{
  "id": 79427,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORA MARKWART, Guardian, ex rel. John Markwart, Defendant-Appellant",
  "name_abbreviation": "People v. Markwart",
  "decision_date": "2001-12-28",
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  "last_updated": "2023-07-14T20:55:57.852492+00:00",
  "provenance": {
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORA MARKWART, Guardian, ex rel. John Markwart, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE GORDON\ndelivered the opinion of the court:\nIn 1996, John Markwart (defendant) was found not guilty by reason of insanity\" of aggravated arson in a bench trial before the circuit court of Cook County. He was then .committed to the custody of the Illinois Department of Human Services pursuant to section 5 \u2014 2\u20144 of the Unified Code of Corrections. 730 ILCS 5/5 \u2014 2\u20144 (West 2000). In April 2000, defendant sought review of the treatment plan report filed by the mental health facility housing him, alleging that the plan did not comply with governing statutes. Defendant also sought review of his treatment at that facility, alleging that it was not adequate. The circuit court held that the existing plan complied with the statute and denied defendant\u2019s request for a hearing to review his actual treatment. Defendant appeals the circuit court\u2019s rulings, claiming that the finding that the plan was adequate is against the manifest weight of the evidence and that the hearing requested is mandatory and not within the discretion of the circuit court to deny. For the reasons discussed below, we affirm.\nBACKGROUND\nIn August 1995, defendant was charged with aggravated arson for setting a desk on fire at Cook County Hospital. According to testimony given during defendant\u2019s bench trial, defendant approached the desk of a hospital employee, poured liquid on it from a jar and then lit the desk on fire. At trial, the parties stipulated that if a detective from the Chicago police department bomb and arson unit were to have testified, he would have stated that the fire in question caused structural damage and was intentionally set. The detective would also have testified that defendant told him that he set the fire because he was dissatisfied with the psychiatric treatment he was receiving at Cook County Hospital. The defense presented the testimony of Dr. Stafford Henry, a forensic psychologist, who performed a psychiatric evaluation of defendant and concluded that defendant was suffering from schizophrenia and was legally insane at the time the fire was set. The trial court found that the State proved all the elements of the crime beyond a reasonable doubt but further found that the defense proved, by clear and convincing evidence, that defendant was legally insane at the time of the crime. The court then found defendant not guilty by reason of insanity.\nFrom his acquittal in December 1996, until the present, defendant has been in the custody of the Department of Human Services at the Elgin Mental Health Center. During this period, Cora Markwart was appointed legal guardian of her son, defendant, pursuant to section 11a \u2014 1 et seq. of the Probate Act of 1975 and pursued these proceedings on his behalf. 755 ILCS 5/lla \u2014 1 (West 2000).\nUnder section 5 \u2014 2\u20144 of the Unified Code of Corrections, the facility housing a defendant acquitted by reason of insanity must file a treatment plan report with the court every 60 days during the defendant\u2019s confinement. 730 ILCS 5/5 \u2014 2\u20144(b) (West 2000). The report Elgin filed in February 2000 is at issue in this case. According to the contents of this report, defendant suffers from delusions, including the notion that he has an increased sensitivity to pain. These delusions led defendant to demand that Cook County Hospital perform \u201c$3,000\u201d worth of tests on him, and its refusal to accede to this apparently psychotic demand led defendant to set the fire at that location. According to the treatment plan report, in February 2000, defendant was still actively delusional. In 1999, the report states that defendant experienced a period of anorexia, his weigh dropping to 127 pounds, during which he claimed that starving himself would get him out of Elgin \u201csooner than later.\u201d Through the administration of medication and court-approved electroconvulsive therapy (ECT), defendant\u2019s weight was raised to 179 pounds, but Elgin staff \u00bfpparently still strictly monitored defendant\u2019s eating and his efforts to sell his food. The report also indicates that defendant manifested significant problems with social skills and personal hygiene. The report reveals that defendant\u2019s primary form of treatment is antipsychotic medications. Apparently, the treating psychiatrist has tried a number of different medications, the one in use in February 2000 offering only moderate success in limiting defendant\u2019s delusion.\nIn addition, the June 2000 treatment plan report, submitted during the course of this litigation, indicates that defendant followed a nurse into a restricted area, would not leave, and when set on by another patient coming to the nurse\u2019s aid, bit the other patient, drawing blood. Defendant then went on a medications strike which was eventually resolved.