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December 5, 2001

JUSTICE McLAREN delivered the opinion of the court:

Respondent, Cathy M., appeals the order of the circuit courtof Kane County, which granted the State's petition to involuntarilyadminister psychotropic medications to respondent. On appeal,respondent claims that the trial court's order must be reversedbecause (1) respondent was denied her right to be represented bycounsel of her choice and (2) the State failed to inform respondentabout the medications' risks and benefits and prove by clear andconvincing evidence that respondent lacked the capacity to make areasoned decision about taking the medications. We reverse.

On April 10, 2000, the State filed a petition seeking toinvoluntarily administer psychotropic medications to respondent. The hearing on this petition was continued five times. On one ofthose occasions, the hearing was continued because the Kane CountyDiagnostic Center was scheduled to evaluate respondent on the sameday that the hearing was to take place. The hearing was continuedtwice on respondent's motion for a continuance and once byagreement. One of respondent's requests for a continuance was madebecause respondent wanted to have her assigned assistant publicdefender (APD), Mr. Casey, represent her.

On July 7, 2000, before the hearing began, APD Brian Jacobs,the second assistant public defender assigned to respondent's case,informed the trial court that respondent wanted APD Casey, thefirst assistant public defender assigned to respondent's case, torepresent respondent during the hearing. APD Casey was unable torepresent respondent during the hearing because he recently leftthe public defender's office. When respondent addressed the court,she informed the court that she would like either APD Casey or herown attorney to represent her. The trial court asked respondent ifshe had retained a private attorney, and respondent told the courtthat her attorney's name was Mr. Zeto. The court said that"[t]here has never been a Mr. Veto [sic] listed on this file. Let's proceed."

Dr. Syed Anwar testified that he was the psychiatrist assignedto respondent at the Elgin Mental Health Center (EMHC). At thetime of the hearing, Dr. Anwar had been respondent's doctor foronly two weeks, having taken over treating respondent when Dr.Elizabeth Tomar resigned her position at the EMHC. Dr. Tomar filedthe petition to administer psychotropic medications. Before Dr.Tomar resigned, she spoke with Dr. Anwar for 15 or 30 minutes, andthey discussed respondent's case. Dr. Anwar testified that heagreed with Dr. Tomar's assessment of and proposed treatment forrespondent as delineated in the petition.

Dr. Anwar stated that he diagnosed respondent as sufferingfrom a bipolar disorder consisting of a manic illness andpsychosis. Patients suffering from this disorder frequentlyexperience delusions. Respondent's delusions included her beliefthat she had a miscarriage, that she was kidnapped, and that herheart was on the right side of her body. Dr. Anwar formulated hisdiagnosis for respondent's illness after interviewing respondent,talking with the staff at the EMHC, and reviewing respondent'smedical records. Dr. Anwar stated that his interviews withrespondent consisted of two interviews that lasted a maximum offive minutes each. The interviews only lasted five minutes becauserespondent would walk away from Dr. Anwar within five minutes afterthe conversation started. Dr. Anwar testified that in addition tothe interviews he also observed respondent two to four times.

During the two interviews, Dr. Anwar attempted to discuss thepsychotropic medications that he believed respondent should take,but the doctor would not mention the name of the medicines when hespoke with respondent. Rather, Dr. Anwar would refer to themedicines as antipsychotic and mood stabilizer medicines. The onlyinformation Dr. Anwar conveyed to respondent about the medicineswas that they would make respondent better and she would bedischarged from the EMHC if she took the medications. When Dr.Anwar was asked whether he and respondent discussed themedications' side effects, Dr. Anwar stated that "[respondent]wouldn't let [him] come to that point because she doesn't feel sheneeds the medications at all."

We note that during Dr. Anwar's testimony respondent wouldinterject and claim that Dr. Anwar did not know respondent wellenough to diagnose her. When respondent would interrupt Dr. Anwar,respondent also would berate the doctor.

When respondent was called as a witness, she was asked hername, and, in response, she stated that her birth name was HeatherPinner. Respondent claimed that she was kidnapped when she wasfive years old, and her name was changed to Cathy M. after she waskidnapped. Respondent stated that she did suffer a miscarriageright before she was taken to the EMHC. When respondent wasquestioned about her interviews with Dr. Anwar, respondenttestified that she met with Dr. Anwar twice. Each of theseinterviews lasted two seconds. Respondent stated that she also sawDr. Anwar in her unit at the EMHC approximately three times. Inresponse to questions about the psychotropic medications that Dr.Anwar wished to give respondent, respondent testified that she didnot understand the medications' benefits and harms, that no onespoke with her about the medications' risks and benefits, and thatshe was not given anything in writing detailing the medications'benefits and side effects.

