In re Barbaba H.
Annotate this Case
Nos. 2--96--0956, 2--96--0957 cons.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
In re BARBARA H., ) Appeal from the Circuit Court
Alleged to be a Person in ) of Kane County.
Need of Involuntary Admission )
and Involuntary Psychotropic ) Nos. 96--MH--285,
Medication ) 96--MH--287
)
)
(The People of the State of )
Illinois, Petitioner-Appellee, ) Honorable
v. Barbara H., Respondent- ) James C. Hallock,
Appellant). ) Judge, Presiding.
______________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
This case is a consolidated appeal. The State filed two
petitions concerning Barbara H. First, the State sought to admit
Barbara H. to a mental health facility involuntarily pursuant to
the Mental Health and Developmental Disabilities Code (Code) (405
ILCS 5/3--100 et seq. (West 1994)). Second, the State sought to
administer psychotropic medication to Barbara H. See 405 ILCS 5/2-
-107.1 (West 1994).
At a hearing at which the respondent was not present, the
trial court granted the State's petition to involuntarily admit her
to Elgin Mental Health Center (Center) for a period not to exceed
90 days. Further, the court found that the benefits of
psychotropic medication outweighed any harm and allowed the Center
to administer psychotropic medication to Barbara H. for a period
not to exceed 90 days.
On appeal, the respondent argues that the trial court's orders
granting her involuntary admission and authorizing the use of
psychotropic medication must be reversed because she was not
advised of the consequences of her failure to attend the hearing.
Additionally, Barbara H. contends that the order authorizing
psychotropic medication should be reversed because (1) the Code
requires separate hearings for petitions for admission and
petitions for medication; and (2) the State did not present
sufficient evidence that she lacked the capacity to reasonably
refuse the medication. We reverse and remand.
The record shows that on August 2, 1996, the trial court held
a joint hearing on the State's petition to involuntarily admit
Barbara H. and the State's petition to involuntarily administer
psychotropic medication to the respondent. At the beginning of the
hearing, the trial court noted that the respondent was absent and
asked the respondent's attorney, an assigned public defender, if he
was waiving his client's presence. The public defender stated that
an investigator and a student law clerk attempted to speak with
Barbara H., but that Barbara H. refused to talk to them. The
public defender added that Barbara H. stated that she was
represented through the "Catholic Charities Association" and told
the investigator and the student that she refused to come to court.
The public defender then stated that if he was "in fact going to
represent her today [he] would then waive her presence based upon
that."
At that point, the trial court interrupted the public defender
to ask again whether he was waiving his client's presence. The
public defender added that he believed that having Barbara H. in
court "would be detrimental to her physical and emotional well-
being." The trial court again requested the public defender to
answer "[y]es or no" to whether he was waiving his client's
presence. The public defender then stated that he waived Barbara
H.'s presence.
Only one witness testified at the hearing. Dr. Farsana Husain
testified that she is a staff psychiatrist at the Center. Dr.
Husain stated that she was unable to perform a psychiatric
examination of Barbara H. because on three occasions Barbara H.
refused to talk to her. Accordingly, her diagnosis of the
respondent was based on her review of the medical records,
conversations with the staff, personal observations, and her past
experience with the respondent when Barbara H. was her patient for
a six-month period ending in May 1996.
Dr. Husain diagnosed Barbara H. with schizoaffective disorder,
bipolar type. Dr. Husain explained that the respondent's disorder
had two components to it: psychotic disturbance and mood
disturbance. Overall, Dr. Husain said that Barbara H. "is not in
touch with reality. She is delusional." Dr. Husain added that the
respondent's mood ranged between being depressed, getting angry,
and becoming agitated.
Dr. Husain testified that Barbara H. had been living "at
placement" in association with Northwest Community Mental Health
Center. Dr. Husain explained that Barbara H. was returned to the
Center because she refused to take her medication, she believed
people were poisoning her, and she falsely thought she was
pregnant. Dr. Husain stated that upon returning to the Center
Barbara H. was "very filthy and poorly dressed and groomed." Dr.
Husain added that in a structured environment Barbara H. takes care
of herself with some prompting, but independently she has not been
able to care for herself.
Dr. Husain testified that Barbara H. has diabetes. Dr. Husain
stated that the respondent voluntarily takes medication for her
diabetes, but refuses to take medication for her mental illness.
Dr. Husain said that she did not believe that Barbara H. could
manage her financial affairs if she were discharged because
"historically" Barbara H. had been unable to manage her financial
affairs on her own. Dr. Husain stated that she "had no knowledge"
of whether Barbara H. would be able to find food for herself on her
own if she were discharged. Overall, however, Dr. Husain
acknowledged that she believed the respondent to be mentally ill
and because of her illness she was unable to provide for her basic
physical needs so as to guard herself from serious harm.
Specifically, Dr. Husain noted that Barbara H. still refused to
take her medication and therefore in her opinion the respondent
would not be able to function on "the outside."
Finally, Dr. Husain testified that Barbara H.'s ability to
function had deteriorated. Dr. Husain stated that the respondent
did not understand her illness and had "very poor insight" into her
illness. Dr. Husain said that Barbara H. had been admitted 11
times since 1980 and that within the last four to five years her
condition had been deteriorating.
Dr. Husain next testified to Barbara H.'s history with
psychotropic medication. Dr. Husain stated that when taking
psychotropic medication in the past the respondent had never
experienced side effects. Dr. Husain added that when taking the
medication Barbara H. became more sociable and her mood became
stable. Further, while on the psychotropic medication, Barbara H.
was able to care for herself and did not need prompting.
Accordingly, Dr. Husain stated that in her opinion the benefits of
psychotropic medication outweighed the harm.
Dr. Husain then added that she believed that due to her
delusional state Barbara H. did not have the capacity to make a
reasoned decision about the psychotropic medication. Dr. Husain
explained that the respondent had "decompensated" and that her
judgment and insight were "very poor." Dr. Husain acknowledged
that Barbara H. understood that she had the right to refuse
medication, but stated that she did not believe that Barbara H.
understood the benefits of the medication. Additionally, Dr.
Husain described the psychotropic medication that had stabilized
Barbara H.'s condition in the past and stated that she would
administer those same drugs to the respondent.
On cross-examination, Dr. Husain acknowledged that her
diagnosis was not based on counseling sessions or interviews with
Barbara H., but through her review of charts and her personal
experience. Dr. Husain explained that Barbara H. had been
involuntarily committed in the past but was discharged several
times because the medication had stabilized her. Finally, Dr.
Husain described that the last time she treated Barbara H. it took
six months before Barbara H. stabilized because she refused to take
her medication.
