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SIXTH DIVISION
September 22, 2000

Nos. 1-99-0335)
        1-99-0336)

This is a consolidated appeal from an order findingrespondent, Elizabeth L.,subject to involuntary admission at Evanston Hospital pursuant to section 1-119 of theIllinois Mental Health and Developmental Disabilities Code (the Mental Health Code) (405ILCS 5/1-119 (West 1996)) and from a subsequent order finding Elizabeth subject to theinvoluntary administration of psychotropic medication pursuant to section 2-107.1 of theMental Health Code (405 ILCS 5/2-107.1(West 1996)). With respect to the first order,Elizabeth raises the following issues on appeal: (1) whether the State's failure to submitthe required dispositional report in writing mandates reversal; and (2) whether the Stateproved by clear and convincing evidence that Elizabeth was unable to care for her basicphysical needs so as to guard herself from serious harm. With respect to the order for theinvoluntary administration of psychotropic medication, Elizabeth raises the following issueson appeal: (1) whether the trial court abused its discretion by refusing to consider evidenceof events that occurred after the filing of the petition; and (2) whether the State proved thatElizabeth lacked the capacity to make an informed decision about her medication.

STATEMENT OF FACTS

A. TESTIMONY RELATED TO PETITION FOR INVOLUNTARY ADMISSION

A petition for the involuntary admission of Elizabeth was filed on December 14,1998. The petition alleged that on December 11, 1998, Elizabeth, a 24-year-old woman,was brought by ambulance to the St. Francis Hospital emergency room after telling workerson the El platform that someone was trying to kill her and that her parents had been killed.

A hearing on the matter took place on December 30, 1998, at which time Dr.Thomas Rebori, M.D., the only witness, testified that he is a board-certified psychiatrist andpractices at Evanston Hospital. He stated that he has been Elizabeth's treating psychiatristsince she was admitted to Evanston Hospital, and he has seen her daily except forweekends. He stated that Elizabeth has "for the most part" refused to talk to him. Hestated that when he knocks on her door to speak with her she tells him that he cannotcome in. When he enters her room, she gets out of bed, turns around and stares at thewall, refusing to speak.

Dr. Rebori testified that his diagnosis of Elizabeth is "psychotic disorder nototherwise specified." His diagnosis is based on his examination of Elizabeth's records, hisobservations of her, and his discussions with staff members regarding their observationsof her. Dr. Rebori stated that he is unable to determine whether the differential is"depression with psychotic features" or "distinct paranoid type" because Elizabeth has notgiven him permission to speak with her family. He further stated that her family has calledhim and he explained to them that he is unable to speak with them.

Dr. Rebori further testified that Elizabeth has remained isolated in her room, refusedto eat or drink early in her hospitalization, and at various times would scream suddenly. He stated that Elizabeth has refused to come out for "group" and has refused to meet withvarious people on her treatment team. Dr. Rebori stated that Elizabeth has beenobserved staring at the wall for up to five hours at a time and has also been observedstanding in the shower and staring up at the ceiling for several hours at a time. He alsostated that, later on in her hospital stay, rather than refusing to eat, she began eating largequantities of food and stealing food off other people's plates. He further testified thatElizabeth has told staff members that her parents are dead and that she believes she isdying of cancer. He stated that she has been examined by an internal medicine physician,and she does not have cancer.

Dr. Rebori testified that Elizabeth is diabetic and has refused "finger sticks," whichare necessary to check her blood- sugar level. He stated that Elizabeth has refused totake Gluchophage, an oral medication that she takes for her diabetes. Dr. Rebori statedthat, by refusing to take Gluchophage, Elizabeth puts herself at risk of her blood sugarrising, which could result in diabetic ketosis byproducts in the blood or could induce acoma. He stated that he has also offered her Risperdal and Haldol, which areantipsychotic medications, and she has refused to take both. Dr. Rebori stated thatElizabeth has, on occasion, told the staff that she will take her medication andsubsequently refused it.

Dr. Rebori testified that, as a result of her mental illness, Elizabeth is unable to takecare of her basic physical needs to protect herself from serious harm. He stated that herrefusal to take medication allows her disorganization to continue, and her inability to takecare of her diabetes is potentially life threatening. He stated that, because she believesher parents are dead, she would not be able to find shelter if released and, because of thecold weather, would be at risk of dying of hypothermia. He further stated that her inabilityto problem solve puts her at risk of becoming a crime victim.