The court found respondent subject to the involuntaryadministration of medication for a period of time not to exceed 90days. In addressing the various factors the court relied on whenit made this determination, the court noted, among other things,that respondent lacked the ability to make a reasoned decisionabout the medications. This timely appeal followed.

Before addressing the merits of this appeal, we note that theissues raised are moot. Nevertheless, we will address thequestions raised in the appeal because the issues are " 'capable ofrepetition, yet evading review.' " In re Barbara H., 183 Ill. 2d482, 491 (1998), quoting In re A Minor, 127 Ill. 2d 247, 258(1989).

The first issue we address is whether the trial court's ordermust be reversed because respondent was denied the right to berepresented by an attorney of her choice. Section 3--805 of theMental Health and Developmental Disabilities Code (Code) (405 ILCS5/3--805 (West 2000)) provides that in a hearing to involuntarilyadmit a respondent to a mental health facility the respondent mustbe represented by counsel. This right to counsel also applies inhearings involving the involuntary administration of psychotropicmedication. Barbara H., 183 Ill. 2d at 494.

In the criminal context, it is an abuse of discretion to denya defendant's request for a continuance and proceed with the trialwhere a private attorney has been retained or an attorney'sappearance is on file. People v. Jackson, 216 Ill. App. 3d 1, 7(1991). A trial court does not abuse its discretion, however, whena defendant's request for a continuance to retain a privateattorney is based merely on the defendant's desire to obtaincounsel. Jackson, 216 Ill. App. 3d at 7. Nevertheless, if counselis identified or stands ready, willing, and able to enter anappearance on behalf of the defendant, the trial court should grantthe defendant's request for a continuance. Jackson, 216 Ill. App.3d at 7. The trial court may deny a defendant's trial-day requestfor a continuance if the defendant currently is represented by acompetent court-appointed criminal attorney and fails to articulatean acceptable reason for requesting a continuance in order toretain another attorney. Jackson, 216 Ill. App. 3d at 7. Wedetermine that these principles apply with equal force in mentalhealth proceedings.

In addressing respondent's claim that she was denied the rightto be represented by an attorney of her choice, we determine thatBarbara H. is instructive. In Barbara H., the respondent did notappear at the hearing on the petition to involuntarily admit andadminister psychotropic medication, and the respondent's attorneywaived the respondent's presence at the hearing. Barbara H., 183Ill. 2d at 487. Before the attorney waived the respondent'spresence, the attorney indicated to the court that the respondent claimed she had representation through the Catholic CharitiesAssociation or a similar group. Barbara H., 183 Ill. 2d at 494. The trial court failed to take evidence regarding the respondent'scapacity to arrange for counsel, allowed the hearing to go forwardwithout respondent, and granted both petitions. Barbara H., 183Ill. 2d at 485-87, 496. Our supreme court reversed the trial courtand noted that when the trial court was presented with informationthat the respondent had retained alternative representation, thecourt should not have ignored the respondent. Barbara H., 183 Ill.2d at 495. Rather, the trial court should have delayed thehearing, taken evidence, and heard arguments to determine whetherthe respondent had the capacity to decide who should represent her. Barbara H., 183 Ill. 2d at 496.

Here, respondent identified Mr. Zeto as the private attorneythat she had retained to represent her in the proceedings. As inBarbara H., the trial court here summarily dismissed respondent'srequest to be represented by Mr. Zeto without first conducting anevidentiary hearing to determine whether respondent had in factretained this attorney and had the capacity to decide whether Mr.Zeto should represent her.

We also note that respondent articulated an acceptable reasonfor requesting a continuance to retain a private attorney. Therecord revealed that prior to the hearing respondent wasrepresented by APD Casey. Respondent was pleased with APD Casey'srepresentation of her and wished to have either APD Casey or Mr.Zeto represent her during the proceedings. APD Casey was unable torepresent respondent during the hearing because he had left thepublic defender's office. Given the fact that respondent's firstcourt-appointed attorney was unavailable to represent respondent,we determine that it was not unreasonable for respondent to ask fora continuance to retain Mr. Zeto.

In reaching this conclusion we note that, although a defendantdoes not have the right to choose his court-appointed attorney orinsist that a particular assistant public defender represent him attrial (People v. Wanke, 303 Ill. App. 3d 772, 782 (1999)), thecases addressing this rule involve situations where the defendantis unsatisfied with his current attorney because of, among otherthings, a disagreement over trial strategies or a deterioratedattorney-client relationship. Here, the trial court failed toinquire why respondent wished to have APD Casey or someone otherthan APD Jacobs represent her. If the trial court had conductedthe type of evidentiary hearing required under Barbara H., then thebasis for respondent's request might have been revealed andpossibly deemed proper.

