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Docket No. 95927-Agenda 5-January 2004.

In re MICHELLE J. et al. (The People of the State of Illinois,
Appellee, v. Michelle J. et al., Appellants).

Opinion filed April 1, 2004.

JUSTICE RARICK delivered the opinion of the court:

Before us are two unrelated cases involving respondents admittedinvoluntarily to state-operated mental health facilities pursuant to theMental Health and Developmental Disabilities Code (the Code) (405ILCS 5/1-100 et seq. (West 2000). The cases were heard on the sameday by the same trial judge. In each instance, the court rejected challengesby the respondents' counsel that the State had failed to comply withsection 3-807 of the Code (405 ILCS 5/3-807 (West 2000)), whichrequires that certain testimony be presented before a person may be foundsubject to involuntary admission. The appellate court consolidated thecases and affirmed. 336 Ill. App. 3d 1026. We granted the respondents'petition for leave to appeal. 177 Ill. 2d R. 315. For the reasons thatfollow, we now affirm in part and reverse in part.

The pertinent facts are straightforward. The two respondents beforeus are known as Sam S. and Michelle J. At the time of the events givingrise to this appeal, Sam S. had already been determined to be a personsubject to involuntary admission under the Code and had been admitted,involuntarily, to a state-operated mental health facility by order of thecircuit court. In July of 2001, the State filed a petition pursuant to section3-813 of the Code (405 ILCS 5/3-813 (West 2000)) to extend Sam'sinvoluntary admission for an additional period.

Proceedings to extend involuntary admissions are subject to the sameprovisions of the Code as those governing initial involuntary admissions.405 ILCS 5/3-813(b) (West 2000). A hearing is to be conducted. See405 ILCS 5/3-702, 3-813 (West 2000). Pursuant to section 3-807 ofthe Code,

"[n]o respondent may be found subject to involuntaryadmission unless at least one psychiatrist, clinical social worker,or clinical psychologist who has examined him testifies in personat the hearing. The respondent may waive the requirement of thetestimony subject to the approval of the court." 405 ILCS5/3-807 (West 2000).

The hearing on the State's petition was conducted August 23, 2001,in Madison County. Sam was not present. The preceding month he hadbeen transferred to a different state-operated mental health facility inanother county. Although he could have requested a change of venuebased on the transfer (405 ILCS 5/3-800(a) (West 2000)), he did not.He likewise declined to travel back to Madison County to appear. Awritten waiver of Sam's right to be present at the hearing was filed by hisattorney (405 ILCS 5/3-806 (West 2000)). The validity of that waiverwas not challenged, and the matter went forward in Sam's absence.

During the course of the hearing, the State called only one witness totestify in person. She was Debra Ferguson, chief psychologist at the AltonMental Health Center, where Sam had been hospitalized prior to hisrecent transfer. Ferguson testified that she was "not directly involved in histreatment" and has "never been directly involved in his treatment."Ferguson did not meet with Sam personally for the purposes of thehearing. She told the court that she had the opportunity to interview himtwo weeks earlier, but that because "he was in a compromised conditionand was actually in restraints" at that time, she was unable to go forward.Her recollection was that the last time she had met with Sam personallywas six months earlier.

Although Ferguson was unable to examine Sam herself, Sam'scondition subsequently improved. According to Ferguson, a psychiatrist,a psychologist and a clinical social worker were all able to examine himprior to the hearing. None of those health-care professionals, however,were called by the State to substantiate its case. Instead, the State arguedfor continued involuntary commitment based solely on the strength of whatFerguson had discerned from her review of Sam's records andconversations with staff at the facility where he was hospitalized.

In opposing the State's case, Sam's attorney argued that becauseFerguson had not examined Sam herself, her testimony was not sufficientto meet the State's burden under section 3-807 of the Code (405 ILCS5/3-807 (West 2000)). The circuit court rejected that argument. Basedon Ferguson's conclusions, the court granted the State's petition, foundthat Sam was a person subject to involuntary admission, and ordered thathe continue to be held in a state-operated mental health facility.