Dr. Rebori testified that Elizabeth spoke with him the day before the hearing forabout three minutes with her attorney present. Dr. Rebori asked Elizabeth what she wasdoing on the El platform and she told him that she had great pressure in her head and thatshe could not think clearly enough to get off the platform. He asked her if she was willingto take her medication and she said no. He asked her if she wanted to talk about her courtdate and she said no. Dr. Rebori stated that Elizabeth is suffering from paranoid delusionswhich include him and the staff at Evanston Hospital and which prevent her from engagingin treatment.

Dr. Rebori stated that he recommends that Elizabeth remain in the hospital and takeher medication. He also recommends that she allow him to speak with her family so thatdischarge planning can be arranged and that she agree to follow up with a psychiatrist. He stated that he did not discuss less restrictive treatment alternatives with her becauseshe refused to speak with him. He stated that he does not presently recommend a lesserlevel of care for Elizabeth because she is not taking her medication and she would not besafe.

On cross-examination, Dr. Rebori stated that Elizabeth spoke with him that day. Hestated that she recognized that if she did not manage her diabetes, it could cause her tobecome greatly ill. When he spoke with her about her diabetes medication, she told himthat she did not trust the staff to give her the correct medication because the Gluchophagethe staff offered her did not look similar to the Gluchophage she purchased at Walgreens. Dr. Rebori also stated that Elizabeth has occasionally agreed to have her blood- sugarlevel tested and, when she did, the results of the tests have not been so elevated to causegrave concern.

With regard to a less restrictive setting for Elizabeth, Dr. Rebori testified that he hasnot been able to discuss alternatives with her. He also stated that he has not contactedother facilities to determine whether another facility might be able to care for her becausehe has not had permission to do so. He also testified that Elizabeth's parents indicated tohim that she lived with them before being admitted to Evanston Hospital. He stated thathe did not know whether she could return home if she were discharged. Dr. Reboritestified that if Elizabeth was taking her medication and was engaged in dischargedplanning and was speaking with her parents then she might be able to return home;however, he further stated that he does not think she is ready at this time. Dr. Reboriagreed, however, that if Elizabeth start taking her medication and her parents allowed herto return home, then his opinion that there is no other less restrictive alternative for herwould change.

At the close of testimony, the State offered into evidence the treatment plan and asocial report. The assistant State's Attorney then made the following statement with regardto the written dispositional report required by the Mental Health Code:

"Also, with regard to the less restrictive environment, theDoctor has offered and tried to talk to [Elizabeth] about a less restrictive environment. [Elizabeth] refuses to allow him toeven discuss anything with her. He offered to talk to her abouta less restrictive environment. We think that satisfies theMental Health Code."

Counsel for Elizabeth objected and, thereafter, the State offered a written progress notedated December 28, 1998, written by the doctor which reads:

"P[atien]t cont[inues] to refuse med[ication] for psychosis andher diabetes. P[atien]t refuses to speak to me. When askedwhat does she want to do she replies 'To be left alone so I cansleep.' No insight into her conditions."

The State argued that the written progress report indicates that efforts were made todiscuss a less restrictive environment with Elizabeth and that she refused. The trial courtfound that "under the circumstances" the progress note was sufficient to satisfy the writtenrequirement of section 3-810 of the Mental Health Code (405 ILCS 5/3-810 (West 1996)).

Counsel for Elizabeth conducted re-cross-examination of Dr. Rebori and asked himwhere in the note did he indicate that he spoke with Elizabeth about other placementpossibilities. Dr. Rebori stated that he asked Elizabeth what she wants to do, and sheresponded that she wanted to be left alone. Dr. Rebori conceded that it is possibleElizabeth did not understand that he wanted to discuss discharge planning with her andthat it is possible that she just wanted to sleep at that time. Dr. Rebori also testified thathis intention in making the note was only to document Elizabeth's unwillingness to discussany assessment of treatment.

Counsel for Elizabeth again objected to the use of the progress note to satisfy therequirement of section 3-810 of the Mental Health Code (405 ILCS 5/3-810 (West 1996)). The trial judge then ruled as follows:

"I am going to rule that there has been a good nature[d]effort made by the Doctor to communicate with the patient, andthe patient refused to talk to the Doctor.

