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Docket No. 96773-Agenda 4-September 2004.

In re ROBERT S. (The People of the State of Illinois, Appellee, v. Robert S., Appellant).

Opinion filed November 18, 2004.

JUSTICE RARICK delivered the opinion of the court:

Respondent, Robert S., was found unfit to stand trial on a chargenot specified in the record. He was admitted to the Elgin MentalHealth Center (EMHC). Subsequently, respondent's treatingpsychiatrist filed a petition seeking the involuntary administration ofpsychotropic medication pursuant to section 2-107.1 of the MentalHealth and Developmental Disabilities Code (Code) (405 ILCS5/2-107.1 (West 2000)). After a two-day hearing, in whichrespondent represented himself, the circuit court of Kane Countygranted the petition. Respondent appealed, challenging, inter alia, thecircuit court's decision to appoint, as an "impartial medical expert"pursuant to the "independent examination" provisions of section3-804 of the Code (405 ILCS 5/3-804 (West 2000)), a person whowas not qualified to conduct the examination. Respondent alsocontended that (1) section 2-107.1 of the Code "was never intendedto be applied to non-dangerous pretrial detainees," (2) the applicationof section 2-107.1 deprived him of his constitutional right to a fairtrial, and (3) reversal was warranted because the attorney in hispending criminal case was not notified of the hearing on the petition.The appellate court rejected these and other arguments. 341 Ill. App.3d 238. We allowed the respondent's petition for leave to appeal (177Ill. 2d R. 315), and allowed the Mental Health Association of Illinoisand the Mental Health Project of the University of Chicago LawSchool's Mandel Legal Aid Clinic to file a brief as amici curiae insupport of appellee.

Before this court, respondent contends that the appellate courterred in holding that (1) section 2-107.1 of the Code wasconstitutionally applied to him, a pretrial detainee who had been foundunfit to stand trial, (2) he was not deprived of his right to due processof law where the independent examination guaranteed by statute wasperformed by an unlicensed intern with only a master's degree inpsychology, and (3) he had no due process right to have notice of theforced-treatment action provided to his criminal defense attorney. Webegin our review with a detailed recitation of pertinent facts.

BACKGROUND

On November 19, 2001, respondent's psychiatrist, Dr. RomuloNazareno, filed a petition seeking to involuntarily administerpsychotropic medication to respondent. The allegations of the petitiontracked the requirements of section 2-107.1(a-5)(4) of the Code (405ILCS 5/2-107.1(a-5)(4) (West 2000)), which provides in pertinentpart as follows:

"(4) Authorized involuntary treatment shall not beadministered to the recipient unless it has been determined byclear and convincing evidence that all of the following factorsare present:

(A) That the recipient has a serious mental illness ordevelopmental disability.

(B) That because of said mental illness ordevelopmental disability, the recipient exhibits any one ofthe following: (i) deterioration of his or her ability tofunction, (ii) suffering, or (iii) threatening behavior.

(C) That the illness or disability has existed for a periodmarked by the continuing presence of the symptoms setforth in item (B) of this subdivision (4) or the repeatedepisodic occurrence of these symptoms.

(D) That the benefits of the treatment outweigh theharm.

(E) That the recipient lacks the capacity to make areasoned decision about the treatment.

(F) That other less restrictive services have beenexplored and found inappropriate.

(G) If the petition seeks authorization for testing andother procedures, that such testing and procedures areessential for the safe and effective administration of thetreatment."

The petition in this case specifically alleged that, because of his mentalillness, respondent had exhibited a deterioration of ability to function,suffering, and threatening behavior. Dr. Nazareno requestedauthorization to administer Risperidone-a medication respondent hadpreviously taken, briefly, without noticeable side effects-or,alternatively, Haldol, Haldol Deconate, and Cogentin. Nazareno alsosought permission to conduct testing to monitor respondent's reactionto the medication.

