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December 5, 2001

JUSTICE COOK delivered the opinion of the court:

Respondent, Gwendolyn N., appeals from a trial courtorder authorizing her involuntary treatment involving psychotropic medications.

The State, through Dr. Christine Fletcher of the AndrewMcFarland Mental Health Center (McFarland), petitioned the courton April 5, 2000, to begin the involuntary treatment of Gwendolynwith psychotropic medications, pursuant to section 2-107.1 of theMental Health and Developmental Disabilities Code (Code) (405ILCS 5/2-107.1 (West 2000)). A hearing was held on April 28,2000. Dr. Fletcher was the only witness. At the conclusion ofthe proceedings, the trial court authorized Gwendolyn's involuntary treatment with psychotropic medications.

Gwendolyn first contends that, pursuant to section 2-107.1(a)(4) of the Code, the State did not prove by clear andconvincing evidence the factors necessary to administer involuntary treatment. We disagree. Dr. Fletcher diagnosed Gwendolynwith chronic paranoid schizophrenia. Gwendolyn exhibitsobsessive-compulsive behaviors whereby she "get[s repetitively]stuck" in her movements and makes bizarre, circuitous tripsaround the clinical unit. This can affect her ability to eatmeals and dress herself. She can also become episodicallyaggressive. We recognize that the fact of mental illness,standing alone, is not always a sufficient basis to conclude thata person lacks the capacity to make a reasoned decision regardingmedical care. However, it is also true that failure to recognizeone's mental illness may be evidence that capacity is lacking. In re Perona, 294 Ill. App. 3d 755, 767, 690 N.E.2d 1058, 1067(1998). Here, Gwendolyn refuses to acknowledge her condition. Fletcher also testified that she attempted to discuss variousmedications with Gwendolyn but that Gwendolyn was not cognizantof the matter being considered or the risks and benefits associated with the various types of treatments. Gwendolyn's failureto present any rational explanation for her refusal to take themedications may also be considered as to the question of hercapacity to make reasoned decisions. Perona, 294 Ill. App. 3d at767, 690 N.E.2d at 1067.

The trial court heard detailed testimony from Dr.Fletcher regarding Gwendolyn's psychological condition as itrelates to the statutory factors outlined in section 2-107.1(a)(4). 405 ILCS 5/2-107.1(a)(4) (West 1998). We find thatthe State met its evidentiary burden at trial.

Once the trial court finds that the prerequisites toinvoluntary treatment have been proved, it must set forth adetailed order, establishing the type and scope of treatment thatis authorized. Since December 1, 1997, section 2-107.1(a)(6) ofthe Code requires:

"An order issued under this subsection(a) shall designate the persons authorized toadminister the authorized involuntary treatment under the standards and procedures ofthis subsection (a). Those persons shallhave complete discretion not to administerany treatment authorized under this[s]ection. The order shall also specify themedications and the anticipated range ofdosages that have been authorized." 405 ILCS5/2-107.1(a)(6) (West 1998).

Prior to December 1, 1997, the statute did not require that theorder designate the medications to be administered. In re BarryB., 295 Ill. App. 3d 1080, 1088, 693 N.E.2d 882, 887 (1998). However, even then, the court noted:

"[B]ecause of the substantial liberty interests involved in the involuntaryadministration of psychotropic medication, we believe that the better practice by the trial court would be to include the precise medications *** to be administered in its order granting a petition for involuntary medication. This will ensure that theprovider of medical care has strict guidance for the treatment of a patient who is to receive psychotropic medication involuntarily." Barry B., 295 Ill. App. 3d at 1088, 693 N.E.2d at 887.

Here, the trial court used a fill-in-the-blanks-styleform order, stating that "Gwendolyn [N.] shall receivepsychotropic medication to be administered by members of theclinical staff at [McFarland], whose licenses allow them toadminister psychotropic drugs pursuant to Illinois law." Theform order cites the 1990 version of section 2-107.1 and appearsto have been created in 1991. Clearly, the form order was notupdated to comply with the 1997 amendments to section 2-107.1.

Gwendolyn argues this order is unlawful and overbroadbecause it fails to (1) specify the medications authorized, (2)specify the anticipated dosages for each medication authorized,and (3) identify the individuals authorized to administer suchmedications. Gwendolyn is correct. Neither the trial court'soral statements at the conclusion of trial nor the written orderentered complies with the requirements of section 2-107.1(a)(6). 405 ILCS 5/2-107.1(a)(6) (West 1998). However, we must determinewhether the inadequacy of the order requires reversal.

We have previously held that, although the trial courtorder violated section 2-107.1(a)(6), reversal was not warrantedbecause (1) respondent failed to object to the alleged errors atthe trial level, (2) the evidence presented showed that respondent's attending physician was intimately familiar with respondent's treatment protocol, and (3) respondent did not contendthat he was prejudiced by the omissions in the court's order. Inre Miller, 301 Ill. App. 3d 1060, 1072, 705 N.E.2d 144, 152(1998).

Here, Gwendolyn failed to object to the order in thetrial court. Further, Dr. Fletcher's testimony demonstratedextensive familiarity with Gwendolyn's treatment protocol. Unlike the respondent in Miller, however, Gwendolyn has presentedarguments that her rights have been compromised and she wasprejudiced by the order that failed to comply with the Coderequirements. We agree.