On appeal, Barbara H. argues that the trial court's orders
granting her involuntary admittance to the Center and the
administration of psychotropic medication should be reversed.
Primarily, Barbara H. contends that the orders should be reversed
because section 3--806 of the Code, which governs the waiver of a
respondent's presence at a hearing, is unconstitutional because it
allows a hearing to proceed in a respondent's absence without the
respondent having been told that the hearing may proceed without
him or her. See 405 ILCS 5/3--806 (West 1994).
We note also that Barbara H. alleges that the court's
authorization of psychotropic medicine was erroneous because the
State failed to prove by clear and convincing evidence all the
factors listed in the Code regarding administering psychotropic
medicine against a respondent's will. See 405 ILCS 5/2--107.1
(West 1994). Further, Barbara H. contends that the order
authorizing psychotropic medication should be reversed because the
Code mandates that hearings for admittance and hearings for
medication be held separately, and in this case the trial court
held one combined hearing.
As the constitutionality of section 3--806 of the Code affects
both issues on appeal, we will address that issue first. Courts
presume statutes are constitutional and will construe them so as to
uphold them when it is reasonably possible to do so. Wilson v.
Department of Revenue, 169 Ill. 2d 306, 310 (1996). A statute is
facially unconstitutional only if " 'no set of circumstances exists
under which the Act would be valid.' " In re C.E., 161 Ill. 2d 200, 210-11 (1994), quoting United States v. Salerno, 481 U.S. 739,
745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987).
When deciding whether a statutory procedure affords procedural
due process, courts must take three factors into account: the
private interest that will be affected by the action; the risk of
erroneous deprivation of such interest through the procedures used
and the probable value, if any, of additional or substitute
procedural safeguards; and the government's interest, including the
function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d. 18, 33, 96 S. Ct. 893, 903 (1976). Overall, to survive a facial challenge, the
procedures a statute provides must at least be adequate to
authorize the liberty deprivation with respect to some of the
persons subject to it. See United States v. Salerno, 481 U.S. 739,
95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). Finally, the standard of
review for determining whether constitutional rights have been
violated is de novo. People v. Anaya, 279 Ill. App. 3d 940 (1996).
At issue in this case is section 3--806 of the Code, which
outlines the procedures regarding a respondent's presence at a
hearing. Section 3--806 states:
"(a) The respondent shall be present at any hearing held
under this Act unless his attorney waives his right to be
present and the court is satisfied by a clear showing that the
respondent's attendance would subject him to substantial risk
of serious physical or emotional harm.
(b) The court shall make reasonable accommodation of any
request by the recipient's attorney concerning the location of
the hearing. If the recipient's attorney advises the court
that the recipient refuses to attend, the hearing may proceed
in his or her absence.
(c) No inference may be drawn from the recipient's non-
attendance pursuant to either subsection (a) or (b) of this
Section." 405 ILCS 5/3--806 (West Supp. 1995).
When approving the defense attorney's waiver of Barbara H.'s
presence at the hearing, the trial court did not state under which
subsection of section 3--806 it allowed the waiver. Barbara H.
argues, however, that both subsection (a) and subsection (b) are
unconstitutional, so regardless of the section the trial court
applied, the orders granting the State's petitions must be
reversed. We will discuss the constitutionality of section 3--
806(a) first.
Barbara H. contends that section 3--806(a) is unconstitutional
because it requires only that a respondent's attorney waive a
respondent's right to be present at a hearing. Barbara H. argues
that, because being present at a civil commitment hearing is a
fundamental constitutional right, she is the only one who could
waive her right to be present. Such a waiver is only possible,
Barbara H. contends, after she is made aware of her right to be
present at the hearing and knows the consequences of a waiver--
namely, that the hearing may proceed without her. We agree.
It is undisputed that a significant due process liberty
interest exists to be free from unjustified civil commitment and
to refuse unwanted, nonemergency psychotropic medication. See
Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401
(1977); In re Branning, 285 Ill. App. 3d 405 (1996). Indeed,
respondents in civil commitment hearings have a constitutional
right to attend their hearings. Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980). Respondents, however, may
waive their constitutional rights. People v. Johnson, 75 Ill. 2d 180, 187 (1979). To be valid, waivers of constitutional rights "
'not only must be voluntary but must be knowing, intelligent acts
done with sufficient awareness of the relevant circumstances and
likely consequences.' " Johnson, 75 Ill. 2d at 187, quoting Brady
v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469 (1970). Therefore, a respondent has a
constitutional right to be present at a civil commitment hearing
unless he voluntarily, intelligently, and knowingly waives it. See
Kendall v. True, 391 F. Supp. 413, 419 (W.D. Ky. 1975) (discussing
a Kentucky statute). Of course, a respondent who has not waived
his presence may lose his right to be present if his conduct is so
disruptive as to require his exclusion. See Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970); Kendall, 391 F. Supp. at 419.
In the present case, both parties acknowledge that the due
process clause of the fourteenth amendment applies to involuntary
commitment proceedings. Barbara H. argues that section 3--806(a)
violates procedural due process because it allows her attorney to
waive one of her constitutional rights. The State, however,
contends that there are procedural safeguards in section 3--806(a)
that adequately protect Barbara H.'s due process interests.
Accordingly, the controversy in this case centers around the
minimal constitutional standards required to protect a respondent's
liberty interest.
Under section 3--806(a), a civil commitment hearing may occur
without a respondent, even if that respondent wishes to attend the
hearing. If the trial court is satisfied by a clear showing that
the respondent's presence would subject him to substantial risk of
serious harm, the trial court may accept a waiver by the
respondent's attorney. We find that this procedure fails
adequately to protect a respondent's liberty interest.
Particularly, we find that the statute's procedures
unconstitutionally allow a hearing to take place without the
respondent even when a respondent has not waived his presence at
that hearing.
A recent decision concerning the constitutionality of another
section of the Code provides some guidance to our analysis. In In
re Branning, 285 Ill. App. 3d 405 (1996), the Appellate Court,
Fourth District, determined that section 2--110 of the Code
violated procedural due process. Section 2--110 of the Code
concerns when a facility may treat a respondent with electro-
convulsive therapy (ECT). Under section 2--110, a respondent's
guardian may give consent to such treatment if the guardian deems
it "to be in the best interests of the ward." See 405 ILCS 5/2--
110 (West 1994).
The Branning court determined that this procedure violated due
process because it did not provide sufficient protections to a
respondent. The court explained that the statute did not specify,
among other things, the level of evidence by which anything must be
proved, exactly what needed to be proved, input from a healthcare
professional, or proof that the respondent was unable to make a
rational choice for himself. Instead, the statute's only
requirement for the administration of ECT was that the guardian
consented and that the guardian believed that the ECT was in the
ward's best interest. See Branning, 285 Ill. App. 3d at 413.