On November 26, 2001, the circuit court held a competencyhearing pursuant to respondent's request to represent himself. At thattime, the court denied respondent's request. Respondent filed amotion to reconsider. On November 30, 2001, respondent appearedin court with appointed counsel from the Legal Advocacy Service ofthe Illinois Guardianship and Advocacy Commission for a hearing onpending matters. The circuit court denied respondent's motion toreconsider, but granted his request for an independent evaluationpursuant to section 3-804 of the Code (405 ILCS 5/3-804 (West2000)). However, rather than appoint the psychiatrist who hadpreviously conducted independent examinations of respondent, thecourt, pursuant to the cost-conscious request of the State, appointedthe Kane County Diagnostic Center to perform the evaluation.Respondent's counsel objected, noting: "Everyone associated with theDiagnostic Center is a psychologist and not a psychiatrist andtherefore does not have the expertise when it comes to medication. Soevery time we go to the Diagnostic Center, we're starting behind the8-ball because of that very thing."

The circuit court acknowledged:

"Although Mr. Rose is right, I suppose what appears to be onpaper in the-on the way I make the decisions on these things,I don't think that I would really say psychiatrist versuspsychologist; and therefore you're behind the 8-ball. I look atthe issues and what the facts are and rule accordingly."

The court persisted in its decision to appoint the Kane CountyDiagnostic Center.

At a pretrial conference on January 4, 2002, the circuit courtrevisited the issue of self-representation. Noting "representations" thatrespondent had represented himself ably in the past, the court reversedits prior ruling, and allowed respondent to proceed pro se.

Hearing in this matter commenced on January 18, 2002. TheState's first witness was Dr. Nazareno.

Nazareno diagnosed respondent with paranoid schizophrenia. Hetestified that respondent's symptoms included hallucinations,delusions, sleeplessness, irritability, and an overall deterioration in theability to function. For instance, respondent complained of sleepdeprivation as a result of auditory hallucinations. Moreover,respondent suffered delusions. He believed that the government hadimplanted a microchip in his brain in an effort to read his mind.Respondent claimed that EMHC staff and patients were sendingmessages to a "mind reader" by actions such as rubbing their chins oradjusting their eyeglasses. In addition, respondent threatened to kill anEMHC patient who respondent believed was having a sexualrelationship with women intended for respondent.

Dr. Nazareno testified that respondent's symptoms had subsidedwhen he was medicated on a previous occasion with Risperidone.However, once the medication order expired, respondent againexperienced auditory hallucinations, sleep deprivation, and delusionalthinking. It was at that time that respondent threatened to kill amember of the EMHC staff.

Nazareno recommended administering Risperidone to respondentbecause, in the past, he had responded well to the drug without sideeffects. Nazareno suggested, however, that higher doses might beindicated. As alternatives, Nazareno recommended Haldol, HaldolDeconate (injectable), and, for side effects, Cogentin. Nazarenotestified that Risperidone has fewer side effects than Haldol.According to Nazareno, Risperidone can cause dizziness, light-headedness, seizure, nausea, vomiting, muscular rigidity, difficultyswallowing, constipation, tardive dyskinesia, and neurolepticmalignant syndrome. He did not elaborate on the incidence of thoseside effects.

Nazareno acknowledged that Haldol has more severe side effectsthan Risperidone. He did not specify what those side effects might be.What is clear from his testimony is that Haldol would be the drug ofchoice if respondent refused to take Risperidone. Nazareno admittedthat he had no way of knowing if respondent would have an adversereaction to Haldol.

Nevertheless, Dr. Nazareno opined that the benefits ofadministering a psychotropic medication would outweigh the harm.He stated that respondent lacked the capacity to make a reasoneddecision about potential side effects and benefits of the treatment.According to Dr. Nazareno, respondent's psychosis was the reason hecould not make a knowledgeable decision whether to take themedication. Nazareno had tried less restrictive treatments, such ascounseling and group therapy, but he deemed them ineffective withoutmedication.

On cross-examination, Dr. Nazareno admitted that respondenthad never threatened him and that he had never personally witnessedrespondent threaten others. Nazareno also acknowledged that, duringthe court proceeding, he did not see a deterioration in respondent'sfunctioning, and he noted that respondent did not exhibit his usualsymptoms, such as talking to himself. However, Nazareno stated thatrespondent's behavior, and the way in which he asked questions,showed some paranoia and delusions. For instance, duringquestioning, respondent insinuated that Nazareno must also haveheard voices. Nazareno pointed out that there are times during whichan afflicted individual can contain delusions by focusing on a task.