\nIn April 2000, defendant filed a petition for review of treatment alleging that his February 2000 treatment plan did not conform to the statutory requirements set out in sections 3 \u2014 209 and 3 \u2014 814 of the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/3 \u2014 209, 3 \u2014 814 (West 2000)). Defendant asked that the court enter an order requiring Elgin to submit a revised treatment plan. Defendant also requested a hearing to determine whether he was receiving adequate and humane care and services under his treatment plan as defined in section 1 \u2014 101.2 of the Mental Health Code. 405 ILCS 5/1 \u2014 101.2 (West 2000). On defendant\u2019s first request, the trial court reviewed the treatment plan and concluded that it was adequate and necessary for defendant\u2019s condition. Upon the trial judge\u2019s ruling, defendant reiterated his request for a hearing on the adequacy of his treatment and requested that an independent psychiatric exam be performed as part of that review. The trial court denied defendant\u2019s petition, stating \u201c[a]t its discretion the Court denies that request.\u201d This appeal followed.\nANALYSIS\nBy his first issue, defendant argues that the trial court erred in finding that the treatment plan submitted by the Elgin Mental Health Center was adequate. Defendant contends that the plan failed to articulate several of the statutorily mandated elements and those it did include were facially inadequate. Although no case directly addresses the standard of review of a trial court\u2019s holdings on a treatment plan, defendant and the State agree that the applicable standard of review is whether the finding was against the manifest weight of the evidence. See, e.g., Whyte v. Estate of Whyte, 244 Ill. App. 3d 746, 748, 614 N.E.2d 372, 373 (1993) (trial court\u2019s ruling that previously void marriage became lawful would only be disturbed if it were against the manifest weight of the evidence).\nDefendant\u2019s right to challenge the facial adequacy of his treatment plan is outlined in the interreferential subsections of the two statutes governing his confinement: section 5 \u2014 2\u20144 of the Unified Code of Corrections and section 3 \u2014 814 of the Mental Health Code. 730 ILCS 5/5 \u2014 2\u20144 (West 2000); 405 ILCS 5/3 \u2014 814 (West 2000). Defendant was committed to Elgin, after being found not guilty by reason of insanity (NGRI), under section 5 \u2014 2\u20144 of the Unified Code of Corrections. 730 ILCS 5/5 \u2014 2\u20144(a) (West 1996). This section provides detailed directions about the process of commitment in such cases, the reporting requirements of the treatment facility, and the rights to and procedures for review of certain aspects of a defendant\u2019s confinement. Part (b) of this section also provides:\n\u201cIf the Court finds the defendant subject to involuntary admission or in need of mental health services on an inpatient basis, the admission, detention, care, treatment or habilitation, treatment plans, review proceedings, including review of treatment and treatment plans, and discharge of the defendant after such order shall be under the Mental Health and Developmental Disabilities Code ***.\u201d 730 ILCS 5/5 \u2014 2\u20144(b) (West 2000).\nUnder that code, section 3 \u2014 814(c) states that \u201c[o]n request of the recipient or an interested person on his behalf, or on the court\u2019s own initiative, the court shall review the current treatment plan to determine whether its contents comply with the requirements ***. If the court determines that any of the information required by this Section *** to be included in the treatment plan is not in the treatment plan *** the court shall indicate what is lacking and order the facility director to revise the current treatment plan to comply with this Section.\u201d 405 ILCS 5/3 \u2014 814(c) (West 2000). Thus section 5 \u2014 2\u20144(b), by incorporating section 3 \u2014 814, allows a defendant to make a facial challenge to his treatment plan and request that a complying plan be submitted by the treating facility.\nSection 5 \u2014 2\u20144(b) of the Unified Code of Corrections dictates that such a treatment plan report must be submitted by the treating mental health facility every 60 days during the duration of the defendant\u2019s involuntary confinement. 730 ILCS 5/5 \u2014 2\u20144(b) (West 2000). This section also states the required contents of the treatment plan report. The treatment plan report shall include:\n\u201c[a]n opinion as to whether the defendant is currently subject to involuntary admission, in need of mental health services on an inpatient basis, or in need of mental health services on an outpatient basis. The report shall also summarize the basis for those findings and provide a current summary of the following items from the treatment plan: (1) an assessment of the defendant\u2019s treatment needs, (2) a description of the services recommended for treatment, (3) the goals of each type of element of service, (4) an anticipated timetable for the accomplishment of goals, and (5) a designation of the qualified professional responsible for the implementation of the plan.\u201d 730 ILCS 5/5 \u2014 2\u20144(b) (West 2000).\nDefendant argues that on its face the February 2000 plan fails to adequately outline these requirements and that based upon these obvious defects the trial judge should have ordered Elgin to submit a revised plan.