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8 November 2000

Respondent, Nancy M., appeals the trial court's orderauthorizing the involuntary administration of three specificpsychotropic medications. On appeal, respondent contends that theorder must be reversed because (1) she was denied her due processright to have the jury adequately instructed in the law; (2) shewas denied her right to have the jury determine whether thebenefits of the three proposed medications outweighed the risks;and (3) the State failed to present clear and convincing evidencethat respondent lacked the capacity to make a reasoned decisionabout the use of medication. We reverse.

On March 12, 1999, the State filed a petition to administerpsychotropic medication to respondent pursuant to section 2--107.1of the Mental Health and Developmental Disabilities Code (theMental Health Code) (405 ILCS 5/2--107.1 (West 1998)). Respondent requested a jury trial. On June 14, 1999, respondent filed amotion in limine seeking to bar the State from introducing certainletters she wrote to Brian C., a former paramour, and fromdisclosing a prior court ruling reflecting her status as not guiltyby reason of insanity of a violation of an order of protection andharassment of a witness.

The trial court conducted a hearing on respondent's motion inlimine on October 18, 1999, just before trial commenced. The trialcourt denied respondent's motion, and the cause proceeded to trial. The State called Carole Ann Rosanova, M.D., respondent's treatingpsychiatrist at the Elgin Mental Health Center (the Center). Rosanova had reviewed respondent's past hospital records, consultedwith other treating staff, and read "some correspondence *** fromthe State's Attorney in Cook County." Rosanova testified that,based on her review of this information, she diagnosed respondentas suffering from bipolar affective disorder, manic type. According to Rosanova, respondent experienced multiple symptoms ofthe disorder, such as euphoric affect, distractibility, flight ofideas, hyperactivity, irritability, pressured speech, anddelusions.

She based her opinion that respondent had delusions on lettersrespondent had written to a former paramour, Brian C., in March andApril 1998. Rosanova explained that respondent was first admittedto the Center because she was found not guilty by reason ofinsanity on a charge of violation of an order of protection thatBrian C. had obtained. In June 1998 respondent was released fromthe Center on the condition that she attend outpatient treatmentand did not have contact with Brian C. or his family. Respondentcontacted Brian C., and in September 1998 the trial court revokedher conditional release.

Rosanova testified that, in the letters, respondent claimed tobe a messenger of God and to know that it was God's will that sheand Brian C. be together. In her letters respondent also wrotethat she was his true wife and mother of his children. Rosanovaadmitted that respondent never made comments similar to these toher and that her information was only from the letters. Rosanovaalso admitted that she never spoke to Brian C.

Rosanova next opined that, as a result of her mental illness,respondent was deteriorating in her ability to function. Sheexplained that, since 1994, respondent had divorced, lost custodyof her children, and her license to practice law was suspended. Oncross-examination, Rosanova admitted that the divorce could havebeen caused by the affair and that she did not know whyrespondent's law license was suspended. Rosanova further testifiedthat respondent had not been violent at the Center but opined thatshe had exhibited threatening or disruptive behavior in the lettersto Brian C.

Rosanova testified regarding the medications she was seekingto administer to respondent and noted that respondent had nevertaken antipsychotic medication. She first requested Haldol, anolder antipsychotic medication, to be taken orally or by injection. Rosanova testified that Haldol controls delusions but has manyneurological side effects. These side effects include dystonia, astiffness of large muscles; extrapyramidal side effects such astremors and muscle stiffness; and tardive dyskinesia, a possiblyirreversible involuntary movement disorder. On cross-examination,Rosanova also discussed a rare and potentially fatal side effect,neuroleptic malignant syndrome. Rosanova admitted that she doesnot use older antipsychotics often and that the alternativemedications she was requesting were more effective. She requestedHaldol because it can be administered by injection.

Rosanova also requested two newer antipsychotic medications;they have the same possible neurological side effects but at asubstantially reduced rate. Olanzapine would lessen delusions andact as a mood stabilizer but could cause sedation, headaches, andweight gain. Risperdal also would address delusions and mood andcould help motivation and social withdrawal. Risperdal may alsocause sedation, agitation, and slight weight gain. For all of themedications, Rosanova opined that the benefits would outweigh theside effects.

Rosanova further opined that respondent did not have thecapacity to make a reasoned decision about whether to takemedication. Rosanova based her opinion on respondent's denial thatshe has a mental illness and on respondent's judgment. Rosanovaexplained that respondent refused to ingest the medication eventhough it would not hurt her, other than to sedate her, and itcould get her released from the Center within a few weeks. Rosanova reported that less restricted services were explored forrespondent. Rosanova opined that respondent's illness was notlikely to improve without medication.