The State next called Lesley Kane, an intern at the Kane CountyDiagnostic Center (KCDC). Kane conducted the court-ordered,independent examination of respondent. Kane's examination consistedof interviewing respondent for 60 to 90 minutes, talking torespondent's case worker, and reviewing two to three years ofrespondent's records. Noting that the "witness ha[d] been qualified asan expert" in a previous case, the circuit court qualified Kane as anexpert over respondent's objection.

Citing symptoms similar to those identified by Nazareno, Kanediagnosed respondent with paranoid schizophrenia. With respect towhether respondent had exhibited a deterioration of his ability tofunction, suffering, or threatening behavior, Kane stated thatrespondent had indeed become increasingly tense and agitated,verbally aggressive, and more threatening in the months preceding thehearing. Moreover, his sexual preoccupations had increased, andEMHC staff had noted an increase in his use of profanity. Kanefurther testified that respondent's illness has existed for a periodmarked by the continuing presence of symptoms, noting thatrespondent has had a history of delusions dating back to the 1970s.Without elaboration, Kane stated her opinion that the benefits ofpsychotropic medication would outweigh the harm. Kane noted thatrespondent's behavior posed a risk to himself and to others, and thatany side effects of the medication could be dealt with effectively. Kanedid not address the nature or likelihood of side effects that mightresult from forced administration of psychotropic medication. Kaneopined that respondent's suffering, the deterioration of his ability tofunction, and his violent and threatening behavior would decrease withmedication.

Kane also concluded that respondent lacked the capacity to makea reasoned decision about psychotropic medication. Respondent toldher he did not need psychotropic medication because he did not havea mental illness. When she spoke with him, he was evasive andavoided any discussion of his inability to sleep, hallucinations, ordelusions. According to Kane, respondent was unaware of the severityof his illness, which is typical of people diagnosed with schizophrenia.When she asked him if he ever heard voices other people did not hear,he responded, "I believe other people hear the voices as well."

Regarding less restrictive alternatives, Kane noted thatrespondent had been offered psychosocial therapy; however, becauserespondent lacked insight into his illness, "it doesn't seem as thoughthat alone is going to be helpful." Kane also noted that, in individualswith schizophrenia, therapy is more often augmentation to medication.Kane opined "to a reasonable degree of psychological certainty" thatrespondent met the criteria for utilization of psychotropic medication.

On cross-examination, Kane admitted that, during herindependent examination of respondent, she did not observerespondent suffering from delusions or hallucinations. She alsoacknowledged that respondent was not exhibiting such symptoms atthe hearing.

Kane conceded that she had never done an evaluation withoutsupervision. She stated that she had been supervised in her evaluationof respondent, though there is nothing in the record to reveal thenature or extent of that supervision. In fact, she admitted that asupervisor was not present when she conducted her examination ofrespondent and did not review respondent's charts or interviewanyone with pertinent information. Kane stated that a licensedpsychologist "has to assist" in a fitness examination, "but for aninvoluntary medication evaluation, that is not a requirement." Whenrespondent asked why, Kane replied, "I didn't develop the law. I don'tknow." Kane did not cite "the law" to which she referred.

The State recalled Dr. Nazareno. Nazareno testified thatrespondent does not have the capacity to make a reasoned and rationalchoice regarding whether he needs medication. Nazareno noted thatrespondent does not believe he is ill. Nazareno added thatrespondent's judgment is so impaired by his illness that he sees onlythe risks, and not the benefits, of the medication.

Under cross-examination, Nazareno acknowledged thatrespondent understood the potential severity of the possible sideeffects of the medications proposed. He admitted that respondent wasproceeding in a "logical" and "goal-oriented" manner in his cross-examination. However, Nazareno persisted in his opinion thatrespondent did not have the capacity to make a decision as to whetherhe should take psychotropic medication. Respondent continued:

"Q. So, you're saying I am logical, coherent, and goal-oriented, and they [psychotropic drugs] were prescribed fora period of three months a couple years ago, but you'resaying I wouldn't know what the benefits are?

A. Yes. Even though I explain to you, you don't take it.You don't understand."

Kelli Childress, a former assistant State's Attorney, testified thatshe first met respondent in 1999 when she was assigned to a hearingin which respondent was involved. On or about October 31, 2001,Childress received a telephone call from respondent. Respondent toldChildress that he remembered her from the 1999 hearing and he hadbeen thinking about her ever since. Respondent accused Childress ofhelping the government with a scheme to read his mind. Respondentbelieved that he and Childress were supposed to be together and thatthe government had indicated to him that Childress felt the same way.Respondent asked Childress if she would help him get out of EMHCso they could be together. Childress told respondent she was involvedwith someone else and the information he had was incorrect. Childressstated that she felt threatened during the conversation.