The most significant omission present in section 2--110 is
present also in section 3-806(a). Indeed, section 3--806(a) does
not require that the court make a finding that the respondent is
unable to make a rational choice before allowing his counsel to
waive his attendance at the hearing. Further, section 3--806(a)
does not require input from a healthcare professional that the
respondent is unable to make a rational choice concerning his
presence at the hearing, or even that the respondent's presence
will cause harm. Instead, section 3--806(a) requires only that the
respondent's attorney show that the respondent's presence would
cause harm. We find that such a procedure is not adequate to
protect the liberty interests of the respondent.
Several federal court decisions involving similar statutes in
other states support our conclusion that section 3--806(a) is
unconstitutional. First, in Doremus v. Farrell, 407 F. Supp. 509
(D. Neb. 1975), the court was presented with a Nebraska statute
that outlined the procedures for a subject's presence at his
commitment hearing. The statute stated that if the County Board of
Mental Health " 'decide(s) that the presence of the proposed
patient is unnecessary or would probably be injurious to him, the
board members shall not require the proposed patient to be present
at the hearing on the application.' " Doremus, 407 F. Supp. at
515. The federal court held that this procedure was
unconstitutional. The court explained that the subject had a
"constitutional right to be present at the hearing unless he
voluntarily, intelligently and knowingly waives it or his counsel
waives it for him after a showing that he is incompetent, or the
subject's conduct is so disruptive as to require his exclusion."
Doremus, 407 F. Supp. at 515. Accordingly, as the Nebraska statute
had allowed a hearing regarding the subject to proceed without the
subject and without the subject's waiver, it was deemed
unconstitutional. See Doremus, 407 F. Supp. at 515-16.
Similarly, in Suzuki v. Quisenberry, 411 F. Supp. 1113, 1129
(D. Haw. 1976), the court stated that "[d]ue process requires the
presence of the person proposed to be committed at all judicial
proceedings conducted for that purpose." The Suzuki court
explained that waiver was possible, but would only be valid "upon
acceptance by the court following a judicial determination that the
person understands his rights and is competent to waive them or
that the person is so mentally or physically ill as to be incapable
of attending the proceedings." Suzuki, 411 F. Supp. at 1129.
Moreover, in Bell v. Wayne County General Hospital, 384 F. Supp. 1085 (E.D. Mich. 1974), the court found a Michigan commitment
statute unconstitutional. The statute provided that an individual
had a right to be present at a commitment hearing unless the court,
either by certificate of the medical superintendent in charge of
the hospital admitting the patient or by certificate of two other
physicians, deemed that the individual's presence would be
"improper and unsafe." Bell, 384 F. Supp. at 1094. The Bell court
explained that the Michigan statute was unconstitutional. The
court first stated that the due process right of a respondent to be
present at a commitment hearing was at least as broad as the right
of a criminal defendant to be present at trial. The Bell court
explained:
"Under Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) a criminal defendant may be removed from
trial where his conduct is so disruptive that the proceeding
cannot continue in any reasonable manner. In our view a
respondent may be removed from commitment proceedings under
similar circumstances, but to exclude the respondent as
provided above violates due process. *** While a committing
court may exclude a respondent where his presence makes it
impossible to reasonably conduct the hearing, it may not
decide in advance of hearing and based solely on the
certificate of physicians, that he shall not be allowed to
appear. Where his removal to the courthouse would be
'improper and unsafe,' some method alternative to total
exclusion must be attempted first ***." Bell, 384 F. Supp. at
1094.
Similarly, in Kendall v. True, 391 F. Supp. 413, 419 (W.D. Ky.
1975), the court explained that a Kentucky statute that provided
that the court psychiatrist determine whether a patient be present
at his commitment hearing was "woefully deficient" in procedural
due process aspects. The court explained that the "minimum
requirements of due process" require the right of the patient to be
present at the hearing, "unless the right is intelligently waived
by himself and counsel, or unless the Court makes a specific
finding after the patient has been brought to the place of [the]
hearing that he should be removed from the hearing because his
conduct is so disruptive that the proceeding cannot continue in any
reasonable manner." Kendall, 391 F. Supp. at 419.
Finally, the United States Supreme Court has stated that to
afford sufficient protection to a liberty interest to a prisoner
being transferred to a mental hospital, the prisoner must receive
notice of the commitment hearing and have an opportunity to be
present at the hearing. See Vitek, 445 U.S. at 494, 63 L. Ed. 2d
at 565-66, 100 S. Ct. at 1264. In discussing that the prisoner in
Vitek had a right to attend the hearing and present evidence, the
Supreme Court explained that the State's interest in avoiding
disruption was recognized by limiting, in appropriate
circumstances, the prisoner's right to call, confront, and cross-
examine witnesses. Vitek, 445 U.S. at 496, 63 L. Ed. 2d at 567,
100 S. Ct. at 1265. Accordingly, although the Supreme Court never
specifically addressed the issue of waiver, it did state that a
prisoner's constitutional right to be present at a civil commitment
hearing could be curbed if the court deemed his conduct too
disruptive. See Vitek, 445 U.S. at 496, 63 L. Ed. 2d at 567, 100 S. Ct. at 1265.
We find the Doremus, Kendall, Suzuki, and Bell courts'
interpretation of the federal constitution and the minimum
protections required to protect an individual's liberty interest
compelling. Further, we find that the only limitation placed on an
individual's constitutional right to attend his civil commitment
hearing thus far is the state's interest that the individual may
disrupt court proceedings. See Vitek, 445 U.S. at 495-97, 63 L. Ed. 2d at 566-67, 100 S. Ct. at 1265-66. As a result, we find
that, because section 3--806(a) provides for a civil commitment
hearing to take place without the respondent's waiver and for
reasons other than the respondent's behavior being so disruptive
that it interferes with the court proceedings, it violates the
respondent's due process rights, thereby being unconstitutional.
The State argues that this court should rely on French v.
Blackburn, 428 F. Supp. 1351 (M.D.N.C 1977), aff'd, 443 U.S. 901,
61 L. Ed. 2d 869, 99 S. Ct. 3091 (1979), which held constitutional
a North Carolina statute that allowed an individual's presence at
a hearing to be waived by the submission of a written statement by
his counsel that was approved by the court. We decline to compare
the North Carolina statute to section 3--806(a) or comment on its
constitutionality. Section 3--806(a) does not require a written
statement by an attorney. Further, we find the discussion of the
minimum due process procedures required in civil commitment
hearings in Doremus, Kendall, Suzuki, and Bell more helpful to our
analysis in this case.
