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26 July 2000

No. 3-99-0279

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1999

JUSTICE KOEHLER delivered the opinion of the court:

FACTS

On February 23, 1999, respondent George O.'s sister executeda petition for his emergency involuntary admission (the petition)pursuant to section 3-601 of the Mental Health and DevelopmentalDisabilities Code (the Code)(405 ILCS 5/3-601 (West 1992)). At1:50 a.m. on February 24, Robert Johnston, M.D., executed acertificate pursuant to section 3-602 (405 ILCS 5/3-602 (West1992)), but he failed to name George O. on the certificate. At 4a.m., the Illinois Valley Community Hospital admitted George O. Inthis first certificate, Dr. Johnson stated that the unnamedindividual was mentally ill and reasonably expected to inflictserious physical harm on himself or another and unable to care forhis basic needs, but he did not indicate that the individual was inneed of immediate hospitalization and subject to involuntaryadmission. Later that day, the hospital timely filed the petitionin La Salle County circuit court. At 2:15 p.m. that day, D.Hinshaw, M.D., examined George O. and executed a secondcertificate.

On February 25, George O.'s cause was transferred to PeoriaCounty circuit court, where the petition and the two above-mentioned medical certificates were filed at 3:24 p.m. AthenaGuzman, M.D., filed a third medical certificate on February 26 at11 a.m., reflecting her examination of George O. that occurred at2 p.m. on February 25, in Peoria at Zeller Mental Health Institute(Zeller). The Peoria County circuit court appointed counsel forGeorge O. After a March 3 hearing, during which George O. and Dr.Jayalakshmi Attaluri, George's treating psychiatrist at Zeller,testified, the circuit court concluded that the State proved byclear and convincing evidence that George O. had a serious mentalillness and that it could reasonably be expected that, if George O.were discharged, he would inflict serious harm to himself in thenear future. Consequently, the circuit court found George O.subject to involuntary admission and ordered him hospitalized inthe Department of Mental Health and Developmental Disabilities for30 days. George O. appeals.

ANALYSIS

At the outset, we note that our standard of review is de novo,as the issue before this court involves a question of law. Peoplev. Carlson, 185 Ill. 2d 546, 551, 708 N.E.2d 372, 374 (1999).

"Involuntary admission procedures represent thelegislature's attempt to balance the individual'sinterest in liberty against society's dual interests inprotecting itself from dangerous mentally ill persons andcaring for those who are unable to care for themselves.[Citation.] The Code's procedural safeguards are not meretechnicalities. [Citation.] Rather, they are essentialtools to safeguard the liberty interests of respondentsin mental health cases. [Citation.] Because involuntaryadmission proceedings pose a grave threat to anindividual's liberty interests, the Code's proceduralsafeguards should be strictly construed in favor of therespondent. [Citation.]" In re Rovelstad, 281 Ill. App.3d 956, 964-65, 667 N.E.2d 720, 725 (1996).

George O. contends that the circuit court's order finding himsubject to involuntary admission must be reversed because the State(1) failed to comply with section 3-602 when the first certificaterequired by this section did not state his name, that he wassubject to involuntary commitment, and that he required immediatehospitalization; (2) failed to show that he had been examined by apsychiatrist within 24 hours after admission as required by section3-610; and (3) failed to prove by clear and convincing evidencethat he was subject to involuntary admission.

The State conversely maintains that (1) the circuit court'sorder was proper, as clear and convincing evidence established byDr. Attaluri's testimony showed that George O. was subject toinvoluntary admission because he suffered from a severe mentalillness and, due to his past abuse of alcohol, depression, suicidalideations, access to firearms and marital difficulties, he wasreasonably expected to inflict serious harm on himself or anotherin the near future; (2) George O. waived his right to appeal anyprocedural deficiencies when he failed to preserve the issue in thecircuit court; and (3), in the alternative, the circuit court hadjurisdiction and any procedural deficiency did not prejudice GeorgeO. and was, therefore, harmless.

Section 3-602 of Article VI, governing emergency admissionsby certification under the Mental Health and DevelopmentalDisabilities Code, provides:

"The petition shall be accompanied by a certificateexecuted by a physician, qualified examiner, or clinicalpsychologist which states that the respondent is subjectto involuntary admission and requires immediatehospitalization. The certificate shall indicate that thephysician, qualified examiner, or clinical psychologistpersonally examined the respondent not more that 72 hoursprior to admission. It shall also contain thephysician's, qualified examiner's, or clinicalpsychologist's clinical observations, other factualinformation relied upon in reaching a diagnosis, and astatement as to whether the respondent was advised of hisrights under Section 3-208." 405 ILCS 5/3-602 (West1992).

Section 3-604 states:

"No person detained for examination under thisArticle on the basis of a petition alone may be held formore than 24 hours unless within that period acertificate is furnished to or by the mental healthfacility. If no certificate is furnished, the respondentshall be released forthwith." 405 ILCS 5/3-604 (West1992).

