cardiac death. Haldol could produce "cardiac irregularities." On direct examination the doctor was queried:
"Q. And well-does she have any current condition that you are
aware of that would put her at an extraordinary risk of harm from
any of these medications?
A. In considering her age and being 95, the Risperdal, it
does put her at a high risk for vascular accident."
Given the potentially deadly side effects of the medications, the doctor opined that he still believed that the intended benefits of the treatment outweighed the dangers to the respondent because she could be given the smallest doses possible, "considering her age and frail status." A small dosage would consist of up to 2 milligrams per day of Risperdal, although the doctor admitted that the petition sought a dosage of up to 16 milligrams per day, but he did not foresee that amount being administered. On cross-examination, the doctor admitted that the older a person is, the higher the risk of precipitating vascular accidents, but he believed that death by Risperdal was only a remote possibility. The doctor conceded that he could treat the respondent with alternate medications, but he stated that those drugs would have a sedative effect on the respondent; they could cause her to fall and break her bones, so he did not want to prescribe them. Dr. Muddasani was the sole witness at the hearing.
At the conclusion of the hearing, the circuit court granted the petition for involuntary medication and granted the respondent's motion for an independent examination. The order allowing the independent examination directed that a psychiatrist who had not been involved in the respondent's treatment should determine whether the respondent was truly psychotic and whether Risperdal was the best choice as a primary treatment for the elderly respondent. The court noted that depending on the results of the independent examination, the respondent could reopen the proofs. The court then stayed the administration of Risperdal for one week. This court stayed the administration of Risperdal and Haldol pending review.
The respondent now claims error in the State's failure to comply with section 2-102(a-5) of the Code (405 ILCS 5/2-102(a-5) (West 2002)). The statute provides that the respondent's substitute decision maker, if any, shall be provided with the same written information that is required to be presented to the respondent in writing. 405 ILCS 5/ 2-102(a-5) (West 2002). Here, the respondent asserts that her agent was not provided with information about the side effects, benefits, risks, and alternatives to the proposed treatment in writing and that, therefore, the order allowing involuntary treatment should be reversed. However, we note that although the respondent raised this claim below, she withdrew it on the eve of the hearing and, therefore, has forfeited review. Accordingly, we will not address it. See In re Miller, 301 Ill. App. 3d 1060, 1073, 705 N.E.2d 144, 152 (1998).
Next, the respondent claims error in the circuit court's failure to continue the hearing on the petition for involuntary medication until such time the independent examination was complete. We believe the court abused its discretion in denying the continuance, and we reverse on this basis. ...