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Rule 23 order filed
March 11, 2004;
Motion to publish granted
April 20, 2004

The respondent-appellant, Margaret S., had resided in a nursing home since May 2000. In mid-July 2003, she was transferred to Gateway Regional Medical Center (Gateway) withdiagnoses of dementia and psychosis.

On July 21, 2003, psychiatrist Dr. Narishma Muddasani filed a petition for theinvoluntary administration of psychotropic medication. The respondent countered with amotion for an independent medical examination. The circuit court granted the respondent'smotion for the independent examination but denied her motion to continue the hearing on thepetition for involuntary medication pending the outcome of the independent examination and,immediately following the hearing, granted the petition. The respondent appeals the orderallowing involuntary medication. The State has filed a confession of error. We reverse theorder as manifestly erroneous. In re John R., 339 Ill. App. 3d 778, 781, 792 N.E.2d 350, 353(2003).

The petition for involuntary medication sought to treat the respondent with Risperdal,Lexapro, Haldol, and Prozac. The petition alleged that the respondent had become disorientedas to time and place and that she was delusional because she believed that people were tryingto harm her and would not allow the nursing staff to touch her. She had made vague threats tostaff members. The petition alleged that the administration of the designated drugs wouldreduce her confusion and paranoia and allow her to return to a nursing home.

On July 22, 2003, the respondent filed a motion to dismiss the petition on the basis thatit had not been served on the respondent's agent named in her power of attorney for health care. Also on that date, the respondent filed a motion for an independent examination pursuant tosection 3-804 of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS5/3-804 (West 2002)). The motion alleged that, given the potentially deadly side effects ofRisperdal when administered to elderly patients, counsel could not prepare an adequate defensewithout the aid of an independent expert.

The motion to dismiss and the petition for involuntary medication were consolidatedfor a hearing on July 24, 2003. Prior to the taking of testimony, the respondent's counselwithdrew his motion to dismiss because the respondent's agent had been given actual noticeand was present at the proceeding. Counsel then called the court's attention to his motion foran independent medical examination and requested a continuance of the hearing until theexamination was completed. The court denied the continuance, noting the respondent'sadvanced age, 95, and the Code's interest in expediting petitions for involuntary medication.

Dr. Muddasani testified that when admitted to Gateway, the respondent had beenextremely suspicious and paranoid and afraid that people were going to attack her. She pickedfights and assaulted staff when they tried to help her. She had also experienced feelings ofhelplessness, worthlessness, dementia, and depression. These symptoms had persisted forapproximately two months. She had been treated with an antidepressant, Celexa, but the doctoropined that Celexa would not treat psychosis or dementia. The doctor believed that treatmentwith Risperdal would decrease or eliminate the paranoia, suspiciousness, and aggressionexhibited by the respondent; an alternative to Risperdal would be Haldol. The doctor admittedthat there were risks or dangers with respect to all four of the medications sought. Risperdalcould precipitate a stroke in elderly patients. Furthermore, it increased the chance of diabetes,weight gain, extrapyramidal symptoms like tardive dyskinesia (involuntary twitching of the faceand the tongue), and cardiac death. Haldol could produce "cardiac irregularities." On directexamination the doctor was queried:

"Q. And well-does she have any current condition that you are aware of thatwould put her at an extraordinary risk of harm from any of these medications?

A. In considering her age and being 95, the Risperdal, it does put her at a highrisk for vascular accident."

Given the potentially deadly side effects of the medications, the doctor opined that hestill believed that the intended benefits of the treatment outweighed the dangers to therespondent because she could be given the smallest doses possible, "considering her age andfrail status." A small dosage would consist of up to 2 milligrams per day of Risperdal, althoughthe doctor admitted that the petition sought a dosage of up to 16 milligrams per day, but he didnot foresee that amount being administered. On cross-examination, the doctor admitted thatthe older a person is, the higher the risk of precipitating vascular accidents, but he believed thatdeath by Risperdal was only a remote possibility. The doctor conceded that he could treat therespondent with alternate medications, but he stated that those drugs would have a sedativeeffect on the respondent; they could cause her to fall and break her bones, so he did not wantto prescribe them. Dr. Muddasani was the sole witness at the hearing.

At the conclusion of the hearing, the circuit court granted the petition for involuntarymedication and granted the respondent's motion for an independent examination. The orderallowing the independent examination directed that a psychiatrist who had not been involvedin the respondent's treatment should determine whether the respondent was truly psychotic andwhether Risperdal was the best choice as a primary treatment for the elderly respondent. Thecourt noted that depending on the results of the independent examination, the respondent couldreopen the proofs. The court then stayed the administration of Risperdal for one week. Thiscourt stayed the administration of Risperdal and Haldol pending review.

