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No. 2--03--0045

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

Based on a petition filed by the Dixon Correctional Center warden, the respondent, RobertD., was ordered involuntarily admitted to mental health treatment pursuant to section 3--700 of theMental Health and Developmental Disabilities Code (the Code) (405 ILCS 5/3--700 et seq. (West2002)). He appeals, arguing that the petition was defective because it did not indicate the name andaddress of a substitute decision maker or state that a diligent inquiry had been taken to determine ifone existed. We affirm.

On December 17, 2002, a petition seeking an order for involuntary admission was filed againstthe respondent. The petition stated that the respondent, a prisoner, was mentally ill and wasreasonably expected to inflict serious harm upon himself or another in the near future. According tothe petition, the respondent displayed delusional thinking and refused to take his psychotropicmedication. He needed a more structured and secure setting because he had behaved violently in thecommunity and while incarcerated, showed no insight into his mental illness, refused his medication,and had an extensive history of aggression.

The petition form prompted the preparer to provide a list of "the names and addresses of thespouse, parent, guardian, close relative or, if none, a friend of the respondent." If no names oraddresses were available, then the preparer was to "describe efforts made to identify and locate theseindividuals." In response to this query, the respondent's mother's name and her two phone numberswere listed. The respondent's mother also testified at the December 18, 2002, hearing. After thathearing, the court issued a memorandum opinion, in which it granted the petition. The respondentappeals.

Involuntary admission procedures represent the legislature's attempt to balance the individual'sinterest in liberty against society's dual interests in protecting itself from dangerous mentally illpersons and caring for those who are unable to care for themselves. In re James, 191 Ill. App. 3d352, 356 (1989). The Code's procedural safeguards are not mere technicalities. In re Luttrell, 261Ill. App. 3d 221, 230 (1994). Rather, they are essential tools to safeguard the liberty interests ofrespondents in mental health cases. Luttrell, 261 Ill. App. 3d at 230. Because involuntary admissionproceedings pose a grave threat to an individual's liberty interests, the Code's procedural safeguardsshould be narrowly construed. In re La Touche, 247 Ill. App. 3d 615, 618 (1993).

With the above principles in mind, we now address the respondent's argument that the petitionseeking his involuntary admission was statutorily defective because it did not list the name andaddress of a substitute decision maker or state that a diligent inquiry had been made to determine ifhe had one. This issue presents a question of law that we review de novo. See In re George O., 314Ill. App. 3d 1044, 1046 (2000).

Section 3--601(b)(2) of the Code (405 ILCS 5/3--601(b)(2) (West 2002)) states that apetition for involuntary admission shall include:

"The name and address of the spouse, parent, guardian, substitute decision maker, ifany, and close relative, or if none, the name and address of any known friend of therespondent whom the petitioner had reason to believe may know or have any of the othernames and addresses. If the petitioner is unable to supply any such names and addresses, thepetitioner shall state that diligent inquiry was made to learn this information and specify thesteps taken." (Emphasis added.) 405 ILCS 5/3--601(b)(2) (West 2002).

In 2000, the legislature amended this section by adding the language "substitute decision maker, ifany." Pub. Act 91--726, eff. June 2, 2000. A "substitute decision maker" is a person with theauthority to make decisions under the Powers of Attorney for Health Care Law (755 ILCS 45/4--1et seq. (West 2002)) or the Mental Health Treatment Preference Declaration Act (755 ILCS 43/1 etseq. (West 2002)). 405 ILCS 5/1--110.5 (West 2002).

Initially, the State argues that the respondent has waived any challenge to the sufficiency ofthe petition because he did not object to the defect at trial. At an involuntary admission hearing, thefailure to raise an issue to the trial court generally results in a waiver of the issue on appeal. In reNau, 153 Ill. 2d 406, 417 (1992). Nonetheless, relying on In re Adams, 239 Ill. App. 3d 880 (1993),the respondent contends that the waiver doctrine should not apply.