Michelle J.'s case involved different circumstances from Sam's.Michelle was initially admitted to the Alton Mental Health Center on anemergency basis pursuant to section 3-600 of the Code (405 ILCS5/3-600 (West 2000)) based on a certification indicating that she wasmentally ill and required immediate hospitalization to protect herself andothers from serious harm. The hearing to determine whether Michelle wasa person subject to involuntary admission was conducted shortlythereafter, on the same day and before the same judge as in Sam's case.

As in Sam's case, the proceedings against Michelle were subject tosection 3-807 of the Code, which precludes involuntary admission "unlessat least one psychiatrist, clinical social worker, or clinical psychologist whohas examined [the respondent] testifies in person at the hearing." 405ILCS 5/3-807 (West 2000). To comply with section 3-807, the Statecalled Lenora Brown, a licensed clinical psychologist employed at theAlton Mental Health Center. Brown testified that she attempted tointerview Michelle the day before the hearing, but discontinued theinterview on the grounds that Michelle did not appear capable of making"an informed decision on whether or not to waive her rights." In contrastto State's witness in Sam's case, however, Brown did have personalknowledge of Michelle's condition. Brown knew Michelle, interacted withher during a group session conducted three days earlier, and served as aconsultant to her treatment team. Brown's assessment of Michelle wastherefore not limited to information she acquired secondhand throughMichelle's medical records and conversations with other staff.

Michelle was represented by the same attorney who representedSam, and he raised the same challenge to the sufficiency of the State'scase. He argued that Brown could not be considered to have examinedMichelle and that her testimony was therefore not sufficient to meet theState's burden under section 3-807 of the Code (405 ILCS 5/3-807(West 2000)). As it did in Sam's case, the circuit court rejected thatargument. Based on Brown's testimony, the court granted the State'spetition, found that Michelle was a person subject to involuntaryadmission, and ordered that she be held in a state-operated mental healthfacility.

Sam and Michelle each appealed. Their appeals presented a singlequestion: Did the State adequately comply with section 3-807 of theCode? The appellate court answered this question in the affirmative andupheld the circuit court's judgments. In so doing, it concluded that thestatute's requirement of testimony from a "psychiatrist, clinical socialworker or clinical psychologist who has examined [the respondent]" doesnot mean that the expert must have examined the respondent personally.The appellate court recognized that a personal interview with therespondent prior to a hearing for involuntary commitment is "highlydesirous," but found that such an interview is not absolutely required bythe Code where, among other things, the expert has examined therespondent's medical records and talked to "workers intimately involvedwith the respondent's day-to-day behaviors and conditions." 336 Ill. App.3d at 1031.

Whether section 3-807 of the Code may be satisfied based on thetestimony of an expert witness who has not personally examined therespondent presents a question of statutory construction, which we reviewde novo. See In re Mary Ann P., 202 Ill. 2d 393, 404 (2002). The issuehas been considered by our court before. We addressed the requirementsof section 3-807 of the Code in In re Barbara H., 183 Ill. 2d 482(1998). In that case, the State's sole expert had not conducted apsychiatric examination of the respondent. Rather, she formulated herdiagnosis of the respondent's condition based on review of therespondent's medical record's, conversations with the facility's staff,personal observations, and her past experience with respondent. See Inre Barbara H., 288 Ill. App. 3d 360, 363 (1997). On appeal, we heldthat because the expert had not personally examined the respondent inconnection with the current case and the respondent's present situation,the requirements of section 3-807 were not satisfied. Although the statutegave respondent the right to waive the requirement of testimony from anexpert who had examined her, subject to approval by the court, no suchwaiver had been made. Because the proceedings failed to comport withstatutory requirements, the judgments of the circuit court orderingrespondent's involuntary admission to a mental health facility andauthorizing the staff to administer psychotropic medication to her againsther will were reversed outright. In re Barbara H., 183 Ill. 2d at 497-98.

Under In re Barbara H., that portion of the appellate court'sjudgment pertaining to Sam's involuntary admission cannot be sustained.In the proceedings against Sam, as in In re Barbara H., the Statepremised its case exclusively on the testimony of an expert who had notconducted a personal examination of the respondent in connection with thecurrent proceeding and the respondent's present situation. In Sam's case,as in In re Barbara H., the statute was therefore not satisfied. Moreover,as in In re Barbara H., there was no waiver of the statutory requirements.