Additionally, the State argues that to require a mental health
patient to waive his right to be present at a hearing would be
"unrealistic" and "may well prove impossible" because most mental
health patients do not have the capability to make a waiver.
Further, the Attorney General contends that requiring admonishments
to the respondent would not "have any value" in safeguarding a
respondent's liberty interest and would actually impede the State's
parens patriae interest.
We find these arguments unpersuasive. Both the State and the
Attorney General fail to recognize that respondents attending a
civil commitment hearing are presumed competent. People ex rel.
Drury v. Catholic Home Bureau, 34 Ill. 2d 84, 95 (1966).
Accordingly, it cannot be assumed that Barbara H., or any other
respondent in her position, is incapable of waiving her right to be
present at her hearing. Similarly, a state's parens patriae
interest in an individual does not exist until that individual has
been declared incompetent. In re Orr, 176 Ill. App. 3d 498, 513
(1988). Therefore, requiring the respondent's attorney, guardian
ad litem, or the court to inform her of her right to attend her
hearing cannot impede a State's parens patriae interest because at
that time the respondent is not incompetent.
The State and the Attorney General also contend that a waiver
from a respondent cannot be mandated because under such a procedure
the respondent's attorney would be required to explain to the court
whether the respondent understood her right to be at the hearing.
The State and the Attorney General argue that these explanations of
whether a respondent understood her right to be present at a
hearing may be detrimental to the respondent's defense. We find
this argument also unpersuasive. Certainly, an individual's
ability to understand court procedure and a fundamental right
sufficiently enough to make a rational choice to attend a hearing
is quite different from that same individual's overall mental
capabilities and whether that individual is mentally incompetent.
Further, under section 3--806(c) of the Code, no inference may be
drawn from a respondent's failure to attend his hearing.
Accordingly, any possible damage that results from an attorney's
explaining his client's waiver or lack of waiver is negated by this
provision.
Finally, the Attorney General and the State remind this court
in their briefs that the involuntary medication statute and the
involuntary commitment statute contain a 90-day period time
limitation and a 180-day period limitation. The Attorney General
claims that these time limits mean that only a "limited term of
infringement on the liberty interest at stake" results from these
civil commitment proceedings. Further, the State adds that,
because the Code requires periodic review of every case, an
individual civilly committed is in a much different position than
the position of a criminal defendant who is deprived of his liberty
"for whatever term of imprisonment the judge imposes." We
disagree.
By making such arguments, the State and the Attorney General
fail to acknowledge that the United States Supreme Court has
recognized that "for the ordinary citizen, commitment to a mental
hospital produces 'a massive curtailment of liberty.' " Vitek, 445 U.S. at 491, 63 L. Ed. 2d at 564, 100 S. Ct. at 1263, quoting
Humphrey v. Cady, 405 U.S. 504, 509, 31 L. Ed. 2d 394, 402, 92 S. Ct. 1048, 1052 (1972). Indeed, commitment to a mental hospital
"can engender adverse social consequences to the individual" and
"can have a very significant impact on the individual." Addington
v. Texas, 441 U.S. 418, 425-26, 60 L. Ed. 2d 323, 331, 99 S. Ct. 1804, 1809 (1979). Accordingly, that the Code imposes a time
limitation on the period of commitment and the period in which
psychotropic medication may be administered does not change the
fact that the commitment results in a loss of freedom that affects
an individual's liberty interest. Therefore, it remains necessary
for the State to comply with the minimum requirements of due
process. See Vitek, 445 U.S. at 491, 63 L. Ed. 2d at 563, 100 S. Ct. at 1263.
This court wishes to note that it is not beyond our
recognition that requiring a respondent's waiver for the court to
proceed in absentia against a respondent raises several practical
concerns for our trial courts. However, we are encouraged by laws
in other states that have already addressed this issue. We believe
that these laws provide examples of civil commitment hearing
procedures that, if adopted by our legislature and followed by our
court system, protect a respondent's liberty interest without
throwing the trial courts into a state of disarray.
We note that several state laws simply provide that an
individual has a right to be present at the civil commitment
hearing unless he waives that right or the court proceeding cannot
reasonably continue while the person is present. See, e.g., Minn.
Stat. Ann. 253B.08 (West 1996); N.J. Stat. Ann. 30:4-27.14 (West
1996); N.M. Stat. Ann. 43--1--11 (Michie 1996). Accordingly, the
State's and the Attorney General's concern that a hearing may be
stopped "from going forward" because a respondent refuses to waive
her right but disrupts the proceedings is unfounded. Instead, a
statute that recognizes that attendance at a commitment hearing is
a constitutional right that is only waivable by the respondent,
except in circumstances where the respondent's behavior disrupts
the court proceedings so that the hearing cannot continue in a
reasonable manner, adequately protects the respondent's liberty
interest and the state's interest in having a hearing.
As currently drafted, section 3--806(a) affords no such
protection. Instead, under section 3--806(a), an individual's
presence may be waived, even if that individual wishes to attend
the hearing. This outcome is undoubtedly unconstitutional as it
flies in the face of the clearly enunciated fundamental right that
an individual has to be present at his civil commitment hearing.
See Specht v. Patterson, 386 U.S. 605, 610, 18 L. Ed. 2d 326, 330,
87 S. Ct. 1209, 1212 (1967).
Turning to the second part of section 3--806, this court finds
that section 3--806(b) is also unconstitutional on its face for the
reasons discussed above. Specifically, we note that section 3--
806(b), while allowing an individual to "refuse[ ] to attend" the
hearing, does not provide that this refusal be made knowingly or
intelligently by the individual after that individual is aware of
his or her constitutional right to be present at the hearing and
that the hearing may proceed in that individual's absence. See
Johnson, 75 Ill. 2d at 187 (discussing when a "waiver" is valid).
Accordingly, like section 3--806(a), following the procedure in
section 3-806(b) can result in a hearing taking place without an
individual when that individual has not waived his right to be
present at that proceeding. Therefore, because section 3--806(b)
fails adequately to protect an individual's liberty interest, we
find it unconstitutional.
In conclusion, we find that section 3--806(a) and section 3--
806(b) are unconstitutional on their face as they fail adequately
to protect an individual's liberty interest. Accordingly, Barbara
H. is entitled to a new hearing on whether she can be involuntarily
committed to the Center as well as a new hearing on whether the
Center can administer psychotropic medication. Therefore, because
new hearings will take place, we decline to address whether the
trial court's holding one combined hearing on both state petitions
in violation of the statute mandates a new hearing, or whether the
court's order authorizing psychotropic medicine was not supported
by the evidence.
For the foregoing reasons, the judgment of the circuit court
of Kane County is reversed, and the cause is remanded.
Reversed and remanded.