On cross-examination, Rosanova admitted that respondent hasspent a considerable amount of time in the library and hasresearched medication. Rosanova also agreed that respondent hadthe capacity to consent and has consented to other types of medicalprocedures, such as a mammogram.

Respondent testified on her own behalf and as an adversewitness for the State. Respondent confirmed that she once had arelationship with Brian C. Although she no longer had contact withhim, she still felt personally involved with him. Respondenttestified that she would like to resume their relationship to feelvindicated. Respondent did not feel that Brian C. was a victim. She explained that she never hurt him, that their relationship wascomplicated, and that, if he did not want her letters, he couldhave thrown them away. Respondent further explained that she hadreferred to God's will in her letter as an attempt to relate toBrian C. because he was a religious person.

Respondent testified that she researched her diagnosis and themedications in the library and spoke to patients on the unit whowere mentally ill and had taken those types of medication. Shedenied having a mental illness and for that reason said she did notneed the medication. She stated, however, that, if ordered to takemedication, she would take Olanzapine or Risperdal because they areless dangerous than Haldol.

Respondent further testified that she kept busy at the Centerby socializing, reading, and listening to the radio. She admittedthat she had emotional issues that she was slowly coming to termswith through thought and prayer. She confirmed she would ratherstay at the Center than take the medication and be discharged.

Both sides rested and presented their closing arguments. Theparties and the trial court reviewed the proposed juryinstructions. All the jury instructions tendered by the State wereaccepted without objection. Counsel for respondent did not tenderany jury instructions.

The trial court instructed the jury, and the jury retired todeliberate. The jury returned a general verdict granting theState's petition and finding that respondent was "someone whoqualifies for the involuntary administration of psychotropicmedication." The trial court entered judgment on the jury'sverdict. Although the jury's verdict form did not specify which ofthe three proposed antipsychotic medications could now beadministered to respondent, the trial court's order did,authorizing Haldol, Olanzapine, and Risperdal. Respondent timelyappeals the trial court's order authorizing the involuntaryadministration of the three specific psychotropic medications torespondent.

At the outset, we note that this case is moot. See In reBarbara H., 183 Ill. 2d 482 (1998); In re Timothy H., 301 Ill. App.3d 1008 (1998). The trial court's order authorizing theadministration of psychotropic medication was limited to 90 days,which have since passed. However, we may review this case ifrespondent can establish that (1) the duration of the challengedaction is too short to be fully litigated prior to its cessation,and (2) a reasonable expectation exists that respondent would besubjected to the same action again. See Barbara H., 183 Ill. 2d at491, citing In re A Minor, 127 Ill. 2d 247, 258 (1989). In thepresent case, we find both elements present. The trial court'sorder, dated October 18, 1999, was for 90 days and, therefore, toobrief to permit appellate review. Additionally, the recordreflects that Rosanova testified that respondent had a mentalillness dating back several years that had led to involuntaryhospitalization. Therefore, one could reasonably expect thatrespondent may again be subject to this type of petition. Accordingly, we will proceed with the merits of this appeal.

On appeal, respondent contends that the trial court's ordermust be reversed because (1) the jury was not adequately instructedin the law; (2) the trial court entered an order on a general juryverdict form, thereby preventing the finder of fact from making thedetermination whether the benefits of each of the three proposedmedications outweighed the risks; and (3) the State failed topresent clear and convincing evidence that respondent lacked thecapacity to make a reasoned decision about the use of medication. The State initially argues that respondent has waived these issuesby failing to tender any jury instructions of her own or presentany specific verdict form during the jury instruction conference,failing to object to the evidence at trial, and not raising theseissues in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176(1988). Respondent acknowledges her counsel's failure to object tothe jury instructions and to the verdict form and requests that wereview the alleged errors under the plain error doctrine.

Under the plain error doctrine, we may address a waived issueif the evidence is closely balanced or if the error affectssubstantial rights. 134 Ill. 2d R. 615(a); People v. McVeay, 302Ill. App. 3d 960, 966 (1999). Involuntary mental health services,which include the administration of medication, implicatefundamental liberty interests. Barbara H., 183 Ill. 2d at 498,citing Cooper v. Oklahoma, 517 U.S. 348, 368-69, 134 L. Ed. 2d 498,515, 116 S. Ct. 1373, 1384 (1996); see also In re David D., 307Ill. App. 3d 30, 32 (1999). Accordingly, we will considerrespondent's issues on appeal.

