In re Jones

No. 3--96--0178

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1996

IN THE MATTER OF REBECCA ) Appeal from the Circuit Court
JONES, a/k/a Bekki Keene ) of the 10th Judicial Circuit
Kennedy (A Person Found ) Peoria County, Illinois
Subject to Administration of )
Medication) )
)
PEOPLE OF THE STATE OF )
ILLINOIS, )
)
Petitioner-Appellee, )
)
v. ) No. 96--MH--32
)
REBECCA JONES, a/k/a Bekki )
Keene Kennedy, ) Honorable
) E. Michael O'Brien,
Respondent-Appellant. ) Judge Presiding.

_________________________________________________________________

JUSTICE MICHELA delivered the opinion of the Court:
_________________________________________________________________

The petitioner-appellee, the State, filed a petition to
involuntarily administer psychotropic medication to the respondent-
appellant, Rebecca Jones, a/k/a Bekki Keene Kennedy (Jones). The
trial court granted the petition finding that Jones suffered from
a serious mental illness and that the State satisfied the
requirements of section 2--107.1 of the Mental Health and
Developmental Disabilities Code (405 ILCS 5/2-107.1 (West 1994)).
Jones appeals arguing, inter alia, the State failed to present
clear and convincing evidence in support of its petition. We agree
and reverse.
The limited record in this case reveals the following
pertinent facts. Jones was residing in the Danville area when the
local police served her with eviction papers at her apartment. The
officers believed that Jones was acting in a bizarre manner and not
taking care of her needs. Thus, they transported her to Good
Samaritan Hospital for observation. She was admitted there and
subsequently committed for a period of 180 days. It was reported
that she refused to comply with treatment and that the hospital
staff was unable to handle her. Thus, she was transferred to
Zeller Mental Health Center on January 24, 1996.
On January 30, 1996, the State filed a petition to administer
psychotropic medication to Jones. The trial court set the hearing
for January 31, 1996, required notice be sent to appropriate
parties, and appointed counsel to represent Jones. Jones was
personally served with notice on January 31, 1996. Both she and
her counsel were present at the hearing on January 31, 1996. Her
counsel did not object to the timeliness of the notice nor did he
make a showing as to any prejudice his client would suffer from
such short notice.
The State called Dr. Pratap Attaluri, a psychiatrist at
Zeller, as its only witness in the case. Dr. Attaluri stated he
was assigned as the treating physician for Jones in this matter.
He examined Jones on January 24, 1996 and found her to be loud,
disruptive and delusional. According to Dr. Attaluri, Jones
believes her name is Mrs. Kennedy and that she has been married to
John F. Kennedy, Jr. She also believes she is an FBI agent
involved in the Waco incident. Further, Jones told Dr. Attaluri
that she could not take medication because it would adversely
affect her multiple cancers. From this, Dr. Attaluri testified
that Jones had no insight and impaired judgment.
Dr. Attaluri diagnosed Jones as suffering from personality
changes secondary to a general medical condition, specifically a
head injury. Dr. Attaluri believed that a head injury which
occurred 30 years ago was the cause of Jones' mental illness. Dr.
Attaluri proscribed Depakote, Haldol and Cogentin to treat Jones'
mental illness. However, Dr. Attaluri stated that Jones refused
the medication in fear of an allergic reaction. Dr. Attaluri
testified that Jones was administered similar medication at
Danville but then refused the medication because she complained of
unpleasant side effects. According to Dr. Attaluri, there are
potential side effects to these medications, such as tremors,
rigidity and dryness of the mouth, but that such side effects could
be controlled through the administration of companion medications.
Further, Jones would be closely monitored for any physical reaction
to the medication.
The following testimony completed Dr. Attaluri's direct
examination:
"Q. Would it be your medical judgment
that the possible benefits of the medication
would outweigh any of the potential physical
side effects of the medication?
A. Yes, I do believe that.
Q. Does the patient have the ability to
make a reasoned decision in regards to taking
the medication in your judgment at this time?
A. No.
Q. Is there any less intrusive means of
treating the patient at this time?
A. Not at this time."
Jones testified that she did not want to take this medication
because she had doctor's orders not to because it would kill her.
She stated she experienced seven hours of trauma at Danville when
medication was forced upon her. She offered no other cogent
testimony into either her illness or her desire to refuse medical
treatment.
The trial court then granted the petition and authorized
Zeller to administer psychotropic medication to Jones for a period
of 90 days. The trial court found that Jones suffered from a
serious mental illness, that there had been a deterioration of her
ability to function, that she had been loud, disruptive and
delusional, and that she lacked insight, had impaired judgment and
was unable to care for herself. The court further found that this
illness had existed for a considerable period of time, that the
benefits of administering psychotropic medication outweighed the
harm, that Jones lacked capacity to make a reasoned decision about
the medication, and that other less restrictive services had been
found inappropriate. The trial court did not specifically utilize