McLAREN and BOWMAN, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
In re BARBARA H., ) Appeal from the Circuit Court
Alleged to be a Person in ) of Kane County.
Need of Involuntary Admission )
and Involuntary Psychotropic ) Nos. 96--MH--285,
Medication ) 96--MH--287
)
)
(The People of the State of )
Illinois, Petitioner-Appellee, ) Honorable
v. Barbara H., Respondent- ) James C. Hallock,
Appellant). ) Judge, Presiding.
______________________________________________________________
JUSTICE COLWELL delivered the opinion of the court:
This case is a consolidated appeal. The State filed two
petitions concerning Barbara H. First, the State sought to admit
Barbara H. to a mental health facility involuntarily pursuant to
the Mental Health and Developmental Disabilities Code (Code) (405
ILCS 5/3--100 et seq. (West 1994)). Second, the State sought to
administer psychotropic medication to Barbara H. See 405 ILCS 5/2-
-107.1 (West 1994).
At a hearing at which the respondent was not present, the
trial court granted the State's petition to involuntarily admit her
to Elgin Mental Health Center (Center) for a period not to exceed
90 days. Further, the court found that the benefits of
psychotropic medication outweighed any harm and allowed the Center
to administer psychotropic medication to Barbara H. for a period
not to exceed 90 days.
On appeal, the respondent argues that the trial court's orders
granting her involuntary admission and authorizing the use of
psychotropic medication must be reversed because she was not
advised of the consequences of her failure to attend the hearing.
Additionally, Barbara H. contends that the order authorizing
psychotropic medication should be reversed because (1) the Code
requires separate hearings for petitions for admission and
petitions for medication; and (2) the State did not present
sufficient evidence that she lacked the capacity to reasonably
refuse the medication. We reverse and remand.
The record shows that on August 2, 1996, the trial court held
a joint hearing on the State's petition to involuntarily admit
Barbara H. and the State's petition to involuntarily administer
psychotropic medication to the respondent. At the beginning of the
hearing, the trial court noted that the respondent was absent and
asked the respondent's attorney, an assigned public defender, if he
was waiving his client's presence. The public defender stated that
an investigator and a student law clerk attempted to speak with
Barbara H., but that Barbara H. refused to talk to them. The
public defender added that Barbara H. stated that she was
represented through the "Catholic Charities Association" and told
the investigator and the student that she refused to come to court.
The public defender then stated that if he was "in fact going to
represent her today [he] would then waive her presence based upon
that."
At that point, the trial court interrupted the public defender
to ask again whether he was waiving his client's presence. The
public defender added that he believed that having Barbara H. in
court "would be detrimental to her physical and emotional well-
being." The trial court again requested the public defender to
answer "[y]es or no" to whether he was waiving his client's
presence. The public defender then stated that he waived Barbara
H.'s presence.
Only one witness testified at the hearing. Dr. Farsana Husain
testified that she is a staff psychiatrist at the Center. Dr.
Husain stated that she was unable to perform a psychiatric
examination of Barbara H. because on three occasions Barbara H.
refused to talk to her. Accordingly, her diagnosis of the
respondent was based on her review of the medical records,
conversations with the staff, personal observations, and her past
experience with the respondent when Barbara H. was her patient for
a six-month period ending in May 1996.
Dr. Husain diagnosed Barbara H. with schizoaffective disorder,
bipolar type. Dr. Husain explained that the respondent's disorder
had two components to it: psychotic disturbance and mood
disturbance. Overall, Dr. Husain said that Barbara H. "is not in
touch with reality. She is delusional." Dr. Husain added that the
respondent's mood ranged between being depressed, getting angry,
and becoming agitated.
Dr. Husain testified that Barbara H. had been living "at
placement" in association with Northwest Community Mental Health
Center. Dr. Husain explained that Barbara H. was returned to the
Center because she refused to take her medication, she believed
people were poisoning her, and she falsely thought she was
pregnant. Dr. Husain stated that upon returning to the Center
Barbara H. was "very filthy and poorly dressed and groomed." Dr.
Husain added that in a structured environment Barbara H. takes care
of herself with some prompting, but independently she has not been
able to care for herself.
Dr. Husain testified that Barbara H. has diabetes. Dr. Husain
stated that the respondent voluntarily takes medication for her
diabetes, but refuses to take medication for her mental illness.
Dr. Husain said that she did not believe that Barbara H. could
manage her financial affairs if she were discharged because
"historically" Barbara H. had been unable to manage her financial
affairs on her own. Dr. Husain stated that she "had no knowledge"
of whether Barbara H. would be able to find food for herself on her
own if she were discharged. Overall, however, Dr. Husain
acknowledged that she believed the respondent to be mentally ill
and because of her illness she was unable to provide for her basic
physical needs so as to guard herself from serious harm.
Specifically, Dr. Husain noted that Barbara H. still refused to
take her medication and therefore in her opinion the respondent
would not be able to function on "the outside."
Finally, Dr. Husain testified that Barbara H.'s ability to
function had deteriorated. Dr. Husain stated that the respondent
did not understand her illness and had "very poor insight" into her
illness. Dr. Husain said that Barbara H. had been admitted 11
times since 1980 and that within the last four to five years her
condition had been deteriorating.
Dr. Husain next testified to Barbara H.'s history with
psychotropic medication. Dr. Husain stated that when taking
psychotropic medication in the past the respondent had never
experienced side effects. Dr. Husain added that when taking the
medication Barbara H. became more sociable and her mood became
stable. Further, while on the psychotropic medication, Barbara H.
was able to care for herself and did not need prompting.
Accordingly, Dr. Husain stated that in her opinion the benefits of
psychotropic medication outweighed the harm.
Dr. Husain then added that she believed that due to her
delusional state Barbara H. did not have the capacity to make a
reasoned decision about the psychotropic medication. Dr. Husain
explained that the respondent had "decompensated" and that her
judgment and insight were "very poor." Dr. Husain acknowledged
that Barbara H. understood that she had the right to refuse
medication, but stated that she did not believe that Barbara H.
understood the benefits of the medication. Additionally, Dr.
Husain described the psychotropic medication that had stabilized
Barbara H.'s condition in the past and stated that she would
administer those same drugs to the respondent.
On cross-examination, Dr. Husain acknowledged that her
diagnosis was not based on counseling sessions or interviews with
Barbara H., but through her review of charts and her personal
experience. Dr. Husain explained that Barbara H. had been
involuntarily committed in the past but was discharged several
times because the medication had stabilized her. Finally, Dr.
Husain described that the last time she treated Barbara H. it took
six months before Barbara H. stabilized because she refused to take
her medication.
On appeal, Barbara H. argues that the trial court's orders
granting her involuntary admittance to the Center and the
administration of psychotropic medication should be reversed.
