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In Re Nicholas L., Alleged To Be A Person v. Nicholas L

February 16, 2011


Appeal from the Circuit Court Subject to Involuntary Administration of ) of Du Page County. No. 09-MH-151

The opinion of the court was delivered by: Honorable Bonnie M. Wheaton Judge, Presiding.


JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Burke and Schostok concurred in the judgment and opinion.


Respondent, Nicholas L., appeals from an order of the circuit court of Du Page County granting the State's petition for involuntary administration of psychotropic medication pursuant to section 2-107.1 of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/2-107.1 (West 2008)). For the following reasons, we reverse.


On August 26, 2009, respondent was voluntarily admitted to Elmhurst Memorial Hospital (Elmhurst) in Elmhurst, Illinois.*fn1 On September 2, 2009, the State filed a petition seeking authorization to administer electroconvulsive therapy (ECT) to respondent pursuant to section 2-107.1 of the Code. The State subsequently filed an amended petition on September 11, 2009, adding a request for authorization to administer psychotropic medication. The trial court conducted an evidentiary hearing on the State's petition on September 14, 2009.

Lori Sims, a senior clinician consultant at the Du Page County health department, testified that respondent was in his early twenties and had a history of mental illness since his teens. For almost one year, respondent was a client of the department's "assertive community treatment team" (ACTT), its most intensive treatment team. ACTT assisted clients who had difficulty engaging in other forms of treatment and in following through with treatment recommendations. Respondent had been hospitalized three or four times since he was referred to ACTT. ACTT attempted to visit respondent at his home twice a week. Sims testified that respondent did not like the meetings and sometimes failed to be present for them. A doctor from the health department prescribed psychotropic medication for respondent, which was provided in "weekly pill packs." Respondent took the medication either on his own or with the help of his mother. Respondent did not want ACTT to monitor his medication; he "wanted to be in charge of his own medications."

Sims stated that respondent had been taking his medication but recently stopped. When Sims attempted to discuss with respondent the circumstances leading to his hospitalization, respondent told her that he was not manic and did not want to talk about his condition; he wanted to talk only about his discharge plans. Sims believed that respondent needed psychotropic medication because, when he was taking it, he was stable and attended school. Respondent had lived with his mother but recently moved into his own apartment. Respondent was brought to Central Du Page Hospital after living in his own apartment for about one week.

Respondent stipulated to the expert status of Dr. Timothy Cullinane, his psychiatrist since August 26, 2009. Dr. Cullinane testified that respondent had suffered from mental illness since his teens. Since respondent's admission to Elmhurst three weeks prior to the hearing, Dr. Cullinane met with him 13 or 14 times. Dr. Cullinane opined that respondent suffered from "[b]ipolar disorder currently in the manic phase with psychotic features." He explained that bipolar disorder was generally characterized by periods of depression, periods of normal mood, and periods of mania. Respondent's illness included a thought disorder, which meant that respondent was not thinking "logically and clearly" when he was first admitted to the hospital, and his mood was "mainly irritable."

Dr. Cullinane testified about the events leading to respondent's hospitalization. As respondent was being transported by ambulance from Central Du Page Hospital to Elmhurst, he fled the ambulance while it was stopped at a red light. A missing persons report was filed and Chicago police found respondent wandering on the city's west side.*fn2 After examining respondent, Dr. Cullinane told respondent that he thought respondent should take psychotropic medication. Respondent initially did not want to take the medication, because he did not think it was necessary.

Dr. Cullinane testified that respondent exhibited a deterioration in his ability to function, because, due to his episodic irritable mood and thought disorder, when he came to the hospital he was no longer able to live in the community, get along with others, or maintain daily living activities.

Respondent also exhibited threatening behavior; he once told a nurse at the hospital that he was going to put a fork in her head. Due to respondent's agitation and manic behavior, psychotropic medications were administered to respondent "prn" (as needed).

On direct examination, Dr. Cullinane testified as follows regarding respondent's capacity to make a reasoned decision about treatment:

"Q. Do you believe that [respondent] has the ability to make an appropriate medical decisions [sic] at this time?

A. He appears to, but his history is that once he gets out of the hospital he often does not take his medication for a period of time and, therefore, becomes ill again which has led to his long history and need for involvement with ACT team which is not-does not get involved with patients who are stable and taking their medicine every day.

Q. In your opinion, does [respondent] have the capacity at this time to make a reasoned decision about whether the treatment you are proposing is appropriate?

A. I believe so because he is taking the medication I am prescribing at this time.

Q. So you think he does have the capacity to decide whether or not the medications you're prescribing and the ECT are appropriate?

A. Again, he is taking the oral medications I'm prescribing right now. I'm concerned about what will happen after he leaves the hospital."