Further, section 3-610 prescribes:

"As soon as possible but not later than 24 hours,excluding Saturdays, Sundays and holidays, afteradmission of a respondent pursuant to this Article, therespondent shall be examined by a psychiatrist. Thepsychiatrist may be a member of the staff of the facilitybut shall not be the person who executed the firstcertificate. If the respondent is not examined or if thepsychiatrist does not execute a certificate pursuant toSection 3-602, the respondent shall be releasedforthwith." 405 ILCS 5/3-610 (West 1992).

Last, we note section 3-611, which states:

"Within 24 hours, excluding Saturdays, Sundays andholidays, after the respondent's admission under thisArticle, the facility director of the facility shall file2 copies of the petition, the first certificate, andproof of service of the petition and statement of rightsupon the respondent with the court in the county in whichthe facility is located. Upon completion of the secondcertificate, the facility director shall promptly file itwith the court. The facility director shall make copiesof the certificates available to the attorneys for theparties upon request. Upon the filing of the petitionand first certificate, the court shall set a hearing tobe held within 5 days, excluding Saturdays, Sundays andholidays, after receipt of the petition. The court shalldirect that notice of the time and place of the hearingbe served upon the respondent, his responsible relatives,and the persons entitled to receive a copy of thepetition pursuant to Section 3-609." 405 ILCS 5/3-611(West 1992).

In the instant case, the first certificate signed by Dr.Johnston and required by section 3-602 did not include George O.'sname and failed to state that he was subject to involuntaryadmission and required immediate hospitalization. Accordingly, weconclude that section 3-602, which, when strictly construed,requires that such a statement be contained within this firstcertificate, was not satisfied. In addition, sections 3-602 and3-611, strictly construed, require the first certificate to befiled with the petition, while section 3-604 additionally prohibitsany person from being detained on the basis of a petition alonebeyond 24 hours unless the mental health facility furnishes or isfurnished this first certificate. Although the petition was timelyfiled in La Salle County, the record shows that this firstcertificate required by section 3-602 was filed after the cause wastransferred to Peoria County -- more than 24 hours after therespondent was admitted. When such certificate is not furnishedwithin 24 hours after admission, the respondent "shall be releasedforthwith." 405 ILCS 5/3-604 (West 1992).

Section 3-610 requires that a psychiatrist must examine therespondent no later than 24 hours after he is admitted. 405 ILCS5/3-610 (West 1992). The psychiatrist who conducts thisexamination must execute a certificate similar to that required bysection 3-602 and may not be the same individual who executed thefirst certificate. Again, we note that the record only shows thatthe first and second certificates were filed when the cause wastransferred to Peoria County. Since the cause was not transferredby 4 a.m. on February 25 -- within 24 hours after George O.'sadmission -- but at 3:24 p.m. on February 25, we likewise concludethat the second certificate was not properly filed as section3-610, strictly construed, required.

Additionally, with regard to the section 3-610 mandatoryrequirement that the second certificate be executed by apsychiatrist, the State concedes that the record does not identifyDr. Hinshaw as a psychiatrist but argues that it is reasonable topresume he is a psychiatrist since he is a medical doctor whopractices at the mental health facility. Courts should not engagein speculation to reach such a presumption. See Rovelstad, 281Ill. App. 3d at 965, 667 N.E.2d at 725. The record at bar does notprovide us with enough information to conclude with certainty that Dr. Hinshaw was a psychiatrist. We, therefore, conclude that theState has not shown that George O. was examined by a psychiatristwithin 24 hours of his admission and, thus, George O. should havebeen "released forthwith." See 405 ILCS 5/3-610 (West 1992); seeRovelstad, 281 Ill. App. 3d at 965-66, 667 N.E.2d at 726. Becausethe State failed to comply with the mandatory requirement ofsection 3-610, we must reverse the order for involuntary admission. See Rovelstad, 281 Ill. App. 3d at 965-66, 667 N.E.2d at 726. "Anynoncompliance with the statutory prescribed involuntary commitmentprocedures renders the judgment entered in such a cause erroneousand of no effect." People v. Valentine, 201 Ill. App. 3d 10, 13-14, 558 N.E.2d 807, 810 (1990); see also In re Elkow, 167 Ill. App.3d 187, 193, 521 N.E.2d 290, 294 (1988).

We further reject the State's argument that George O. haswaived this error by failing to raise an objection in the circuitcourt. " '[E]rrors demonstrating noncompliance with the statutoryprovisions that appear on the face of the record may render ajudgment erroneous even if not raised at trial; furthermore, sucherrors may be considered on appeal under a doctrine analogous toplain error.' " Rovelstad, 281 Ill. App. 3d at 966, 667 N.E.2d at726, quoting In re Martens, 269 Ill. App. 3d 324, 327 (1995). We,therefore, decline to apply waiver in this case, since the State'sfailure to comply with section 3-610 appears on the face of therecord and clearly prejudiced George O. In light of theseconclusions, we need not address George O.'s other contentions.

CONCLUSION

In sum, the State's noncompliance with the statutorilyprescribed involuntary commitment procedures renders the circuitcourt's judgment erroneous. We, therefore, reverse.

Reversed.

SLATER, P.J., and HOLDRIDGE, J., concur.