The appellate court attempted to distinguish In re Barbara H. on thegrounds that our opinion was unclear as to whether the expert there hadactually attempted to talk with the respondent. The appellate court'stheory was that if the record demonstrated that the expert made an effortto interview the respondent but was unable to do so due to therespondent's conduct or impaired condition, section 3-807 could besatisfied without a personal examination. Testimony of an expert based onpersonal observations, review of medical records and consultation withothers involved in the respondent's care would suffice. 336 Ill. App. 3dat 1031-32.

A threshold problem with the appellate court's analysis is that itoverlooks what took place in In re Barbara H. The psychiatrist whotestified for the State in that case did attempt to conduct a personalexamination of the respondent. In fact, she tried to perform a psychiatricexamination of the respondent three times. The reason she did not succeedis that the respondent refused to talk to her. Although we did not detailthese facts in our opinion, they were clearly set out in the appellate court'sdisposition (In re Barbara H., 288 Ill. App. 3d at 363) and were knownto us when we ruled as we did. Accordingly, In re Barbara H. cannot beread to permit recognition of an exception to the personal examinationrequirement based on the expert's inability to conduct a personalinterview.

A second problem with the appellate court's approach is that theexception it seeks to create is inapplicable to Sam's situation. Theappellate court was concerned about what could be done when therespondent's mental illness was such that verbal interrogation wasimpossible. Sam's illness was not that severe. Ferguson, the State'sexpert, worked at a different institution than the one where Sam was beingheld at the time of the hearing. The reason she did not examine himpersonally was that he was restrained and not in a position to beinterviewed when her schedule allowed her to travel there to see him. Itwas not because he was incapable of being interviewed prior to thehearing. To the contrary, the record showed that after Ferguson's visit, apsychiatrist, a psychologist and a clinical social worker were all able toexamine Sam in time for the hearing.

Had the State called one of those three other experts, therequirements of section 3-807 would have been met. The State offers noexplanation as to why it chose to rely on someone else instead. We inferthat it was simply a matter of administrative convenience. Fergusonworked in the county where the hearing was held. The other experts didnot. Under these circumstances, there is no legitimate basis for deviatingfrom section 3-807's explicit requirements. Statutory mandates cannot becompromised simply to accommodate the convenience of the State'switnesses.

Our conclusion that the expert who testified in Sam's case did notmeet the requirements of section 3-807 is further supported by basicprinciples of statutory construction. Examining a person's medical records,which is what Ferguson did, is not the same as examining the person,which is what the statute specifies. If the General Assembly thought thatreviewing a respondent's medical charts and interviewing other staffmembers were an adequate substitute for an actual examination, it couldhave included such language in the statute. It did not. We cannot rewritea statute under the guise of statutory construction or depart from the plainlanguage of a statute by reading into it exceptions, limitations, or conditionsnot expressed by the legislature. In re Mary Ann P., 202 Ill. 2d at 409.

These principles apply with particular force here. Section 3-807 ofthe Code is an integral part of the mechanism established by the GeneralAssembly for involuntary admission of individuals requiring mental healthservices. Because involuntary administration of mental health servicesimplicates fundamental liberty interests, statutes governing the applicableprocedures should be construed narrowly. In re Barbara H., 183 Ill. 2d482, 498 (1998).

We note, moreover, that the statutory provisions governing courthearings under the Code have been amended by the General Assembly onseveral occasions since our decision in In re Barbara H., 183 Ill. 2d 482(1998). In revisiting the Code's requirements, the legislature has made norevisions to section 3-807. We therefore presume that it has acquiescedin our construction of the law. For us to change course now would betantamount to an amendment of the statute itself. Wakulich v. Mraz, 203Ill. 2d 223, 233-34 (2003).