Whether she heard or didn't hear, she still deterred theprocess of advising her to the possibility of a less restrictivealternative, and, therefore, the Doctor could not make thatdetermination."

Following closing arguments, the trial judge found that the evidence of mental illnesswas clear and convincing. The judge further stated that he "had some hesitation to findthat she is unable to take care of her physical needs so as to guard herself from seriousphysical harm." He went on to note that although the evidence was "not [as] clear andconvincing as it should be," it was sufficient to show Elizabeth is unable to provide for herbasic needs. Therefore, he found that she was subject to involuntary admission. Thejudge made no findings as to whether Evanston Hospital was the least restrictivealternative.

B. TESTIMONY RELATED TO PETITION FOR INVOLUNTARY ADMINISTRATION OFPSYCHOTROPIC MEDICATION

A petition for the involuntary administration of psychotropic medication to Elizabethwas filed on December 15, 1998. After two continuances, a hearing took place on January6, 1999, at which one witness, Dr. Rebori, testified on the petition for the involuntaryadmission of Elizabeth. He stated that he has examined her about 20 times and has notyet obtained permission to speak with her past providers or family. He stated that hisdiagnosis continues to be "psychotic disorder not otherwise specified."

Dr. Rebori testified that, since coming to the hospital, Elizabeth has on manyoccasions refused treatment for her diabetes, refused her diabetes medication, refused the"finger sticks" necessary to monitor her diabetes and has refused to maintain a diabeticdiet. Dr. Rebori further testified that psychotropic medication is necessary to treat her; herecommends Risperdal and Haldol. He wants to give her a long-acting dose of Haldol,which is approximately 50 milligrams. He stated that it could be given daily up to amaximum of 200 milligrams. Dr. Rebori testified that the biggest immediate risk in takingHaldol is "extra-pyramidal side effects." The long-term side effect of Haldol is "tardivedyskinesia." He stated that the benefits would be a decrease in her delusions andparanoia, an increase in her organizational skills, and an increase in her ability to take careof her medical problem and live in a less restrictive setting.

Dr. Rebori testified that Elizabeth's prognosis without medication is very poor, andit is likely that her condition would worsen. He stated that her prognosis with medicationis excellent, that she has functioned very highly as a college student while on medication,and she has taken care of herself very well. He testified that the benefits of the medicationoutweigh the risks, and that without medication her disorganization and her delusions willprevent her from taking care of her diabetes and from functioning in an unstructuredsetting.

Dr. Rebori testified that Elizabeth has been offered medication and, up until themorning of the hearing, has repeatedly refused it. He stated that she does not have thecapacity to make a reasoned judgment about the medication. He stated that her delusionsinvolve the treatment staff, and she does not trust that she will receive the correctmedication.

Dr. Rebori was asked if any less restrictive services have been explored forElizabeth and his response was that he has tried to meet with her to discuss dischargeplanning. He stated that he needs permission to speak with her family and other facilities. He further stated that he does not believe that a lower level of care would be safe for herat this point.

On cross-examination, Dr. Rebori testified that one of the side effects he mentioned,i.e., tardive dyskinesia, is a permanent side effect that has no cure. He also stated that,given the patient's age and sex, it is more likely that she will experience tardivedyskinesia.

Dr. Rebori also testified that Elizabeth voluntarily took Risperdal that morning andalso at one point during her hospitalization, but that Elizabeth cited stomach pains as herreason for not wanting to continue the medication. Dr. Rebori testified that he is obligatedto obtain informed consent prior to administering medication and that he obtained informedconsent that morning when Elizabeth took the Risperdal.

After both sides rested, the judge found that Elizabeth lacked the capacity to makea reasoned decision about the medication at the time the petition was filed and granted thepetition, authorizing the involuntary administration of psychotropic medication.