\nDefendant\u2019s underlying concern in forwarding these arguments centers on the fact that these reports are used by non-mental-health professionals \u2014 the defendant, his attorney, the State\u2019s Attorney, and the trial judge \u2014 to evaluate the adequacy, humaneness, and duration of his confinement. If these reports contain nothing but vague and overbroad generalizations about defendant\u2019s care, then defendant and the courts have no way to assess the care given by Elgin, nor any way to assess whether defendant\u2019s continued involuntary commitment is appropriate. While we recognize the cogency of defendant\u2019s concerns, and in small part share his apprehensions about the level of specificity provided in the treatment plan at issue, we find that the trial court\u2019s assessment that the report was adequate under the statute was not against the manifest weight of the evidence.\nGoing through defendant\u2019s contentions point by point, he first asserts that the treatment plan does not set forth information from which the basis for his confinement can be determined. Defendant argues that the plan assumes that he is in need of mental health services on an inpatient basis but fails to articulate whether he is a current danger to himself or others. Defendant goes on to note that many individuals diagnosed with schizophrenia are treated in the community, not in a mental hospital, and that Elgin\u2019s report provides no reason why such treatment cannot be pursued in his case.\nThe State counters that the report states that defendant is actively psychotic and continues to suffer from the same delusions that led him to commit the crime which provided the basis for his initial confinement. In addition, the report indicates that defendant is still working through a severe eating disorder, which initially caused him to drop to a dangerously low weight. The report states that defendant continues to sell his food and to make statements such as \u201cI hate food and shouldn\u2019t have to eat any of it.\u201d Although not articulated in the exact language of the statute defining qualifications for commitment, we find that the trial court\u2019s reliance on these assessments of defendant\u2019s condition as the basis for his continued confinement is not against the manifest weight of the evidence.\nDefendant next argues that the treatment plan does not contain an assessment of his treatment needs. The plan does, however, list five problems experienced by defendant and an indication of how Elgin is responding to each of them. The plan indicates that defendant is still actively psychotic and is in the process of being treated with medication in an attempt to control his delusions. Defendant is not complying with unit rules and staff are actively working to encourage greater compliance. Defendant is not taking care of personal hygiene or his living quarters and again staff is working regularly with him on improvement in these areas. Defendant is withdrawn and thus has been enrolled in a social skills program, which staff are encouraging him to regularly attend. Finally, defendant continues to manifest problems with food and these are being addressed with medication and staff intervention. These details provide sufficient information about defendant\u2019s treatment needs to support the trial court\u2019s finding that the plan is adequate in this area.\nLikewise, defendant contends that the plan does not contain a description of the services recommended for treatment. The plan does, however, indicate that defendant is being treated with antipsychotic medication and an antidepressant. Although the antipsychotic drug is providing only minimal to moderate relief, the plan reveals that the facility is in the midst of the not uncommon process of serially administering different medications in search of one that will alleviate defendant\u2019s delusions. While medication appears to be the primary focus of treatment, the plan also indicates, as discussed above, that defendant\u2019s anorexia is being monitored and addressed by unit staff, that defendant is participating in a social skills program, and that he is being guided toward better personal hygiene. While more detail about the specific plan Elgin has for treating defendant\u2019s several mental health issues might indeed have been edifying, we find that the trial court did not err in considering this portion of the plan to be adequate.\nFinally, defendant contends that the report does not contain the goals of each type of element of service, the timetable for the accomplishment of the goals, or the designation of the qualified professional responsible for the plan\u2019s implementation. As to the last two, the plan does indeed provide a timetable for the achievement of the five objectives it outlines and does list the staff member responsible for overseeing each of these objectives. Under each objective is listed the \u201cStaff Responsible\u201d and the \u201cExpected Achievement Date.\u201d While defendant argues that the timetable does not correspond to the overall discharge date listed in the plan, we find that such a reading puts a greater exactitude on the report than it can reasonably be expected to bear. The plan estimates the time that it will take for defendant to reach specific objectives and a later date for his ultimate discharge. The discharge date may well be calculated to allow for defendant\u2019s failure to meet an objective by the deadline (for any variety of reasons) or to allow for a period of stability within the facility before defendant is discharged.