As a final basis for justifying the result it reached, the appellate courtfound it noteworthy that respondents' counsel had not contended that hisclients had not been found subject to involuntary admission by clear andconvincing evidence. 336 Ill. App. 3d at 1032. The court's invocation ofthe "clear and convincing" standard was a reference to section 3-808 ofthe Code (405 ILCS 5/3-808 (West 2000)), which sets for the burdenof proof the State must meet. It provides:

"No respondent may be found subject to involuntaryadmission unless that finding has been established by clear andconvincing evidence."

Although respondents' lawyer did not specifically invoke the languageof this statute, he clearly argued in the circuit court that the State had notmet its burden of proof. His position was straightforward andunambiguous. To meet its burden of proof under the Code, the State mustcall an expert who meets the requirements of section 3-807. The expertwitnesses called by the State were not qualified to testify under section3-807. Because those witnesses were the only ones to give evidence onthe State's behalf, the State presented no one who was qualified under thestatute. Without the testimony of a qualified witness, the State "ha[d] notmet its burden." Counsel's failure to invoke the "clear and convincing"standard is of no consequence. If the State adduced no valid evidentiarybasis for the relief it sought, it necessarily follows that it failed to establishits case by clear and convincing evidence. The only way to avoid thisconclusion is by holding that the State's burden can somehow be satisfiedin the absence of testimony from a qualified expert pursuant to section3-807. No such conclusion is possible. As we held in In re Brown andas we have reiterated in this disposition, a judgment ordering involuntarycommitment cannot be affirmed in the absence of testimony that comportswith section 3-807's requirements.

Although the appellate court's judgment regarding the involuntaryadmission of Sam S. cannot be sustained, we believe that the courtreached the correct result with respect to Michelle J. The witness calledby the State in Michelle's case did testify that she had been unsuccessfulin her attempt to interview Michelle the day before the hearing. Unlike theexpert in Sam's case, however, she was directly involved in therespondent's care. She testified that she served as a consultant toMichelle's treatment team and was able to meet with Michelle personallyin a group session. The session related to the psychiatric issues that gaverise to the involuntary admissions process and occurred while that processwas underway. From the materials before us, it appears that the sessiontook place within 72 hours of the hearing. We do not know the length ordepth of the session, but we see nothing in the materials before us tosuggest that it was not adequate to enable the expert to draw an informedjudgment as to Michelle's psychiatric condition at the time of the hearing.Under these circumstances, we cannot say that the requirements of section3-807 were not satisfied.

For the foregoing reasons, the judgments of the circuit and appellatecourts are reversed with respect to the proceedings against Sam S. Theyare affirmed with respect to the proceedings against Michelle J.

Judgments affirmed in part

and reversed in part.

JUSTICE THOMAS, specially concurring:

I agree with the result in these consolidated cases. However, I cannotagree with the majority that this court's decision in Barbara H. can besalvaged in its entirety. In my opinion, we must repudiate two paragraphsof that opinion if we are going to have a workable rule for the lower courtsto follow.

The principal holding in Barbara H. was that the public defender hadnot validly waived Barbara H.'s right to be present at the involuntarycommitment hearing. Barbara H., 183 Ill. 2d at 494-96. After so holding,this court noted some additional problems with the involuntarycommitment hearing. One of the problems was that the court did notbelieve that the State had supported its case with the testimony of apsychiatrist who had examined Barbara H.:

"The State likewise had no information regarding whetherBarbara H.'s attendance would pose a risk, substantial orotherwise, of serious physical or emotional harm to her. Indeed,the State had no direct evidence of any facet of Barbara H.'scondition. Its entire case was predicated on the testimony of aphysician who had not personally examined her. Although thedoctor had treated Barbara H. in the past, he⁽¹⁾ admitted on directexamination that he had not had an opportunity to perform apsychiatric examination on her in connection with this case andher present situation.

Section 3-807 of the Mental Health Code expressly provides:

'No respondent may be found subject to involuntaryadmission unless at least one psychiatrist, clinical socialworker, or clinical psychologist who has examined himtestifies in person at the hearing. The respondent may waivethe requirement of the testimony subject to the approval of thecourt.' 405 ILCS 5/3-807 (West 1996).

Because the sole witness to testify for the State had notexamined Barbara H., this statute was not satisfied. In addition,the requirement of the testimony was not waived." Barbara H.,183 Ill. 2d at 497.