Respondent called Childress again on December 31, 2001.According to Childress, the tone of this conversation was lessaccusatory and more romantic. Respondent told Childress she wasbeautiful, he had feelings for her, and the government had informedhim that they were supposed to be together. Respondent stated thathe thought about marrying Childress, having children, and moving toCalifornia. Respondent told Childress that the government hadinformed him that she was romantically involved with other patientsat EMHC and with a player for the Chicago Bears.

Childress testified she was familiar with respondent's case andknew why he was at EMHC. She was afraid that he could becomeviolent if he believed she was part of a government scheme to read hismind. As a result, after both calls, Childress contacted the State'sAttorney's office and the court liaison at EMHC. In addition,following the first call, she contacted local police. Childress did nothear from respondent after the second call. On cross-examination,Childress admitted that respondent did not specifically threaten her.

Mark Thomas, a licensed clinical social worker at EMHC,testified that he was respondent's primary therapist. Thomas statedthat respondent's psychiatric diagnosis was paranoid schizophrenia.According to Thomas, respondent's condition had been deterioratingover the months preceding the hearing, with increased agitation,verbal outbursts, and verbal aggression.

Thomas testified that respondent believed the voices he heardwere caused by a chip implanted by the government. Respondentthought the chip enabled the government to read his mind. On twooccasions in the three months prior to the hearing, respondent becameagitated with Thomas because respondent believed Thomas was"signaling the mind readers" by rubbing his limbs. A third incidentoccurred when Thomas sided with a technician who was involved ina dispute with respondent. At that time, respondent cursed at Thomas.Thomas considered respondent's behavior during the third incident toconstitute a threat.

Thomas testified that respondent admitted he suffered fromhallucinations and delusions. The hallucinations and delusions centeredon female celebrities, but had included staff at EMHC. In addition,respondent told Thomas that he wanted to have a relationship withChildress. Respondent also told Thomas that his conversations withChildress had gone well and that she had been receptive.

Thomas further stated that respondent believed certain womenhad been "reserved" for him by the mind readers. Respondent becameverbally abusive when he believed those women had ignored him orhad been having relationships with other EMHC patients. Respondentconfronted one patient whom he believed was having a sexualrelationship with one of his "reserved" women.

Thomas opined that respondent suffered as a result of hearingvoices. Thomas believed that respondent's ability to function haddeteriorated in the three months prior to the hearing. Thomas alsostated that, of his 36 patients, respondent posed the highest risk.Thomas stated that respondent was "in the upper echelon" of patientswho frightened him.

On cross-examination, Thomas testified that respondent had a"remarkable ability" to contain his psychosis. Nevertheless, he thoughtthat respondent had exhibited evidence of mental illness in thecourtroom. As examples, Thomas noted respondent's allusions togovernment mind readers and his claim that the government hadimplanted a chip in his body.

The State next called respondent as a witness. Respondentobjected. The trial court sustained respondent's objection on the basisthat respondent was at EMHC because he had been found unfit tostand trial in an underlying criminal proceeding. The State then rested.Respondent requested two weeks to subpoena his witnesses, and thecourt continued the matter until February 1, 2002.

When court reconvened, respondent called as his first witnessDenise Dojka, a clinical psychologist at EMHC and respondent'spsychological therapist. Dojka stated that respondent suffered fromparanoid schizophrenia. She had never seen respondent participate inany violent behavior. Nevertheless, based on a risk assessment she hadconducted of respondent, Dojka believed he was one of the moredangerous people in his unit.

On cross-examination, Dojka testified that respondent heardvoices that called him derogatory names and woke him at night.Respondent believed the voices were from the government and theywere transmitted through an implant in his head. The voices informedrespondent that women who were interested in a sexual relationshipwith him were being brought to other patients. Respondent told Dojkathat he would have liked to have had a relationship with Childress andthat he wanted Childress to have his children. However, he no longerbelieved it was possible to have a relationship with Childress becausehe believed she had been given large sums of money to have sex withanother patient.