\nOn the question of the existence of goals themselves, the report provides an overlapping list of goals and objectives in two sections which focus on the control of delusions, compliance with routine expectations and rules of the unit, accomplishment of daily living and social skills, maintenance of weight, and development of a relapse prevention program and realistic aftercare program. The latter two are listed as deferred goals, presumably because they depend on the primary goal of controlling defendant\u2019s delusions. Again, although the report itself might provide a clearer single list of goals, Elgin\u2019s plan for defendant\u2019s rehabilitation is sufficiently clear that both his progress and Elgin\u2019s specific treatment efforts can be determined by those to whom the report is aimed, namely, defendant, his attorney, the State and the reviewing court. Thus we find that the trial court\u2019s finding that the treatment plan as a whole is adequate is not against the manifest weight of the evidence.\nDefendant next argues that the court erred in refusing to grant him a hearing to review the adequacy of his treatment and in refusing to order an independent psychiatric examination as a part of that hearing. We disagree.\nThe issue presented here is whether defendant had a right to a hearing as a matter of law under the two governing statutes. We will therefore review the trial court\u2019s holding de novo. People v. O\u2019Brien, 197 Ill. 2d 88, 91, 754 N.E.2d 327, 329 (2001). Because analysis of this issue depends upon the construction of recently amended statutes, we must also be cognizant of basic rules of statutory interpretation. We begin our analysis with the language of the statute, giving it its plain and ordinary meaning. Davis v. Toshiba Machine Co., America, 186 Ill. 2d 181, 184, 710 N.E.2d 399, 401 (1999). Where the language is unambiguous, we will \u201capply the statute without resort to further aids of statutory construction.\u201d O\u2019Brien, 197 Ill. 2d at 90-91, 754 N.E.2d at 329. Nor will we read into it \u201cexceptions, limitations, or conditions that the legislature did not express.\u201d Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 83, 630 N.E.2d 820, 823 (1994).\nAs an initial matter, we note that this issue differs from defendant\u2019s first issue in the substance of the request. As section 3 \u2014 814 indicates, involuntarily committed patients may challenge both their treatment plan and their actual treatment. 405 ILCS 5/3 \u2014 814(c), (d) (West 2000). At issue in defendant\u2019s appeal are both these challenges. The first, as discussed above, is a facial challenge to the plan based on allegations that it does not conform to the statutory requirements. 405 ILCS 5/3 \u2014 814(c) (West 2000); 730 ILCS 5/5 \u2014 2\u20144(b) (West 2000). Specifically, section 3 \u2014 814(c) states: \u201cOn request of the recipient *** the court shall review the current treatment plan to determine whether its contents comply with the requirements of this Section ***.\u201d 405 ILCS 5/3 \u2014 814(c) (West 2000). Through the incorporation by reference of section 3 \u2014 814(c) in section 5 \u2014 2\u20144(b) of the Unified Code of Corrections, such a challenge is also available to NGRI acquit-tees. 730 ILCS 5/5 \u2014 2\u20144(b) (West 2000).\nIn addition to section 3 \u2014 814(c), section 3 \u2014 814(d) contemplates a review of an inpatient\u2019s actual treatment. Section (d) states: \u201cThe recipient or an interested person on his or her behalf may request a hearing or the court on its own motion may order a hearing to review the treatment being received by the recipient.\u201d (Emphasis added.) 405 ILCS 5/3 \u2014 814(d) (West 2000). This subsection contemplates a review not of the plan on its face, but of the actual treatment a defendant is receiving under the plan. Section 3 \u2014 814(d) is also applicable to NGRI acquittees under the incorporation language of section 5 \u2014 2\u20144(b). 730 ILCS 5/5 \u2014 2\u20144(b) (West 2000).\nDefendant argues that even if the trial court is correct in its ruling that the plan itself is facially adequate under the statute, the treatment he is receiving under the plan must be reviewed to determine if it is adequate and humane. Defendant contends that under section 5 \u2014 2\u20144(e) and section 3 \u2014 814(d), both applicable to NGRI acquittees, a hearing on this question is mandatory and thus that the trial court erred in declining to allow defendant a hearing to review his treatment. 730 ILCS 5/5 \u2014 2\u20144(e) (West 2000). The State counters that review of actual treatment is governed exclusively by section 3 \u2014 814(d) of the Mental Health Code and that, by the plain language of the statute, such hearings are discretionary. A reading of the plain and unambiguous language of both section 3 \u2014 814 and section 5 \u2014 2\u20144 convinces us that defendant is incorrect in contending that the statutes mandate a hearing to review actual treatment.