DISCUSSION

It is well established that involuntary admission procedures implicate substantialliberty interests. See In re Robinson, 151 Ill. 2d 126, 130 (1992). However, these interestsmust be balanced against the need to provide care for those unable to care for themselvesand the need to protect society from the dangerously mentally ill. See In re Robinson, 151Ill. 2d at 130-31; In re Schumaker, 260 Ill. App. 3d 723, 727 (1994). In a proceeding on apetition for involuntary admission, the State must prove the allegations of the petition byclear and convincing evidence. 405 ILCS 5/3-808 (West 1996); see In re Cutsinger, 186Ill. App. 3d 219 (1989). The trial court's decision following an involuntary admissionhearing is entitled to great deference (see In re Cutsinger, 186 Ill. App. 3d at 223), and thereviewing court should not disturb the trial court's finding regarding involuntary admissionof a patient to a mental health facility unless it is against the manifest weight of theevidence. See In re Rovelstad, 281 Ill. App. 3d 956 (1996).

Elizabeth asserts that the order finding her subject to involuntary admission mustbe reversed because the State failed to submit the statutorily required dispositional reportin writing as required by section 3-810 of the Mental Health Code.

Section 3-810 of Mental Health Code provides:

"Before disposition is determined, the facility director orsuch other person as the court may direct shall prepare awritten report including information on the appropriatenessand availability of alternative treatment settings, a socialinvestigation of the respondent, a preliminary treatment plan,and any other information which the court may order. *** Thetreatment plan shall describe the respondent's problems andneeds, the treatment goals, the proposed treatment methods,and a projected timetable for their attainment. If therespondent is found subject to involuntary admission, thecourt shall consider the report in determining an appropriatedisposition." (Emphasis added.) 405 ILCS 5/3-810 (West1996).

Here, the State initially argued that Dr. Rebori's attempt to talk to Elizabeth abouta less restrictive environment satisfies the requirements of section 3-810 of the MentalHealth Code. After counsel for Elizabeth objected to the absence of a written report, theState attempted to characterize a progress note as the dispositional report. After repeatedobjections by Elizabeth's counsel, the trial judge accepted the progress note as satisfyingsection 3-810's requirement of a written report explaining the appropriateness andavailability of less restrictive treatment settings.

We find that the progress note cannot be characterized as a dispositional reportunder the requirements of section 3-810 of the Mental Health Code. Dr. Rebori himselftestified that his intention in making the note was simply to document Elizabeth'sunwillingness to speak with him. He also stated that Elizabeth may not have understoodthat he was attempting to speak with her about less restrictive treatment alternatives. Clearly, there was absolutely no information in the progress note on "the appropriatenessand availability of alternative treatment settings" as is required under the Mental HealthCode.

Nevertheless, the State maintains that the absence of a written report is harmlessbecause the trial court heard oral testimony on all of the matters that would have beencontained in the report. The State relies on In re Robinson, 151 Ill. 2d 126 (1992), andargues it held that strict compliance with section 3-810 is not always necessary. InRobinson, our supreme court considered the 1989 version of section 3-810, which did notexplicitly require a written report. The court determined that the legislature intended thatthe report be in writing, but nevertheless affirmed the trial court's finding of involuntaryadmission despite the absence of a written report. Specifically, the State relies on thefollowing passage from In re Robinson:

"It is clear from a reading of section 3-810 as a wholethat its purpose is to provide trial judges certain informationnecessary for determining whether an individual is subject toinvoluntary admission to a mental health facility. Otherpurposes of the statute are to protect against unreasonablecommitments and patient neglect, and to ensure adequatetreatment for mental health care recipients.

The respondent has cited no reason why these goalscannot be met in the absence of an affirmative showing thatthe trial judge was presented a written predispositional reportprepared by a particular person either in advance of or at thetime of the hearing." In re Robinson, 151 Ill. 2d at 133-34.

While a reading of the above-quoted language appears to support the State'sargument, the court's language immediately following the above language demonstratesthat the holding of the court is limited to instances where the respondent did not object tothe State's failure to prepare a written report. The Robinson court expressly stated:

"Where a respondent fails to object to the absence of apredispositional report, strict compliance with section 3-810 isrequired only when the legislative intent cannot otherwise beachieved. [Citation.] Under these circumstances, we believethat oral testimony containing the information required by thestatute can be an adequate substitute for the presentation ofa formal, written report prepared by the facility director orsome other person authorized by the court." (Emphasisadded.) In re Robinson, 151 Ill. 2d at 134.