Dojka testified that she considered respondent dangerous becausehe had several risk factors. According to Dojka, respondent's historyof violence, symptoms of mental illness, refusal of treatment, anger,and the lack of feasibility of future plans all contributed to a findingthat respondent posed at least a moderate risk of committing violencein the future, especially since he was not medicated.

Dojka feared that respondent would commit violence againstChildress and Lynette Krueger, Dojka's diagnostic psychologystudent. Respondent wanted to have relationships with both women,but he believed that they were sleeping with others. That maderespondent feel betrayed and resentful.

Dojka believed that respondent needed to be medicated. Shenoted that, on a previous occasion, when he was medicated for a90-day period, his sleeping improved, he was much more relaxed, heparticipated in activities, and he seemed to be functioning at a higherlevel. Dojka also believed that respondent was suffering. He had toldher he felt "tormented" by the voices.

Becky Mitchell, an activity therapist at EMHC, testified thatbetween October 2001 and February 2002, she had accompaniedrespondent to two or three activities. On those occasions, respondentdid not cause her any problems and he did not have any problems withthe other patients. However, Mitchell opined that respondent had thepotential to be dangerous to others. Mitchell's opinion was based onrespondent's status as a mental health patient, the statements ofclinicians, and her past experiences with other patients. Oncross-examination, Mitchell testified that respondent had told her heheard voices that tormented him.

Respondent's last witness was Jose Padilla, an activity staffmember at EMHC. Padilla testified that he never had to restrictrespondent as a result of his behavior. Padilla did not observerespondent express any anger toward other patients. Oncross-examination, Padilla acknowledged that he saw respondentabout once a month.

Based upon the foregoing testimony, the circuit court ruled thatrespondent was subject to the involuntary administration ofpsychotropic medication for a period not to exceed 90 days. The courtfound that, because of his mental illness, respondent had exhibited adeterioration of ability to function, suffering, and threatening behavior.Further, the court found that the suggested benefits of the treatmentoutweighed the potential for harm, respondent lacked the capacity tomake a reasoned decision about the treatment, and other lessrestrictive services had been explored, but were found inappropriate.The court subsequently denied respondent's motion to reconsider.Respondent appealed. The appellate court affirmed. 341 Ill. App. 3d238. This timely appeal followed.

ANALYSIS

Respondent raises constitutional questions concerning theconstruction and application of sections 2-107.1 and 3-804 of theCode. The standard of review for determining whether an individual'sconstitutional rights have been violated is de novo. People v. Burns,209 Ill. 2d 551, 560 (2004). We apply the same standard in matters ofstatutory construction. In re Mary Ann P., 202 Ill. 2d 393, 404(2002). Statutes enjoy a strong presumption of constitutionality, andthis court has a duty to construe statutes in a manner that upholdstheir validity whenever reasonably possible. Hill v. Cowan, 202 Ill. 2d151, 157 (2002).

As a preliminary matter, we note that this case is moot. Section2-107.1 of the Code provides that an order authorizing theadministration of involuntary treatment shall, in no event, be effectivefor more than 90 days. 405 ILCS 5/2-107.1(a-5)(5) (West 2000).The 90 days have long since passed, and the circuit court's order nolonger has any force or effect. Hence, it is impossible for this court togrant meaningful relief, and any decision we render is essentiallyadvisory in nature. See In re Mary Ann P., 202 Ill. 2d at 401; In reBarbara H., 183 Ill. 2d 482, 490 (1998). Generally, a court of reviewwill not consider moot or abstract questions or render advisorydecisions. In re Mary Ann P., 202 Ill. 2d at 401. However, areviewing court may review otherwise moot issues pursuant to thepublic interest exception to the mootness doctrine. In re Andrea F.,208 Ill. 2d 148, 156 (2003). The criteria for application of the publicinterest exception are: (1) the public nature of the question; (2) thedesirability of an authoritative determination for the purpose ofguiding public officers; and (3) the likelihood that the question willrecur. In re Andrea F., 208 Ill. 2d at 156; In re Mary Ann P., 202 Ill.2d at 402. This case satisfies those criteria.

