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In re Mark W.

June 08, 2004

IN RE MARK W., A PERSON ASSERTED TO BE SUBJECT TO INVOLUNTARY TREATMENT WITH PSYCHOTROPIC MEDICATIONS
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
MARK W., RESPONDENT-APPELLANT )
(THE DEPARTMENT OF HUMAN SERVICES, INTERVENOR-APPELLEE).



Appeal from the Circuit Court of Madison County. No. 02-MH-39. Honorable Daniel J. Stack, Judge, presiding.

Justices: Honorable James K. Donovan, J., Honorable Melissa A. Chapman, P.J., and Honorable Clyde L. Kuehn, J., Concur.

The opinion of the court was delivered by: Justice Donovan

PUBLISHED

Respondent, Mark W., appeals from an order of the circuit court of Madison County granting the State's petition to involuntarily administer psychotropic medication to Mark W. For the following reasons, we affirm the trial court's finding that section 2-107.1 of the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/2-107.1 (West 2002)) is constitutional as applied to pretrial detainees generally and to respondent specifically, but we reverse the order granting the State's request to involuntarily administer psychotropic medication.

BACKGROUND

On December 19, 1999, Mark W. was arrested in Peoria County and charged with the aggravated battery of two police officers. The record reveals that on the evening of December 19, 1999, the police were summoned to a bar where Mark W. was alleged to have been removing beer bottles from the garbage and drinking the remaining beer from the discarded bottles. The police found Mark W. a short distance from the tavern. Mark W. admitted going through the garbage and indicated that he was entitled to do so because he owned the property. He also told the police that he was their "commander" and a "priest of the high order." In the process of Mark W.'s arrest, he allegedly struggled with and struck the two arresting officers.

On December 28, 1999, Mark W. was indicted on two charges of having "made physical contact of an insulting or provoking nature" with two police officers. On June 5, 2000, a judge of the Tenth Judicial Circuit in Peoria County found Mark W. unfit to stand trial pursuant to section 104-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-10 (West 2002)). Mark W. was admitted to Alton Mental Heath Center on June 19, 2000. While at Alton Mental Health Center, Mark W. received various antipsychotic drugs, including Zyprexa, which was replaced with Risperdal, which was ultimately replaced with Clozaril. On May 25, 2001, the Peoria County trial court found Mark W. fit to stand trial and he was released on bond.

Mark W. stopped taking his medication after his release on bond.

On February 8, 2002, Mark W. was again found unfit to stand trial by the trial court in Peoria County. On April 3, 2002, Mark W. was remanded to the custody of Department of Human Services (DHS) for inpatient treatment. On April 9, 2002, Mark W. was readmitted to Alton Mental Health Center.

On April 19, 2002, Dr. Kanwal Mahmood, Mark W.'s treating psychiatrist, filed a petition for involuntary treatment, which is the subject of this appeal. The petition sought to force Mark W. to receive antipsychotic medication, Clozaril, on a non-emergency basis. The petition indicated that Mark W. was suffering from schizophrenia, was delusional, and had deteriorated in his ability to care for himself. The petition opined that the administration would make Mark W. "more in touch with reality" so that he could "function in the community." The petition made no mention of his status as unfit to stand trial or a goal of making him fit for trial. The court ordered the petition set for a hearing on April 25, 2002. The case was continued on Mark W.'s motion to allow him to be examined by a mental health professional not employed by DHS.

On May 16, 2002, Mark W. filed a motion to dismiss, contending, inter alia, that section 2-107.1 of the Mental Health Code was unconstitutional as applied to pretrial detainees in general and to him specifically. Mark W. filed three affidavits, which incorporated pertinent documents and exhibits. One of these was a report of Dr. Bryce Sullivan, a licensed clinical psychologist, who examined Mark W. on two occasions. His report provided a review of Mark W.'s mental health records as well as his opinions, within a reasonable degree of psychological certainty, regarding the potential effects of forcing non-emergency drugs upon Mark W.

Dr. Sullivan noted that Mark W. had a history of psychiatric problems which dated back to at least 1990 and also had a history of noncompliance with treatment for psychiatric problems. Dr. Sullivan stated: "[T]he risk of [Mark W.] causing serious physical harm to himself or others, like all clinical predications of dangerousness, is difficult to ascertain. He clearly has the potential of behaving in a manner that could cause injury to others[,] as indicated by the police report of 12/19/99 in which [Mark W.] was alleged to have caused injury to two police officers which required medical attention. However, the mere existence of prior episodes of aggressive behavior does not, by itself, predict future similar behaviors." Dr. Sullivan went on to state that Mark W. "does have the capacity to inflict serious physical harm upon himself or another person" and that a "facility with the authority to administer emergency psychotropic medication and physical restrains [sic] would, through their use, be able to protect [Mark W.] and those with whom he has contact from physical harm if [Mark W.] were ever at imminent risk of causing serious physical harm to himself or others."

Dr. Sullivan's report listed the numerous side effects of Clozaril, such as agranulocytosis (a blood disease that can lead to death that is characterized by a reduction in a certain type of white blood cells), seizures, adverse cardiovascular and respiratory effects, neuroleptic malignant syndrome, tardive dyskinesia, drowsiness, sedation, fatigue, dizziness, vertigo, headache, tremor, syncope, restlessness, agitation, rigidity, akathasia, confusion, fatigue, hyperkinesia, amnesia/memory loss, loss of speech, stuttering, and many others. Dr. Sullivan opined that if Mark W. were administered Clozaril, these side effects could impact trial-related issues, such as making it more difficult for Mark W. to focus on the testimony of witnesses at his criminal trial and making it more difficult for Mark W. to communicate with his counsel and assist his counsel with his defense. Additionally, the side effects could negatively impact jurors' perceptions of his credibility and character and the content of his testimony at his criminal trial. Finally, Dr. Sullivan opined that if Mark W. were administered Clozaril and the effects of the medication resulted, he would appear more sane at his trial than if he did not receive the effects of the medication.

On July 3, 2002, the trial court heard and considered Mark W.'s motion to declare section 2-107.1 of the Mental Health Code unconstitutional as applied to pretrial detainees in general and Mark W. specifically. The trial court found that the statute was constitutional, and the court denied the motion.

The court then proceeded to hear the State's motion for the involuntary administration of psychotropic medication. The parties chose not to present the testimony of any witnesses but simply presented a stipulation regarding what their testimony would be if called to testify. (The content of the stipulation will be provided and discussed later in this opinion.) The trial court then signed an order prepared by the State to involuntarily administer psychotropic medication to Mark W. The order for the administration of psychotropic medication was in effect for 90 days. Mark W. appeals the July 3, 2002, order for the involuntary administration of psychotropic medication.

Subsequent to the filing of the notice of appeal, on February 7, 2003, the trial court in Peoria County found that Mark W. had been in the custody of DHS for one year and that Mark W. remained unfit. A discharge hearing was set on May 9, 2003. On May 9, 2003, ...


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