Thus, according to the supreme court, strict compliance is only excused where counsel forrespondent fails to object and where oral testimony adequately provide the requiredinformation. See also In re Robert H., 302 Ill. App. 3d 980 (1999)(applying the Robinsonholding and finding that because counsel for respondent did not object to the absence ofa written predispositional report, it was necessary to determine wether testimony at trialwas sufficient to satisfy the purposes of section 3-810 of the Code). Here, Elizabeth'scounsel repeatedly objected to the absence of a written report; therefore, we find that anyoral testimony on what would have been contained in the report is of no effect.

Accordingly, because the State did not meet the requirements of section 3-810 ofthe Mental Health Code, we hereby reverse the order finding Elizabeth to be a personsubject to involuntary admission.

Because our finding is dispositive, we need not address Elizabeth's argument thatthe State failed to prove by clear and convincing evidence that she is unable to care for herbasic physical needs so as to guard herself from serious harm.

Elizabeth contends that the court abused its discretion when it refused to considerevidence of events that occurred after the filing of the petition for involuntary administrationof psychotropic medication and, therefore, its order should be reversed.

Section 2-107.1 of the Mental Health Code allows for the entry of a court orderauthorizing mental health treatment for those persons who, as a result of their mentalillness, are unable to make competent, reasoned decisions about treatment forthemselves. See 405 ILCS 5/2-107.1 (West 1996). Section 2-107.1 provides:

"(4) Authorized involuntary treatment shall not beadministered to the recipient unless it has been determined byclear and convincing evidence that all of the following factorsare present:

(A) That the recipient has a serious mental illness ordevelopmental disability.

(B) That because of said mental illness ordevelopmental disability, the recipient exhibits any one of thefollowing: (i) deterioration of his ability to function, (ii) suffering,(iii) threatening behavior, or (iv) disruptive behavior.

(C) That the illness or disability has existed for a periodmarked by the continuing presence of the symptoms set forthin item (B) of this subdivision (4) or the repeated episodicoccurrence of these symptoms.

(D) That the benefits of the treatment outweigh theharm.

(E) That the recipient lacks the capacity to make areasoned decision about the treatment.

(F) That other less restrictive services have beenexplored and found inappropriate.

(G) If the petition seeksauthorization for testing andother procedures, that such testing and procedures areessential for the safe and effective administration of thetreatment." 405 ILCS 5/2-107.1(4)(West 1998).

Elizabeth argues that the trial court improperly refused to consider evidence ofevents that occurred after the filing of the petition, i.e., evidence that on the morning of thehearing she was offered and took the psychotropic medication, Risperdal. The crux ofElizabeth's argument is that because she gave informed consent to psychotropicmedication in the days immediately preceding the filing of the petition and on the day of thehearing, she demonstrated that she was capable of making her own treatment decisionsand, therefore, the State cannot prove she lacks decisional capacity by clear andconvincing evidence as required. See 405 ILCS 5/2-107.1(a)(4) (West 1996).

The State argues that the court did consider the evidence that Elizabeth tookRisperdal on the morning of the hearing. However, the record does not bear this out. Thetrial judge expressly stated:

"[I]t is this Court's view that a petition must be determined uponthe facts alleged at the time the petition is filed, and the doctorhas testified with regard to the facts, his experience with thispatient, the history of this patient with regard to her currenthospitalization up to an including the time the petition was filed. So what we get into then is some post filing occurrence whichis really not an element in this Court's view of this proceeding."

Similar to a determination finding someone subject to involuntary admission, adetermination authorizing involuntary administration of psychotropic medication shouldinclude a current evaluation of the respondent's present conduct and state of mind. SeePeople v. Czyz, 92 Ill. App. 3d 21, 26 (1980); People v. Butler, 69 Ill. App. 3d 556 (1979). This is not to say that because Elizabeth voluntarily took Risperdal in the days precedingthe hearing she is automatically deemed competent; it is merely additional evidence toconsider. Indeed, the petition in this case was filed on December 15, 1998, but the hearingon the petition was not held until January 6, 1999. Certainly, events occurring in the three-week interim period are relevant to her current level of decisional capacity.

Accordingly, because the trial court refused to consider all of the relevant evidence,i.e., evidence including postpetition events, its order authorizing the involuntaryadministration of psychotropic medication constitutes an abuse of discretion and is herebyreversed.

Reversed.

Campbell, P.J., and O'Brien, J., concur.