In Adams, an admission petition was filed against Adams by his friend, Elizabeth Bennett,after Adams threatened to kill her. Adams, 239 Ill. App. 3d at 882. The admission petition did notlist any of the respondent's relatives or friends or state what effort had been made to identify andlocate such persons. Adams, 239 Ill. App. 3d at 884. The Adams court declined to apply waiverbecause the alleged error in the petition was apparent from the record, liberty interests were involved,and the error could be considered prejudicial. Adams, 239 Ill. App. 3d at 883. The court also notedthat a failure to comply strictly with the requirement that the petition list the names of relatives andfriends or indicate that a diligent inquiry for them occurred does not require reversal if it can beshown that the respondent suffered no prejudice. Adams, 239 Ill. App. 3d at 884-85. Because theerror there may have been prejudicial to the respondent, the court reversed the involuntary admissionorder. Adams, 239 Ill. App. 3d at 885.

Later, in In re Robinson, 287 Ill. App. 3d 1088, 1093-94 (1997), the court applied the waiverdoctrine and refused to consider an alleged failure to provide names and addresses of the respondent'sfamily and friends or explain why none were listed on an involuntary admission petition. In that case,the admission petition had a blank space following the request for names and addresses of family andfriends, no response was given for proof of service of the petition, and the respondent did not receiveformal notice of the hearing. Robinson, 287 Ill. App. 3d at 1093-94. The Robinson courtdistinguished its facts from those in Adams because an extensive report of the respondent's historywas attached to the petition. Robinson, 287 Ill. App. 3d at 1095. The report revealed that Robinsonhad refused to give a personal history and had no known family members except for a sister herefused to acknowledge. Robinson, 287 Ill. App. 3d at 1095. From the information in this report,the court concluded that a diligent inquiry for the respondent's family and friends had been taken andthat the respondent was not prejudiced by the error.

Both Adams and Robinson predate the amendment to section 3--601(b)(2) of the Code (405ILCS 5/3--601(b)(2) (West 2002)) that added a "substitute decision maker, if any" to the list ofpersons to be included on the involuntary admission petition. Nevertheless, the rationales expressedin Adams and Robinson are still applicable to the present case.

We determine that this case is more similar to Adams and reject the State's argument that weshould apply the waiver doctrine. Although required by section 3--601(b)(2) of the Code, the petitiondid not state the name and address of a substitute decision maker or that a diligent inquiry had beenmade to determine if one existed. This error is apparent from the record, involves the respondent'sliberty interests, and could have been prejudicial. " '[E]rrors demonstrating noncompliance with thestatutory provisions that appear on the face of the record may render a judgment erroneous even ifnot raised at trial; furthermore, such errors may be considered on appeal under a doctrine analogousto plain error.' " In re Rovelstad, 281 Ill. App. 3d 956, 966 (1996), quoting In re Martens, 269 Ill.App. 3d 324, 327 (1995). Therefore, we decline to apply the waiver doctrine in this case.

We nonetheless conclude that the error does not require a reversal. Here, the record revealsthat the respondent planned to stay with his mother upon discharge from the Dixon CorrectionalCenter. The respondent's mother testified at the admission hearing and explained the type of care shewould be able to provide the respondent. While discussing the respondent's treatment, she did notindicate that anyone other than the respondent himself was authorized to make his health caredecisions. Neither at trial nor on appeal has the respondent alleged that he had executed a health carepower of attorney or a declaration for mental health treatment or that a substitute decision makerexisted. Instead, the respondent contends that the State's failure to list a substitute decision makeron the petition was "inherently prejudicial." We cannot agree. After reviewing the record, weconclude that the State's error was not prejudicial. The error here was harmless because neither therecord before us nor the respondent in his brief indicates that such instruments actually existed.

Furthermore, in a similar mental health area, this issue has been resolved in the same manner.In proceedings following a petition for the administration of psychotropic medication, whether apetitioner's failure to state that he or she made a good-faith effort to determine if a respondent hadexecuted a health care power of attorney or a declaration for mental health treatment demandedreversal was considered in In re Jill R., 336 Ill. App. 3d 956, 965 (2003), In re Len P., 302 Ill. App.3d 281, 283-84 (1999), and In re Miller, 301 Ill. App. 3d 1060, 1071 (1998). In those cases, theerror was considered harmless because neither the record nor the respondents in their briefs indicatedthat such instruments actually existed. In the present case, we reach the same conclusion. However,we note that, to avoid repeating this problem in the future, the State's admission petition form shouldbe updated to prompt the preparer to investigate the substitute decision maker issue.

The judgment of the circuit court of Lee County is affirmed.

Affirmed.

McLAREN and HUTCHINSON, JJ., concur.