Primarily, Barbara H. contends that the orders should be reversed
because section 3--806 of the Code, which governs the waiver of a
respondent's presence at a hearing, is unconstitutional because it
allows a hearing to proceed in a respondent's absence without the
respondent having been told that the hearing may proceed without
him or her. See 405 ILCS 5/3--806 (West 1994).
We note also that Barbara H. alleges that the court's
authorization of psychotropic medicine was erroneous because the
State failed to prove by clear and convincing evidence all the
factors listed in the Code regarding administering psychotropic
medicine against a respondent's will. See 405 ILCS 5/2--107.1
(West 1994). Further, Barbara H. contends that the order
authorizing psychotropic medication should be reversed because the
Code mandates that hearings for admittance and hearings for
medication be held separately, and in this case the trial court
held one combined hearing.
As the constitutionality of section 3--806 of the Code affects
both issues on appeal, we will address that issue first. Courts
presume statutes are constitutional and will construe them so as to
uphold them when it is reasonably possible to do so. Wilson v.
Department of Revenue, 169 Ill. 2d 306, 310 (1996). A statute is
facially unconstitutional only if " 'no set of circumstances exists
under which the Act would be valid.' " In re C.E., 161 Ill. 2d 200, 210-11 (1994), quoting United States v. Salerno, 481 U.S. 739,
745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987).
When deciding whether a statutory procedure affords procedural
due process, courts must take three factors into account: the
private interest that will be affected by the action; the risk of
erroneous deprivation of such interest through the procedures used
and the probable value, if any, of additional or substitute
procedural safeguards; and the government's interest, including the
function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d. 18, 33, 96 S. Ct. 893, 903 (1976). Overall, to survive a facial challenge, the
procedures a statute provides must at least be adequate to
authorize the liberty deprivation with respect to some of the
persons subject to it. See United States v. Salerno, 481 U.S. 739,
95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). Finally, the standard of
review for determining whether constitutional rights have been
violated is de novo. People v. Anaya, 279 Ill. App. 3d 940 (1996).
At issue in this case is section 3--806 of the Code, which
outlines the procedures regarding a respondent's presence at a
hearing. Section 3--806 states:
"(a) The respondent shall be present at any hearing held
under this Act unless his attorney waives his right to be
present and the court is satisfied by a clear showing that the
respondent's attendance would subject him to substantial risk
of serious physical or emotional harm.
(b) The court shall make reasonable accommodation of any
request by the recipient's attorney concerning the location of
the hearing. If the recipient's attorney advises the court
that the recipient refuses to attend, the hearing may proceed
in his or her absence.
(c) No inference may be drawn from the recipient's non-
attendance pursuant to either subsection (a) or (b) of this
Section." 405 ILCS 5/3--806 (West Supp. 1995).
When approving the defense attorney's waiver of Barbara H.'s
presence at the hearing, the trial court did not state under which
subsection of section 3--806 it allowed the waiver. Barbara H.
argues, however, that both subsection (a) and subsection (b) are
unconstitutional, so regardless of the section the trial court
applied, the orders granting the State's petitions must be
reversed. We will discuss the constitutionality of section 3--
806(a) first.
Barbara H. contends that section 3--806(a) is unconstitutional
because it requires only that a respondent's attorney waive a
respondent's right to be present at a hearing. Barbara H. argues
that, because being present at a civil commitment hearing is a
fundamental constitutional right, she is the only one who could
waive her right to be present. Such a waiver is only possible,
Barbara H. contends, after she is made aware of her right to be
present at the hearing and knows the consequences of a waiver--
namely, that the hearing may proceed without her. We agree.
It is undisputed that a significant due process liberty
interest exists to be free from unjustified civil commitment and
to refuse unwanted, nonemergency psychotropic medication. See
Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401
(1977); In re Branning, 285 Ill. App. 3d 405 (1996). Indeed,
respondents in civil commitment hearings have a constitutional
right to attend their hearings. Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980). Respondents, however, may
waive their constitutional rights. People v. Johnson, 75 Ill. 2d 180, 187 (1979). To be valid, waivers of constitutional rights "
'not only must be voluntary but must be knowing, intelligent acts
done with sufficient awareness of the relevant circumstances and
likely consequences.' " Johnson, 75 Ill. 2d at 187, quoting Brady
v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469 (1970). Therefore, a respondent has a
constitutional right to be present at a civil commitment hearing
unless he voluntarily, intelligently, and knowingly waives it. See
Kendall v. True, 391 F. Supp. 413, 419 (W.D. Ky. 1975) (discussing
a Kentucky statute). Of course, a respondent who has not waived
his presence may lose his right to be present if his conduct is so
disruptive as to require his exclusion. See Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970); Kendall, 391 F. Supp. at 419.
In the present case, both parties acknowledge that the due
process clause of the fourteenth amendment applies to involuntary
commitment proceedings. Barbara H. argues that section 3--806(a)
violates procedural due process because it allows her attorney to
waive one of her constitutional rights. The State, however,
contends that there are procedural safeguards in section 3--806(a)
that adequately protect Barbara H.'s due process interests.
Accordingly, the controversy in this case centers around the
minimal constitutional standards required to protect a respondent's
liberty interest.
Under section 3--806(a), a civil commitment hearing may occur
without a respondent, even if that respondent wishes to attend the
hearing. If the trial court is satisfied by a clear showing that
the respondent's presence would subject him to substantial risk of
serious harm, the trial court may accept a waiver by the
respondent's attorney. We find that this procedure fails
adequately to protect a respondent's liberty interest.
Particularly, we find that the statute's procedures
unconstitutionally allow a hearing to take place without the
respondent even when a respondent has not waived his presence at
that hearing.
A recent decision concerning the constitutionality of another
section of the Code provides some guidance to our analysis. In In
re Branning, 285 Ill. App. 3d 405 (1996), the Appellate Court,
Fourth District, determined that section 2--110 of the Code
violated procedural due process. Section 2--110 of the Code
concerns when a facility may treat a respondent with electro-
convulsive therapy (ECT). Under section 2--110, a respondent's
guardian may give consent to such treatment if the guardian deems
it "to be in the best interests of the ward." See 405 ILCS 5/2--
110 (West 1994).
The Branning court determined that this procedure violated due
process because it did not provide sufficient protections to a
respondent. The court explained that the statute did not specify,
among other things, the level of evidence by which anything must be
proved, exactly what needed to be proved, input from a healthcare
professional, or proof that the respondent was unable to make a
rational choice for himself. Instead, the statute's only
requirement for the administration of ECT was that the guardian
consented and that the guardian believed that the ECT was in the
ward's best interest. See Branning, 285 Ill. App. 3d at 413.