Dr. Cullinane testified that respondent had been advised in writing of the risks and benefits of the two psychotropic medications requested in the petition and of ECT. Dr. Cullinane discussed the medications and ECT with respondent. Dr. Cullinane thought that respondent was "more interested in taking medication than having ECT treatments." Dr. Cullinane requested to withdraw the ECT request from the petition, explaining:

"At the time we initially filed the petition, [respondent] had received multiple prn medications of different types in large amounts and did not seem to be getting better at all. However, subsequently, he seemed to get better and need fewer and fewer prn medications and even though at that time he was not taking any oral medicines, he continued to improve. So I thought that that would be a better choice for him since he didn't particularly want the ECT."

The court accepted the withdrawal of the ECT request from the petition. After ascertaining that respondent still objected to treatment with psychotropic medications, even without the ECT, the court indicated that the hearing would proceed on the two requested medications.

Dr. Cullinane testified that he sought permission to administer Risperdal Consta, 50 milligrams, intramuscularly, every two weeks. The expected benefits were a "more complete resolution of symptoms and a longer-term resolution of symptoms because the medicine lasts for two weeks." Dr. Cullinane said that respondent was currently taking Invega (orally), which is the "active part of Risperdal." While taking Invega, respondent was improving and becoming more stable. Dr. Cullinane explained that the reason for requesting Risperdal Consta instead of continuing to use Invega was that the hospital did not have access to an injectable form of Invega and the injectable Risperdal Consta lasts for about two weeks. According to Dr. Cullinane, with Risperdal Consta, "there would be less of a chance that [respondent] would forget to take his medicine or an [sic] impulse to decide not to take it and then become ill again and repeat the cycle of becoming ill and rehospitalization, et cetera." Dr. Cullinane explained that the "same therapeutic effect could be achieved with Invega, but there's the issue of medication adherence. And if, again, he were to choose to not take the medication, of course, it wouldn't work. But if you had the Risperdal Consta, it would work for two weeks." Potential side effects of Risperdal Consta were the same as those for Invega and respondent was not reporting any side effects from the Invega. Both Risperdal Consta and Invega had the long-term risk of tardive dyskinesia-involuntary muscle movements of the hand or face-that could be permanent. This effect could be avoided by reducing or withdrawing the medicine if such signs were present. Dr. Cullinane opined that the benefits of Risperdal Consta outweighed the potential harm.

Dr. Cullinane testified that he also sought authorization to administer Haldol Decanoate, 100 milligrams, intramuscularly, every 2 weeks for a total of 3 doses, in conjunction with the Risperdal Consta. In addition to being long-acting, Haldol Decanoate is rapid-acting and would keep respondent stable for six weeks until the Risperdal Consta started working. The expected benefits and potential side effects of Haldol Decanoate were the same as those for Risperdal Consta. Respondent had received the Haldol Decanoate "prn" at the hospital. Although he did not respond immediately to the medication, he got better over time and experienced no adverse effects. Dr. Cullinane testified that Haldol Decanoate was available in oral form, but he was concerned that respondent would stop taking it once he left the hospital.

Dr. Cullinane noted that respondent was in the hospital voluntarily, and he anticipated that respondent could be discharged after receiving the three injections of Haldol Decanoate and the initial injection of Risperdal Consta. He opined that, without the requested medications, respondent's prognosis was "poor." Dr. Cullinane stated, "I think he would become ill again and not be able to take care of himself; perhaps use poor judgment and end up in a crime-ridden neighborhood somewhere and possibly get hurt or worse."

During respondent's cross-examination of Dr. Cullinane, the following colloquy ensued:

"Q. Dr. Cullinane, notwithstanding your thoughts about whether or not [respondent] will take the medication once he is released, today do you believe he has the capacity to make a reasoned decision about treatment?

A. Yes. He is taking his medications right now.

Q. And that's Invega?

A. Yes.

Q. Do you know if he was taking Invega before he was hospitalized this last time?

A. I'm not sure what medications he was taking in the past.

Q. How long has he been compliant with taking the Invega since he's been here?

A. I would have to check the computer, but it's been almost a week I believe.

Q. In your discussions with [respondent], has he expressed what his future intent is in regards to taking medication, if he's going to stop it once he is released-or what has he said about that?

A. He has said he wants to take it in the future.

Q. And you said that you have seen progress since he's taken the Invega?

A. Yes.

Q. Do you believe that [respondent] sees that he has a need to stay on the medication now?

A. He says that, but unfortunately, [respondent] has had many experiences in hospitals, so it's always hard for me to know whether somebody is being truthful about his [sic] or just saying something to try to get me to discharge them from the hospital. So I can't say 100 percent for sure. I can only say that future human behavior is best predicted by past behavior, and he has stopped his medicine at times in the past."

On redirect examination, Dr. Cullinane opined that before respondent was hospitalized he did not have the capacity to make a reasoned decision about his treatment. Respondent gained capacity by taking Invega and the many doses of antipsychotic medications administered "prn." Dr. Cullinane reiterated that he did not know if he could believe respondent ...

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