In re Edward S.

No. 2--97--1002
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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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In re EDWARD S., Alleged to ) Appeal from the Circuit Court
be a Person in Need of ) of Kane County.
Involuntary Psychotropic )
Medication ) No. 97--MH--300
)
(The People of the State of )
Illinois, Petitioner-Appellee, ) Honorable
v. Edward S., Respondent- ) Robert L. Janes,
Appellant). ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:

Respondent, Edward S., appeals the order of the circuit court
of Kane County authorizing the Elgin Mental Health Center to
administer psychotropic medication and to perform various
laboratory tests and medical examinations. We reverse.
On September 2, 1997, Dr. Farazana Husain of the Elgin Mental
Health Center petitioned the circuit court for permission to
administer antipsychotic and mood-stabilizing medication and to
perform medical testing on respondent. On that same day,
respondent was personally served with notice that the hearing on
the medication petition would be held on September 5, 1997. On
September 5, 1997, the medication petition was not heard, but,
instead, the circuit court held a hearing on the petition to
involuntarily commit respondent. The involuntary commitment of
respondent is not at issue in this appeal.
On September 10, 1997, a second petition to administer
psychotropic medication was filed with the circuit court. Dr.
Herbert Rohr petitioned the court for permission to administer the
antipsychotic drugs Haldol, Prolixin, Thorazine, Olanzapine,
Resperidone, and Navane. He also requested permission to use
mood-stabilizing drugs, such as lithium, Tegritol, Depakote,
Ativan, and Klonopin, and side-effect medications, such as Cogentin
and Benadryl, if needed. Dr. Rohr also requested permission to
administer blood tests, when necessary, to determine the levels of
medication in respondent s body and monitor respondent s heart,
liver, kidney and thyroid as indicated by good medical practice.
Dr. Rohr s petition was dated September 9, 1997. The affidavit of
service for this petition indicated that it was personally served
on respondent on September 8, 1997, for hearing on September 12,
1997. The record does not show that any attorney for respondent
was served with notice of the hearing on the medication petition.
The hearing on the second medication petition was held on
September 12, 1997. Before proceeding on the medication petition,
the State reopened its case on respondent s involuntary commitment,
adding Dr. Rohr s testimony. The circuit court entered the final
order in the commitment case and then proceeded to hear the
medication petition. Respondent s counsel noted that there were
two separate medication petitions and there was a problem with
notice on the second petition. After an off-the-record discussion,
respondent s attorney stated that she was ready to proceed.
Dr. Rohr, the State s only witness, testified that, in his
opinion, respondent was a chronic paranoid schizophrenic. Dr. Rohr
testified that respondent had refused to speak with him and that he
based his opinion on records, personal observation, and discussions
with respondent s family and the staff of the Elgin Mental Health
Center. Dr. Rohr testified that respondent had been a patient at
the Elgin Mental Health Center for a short time in 1993 and that he
had never taken any psychotropic medications.
Dr. Rohr testified that, according to respondent s parents,
they had supported respondent for the past four or five years.
During the previous year, respondent had begun to believe that his
water and food were poisoned. Respondent s parents also reported
that he had lost weight, stopped properly attending to his personal
hygiene, and had been threatening and aggressive toward them. Dr.
Rohr also noted that, several days before the hearing, respondent
had pushed another patient to the floor.
Dr. Rohr testified that, in his opinion, the administration of
antipsychotic medication would clear up respondent s delusional
system. Dr. Rohr testified about Haldol, Olanzapine, and
Resperidone, all of which are antipsychotic medicines. While he
did not make a recommendation as to which to use with respondent,
he testified about their benefits and side effects. Dr. Rohr also
testified that his recommendation for administering mood-
stabilizing drugs was based on respondent s behavior during his
1993 admission to the Elgin Mental Health Center. Dr. Rohr
concluded that the benefit accruing to respondent from the
administration of psychotropic medication outweighed the harm.