The most significant omission present in section 2--110 is
present also in section 3-806(a). Indeed, section 3--806(a) does
not require that the court make a finding that the respondent is
unable to make a rational choice before allowing his counsel to
waive his attendance at the hearing. Further, section 3--806(a)
does not require input from a healthcare professional that the
respondent is unable to make a rational choice concerning his
presence at the hearing, or even that the respondent's presence
will cause harm. Instead, section 3--806(a) requires only that the
respondent's attorney show that the respondent's presence would
cause harm. We find that such a procedure is not adequate to
protect the liberty interests of the respondent.
Several federal court decisions involving similar statutes in
other states support our conclusion that section 3--806(a) is
unconstitutional. First, in Doremus v. Farrell, 407 F. Supp. 509
(D. Neb. 1975), the court was presented with a Nebraska statute
that outlined the procedures for a subject's presence at his
commitment hearing. The statute stated that if the County Board of
Mental Health " 'decide(s) that the presence of the proposed
patient is unnecessary or would probably be injurious to him, the
board members shall not require the proposed patient to be present
at the hearing on the application.' " Doremus, 407 F. Supp. at
515. The federal court held that this procedure was
unconstitutional. The court explained that the subject had a
"constitutional right to be present at the hearing unless he
voluntarily, intelligently and knowingly waives it or his counsel
waives it for him after a showing that he is incompetent, or the
subject's conduct is so disruptive as to require his exclusion."
Doremus, 407 F. Supp. at 515. Accordingly, as the Nebraska statute
had allowed a hearing regarding the subject to proceed without the
subject and without the subject's waiver, it was deemed
unconstitutional. See Doremus, 407 F. Supp. at 515-16.
Similarly, in Suzuki v. Quisenberry, 411 F. Supp. 1113, 1129
(D. Haw. 1976), the court stated that "[d]ue process requires the
presence of the person proposed to be committed at all judicial
proceedings conducted for that purpose." The Suzuki court
explained that waiver was possible, but would only be valid "upon
acceptance by the court following a judicial determination that the
person understands his rights and is competent to waive them or
that the person is so mentally or physically ill as to be incapable
of attending the proceedings." Suzuki, 411 F. Supp. at 1129.
Moreover, in Bell v. Wayne County General Hospital, 384 F. Supp. 1085 (E.D. Mich. 1974), the court found a Michigan commitment
statute unconstitutional. The statute provided that an individual
had a right to be present at a commitment hearing unless the court,
either by certificate of the medical superintendent in charge of
the hospital admitting the patient or by certificate of two other
physicians, deemed that the individual's presence would be
"improper and unsafe." Bell, 384 F. Supp. at 1094. The Bell court
explained that the Michigan statute was unconstitutional. The
court first stated that the due process right of a respondent to be
present at a commitment hearing was at least as broad as the right
of a criminal defendant to be present at trial. The Bell court
explained:
"Under Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970) a criminal defendant may be removed from
trial where his conduct is so disruptive that the proceeding
cannot continue in any reasonable manner. In our view a
respondent may be removed from commitment proceedings under
similar circumstances, but to exclude the respondent as
provided above violates due process. *** While a committing
court may exclude a respondent where his presence makes it
impossible to reasonably conduct the hearing, it may not
decide in advance of hearing and based solely on the
certificate of physicians, that he shall not be allowed to
appear. Where his removal to the courthouse would be
'improper and unsafe,' some method alternative to total
exclusion must be attempted first ***." Bell, 384 F. Supp. at
1094.
Similarly, in Kendall v. True, 391 F. Supp. 413, 419 (W.D. Ky.
1975), the court explained that a Kentucky statute that provided
that the court psychiatrist determine whether a patient be present
at his commitment hearing was "woefully deficient" in procedural
due process aspects. The court explained that the "minimum
requirements of due process" require the right of the patient to be
present at the hearing, "unless the right is intelligently waived
by himself and counsel, or unless the Court makes a specific
finding after the patient has been brought to the place of [the]
hearing that he should be removed from the hearing because his
conduct is so disruptive that the proceeding cannot continue in any
reasonable manner." Kendall, 391 F. Supp. at 419.
Finally, the United States Supreme Court has stated that to
afford sufficient protection to a liberty interest to a prisoner
being transferred to a mental hospital, the prisoner must receive
notice of the commitment hearing and have an opportunity to be
present at the hearing. See Vitek, 445 U.S. at 494, 63 L. Ed. 2d
at 565-66, 100 S. Ct. at 1264. In discussing that the prisoner in
Vitek had a right to attend the hearing and present evidence, the
Supreme Court explained that the State's interest in avoiding
disruption was recognized by limiting, in appropriate
circumstances, the prisoner's right to call, confront, and cross-
examine witnesses. Vitek, 445 U.S. at 496, 63 L. Ed. 2d at 567,
100 S. Ct. at 1265. Accordingly, although the Supreme Court never
specifically addressed the issue of waiver, it did state that a
prisoner's constitutional right to be present at a civil commitment
hearing could be curbed if the court deemed his conduct too
disruptive. See Vitek, 445 U.S. at 496, 63 L. Ed. 2d at 567, 100 S. Ct. at 1265.
We find the Doremus, Kendall, Suzuki, and Bell courts'
interpretation of the federal constitution and the minimum
protections required to protect an individual's liberty interest
compelling. Further, we find that the only limitation placed on an
individual's constitutional right to attend his civil commitment
hearing thus far is the state's interest that the individual may
disrupt court proceedings. See Vitek, 445 U.S. at 495-97, 63 L. Ed. 2d at 566-67, 100 S. Ct. at 1265-66. As a result, we find
that, because section 3--806(a) provides for a civil commitment
hearing to take place without the respondent's waiver and for
reasons other than the respondent's behavior being so disruptive
that it interferes with the court proceedings, it violates the
respondent's due process rights, thereby being unconstitutional.
The State argues that this court should rely on French v.
Blackburn, 428 F. Supp. 1351 (M.D.N.C 1977), aff'd, 443 U.S. 901,
61 L. Ed. 2d 869, 99 S. Ct. 3091 (1979), which held constitutional
a North Carolina statute that allowed an individual's presence at
a hearing to be waived by the submission of a written statement by
his counsel that was approved by the court. We decline to compare
the North Carolina statute to section 3--806(a) or comment on its
constitutionality. Section 3--806(a) does not require a written
statement by an attorney. Further, we find the discussion of the
minimum due process procedures required in civil commitment
hearings in Doremus, Kendall, Suzuki, and Bell more helpful to our
analysis in this case.