The respondent now claims error in the State's failure to comply with section 2-102(a-5) of the Code (405 ILCS 5/2-102(a-5) (West 2002)). The statute provides that therespondent's substitute decision maker, if any, shall be provided with the same writteninformation that is required to be presented to the respondent in writing. 405 ILCS 5/2-102(a-5) (West 2002). Here, the respondent asserts that her agent was not provided with informationabout the side effects, benefits, risks, and alternatives to the proposed treatment in writing andthat, therefore, the order allowing involuntary treatment should be reversed. However, we notethat although the respondent raised this claim below, she withdrew it on the eve of the hearingand, therefore, has forfeited review. Accordingly, we will not address it. See In re Miller, 301Ill. App. 3d 1060, 1073, 705 N.E.2d 144, 152 (1998).

Next, the respondent claims error in the circuit court's failure to continue the hearingon the petition for involuntary medication until such time the independent examination wascomplete. We believe the court abused its discretion in denying the continuance, and wereverse on this basis. See In re Nancy A., 344 Ill. App. 3d 540, 550, 801 N.E.2d 565, 575(2003).

Section 2-107.1(a-5) (405 ILCS 5/2-107.1(a-5) (West 2002)) governs procedures forinvoluntary treatment under the Code. The statute provides in pertinent part:

"(2) The court shall hold a hearing within 7 days of the filing of the petition. ThePeople, the petitioner, or the respondent shall be entitled to a continuance of up to 7days as of right. An additional continuance of not more than 7 days may be granted toany party (I) upon a showing that the continuance is needed in order to adequatelyprepare for or present evidence in a hearing under this Section or (ii) under exceptionalcircumstances. The court may grant an additional continuance not to exceed 21 dayswhen, in its discretion, the court determines that such a continuance is necessary inorder to provide the recipient with an examination pursuant to Section 3-803 or 3-804of this Act, to provide the recipient with a trial by jury as provided in Section 3-802 ofthis Act, or to arrange for the substitution of counsel as provided for by the IllinoisSupreme Court Rules. ***

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(4) Authorized involuntary treatment shall not be administered to the recipientunless it has been determined by clear and convincing evidence that all of the followingfactors are present:

(D) That the benefits of the treatment outweigh the harm." 405 ILCS 5/2-107.1(a-5)(2), (a-5)(4)(D) (West 2002).

Pursuant to section 3-804 of the Code, a respondent is entitled to secure an independentexamination by a physician, qualified examiner, clinical psychologist, or other expert of hischoice, and if unable to obtain an examination, the respondent may request the court to ordersuch an examination. 405 ILCS 5/3-804 (West 2002).

Here, under the Code, the respondent was entitled to a minimum seven-day extensionof time. Thereafter, the court had the discretion to grant another seven-day extension and,finally, another extension, not to exceed 21 days when an independent examination is soughtunder section 3-804. The respondent's motion for an independent examination was filed onlyone day after the petition for involuntary medication. Moreover, counsel sought such acontinuance because the result of the independent examination might provide him with adefense to the doctor's petition for involuntary medication. The court's denial of thecontinuance clearly prejudiced the respondent because it left her with little possibility ofcountering Dr. Muddasani's testimony with her own expert. At the hearing, the respondent'scounsel pointed out that the studies indicating that Risperdal caused strokes in elderly peoplewere of fairly recent origin, and therefore, the results of an independent examination may wellhave been helpful to the respondent. In a case where the potentially severe side effects ofHaldol and Risperdal such as cardiac arrest and stroke, euphemistically referred to by Dr.Muddasani as "vascular accidents", increase in direct proportion to a patient's age, theimportance of an independent examination becomes manifest. After all, the frail respondentwas 95 years old at the time of the hearing, and you cannot get much older than that. We alsonote that although the doctor testified that it was only remotely possible that the ingestion ofRisperdal could be fatal, he conceded that the respondent's advanced age placed her at high riskfor a vascular accident. Accordingly, we cannot find that the petitioner proved by clear andconvincing evidence that the benefits of the treatment outweighed the harm to the respondent. See 405 ILCS 5/2-107.1(a-5)(4)(D) (West 2002). Finally, the circuit court's remedy to allowleave to "reopen" if the independent examination "indicate[d] something" is dubious becausean order allowing the involuntary administration of psychotropic medication is a finaljudgment, not an interlocutory order subject to modification at any time. 405 ILCS 5/3-816(b)(West 2002).

We are mindful of the Code's interest in expediting petitions for involuntarymedication. But that interest must yield to the liberty interests of an incompetent patient facedwith the possibility of being forcibly medicated. See In re John R., 339 Ill. App. 3d at 785,792 N.E.2d at 356. Given the respondent's advanced age and the recentness of the studiesregarding the potentially severe side effects of the psychotropic drugs on the elderly, therespondent's motion for a continuance in order to prepare a defense should have been granted.

Reversed.

MAAG and KUEHN, JJ., concur.