The State's petition requested leave to administer sixdifferent medications: Haldol, Cogentin, Lorazepam, Zyprexa,Risperidone, and Zoloft. Dr. Fletcher testified that thesemedications would not be administered simultaneously. Rather,combinations of these medications present alternative courses oftreatment. Dr. Fletcher contemplated three successive "courses"of alternative treatment for Gwendolyn, involving various combinations of the medications.

Gwendolyn has taken four of the six suggested medications in the past, with only slight side effects. However, shehas experienced nervousness when taking Haldol (a common sideeffect that is counteracted with Cogentin). Thus, Dr. Fletcherwants permission to administer Zyprexa or Risperidone, newerdrugs that have a similar impact to Haldol, with fewer sideeffects. While these drugs have fewer side effects, Dr. Fletcheradmitted that psychotropic medications do have side effects, themost severe of which is death.

Dr. Fletcher testified that she did not expect toreturn to court to request permission to proceed from her firstcourse of treatment, to the second course, et cetera. Rather,she wanted "latitude" to exercise her medical judgement indetermining which combination of the antipsychotic medicationsworked best for Gwendolyn. The trial court gave Dr. Fletcherthat latitude. At the conclusion of the hearing, the trial courtstated: "for a period of 90 days, I'm substituting my judgmentfor [Gwendolyn's], and certainly Dr. Fletcher's judgment for[Gwendolyn's], and hopefully this will do her a ton of good."

Gwendolyn asserts that under the existing order, Dr.Fletcher and McFarland have carte blanche authority to involuntarily administer any drug, in any dose, essentially by anyperson. Further, the various treatment alternatives outlined atthe hearing are not subject to court oversight and may be administered based solely on the judgment of Dr. Fletcher andMcFarland staff. Gwendolyn's main concern is that with no courtoversight, there will be no cost-benefit analysis to ensure thatthe benefits of the particular combination of medications outweigh the potential harm. 405 ILCS 5/2-107.1(a)(4)(D) (West1998).

The State basically sought permission for Dr. Fletcherto "experiment" with varying substances until an optimal combination was found. That suggestion is not entirely novel. In In reKness, 277 Ill. App. 3d 711, 720, 661 N.E.2d 394, 400 (1996), forexample the State argued that the treating physician "should notbe limited to the use of one drug but should be able to switchrespondent's medications based upon the respondent's reactions tothe medications." The appellate court found that the argumenthad some "practical appeal" but ultimately rejected it on thebasis that to do so hampers the trial court's ability to undertake a meaningful comparison of the benefits of the medication tothe side effects the respondent might suffer. Kness, 277 Ill.App. 3d at 720, 661 N.E.2d at 400.

The trial court's comments here indicate that it waswilling to trust Dr. Fletcher's professional judgment in determining when and under what circumstances Gwendolyn's medicationsshould be alternated. Neither the trial court's oral statementsnor its written order establishes the parameters of allowedtreatment. While we, as did the court in Kness, understand thepractical appeal of a system entrusting treatment discretion tophysicians, we too conclude that it would be difficult to squarethat with the Code's requirement to balance the harm and benefitsof treatment. 405 ILCS 5/2-107.1(a)(4)(D) (West 1998).

While we do not doubt that the trial court and Dr.Fletcher have only the best of intentions for Gwendolyn, theorder here impinges upon Gwendolyn's liberty interests. Whenanalyzing section 2-107.1 and the right to refuse medical treatment, the Supreme Court of Illinois noted its concerns with theinvoluntary administration of psychotropic drugs. One of theconcerns was that "psychotropic substances may be misused bymedical personnel, and subverted to the objectives of patientcontrol rather than patient treatment." In re C.E., 161 Ill. 2d200, 215, 641 N.E.2d 345, 353 (1994). As a protection againstthese potential abuses, section 2-107.1 requires court approvalof involuntary treatment. This requirement promotes the State's"legitimate parens patriae interest in furthering the treatmentof those who are mentally ill *** when the patient is not capableof making a sound decision in his own behalf." C.E., 161 Ill. 2dat 217, 641 N.E.2d at 353. These statutory safeguards serve manypurposes, one of which is to ensure "that the medication will beused for therapeutic purposes and will not be misapplied as ameans to discipline or 'manage' the recipient." C.E., 161 Ill.2d at 219, 641 N.E.2d at 354. Here, however, the combination ofthe deficient order and lack of specificity of the court's oralruling fails to ensure the proper use of psychotropic medicationswith respect to Gwendolyn. The trial court order has prejudicedGwendolyn's liberty interests and requires reversal.

We should make clear that we are not suggesting thetrial court must develop a course of treatment and then dictatethat course to the treating physician. That would constituterole reversal. The duty always remains with the State and thetreating physician. That duty is to educate the court sufficiently to allow the court to make an informed judgment in itscapacity as parens patriae. That simply did not take place here. Similarly, the physician may feel that the patient's case necessitates alternate treatment programs. If so, the doctor mustthen explain each separate proposed course, including the benefits and risks inherent in each. This is no different than onewould expect in any other context. So informed, the court maythen decide to authorize the alternate courses or decide that a"wait and see" approach should be adopted, based upon the inherent risks. Again, these decisions are no different than thosemade by other patients and their families throughout our State ona daily basis.

Because the order subjecting Gwendolyn to involuntarytreatment did not specify the medications authorized, did notspecify anticipated authorized dosages, and did not specify theindividuals authorized to administer such treatment(s), wereverse the trial court's judgment and remand the cause forfurther proceedings not inconsistent with this opinion.

Reversed and remanded.

STEIGMANN, P.J., and TURNER, J., concur.