Respondent first contends that the trial court's order must bereversed because she was denied her due process right to have thejury adequately instructed. Respondent states that, although thejury was instructed about the element of capacity and some factorsto consider in determining capacity, the jury was not instructed onthe "presumption of capacity." Respondent also argues that thetrial court should have given the jury a limiting instructionconcerning Rosanova's testimony. The State counters that, becausethe jury received an instruction setting forth the State's burdento prove that respondent lacked the capacity to make a reasoneddecision about the proposed medication, no separate instructionshould be required stating that respondent at the outset ispresumed to have capacity. The State also asserts that any failureto provide a limiting instruction did not constitute an abuse ofdiscretion.

Jury instructions provide jurors with the correct principlesof law applicable to the evidence submitted at trial. Timothy H.,301 Ill. App. 3d at 1015. The trial court is vested with thediscretion to determine which instructions to give to a jury, andwe will not disturb its determination absent an abuse of thatdiscretion. Timothy H., 301 Ill. App. 3d at 1015. Generally, theuse of Illinois Pattern Jury Instructions is required unless thetrial court determines that they are inaccurate statements of thelaw. 134 Ill. 2d R. 239(a); Timothy H., 301 Ill. App. 3d at 1015.

Using the State's tendered instructions, the trial courtinstructed the jury:

"The Petitioner has the burden of proving each of thefollowing propositions by clear and convincing evidence:

Proposition 5: That the Respondent lacks the capabilityto make a reasoned decision about the medication[]"

and

"In determining whether or not Respondent lacks thecapacity to make a reasoned decision concerning theadministration of psychotropic medication, you should considerthe following factors:

1. Respondent's knowledge that [s]he has a choiceto make;

2. Respondent's ability to understand the availableoptions, their advantages and disadvantages;

3. Whether Respondent is a voluntary or involuntarypatient;

4. Whether Respondent has previously received thetype of medication at issue;

5. Whether, if Respondent has received similartreatment in the past, [s]he can describe what happenedas a result and how the effects were beneficial orharmful;

6. Whether Respondent has any interferingpathological perceptions or beliefs or any interferingemotional states which might prevent an understanding oflegitimate risks or benefits.

None of these factors should be considered dispositive, andyou should consider any other relevant factors which you deemmight be present."

Here, the State had the burden of proving, by clear andconvincing evidence, that respondent lacked the capacity to make areasoned decision regarding her medication. Neither partypropounded or requested an instruction regarding the presumption ofcapacity. Generally, the party that desires a specific instructionbears the burden to tender it to the trial court and request thatit be given to the jury. Timothy H., 301 Ill. App. 3d at 1016. However, to ensure that a respondent receives a fair trial in aproceeding to involuntarily administer psychotropic medication, atrial court is required to offer an instruction sua sponte if itrelates to the elements ultimately authorizing the administrationof psychotropic medication, the question of the burden of proof,and a definition or description of the applicable burden of proofas provided in the Illinois Pattern Jury Instructions. Timothy H.,301 Ill. App. 3d at 1016.

Respondent's contention of error in the present case concernsan instruction relating to the elements ultimately authorizing theadministration of psychotropic medication. The jury received aninstruction regarding the statutory elements required for grantingthe State's petition. Additionally, the jury received aninstruction on factors to consider in determining whetherrespondent lacked the capacity to make a reasoned decisionconcerning the administration of psychotropic medication. Althoughthe better practice would be to tender an instruction reflectingthat a respondent is presumed competent until proved otherwise (Inre Perona, 294 Ill. App. 3d 755, 763 (1998)), we find that theinstructions concerning the element of capacity adequately providedthe jury with the correct statement of the law applicable to thecase and that the trial court was not required to sua sponteprovide an instruction on the presumption of capacity. Therefore,we hold that the trial court did not abuse its discretion when itdid not provide an instruction on the presumption of capacity.

Furthermore, respondent was not denied a fair trial and thetrial court did not abuse its discretion when it did not sua spontegive a limiting instruction with respect to Rosanova's testimony.Rosanova testified that, in forming the basis for her opinion ofrespondent's mental health, she relied on respondent's pasthospital records, conversations with hospital staff, correspondencefrom the State's Attorney's office in Cook County, and letters thatrespondent wrote to Brian C. In mental health cases, the Statemust present, inter alia, an explicit expert opinion. In reCutsinger, 186 Ill. App. 3d 219, 223 (1989). In presenting thisopinion, the expert may testify to the underlying bases of theopinion. People v. Anderson, 113 Ill. 2d 1, 12 (1986). Under Rule703 of the Federal Rules of Evidence (Fed. R. Evid. 703), "expertwitnesses may disclose the contents of otherwise inadmissiblematerials upon which they reasonably rely." Anderson, 113 Ill. 2dat 8-9, citing Wilson v. Clark, 84 Ill. 2d 186, 194 (1981).