Dr. Rohr testified that respondent had realized and exercised
his right to refuse medication. Dr. Rohr did not believe that
respondent had the capacity, however, to make a reasoned decision
about refusing medication. Dr. Rohr testified that, while he had
not been able to discuss the advantages and disadvantages of the
medicines, Dr. Husain had apparently written a note that she
discussed this with respondent.
Dr. Rohr testified that respondent had been eating and
drinking while residing at the Elgin Mental Health Center. He
further testified that, due to respondent s poor cooperation, the
less restrictive therapies, such as group and individual therapy,
had been unsuccessful. Dr. Rohr opined that respondent would not
improve without medication and recommended that he receive
medication for the maximum period of 90 days.
Respondent s attorney did not call any witnesses and argued
only that the State failed to meet its burden of proof. The
circuit court found that the State had proved, by clear and
convincing evidence, the need to administer psychotropic medicine
to respondent. The circuit court found that respondent had a
serious mental illness, had refused psychotropic medication,
exhibited a severe deterioration in his ability to function, the
illness had existed for a period of time, the benefits of
psychotropic medication outweighed its harm, respondent lacked the
capacity to make a reasoned decision about receiving medication,
and that other, less restrictive services had been attempted and
found to be inappropriate. The circuit court granted the petition
for a period of no more than 90 days. Respondent timely appeals.
Respondent first challenges the sufficiency of the State s
evidence. When reviewing the sufficiency of the evidence, a
reviewing court will reverse the fact finder s determination only
if it is against the manifest weight of the evidence. In re
Jeffers, 239 Ill. App. 3d 29, 35 (1992). A trial court s decision
is against the manifest weight of the evidence if the opposite
conclusion is clearly evident, plain, and indisputable. Jeffers,
239 Ill. App. 3d at 35. Respondent argues that the State did not
present clear and convincing evidence that respondent lacked the
capacity to make a reasoned decision about his medication. We
agree.
In a hearing pursuant to section 2--107.1 of the Mental Health
and Developmental Disabilities Code (Code) (405 ILCS 5/2--107.1
(West 1996)), the State must prove, among other things, that the
respondent lacks the capacity to make a reasoned decision regarding
the administration of psychotropic medication and must prove this
by clear and convincing evidence. 405 ILCS 5/2--107.1(a)(4)(E)
(West 1996). Before one can make a reasoned decision regarding
medication, it is first necessary to be informed about the risks
and benefits of the proposed course of medication. The Code
requires that the patient be informed in writing about the side
effects of proposed medication. 405 ILCS 5/2--102(a) (West 1996).
If a patient is not informed of the risks and benefits of proposed
medication, an order for the involuntary administration of
medication must be reversed. In re Bontrager, 286 Ill. App. 3d
226, 231-32 (1997).
After careful review of the record, we conclude that the State
failed to prove that it apprised respondent of the risks and
benefits of its proposed course of medication. The record
indicates that Dr. Rohr spoke with respondent for two minutes and
did not discuss medication with him. Dr. Rohr testified that "Dr.
Husain apparently wrote a note that she had at least attempted to
discuss it with" respondent. Dr. Rohr was unable to recall when
respondent was supposed to have spoken with Dr. Husain, but
believed that it was shortly after respondent had arrived at the
Elgin Mental Health Center. Dr. Husain did not testify at the
hearing. Based on this record, we must conclude that the State
failed to prove, by clear and convincing evidence, that respondent
was informed of the risks and benefits of the administration of
psychotropic medication. The hearsay testimony concerning the
contents of Dr. Husain s note, while admissible to show the basis
of Dr. Rohr s opinion, is simply insufficient (as well as
inadmissible) to demonstrate, much less by clear and convincing
evidence, that the State provided respondent with the necessary
information from which he could make a reasoned decision.
Moreover, the record does not even indicate that the State made a
diligent effort to apprise respondent of the risks and benefits of
psychotropic medication. Accordingly, we hold that the circuit
court s order to involuntarily administer psychotropic drugs to
respondent was manifestly erroneous. Because of our resolution of
this issue, we need not consider respondent s remaining arguments.
The judgment of the circuit court of Kane County is reversed.
Reversed.
GEIGER, P.J., and DOYLE, J., concur.