In my view, the psychiatrist's testimony in Barbara H. was sufficientto satisfy the statutory requirement of an examination, and this court erredin concluding otherwise. Dr. Husain's testimony, as detailed in theappellate court opinion (Barbara H., 288 Ill. App. 3d at 363-64), showsthat she was intimately familiar with Barbara H.'s condition. Barbara H.had been her patient for a six-month period that ended three monthsbefore the hearing. Importantly, Dr. Husain attempted to conduct a currentexamination of Barbara H. on three separate occasions, and each timeBarbara H. refused to talk to her. Thus, Dr. Husain's diagnosis of therespondent "was based on her review of the medical records,conversation with the staff, personal observations, and her past experiencewith the respondent when Barbara H. was her patient for a six-monthperiod ending in May 1996." Barbara H., 288 Ill. App. 3d at 363.Neither in Barbara H. nor in the current opinion does this court explainwhat else it would have required this psychiatrist to have done. This isclearly not like the situation in Sam S., in which the State relied uponsomeone who had never been involved with Sam's treatment and whoonly attempted to examine him one time. Moreover, in Sam S. theevidence was that the doctor could not examine him because he was inrestraints at the time. In Barbara H. the evidence was that a doctor whohad been intimately involved in the respondent's treatment attempted tospeak with the respondent on three occasions and the respondent refusedto talk to her. Is the majority holding that a respondent can avoidinvoluntary commitment simply by refusing to speak with the doctorassigned to examine him or her?

When the disposition of Barbara H.'s case is compared withMichelle J.'s, it will be difficult for the lower courts to discern what ourrule is with respect to this issue. In Barbara H. we held insufficient thetestimony of a doctor who had personally treated the respondent for sixmonths and had updated her knowledge of the case through conversationswith staff, personal observations, and a review of medical records.Further, she attempted three examinations of the respondent, but therespondent refused to speak with her. By contrast, in Michelle J.'s casewe hold sufficient the testimony of a psychiatrist who was merely aconsultant to Michelle J.'s treatment team and who had met with her in agroup session. The doctor attempted to interview Michelle J. the daybefore the hearing, and Michelle J. refused to speak with her. As themajority admits, we know nothing about the group session:

"We do not know the length or depth of the session, but we seenothing in the materials before us to suggest that it was notadequate to enable the expert to draw an informed judgment asto Michelle's psychiatric condition at the time of the hearing."Slip op. at 8.

Because the group session occurred within 72 hours of the hearing, themajority holds it sufficient to allow the testifying doctor to give an informedopinion as to Michelle J.'s condition. Slip op. at 8.

Several problems are apparent with this approach. First, the majorityacknowledges that "[w]e cannot rewrite a statute under the guise ofstatutory construction or depart from the plain language of a statute byreading into it exceptions, limitations, or conditions not expressed by thelegislature." Slip op. at 6. If this is true, how can we write a 72-hour timelimit into the statute? Second, how can we say that an observation of therespondent in a group session by a consultant to the respondent'streatment team (Michelle J.) is an "examination" for purposes of thestatute, but a review of medical records, conversations with staff, andpersonal observations by a treating physician intimately familiar with therespondent's treatment (Barbara H.) is not? Third, how can one attemptto speak with the respondent be sufficient to satisfy the statute while threeattempts are insufficient? I do not see how the lower courts will be able todiscern a workable rule from these opinions.

Both in Barbara H. and in Michelle J., a physician familiar with therespondent's case attempted a personal interview with the respondent,and the respondent refused to speak with the doctor. In each of thesecases we should say that the State satisfied the requirement of anexamination. In my opinion, no rule is workable other than one thatrequires the doctor to attempt a personal interview, but if the respondentrefuses, then the statutory examination may be based on discussions withtreating staff and a review of medical records. The majority's attempt toforge a workable rule out of this case and Barbara H. will causeconfusion for the lower courts and result in wholly illogical decisions. Wemade a mistake in Barbara H., and we owe it to the courts to fix it.

1. According to the appellate court opinion, the doctor was a woman. See In re Barbara H., 288 Ill. App. 3d 360, 363 (1997).