a "substituted judgment" approach when reaching its decision.
Jones appeals.
On appeal, Jones first argues that her due process rights were
violated procedurally because of a lack of formal notice of the
hearing. In In re C.E., our supreme court held that formal notice
under a section 2--107.1 petition is not necessary if the recipient
and his attorney received actual notice of the proceedings and were
provided ample opportunity to respond to the arguments made. In re
C.E., 161 Ill. 2d 200, 226-27, 641 N.E.2d 345, 357 (1994).
However, it is incumbent upon the recipient to demonstrate
prejudice by the absence of formal notice. In re C.E., 161 Ill. 2d 200, 226-27, 641 N.E.2d 345, 357 (1994). In the present case, the
record reveals that both Jones and her attorney received actual
notice of the proceedings. However, we find that actual notice of
one day did not sufficiently afford counsel an opportunity to
prepare. It was therefore incumbent upon Jones to demonstrate that
she was prejudiced by the absence of formal notice. However, her
attorney made no such argument to the trial court. Short notice
alone is insufficient to constitute prejudice per se. Since Jones
did not claim she was prejudiced by the absence of formal notice,
and since we are unable to find any prejudice on the present
record, Jones' argument must fail. See In re C.E., 161 Ill. 2d at
227, 641 N.E.2d at 357.
Jones next argues the trial court committed reversible error
by failing to apply a "substituted judgment" standard to the matter
at hand. She argues the trial court was required to give deference
to her wishes to refuse psychotropic medication. Under the
substituted judgment analysis, the surrogate decision-maker
attempts to establish, with as much accuracy as possible, what
decision the patient would make if he or she were competent to do
so. In re C.E., 161 Ill. 2d at 220, 641 N.E.2d at 354; In re
Estate of Longeway, 133 Ill. 2d 33, 49, 549 N.E.2d 292, 299 (1989).
Thus, in the present case, our inquiry is whether Jones clearly
proved that her desire to refuse psychotropic medication was
competently made. In re Israel, 278 Ill. App. 3d 24, 34, 664 N.E.2d 1032, 1038 (1996).
At the hearing, the testimony of Dr. Attaluri established that
Jones was suffering from a mental illness and was delusional. The
evidence further indicated that Jones' objections concerning the
medications were not rational. While Jones offered specific
reasons for refusing the medical treatment, we find that such
evidence does not render her testimony "clear" evidence of her
competent wishes concerning the administration of medication. See
In re Israel, 278 Ill. App. 3d at 34, 664 N.E.2d at 1038; In re
Schaap, 274 Ill. App. 3d 497, 502-03, 654 N.E.2d 1084, 1087-88
(1995). Thus, we find the trial court did not err by failing to
apply the "substituted judgment" test.
Jones finally argues the State failed to prove by clear and
convincing evidence the factors required under section 2--107.1(d)
of the Mental Health and Developmental Disabilities Code (405 ILCS
5/2-107.1 (West 1994)). Section 2--107.1(d) delineates the
nonemergency circumstances under which psychotropic medication may
be administered against the wishes of the recipient. Section 2--
107.1(d) directs that forced administration of psychotropic
medication is only authorized if the court finds evidence of each
of the following elements, by clear and convincing proof:
"(1) That the recipient has a serious
mental illness or developmental disability.
(2) That because of said mental illness or
developmental disability, the recipient
exhibits deterioration of his ability to
function, suffering, or threatening or
disruptive behavior.
(3) That the illness of disability has
existed for a period marked by the continuing
presence of the symptoms set forth in
paragraph (2) [above] or the repeated episodic
occurrence of these symptoms.
(4) That the benefits of the psychotropic
medication will outweigh the harm.
(5) That the recipient lacks the capacity
to make a reasoned decision about the
medication.
(6) That other less restrictive services
have been explored and found inappropriate."
405 ILCS 5/2--107.1(d) (West 1994).
Clear and convincing evidence is defined as the quantum of
proof which leaves no reasonable doubt in the mind of the fact
finder as to the veracity of the proposition in question. Bazydlo
v. Volant, 164 Ill. 2d 207, 647 N.E.2d 273 (1995). As a reviewing
court, we give great deference to the trial court's factual
findings because the court stands in the best position to weigh the
credibility of all the witnesses; thus we will disturb the trial
court's decision only if it is manifestly erroneous. In re
Jeffers, 239 Ill. App. 3d 29, 606 N.E.2d 727 (1992).
In the instant case, we find the State only proved by clear
and convincing evidence that Jones suffered from a serious mental
illness, Jones lacked capacity to make a reasoned decision and that
the benefits of administering psychotropic medication outweighed
its harm. There is no evidence of actual suffering, loss of
ability to function or threatening behavior. The record reveals
that her loud and disruptive behavior manifested itself only when
she was examined and medication was forced upon her. Also, there
was no evidence submitted as to what other services were explored
and found inappropriate. Accordingly, we find the trial court's
order to be manifestly erroneous.
For the foregoing reasons, the order of the circuit court of
Peoria County is reversed.
Reversed.
HOLDRIDGE, P.J. and SLATER, J., concurring.