This court has previously held that the procedures courts mustfollow to authorize the involuntary medication of mental healthpatients involve matters of "substantial public concern." In re MaryAnn P., 202 Ill. 2d at 402. Moreover, because of the short duration oforders authorizing involuntary treatment, and respondent's history ofmental illness, it is likely that the circumstances present in the case atbar will recur without the opportunity for resolutionary litigationbefore the case is rendered moot by expiration of the order. See In reMary Ann P., 202 Ill. 2d at 402-03; In re Barbara H., 183 Ill. 2d at491-92; In re Evelyn S., 337 Ill. App. 3d 1096, 1102 (2003). Finally,having reviewed appellate court decisions in this area, we believe anauthoritative determination is desirable at this time.

There is no question that involuntary mental health services,including the involuntary administration of psychotropic drugs,involve a " 'massive curtailment of liberty.' " In re Barbara H., 183Ill. 2d at 496, quoting Vitek v. Jones, 445 U.S. 480, 491, 63 L. Ed. 2d552, 564, 100 S. Ct. 1254, 1263 (1980). The United States SupremeCourt has, alternatively, described the forced administration ofpsychotropic drugs as a "particularly severe" interference with aperson's liberty. See Riggins v. Nevada, 504 U.S. 127, 134, 118 L.Ed. 2d 479, 488, 112 S. Ct. 1810, 1814 (1992). One who is held onpending criminal charges retains this liberty interest notwithstandinghis or her status as a pretrial detainee. See generally Sell v. UnitedStates, 539 U.S. 166, 156 L. Ed. 2d 197, 123 S. Ct. 2174 (2003);Washington v. Harper, 494 U.S. 210, 108 L. Ed. 2d 178, 110 S. Ct.1028 (1990).

Respondent argues that the criteria for involuntary administrationof psychotropic drugs enunciated in Sell are controlling in our analysisin this case. We disagree. As the Court's decision in Sell clearlyindicates, differing criteria and analyses may apply to the decision toinvoluntarily medicate a pretrial detainee who has been found unfit tostand trial, depending upon the purpose for which authorization tomedicate has been sought.

In Sell, the State sought authorization for the involuntaryadministration of drugs for the sole purpose of rendering thedefendant competent to stand trial. Citing Harper and Riggins, theCourt, in Sell, stated: "the Constitution permits the Governmentinvoluntarily to administer antipsychotic drugs to a mentally illdefendant facing serious criminal charges in order to render thatdefendant competent to stand trial" if certain criteria are satisfied. Acourt must conclude that (1) important governmental interests are atstake, (2) involuntary medication will significantly further thoseconcomitant state interests, (3) involuntary medication is necessary tofurther those state interests, and (4) that the administration of thedrugs is medically appropriate, i.e., in the patient's best medicalinterest in light of his medical condition. Sell, 539 U.S. at 180-81, 156L. Ed. 2d at 211-13, 123 S. Ct. at 2184-85.

In Sell, the Court made clear that the standards it announcedwere restricted to the context of the case before it:

"We emphasize that the court applying these standards isseeking to determine whether involuntary administration ofdrugs is necessary significantly to further a particulargovernmental interest, namely, the interest in rendering thedefendant competent to stand trial. A court need not considerwhether to allow forced medication for that kind of purpose,if forced medication is warranted for a different purpose,such as the purposes set out in Harper related to theindividual's dangerousness, or purposes related to theindividual's own interests ***." (Emphases in original.) Sell,539 U.S. at 181-82, 156 L. Ed. 2d at 213, 123 S. Ct. at2185.

The petition in the instant case sought authorization to treatrespondent on Harper grounds. The petition alleged that, because ofhis mental illness, respondent had exhibited a deterioration of abilityto function, suffering, and threatening behavior. As the appellate courtnoted:

"[T]he trial court was not asked to decide whetherrespondent could be subject to the involuntary administrationof psychotropic medication solely for the purpose ofrendering him competent to stand trial. Indeed, the record isbarren of any evidence that the petition to administerpsychotropic medication was filed solely for the purpose offitness for trial. *** Instead, the trial court reviewed each ofthe factors listed in section 2-107.1(a-5)(4) of the Code (405ILCS 5/2-107.1(a-5)(4) (West 2000)) and found that theState proved each factor by clear and convincing evidence.The court found that respondent suffered [from] a mentalillness, *** which resulted in a deterioration of his ability tofunction, suffering, and threatening behavior. Moreover, thecourt found that the benefits of the proposed treatmentoutweighed the harm and that less restrictive alternativeswere inappropriate. It is evident that the trial court grantedthe State's petition because it found the involuntaryadministration of psychotropic medication to be medicallyappropriate. Notably, in rendering its decision the trial courtnever mentioned respondent's fitness to stand trial." 341 Ill.App. 3d at 258.