Additionally, the State argues that to require a mental health
patient to waive his right to be present at a hearing would be
"unrealistic" and "may well prove impossible" because most mental
health patients do not have the capability to make a waiver.
Further, the Attorney General contends that requiring admonishments
to the respondent would not "have any value" in safeguarding a
respondent's liberty interest and would actually impede the State's
parens patriae interest.
We find these arguments unpersuasive. Both the State and the
Attorney General fail to recognize that respondents attending a
civil commitment hearing are presumed competent. People ex rel.
Drury v. Catholic Home Bureau, 34 Ill. 2d 84, 95 (1966).
Accordingly, it cannot be assumed that Barbara H., or any other
respondent in her position, is incapable of waiving her right to be
present at her hearing. Similarly, a state's parens patriae
interest in an individual does not exist until that individual has
been declared incompetent. In re Orr, 176 Ill. App. 3d 498, 513
(1988). Therefore, requiring the respondent's attorney, guardian
ad litem, or the court to inform her of her right to attend her
hearing cannot impede a State's parens patriae interest because at
that time the respondent is not incompetent.
The State and the Attorney General also contend that a waiver
from a respondent cannot be mandated because under such a procedure
the respondent's attorney would be required to explain to the court
whether the respondent understood her right to be at the hearing.
The State and the Attorney General argue that these explanations of
whether a respondent understood her right to be present at a
hearing may be detrimental to the respondent's defense. We find
this argument also unpersuasive. Certainly, an individual's
ability to understand court procedure and a fundamental right
sufficiently enough to make a rational choice to attend a hearing
is quite different from that same individual's overall mental
capabilities and whether that individual is mentally incompetent.
Further, under section 3--806(c) of the Code, no inference may be
drawn from a respondent's failure to attend his hearing.
Accordingly, any possible damage that results from an attorney's
explaining his client's waiver or lack of waiver is negated by this
provision.
Finally, the Attorney General and the State remind this court
in their briefs that the involuntary medication statute and the
involuntary commitment statute contain a 90-day period time
limitation and a 180-day period limitation. The Attorney General
claims that these time limits mean that only a "limited term of
infringement on the liberty interest at stake" results from these
civil commitment proceedings. Further, the State adds that,
because the Code requires periodic review of every case, an
individual civilly committed is in a much different position than
the position of a criminal defendant who is deprived of his liberty
"for whatever term of imprisonment the judge imposes." We
disagree.
By making such arguments, the State and the Attorney General
fail to acknowledge that the United States Supreme Court has
recognized that "for the ordinary citizen, commitment to a mental
hospital produces 'a massive curtailment of liberty.' " Vitek, 445 U.S. at 491, 63 L. Ed. 2d at 564, 100 S. Ct. at 1263, quoting
Humphrey v. Cady, 405 U.S. 504, 509, 31 L. Ed. 2d 394, 402, 92 S. Ct. 1048, 1052 (1972). Indeed, commitment to a mental hospital
"can engender adverse social consequences to the individual" and
"can have a very significant impact on the individual." Addington
v. Texas, 441 U.S. 418, 425-26, 60 L. Ed. 2d 323, 331, 99 S. Ct. 1804, 1809 (1979). Accordingly, that the Code imposes a time
limitation on the period of commitment and the period in which
psychotropic medication may be administered does not change the
fact that the commitment results in a loss of freedom that affects
an individual's liberty interest. Therefore, it remains necessary
for the State to comply with the minimum requirements of due
process. See Vitek, 445 U.S. at 491, 63 L. Ed. 2d at 563, 100 S. Ct. at 1263.
This court wishes to note that it is not beyond our
recognition that requiring a respondent's waiver for the court to
proceed in absentia against a respondent raises several practical
concerns for our trial courts. However, we are encouraged by laws
in other states that have already addressed this issue. We believe
that these laws provide examples of civil commitment hearing
procedures that, if adopted by our legislature and followed by our
court system, protect a respondent's liberty interest without
throwing the trial courts into a state of disarray.
We note that several state laws simply provide that an
individual has a right to be present at the civil commitment
hearing unless he waives that right or the court proceeding cannot
reasonably continue while the person is present. See, e.g., Minn.
Stat. Ann. 253B.08 (West 1996); N.J. Stat. Ann. 30:4-27.14 (West
1996); N.M. Stat. Ann. 43--1--11 (Michie 1996). Accordingly, the
State's and the Attorney General's concern that a hearing may be
stopped "from going forward" because a respondent refuses to waive
her right but disrupts the proceedings is unfounded. Instead, a
statute that recognizes that attendance at a commitment hearing is
a constitutional right that is only waivable by the respondent,
except in circumstances where the respondent's behavior disrupts
the court proceedings so that the hearing cannot continue in a
reasonable manner, adequately protects the respondent's liberty
interest and the state's interest in having a hearing.
As currently drafted, section 3--806(a) affords no such
protection. Instead, under section 3--806(a), an individual's
presence may be waived, even if that individual wishes to attend
the hearing. This outcome is undoubtedly unconstitutional as it
flies in the face of the clearly enunciated fundamental right that
an individual has to be present at his civil commitment hearing.
See Specht v. Patterson, 386 U.S. 605, 610, 18 L. Ed. 2d 326, 330,
87 S. Ct. 1209, 1212 (1967).
Turning to the second part of section 3--806, this court finds
that section 3--806(b) is also unconstitutional on its face for the
reasons discussed above. Specifically, we note that section 3--
806(b), while allowing an individual to "refuse[ ] to attend" the
hearing, does not provide that this refusal be made knowingly or
intelligently by the individual after that individual is aware of
his or her constitutional right to be present at the hearing and
that the hearing may proceed in that individual's absence. See
Johnson, 75 Ill. 2d at 187 (discussing when a "waiver" is valid).
Accordingly, like section 3--806(a), following the procedure in
section 3-806(b) can result in a hearing taking place without an
individual when that individual has not waived his right to be
present at that proceeding. Therefore, because section 3--806(b)
fails adequately to protect an individual's liberty interest, we
find it unconstitutional.
In conclusion, we find that section 3--806(a) and section 3--
806(b) are unconstitutional on their face as they fail adequately
to protect an individual's liberty interest. Accordingly, Barbara
H. is entitled to a new hearing on whether she can be involuntarily
committed to the Center as well as a new hearing on whether the
Center can administer psychotropic medication. Therefore, because
new hearings will take place, we decline to address whether the
trial court's holding one combined hearing on both state petitions
in violation of the statute mandates a new hearing, or whether the
court's order authorizing psychotropic medicine was not supported
by the evidence.
For the foregoing reasons, the judgment of the circuit court
of Kane County is reversed, and the cause is remanded.
Reversed and remanded.
McLAREN and BOWMAN, JJ., concur.
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