In the present case, Rosanova's testimony was properlyadmissible for the limited purpose of explaining the basis for heropinion. A limiting instruction is ordinarily the proper remedywhen this type of testimony was admitted for only a limited purposeand respondent would have been entitled to such an instruction uponrequest. Respondent acknowledges that her trial counsel made amistake. However, despite respondent's failure to request alimiting instruction and the trial court's failure to offer alimiting instruction, we find that respondent was not deprived ofa fair trial. See People v. Scott, 148 Ill. 2d 479, 527-28 (1992)(holding that the defendant was not deprived of a fair trial by thecourt's failure to sua sponte offer a limiting instructionregarding testimony from opinion witnesses who used the defendant'spsychiatric reports in making a diagnosis of the defendant's mentalhealth). Counsel for respondent argued throughout the proceedingsthat certain evidence was admissible only for a limited purposebut, for whatever reason, failed to offer or request a limitinginstruction. Based on our review of the record, we hold thatrespondent was not denied a fair trial and the trial court did notabuse its discretion in not offering a limiting instruction withrespect to Rosanova's testimony.

Respondent next contends that the verdict form and the trialcourt's subsequent order were insufficient because the verdict formshould have specifically listed each of the requested medications. Respondent argues that, as a result, the trial court's writtenorder, which specified the authorized medications, invaded theprovince of the jury by preventing it from making the determinationof whether the benefits of each of the three proposed medicationsoutweighed the risks. The State argues that this issue is waivedbecause respondent failed to object to the verdict forms and failedto tender any alternative verdict forms. Nevertheless, we mayapply the plain error doctrine despite a claim of waiver where thealleged error is so substantial as to reflect on the fairness orimpartiality of the trial, regardless of how closely balanced theevidence is, or where the jury's verdict may have resulted from theerror. See People v. Fields, 170 Ill. App. 3d 1, 9 (1988). Because respondent alleges error in the form of the verdictpresented to the jury, we will consider respondent's contentionregarding the jury's verdict under the plain error doctrine.

In the present case, the signed verdict form states:

"We the Jury, find for the Petitioner, and against theRespondent ***. We find that the Respondent is someone whoqualifies for the involuntary administration of psychotropicmedication."

The trial court's written order states, in relevant part:

"This court enters judgment on the verdict. Thefollowing medications are to be administered for a period notto exceed 90 days:

Haldol 10 - 20 mg/day

Olanzapine 10 - 20 mg/day

Risperdal 2 - 6 mg/day."

In a proceeding to authorize the administration ofpsychotropic medication against a patient's will, the State mustprove the existence of all seven factors listed in section 2--107.1(a)(4) of the Mental Health Code by clear and convincingevidence. 405 ILCS 5/2--107.1(a)(4) (West 1998). Those factorsencompass a myriad of factual determinations. In re Jakush, 311Ill. App. 3d 940, 947 (2000). Section 2--107.1(a)(4)(D) of theMental Health Code states that the authorized involuntary treatmentshall not be administered to the recipient unless it has beendetermined by clear and convincing evidence that the benefits ofthe treatment outweigh the harm. 405 ILCS 5/2--107.1(a)(4)(A)(West 1998). The entity entrusted to determine whether thebenefits of the treatment outweigh the harm is the finder of fact,that is, either the judge in a bench trial or the jury in a jurytrial. See 405 ILCS 5/2--107.1(a)(3), 3--802 (West 1998). In thepresent case, respondent requested a trial by jury; therefore,whether the benefits of the proposed medication outweighed the harmwas a factual issue for the jury to determine. See In re Kness,277 Ill. App. 3d 711, 720 (1996).

In a jury trial, the verdict, if supported by the evidence, isthe basis on which the judgment of the trial court is rendered. Crowell v. Parrish, 159 Ill. App. 3d 604, 608 (1987). Therefore,following a jury trial and the jury's verdict, the trial court mustenter judgment on the verdict, unless a sufficient reason existsfor rendering a judgment notwithstanding the verdict. Crowell, 159Ill. App. 3d at 608. A trial court can amend a verdict only tomake the verdict conform with the clear intention of the jury. Crowell, 159 Ill. App. 3d at 609. A trial court should not amenda verdict to obtain a determination that it believes the jury oughtto have made. Anderson v. Smith, 91 Ill. App. 3d 938, 941 (1980).