The State claims that respondent's request for a continuancewas merely an attempt to thwart the administration of justice. SeePeople v. Lewis, 165 Ill. App. 3d 97, 102 (1988). We disagree. Nothing in the record suggests that respondent requested any of thecontinuances in order to delay the proceedings. Rather, respondentrequested only three continuances in this case. She requested oneof the continuances because she was attempting to resolve thematter without having a hearing, and she asked for anothercontinuance because APD Casey was not present in the courtroom. Respondent asked for the third continuance because she wasundergoing a court-ordered evaluation, and she was, therefore,unable to be present in court. Moreover, the record indicates thatrespondent only once asked for a continuance in order to retain anattorney, and, as noted above, this request was not unreasonablegiven the facts presented in this cause. Thus, in contrast toLewis, respondent was not requesting continuances repeatedly inorder to postpone the hearing.

The second issue we must address is whether the trial court'sorder must be reversed because the State failed to present clearand convincing evidence that respondent was informed about themedications' side effects and lacked the capacity to make areasoned decision regarding her treatment. The State must presentclear and convincing evidence that a respondent lacked the capacityto make a reasoned decision about taking the prescribedpsychotropic medication. In re Edward S., 298 Ill. App. 3d 162,165 (1998). When reviewing the sufficiency of this evidence, wewill reverse the trial court's order if it is against the manifestweight of the evidence. Edward S., 298 Ill. App. 3d at 165. Ajudgment is against the manifest weight of the evidence when theopposite conclusion is clearly evident, plain, and indisputable. Edward S., 298 Ill. App. 3d at 165.

Section 2--107.1(a)(4)(E) of the Code (405 ILCS 5/2--107.1(a)(4)(E)(West 2000)) provides that the State must prove thatthe respondent lacked the capacity to make a reasoned decisionabout whether to take psychotropic medication. A necessarypredicate to making this informed decision is that the respondentmust be informed about the medications' risks and benefits. EdwardS., 298 Ill. App. 3d at 166. Under section 2--102(a--5) of theCode (405 ILCS 5/2--102(a--5)(West 2000)), a respondent must beadvised in writing about the medications' side effects. If therespondent is not informed about the medications' harms andbenefits, then a trial court's order for the involuntaryadministration of psychotropic medication must be reversed. EdwardS., 298 Ill. App. 3d at 166.

Here, respondent was not given any written informationconcerning the proposed medications. Moreover, a review of therecord revealed that respondent was never verbally advised aboutthe medications' side effects. For example, respondent testifiedthat no one told her about the medications' harms or benefits. Dr.Anwar confirmed respondent's statement when he testified that heonly spoke with respondent twice for, at most, a total of 10minutes. During these brief discussions, Dr. Anwar never spokewith respondent about the risks and benefits associated with takingthe prescribed medications. The doctor stated that he never spokewith respondent about the medications' side effects becauserespondent would walk away before Dr. Anwar could begin talkingabout the side effects.

The State claims that In re Barry B., 295 Ill. App. 3d 1080(1998), controls the resolution of this issue. In Barry B., thiscourt noted that the evidence presented in the case failed to showthat the respondent was given written information about theprescribed psychotropic medication. Barry B., 295 Ill. App. 3d at1086. This court recognized that the Code required the doctor togive the respondent this written information. Barry B., 295 Ill.App. 3d at 1084. However, in addressing whether the respondent hadthe capacity to understand his treatment options and the benefitsand risks of that treatment, this court noted that the respondent'sdoctor discussed the prescribed medications, but the respondentrefused to listen to the doctor when the doctor told the respondentabout his treatment options. Barry B., 295 Ill. App. 3d at 1083,1086. Thus, through the respondent's own actions, the informationabout the medication was not discussed meaningfully. Barry B., 295Ill. App. 3d at 1086.

Here, in contrast to Barry B., Dr. Anwar did not informrespondent about the medications' side effects and respondentrefused to listen. Rather, here, no one ever advised respondentabout the prescribed medications' side effects. In Barry B., therespondent made the choice to disregard the doctor while the doctordiscussed the respondent's treatment with him. Here, respondentwas never told about the medications, and, thus, she could notchoose to disregard Dr. Anwar's admonishments.

We also note that the State appears to suggest that respondentwaived her right to written notification about the prescribedmedications' side effects when respondent refused to discuss hertreatment with Dr. Anwar. We conclude that respondent's refusaldid not constitute waiver of the statutory requirements. Therights provided in the statute were not placed in the Code toinsure that a respondent understands a medication's side effects. Rather, these statutory rights insure that a respondent's dueprocess rights are met and protected. In this cause, in contrastto Barry B., the written information should have been given torespondent precisely because respondent refused to discuss thematter with Dr. Anwar when she left the discussion before Dr. Anwarcould advise respondent about the medications' risks and benefits. By giving respondent the written information, she would have beenafforded the minimal amount of notice that was required under theCode.

For these reasons, the judgment of the circuit court of KaneCounty is reversed.

Reversed.

GEIGER and CALLUM, JJ., concur.