Like the appellate court, we believe that respondent's reliance uponSell is misplaced. Respondent advances no plausible argument toconvince us that, for purposes of section 2-107.1 of the Code, pretrialdetainees should be treated differently than any other person in needof treatment.

However, that assessment does not end our due process inquiry;it simply shifts the focus of our analysis to basic requirements of dueprocess as expressed in Harper and prior cases.

In Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33,96 S. Ct. 893, 903 (1976), the Supreme Court set forth three factorsthat must be considered when determining whether an individual hasreceived the "process" that the Constitution finds "due":

"First, the private interest that will be affected by the officialaction; second, the risk of an erroneous deprivation of suchinterest through the procedures used, and the probable value,if any, of additional or substitute procedural safeguards; andfinally, the Government's interest, including the functioninvolved and the fiscal and administrative burdens that theadditional or substitute procedural requirement would entail."

By weighing these factors, courts can determine whether thegovernment has met the fundamental requirements of due process-theopportunity to be heard at a meaningful time and in a meaningfulmanner. Mathews, 424 U.S. at 333, 47 L. Ed. 2d at 32, 96 S. Ct. at902.

Addressing the first factor, there is no question that the privateinterest affected by the forced administration of psychotropic drugs issubstantial. As we have previously noted, the United States SupremeCourt has described the forced administration of psychotropic drugsas a "particularly severe," interference with a person's liberty. Riggins,504 U.S. at 134, 118 L. Ed. 2d at 488, 112 S. Ct. at 1814.

In Harper, the Court spoke of the serious, and perhaps,permanent, consequences that psychotropic medication may haveupon the recipient's life:

"The purpose of the drugs is to alter the chemical balance ina patient's brain, leading to changes, intended to bebeneficial, in his or her cognitive processes. [Citation.] Whilethe therapeutic benefits of antipsychotic drugs are welldocumented, it is also true that the drugs can have serious,even fatal, side effects. *** [S]ide effects include akathesia(motor restlessness, often characterized by an inability to sitstill); neuroleptic malignant syndrome (a relatively rarecondition which can lead to death from cardiac dysfunction);and tardive dyskinesia, perhaps the most discussed side effectof antipsychotic drugs. [Citation.] Tardive dyskinesia is aneurological disorder, irreversible in some cases, that ischaracterized by involuntary, uncontrollable movements ofvarious muscles, especially around the face. [Citation.] ***A fair reading of the evidence, however, suggests that theproportion of patients treated with antipsychotic drugs whoexhibit the symptoms of tardive dyskinesia ranges from 10%to 25%." Harper, 494 U.S. at 229-30, 108 L. Ed. 2d at 203-04, 110 S. Ct. at 1041.

See also Riggins, 504 U.S. at 134, 118 L. Ed. 2d at 488-89, 112 S.Ct. at 1814-15 (quoting this passage from Harper ); United States v.Williams, 356 F.3d 1045, 1054-55 (9th Cir. 2004) (quoting fromHarper); In re Qawi, 32 Cal. 4th 1, 14-15, 81 P.3d 224, 231, 7 Cal.Rptr. 3d 780, 788 (2004) (observing that antipsychotics "have beenthe cause of considerable [reversible and potentially permanent] sideeffects ***. On rare occasions, use of these drugs has caused suddendeath"); Kulas v. Valdez, 159 F.3d 453, 455-56 (9th Cir. 1998)(noting "[t]he serious side effects that such medication can have onmind and personality, physical condition and life itself"); Physicians'Desk Reference 1787, 2464-65 (57th ed. 1999) (detailing extensivewarnings and precautions for the use of Risperidone and Haldol, andnoting, with respect to Risperidone, that the "risk of developingtardive dyskinesia and the likelihood that it will become irreversibleare believed to increase as the duration of treatment and the totalcumulative dose of antipsychotic drugs administered to the patientincrease"); 2 M. Perlin, Mental Disability Law