A review of the record reflects that, at trial, respondenttestified that, if ordered, she would take Olanzapine or Risperdal. Rosanova testified that Olanzapine and Risperdal were newermedications that were more effective and had fewer side effectsthan other medications previously used. Rosanova testified thatHaldol could control respondent's positive symptoms of mentalillness but that Olanzapine and Risperdal did a much better job,and Haldol had many side effects. Rosanova further testified thatOlanzapine and Risperdal carried only a minimal risk of the moreserious side effects. Rosanova was not requesting to administerall three simultaneously but requesting a type of alternativerelief. The very nature of Rosanova's and respondent's testimonyplaced the three specific medications at issue and should havealerted counsel to a particular dispute for the jury to resolve.

Despite Rosanova's testimony that the medications were verydifferent, the verdict forms did not distinguish the medications. Based on the testimony presented, the jury reasonably could havefound that the benefits of administering either Olanzapine orRisperdal to respondent outweighed the harm and that the benefit ofadministering Haldol to respondent did not outweigh the harm toher. However, the jury's verdict simply states that respondentqualifies for the involuntary administration of psychotropicmedication. The verdict does not show that the jury found that thebenefits of administering Haldol to respondent outweighed the harmit would pose to her, nor does it show that the benefits ofadministering Risperdal or Olanzapine to respondent outweighed theharm. The verdict here fails to show that the jury clearlyintended to authorize the involuntary administration of all threemedications.

We are persuaded by the reasoning and analysis set forthrecently in the case of In re Len P., 302 Ill. App. 3d 281 (1999). In Len P., the respondent appealed the trial court's orderauthorizing the involuntary administration of psychotropicmedication and argued, inter alia, that the order failed to specifythe type or dosage of medication to be administered. This courtreviewed section 2--107.1(a)(6) of the Mental Health Code, whichrequires the order to " 'specify the medications and theanticipated range of dosages that have been authorized.' " Len P.,302 Ill. App. 3d at 285, quoting 405 ILCS 5/2--107.1(a)(6) (WestSupp. 1997). The testimony concerning the medication was vague,and the State failed to present any testimony regarding the dosage. The trial court's order was silent and failed to comply with thestatute. We noted that the type of medication the State wishes toinvoluntarily administer to a respondent was a necessary componentof the statutory element to prove that the benefits of themedication outweigh the harm and the failure to prove thatcomponent was not merely a procedural defect. Len P., 302 Ill.App. 3d at 286. We concluded that the error in failing to specifythe type and dosage of medication was more of substantive rightthan a procedural formality and reversed the order of the trialcourt. Len P., 302 Ill. App. 3d at 286.

Pursuant to our analysis in Len P., inherent in an order thatspecifies the medications and the anticipated range of dosages isa finding that the benefits of those particular medicationsoutweighed the potential harm to a person subject to theinvoluntary administration of those medications. In a bench trial,the trial court, as the finder of fact, makes those findings andincorporates its findings into an order authorizing the involuntaryadministration of psychotropic medication, setting forth thespecific medications and anticipated range of dosages. See 405ILCS 5/2--107.1(a)(6) (West 1998). Likewise, in a jury trial, thejury, as the finder of fact, should make findings regarding themedications the State seeks to involuntarily administer to arespondent, either in special interrogatories or within itsverdict. Those findings should include whether the benefits of aparticular medication outweigh the harm. See 405 ILCS 5/2--107.1(a)(4)(D) (West 1998). Thereafter, should a jury ultimatelydecide a case in favor of the State on the issue of the involuntaryadministration of psychotropic medication, its verdict should showthat it clearly intended to authorize the involuntaryadministration of specific medications.

In the present case, the trial court's order was required toreflect the decision of the trier of fact. Because it did not,respondent was denied her right to a fair trial. Therefore, thetrial court erred when it decided which medications toinvoluntarily administer to respondent. It was the jury's decisionto make.

We cannot simply say this was harmless error, either, becausethe jury's deliberations and ultimate decision were renderedthrough an improper scope of analysis. See Timothy H., 301 Ill.App. 3d at 1016. We hold that the fairness of this trial wascompromised when the jurors were not afforded an opportunity todetermine which medications respondent should have beeninvoluntarily administered or whether the benefits to respondentoutweighed the harm, including the potentially harmful sideeffects, as to Haldol, Risperdal, or Olanzapine.

Our determination that respondent was denied her due processright to a fair trial in that the jury was given inadequate verdictforms obviates the need to address respondent's remaining issue onappeal. A remand is not in order, as the proceedings areconcluded. If the State believes that respondent remains in needof involuntary administration of psychotropic medication, it mustinitiate new proceedings in the trial court. See In re Barbara H.,183 Ill. 2d at 498.

For the foregoing reasons, the judgment of the circuit courtof Kane County is reversed.

Reversed.

BOWMAN, P.J., and McLAREN, J., concur.