Find Legal Information

JUSTICE GARMAN delivered the opinion of the court:

Petitioners are parents of respondent, A.M.P., a 16-year-old young woman who is psychotic and noncommunicative. This action arose on their petition for authorization of electroconvulsive therapy (ECT) upon A.M.P., after she failed to respond to other forms of therapy. The trial court entered an order authorizing treatment and, on motion by respondent's appointed counsel, directed the clerk to prepare and file a notice of appeal. The trial court appointed the Legal Advocacy Service, Illinois Guardianship and Advocacy Commission, to represent respondent on appeal. Court-appointed appellate counsel now moves to withdraw, pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and In re McQueen, 145 Ill. App. 3d 148, 495 N.E.2d 128 (1986). Respondent was served with the motion. On its own motion, this court granted respondent leave to file additional points and authorities on or before December 9, 1998. None have been filed. We have reviewed counsel's brief and thoroughly examined the record in accordance with the dictates of Anders. We

affirm the judgment of the trial court and grant counsel's motion to withdraw.

I. BACKGROUNDA.M.P. had some developmental disabilities prior to a seizure-like episode. After the episode, her condition worsened. She became noncommunicative and her ability to function in daily life deteriorated. At times her behavior was manic; at other times, catatonic. A.M.P. did not respond to trials of various medications. She was admitted to an inpatient facility when her behavior made it impossible for her parents to care for her at home. Eventually, Dr. Timothy Roberts suggested ECT, in view of the ineffectiveness of medications and the prospect of long-term institutionalization if her condition did not improve.

Her parents brought an emergency petition pursuant to the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/1-100 et seq. (West 1996)), seeking court approval of their consent to the administration of ECT upon A.M.P. Recognizing that the statutory provision pertaining to ECT upon minors or persons subject to guardianship (405 ILCS 5/2-110 (West 1996)) has been held unconstitutional (In re Branning, 285 Ill. App. 3d 405, 674 N.E.2d 463 (1996)), the parents brought this action "to fully protect the due process rights of [A.M.P.]."

In the absence of statutory authority governing the administration of ECT to a minor, the trial court stated its intention to follow the procedures applicable to the authorization of involuntary treatment upon an adult (405 ILCS 5/2-107.1 (West 1996)).

Roberts testified at the first hearing that he had treated 40 to 50 patients with ECT. The youngest of these was 19 years old. He agreed with counsel for A.M.P. that considerable controversy exists within the psychiatric profession regarding ECT. Some consider it "barbaric." Roberts further testified that he had examined A.M.P. and reviewed her medical records. She was admitted to Carle Pavilion for an acute psychotic episode. A "thorough medical and neurological workup" did not reveal a cause, such as a brain tumor or metabolic imbalance, for this episode. Because he was unable to identify a cause, he diagnosed her condition as psychosis, not otherwise specified.

A.M.P.'s medical history revealed that she had been treated for an unexplained seizure approximately 18 months earlier. She was placed on anticonvulsive medication and returned to school. Several months later, she "became mute and catatonic, [she] would not move, would not talk." Treatment with antipsychotic medication helped for a time, but then her condition deteriorated. She became agitated and unable to care for herself. Her parents admitted her to Carle Pavilion out of fear that "if she escaped or got out on her own *** she would probably get into a dangerous situation." By the time of the hearing, however, A.M.P. had returned to her parents' home. Roberts suggested ECT because it "can be helpful for some patients when medication does not help" and because the risk, when compared to the potential benefit, is "minimal."

Counsel for the parents asked Roberts if A.M.P. is able "to make reasonable decisions about her treatment." Roberts stated that she is not. The trial court sustained the objection of the guardian ad litem (GAL) that this is not an issue when the respondent is a minor.

Roberts then explained, in detail, the ECT procedure and the anesthesia that is employed. He stated that side effects can include headache, dizziness, or confusion. A patient with a cardiac condition or a brain tumor faces greater risks. ECT causes a temporary increase in blood pressure that must be monitored by the anesthesiologist. With regard to A.M.P., he hoped that ECT would "snap[] [her] out of this psychotic state that she's been in." If she does not improve, she will eventually be institutionalized. In addition, side effects of continued treatment with antipsychotic medication include "drooling, muscular side effects, [and] tardive dyskinesia, *** a chronic involuntary muscle movement of the tongue and facial muscles." This condition can affect respiration, leading to choking and pneumonia. Roberts concluded that the potential benefits of ECT outweigh the potential for harm to A.M.P.

Cross-examination of Roberts explored the potential risks of ECT and the dearth of literature on the use of ECT on younger patients. He stated he knows of no other untried appropriate treatment for A.M.P.'s condition.

During the hearing, A.M.P. talked to herself and moved from chair to chair. At one point, the trial court noted for the record that she was sitting on the floor, talking. Roberts was on the stand at the time and was asked if A.M.P. was currently on medication. He stated that she was taking the "newest antipsychotic medication available." Later, A.M.P. "simply got up and came up onto the bench."

Upon motion of counsel for A.M.P., the trial court appointed an expert, Dr. Robert Chapman, to assess her condition and make a recommendation. The hearing was continued to obtain the evaluation and to allow for a sufficient trial of A.M.P.'s newest medication.

When the hearing resumed, Chapman's written report was admitted into evidence. Chapman agreed substantially with Roberts, but recommended the possibility of increased intracranial pressure be investigated by spinal tap or ophthalmologic examination prior to the administration of ECT. He further recommended a trial of antimanic medication.

Roberts returned to the stand and responded to Chapman's recommendations. He stated that A.M.P. had already been evaluated for increased intracranial pressure by neurological and ophthalmological examinations and that further examination would he conducted prior to ECT. He also thought that antimanic medication had been tried before he began treating A.M.P. Her father confirmed this fact.

Both parents testified regarding A.M.P.'s condition and their understanding of the risks and benefits of ECT. Both parents expressed their consent for the treatment.

The trial court denied several motions made on A.M.P's behalf, including a motion for a directed verdict on the basis that section 2-107.1 of the Code, by its terms, does not apply to minors and a motion for summary judgment arguing that section 2-107.1 is unconstitutional. Counsel for the parents stated that even in the absence of a statute governing this situation, they had a common law right to consent to medical treatment for their daughter. Counsel for A.M.P. agreed that, absent a statute governing administration of ECT to minors, the parents' common law right to consent would govern.

The trial court's order states that A.M.P. is a minor and, by definition, is not competent to give informed consent for treatment. In any event, the order notes, she has expressed no opinion on the subject of ECT. The parents have given their informed consent. However, the trial court continued, because of concerns for A.M.P.'s liberty interests, her parents' consent to ECT should be examined in light of the guidelines of section 2-107.1 of the Code. The trial court found clear and convincing evidence that the guidelines were met and made a specific factual finding with regard to each standard contained in section 2-107.1. The order authorizes up to 12 ECT treatments, within a period of 90 days, to be administered by Roberts.

The treatments have not been administered due to a stay pending this appeal.

II. ANALYSIS

A. Lack of Statutory Authority

Section 2-110 of the Code was previously titled "Electro-convulsion therapy--Psychosurgery--Consent." 405 ILCS 5/2-110 (West 1996). In Branning, this court held:

"[T]the second paragraph of section 2-110, on its face, violates the due process clauses of the United States Constitution (U.S. Const., amend XIV,