\nDefendant argues that the newly revised language of section 5 \u2014 2\u20144(e) dictates that a request to review the adequacy of treatment under the treatment plan must be the subject of a hearing. This section now reads:\n\u201cA defendant admitted pursuant to this Section, or any person on his behalf, may file a petition for treatment plan review, transfer to a non-secure setting within the Department of Human Services or discharge or conditional release under the standards of this Section in the Court which rendered the verdict. Upon receipt of a petition for treatment plan review, transfer to a non-secure setting or discharge or conditional release, the Court shall set a hearing to be held within 120 days.\u201d (Emphasis added.) 730 ILCS 5/5 \u2014 2\u20144(e) (West 2000).\nDefendant interprets this section as stating that a hearing to review treatment plans is mandatory and that the phrase \u201ctreatment plan review\u201d encompasses both section 3 \u2014 814(c) challenges (facial review of the plan for statutory compliance) and section 3 \u2014 814(d) challenges (review of defendant\u2019s treatment under the plan). That both types of review are contemplated by section 5 \u2014 2\u20144(e), according to defendant, is clear when section 3 \u2014 814, entitled generically \u201cTreatment Plan,\u201d is read as a whole. This section contains the procedures for both challenges and states that \u201c[t]he purpose of the filing, forwarding, and review of treatment plans and treatment is to ensure that the recipient is receiving adequate and humane care and services.\u201d 405 ILCS 5/3 \u2014 814(b) (West 2000). The Mental Health Code defines adequate and humane care and services as \u201cservices reasonably calculated to result in a significant improvement of the condition of a recipient of services confined in an inpatient mental health facility *** or services reasonably calculated to prevent further decline in the clinical condition of the recipient.\u201d 405 ILCS 5/1 \u2014 101.2 (West 2000). Defendant contends that both types of challenges serve a similar purpose and that both are encompassed by the umbrella phrase \u201ctreatment plan review.\u201d Defendant further contends that the legislature also intended section 3 \u2014 814(d) to require mandatory hearings for treatment review.\nWe agree with defendant that under the rules of statutory construction, the word \u201cshall,\u201d as used in section 5 \u2014 2\u20144(e), is generally indicative of mandatory intent. People v. Singleton, 103 Ill. 2d 339, 341-42, 469 N.E.2d 200 (1984). However, we are not persuaded by defendant\u2019s interpretation of the phrase \u201ctreatment plan.\u201d We read the unambiguous language of the section to cover only procedures for review of treatment plans and not actual treatment. Section 5 \u2014 2\u2014 4(e) by its plain language makes no mention of review of actual \u201ctreatment.\u201d Section 5 \u2014 2\u20144(b) recognizes a distinction between the two concepts, stating, \u201cthe admission, detention, care, treatment or habilitation, treatment plans, review proceedings, including review of treatment and treatment plans, *** shall be under the Mental Health and Developmental Disabilities Code.\u201d 730 ILCS 5/5 \u2014 2\u20144(b) (West 2000). This section demonstrates that within this act, the legislature considered the concepts of treatment and treatment plan as distinct. We therefore conclude that procedures for review of actual treatment of NGRI acquittees are unaffected by section 5 \u2014 2\u20144(e) and are instead governed by section 3 \u2014 814(d) of the Mental Health Code. Under section 3 \u2014 814(d), an inpatient\u2019s right to a hearing to review actual treatment is provided for by repeated use of the word \u201cmay,\u201d indicating that holding such a hearing is within the discretion of the court. 405 ILCS 5/3 \u2014 814(d) (West 2000).\nAs the court in People v. Chiakulas, 288 Ill. App. 3d 248, 252, 681 N.E.2d 35, 37 (1997), noted, the two statutes at issue are designed to complement each other and can be read together and harmonized. Section 5 \u2014 2\u20144(b) indicates that most aspects of a patient\u2019s involuntary admission and confinement are governed by the Mental Health Code but also provides specific provisions applicable only to NGRI acquittees. The Mental Health Code offers comprehensive definitions, requirements, and procedures for involuntary confinement and review of that confinement but indicates that when the patient is an NGRI acquittee, specific provisions in section 5 \u2014 2\u20144 governing review of treatment plans should dictate the proper procedures. 405 ILCS 5/3\u2014 814(c) (West 2000). In essence, both statutes incorporate each other by reference and send the reader back and forth between them depending upon which section applies.\nSections 5 \u2014 2\u20144(e) through (g) unequivocally outline an NGRI defendant\u2019s right to a hearing on review of treatment plans but are silent on the issue of review of actual treatment. Section 5 \u2014 2\u20144(b) indicates that where the Unified Code of Corrections is silent, the Mental Health Code governs. 730 ILCS 5/5 \u2014 2\u20144(b) (West 2000). The Mental Health Code unequivocally states that when a patient seeks review of his or her actual treatment, whether to hold a hearing is within the discretion of the court. The section reads: \u201cThe recipient or an interested person on his or her behalf may request a hearing or the court on its own motion may order a hearing to review the treatment being received by the recipient.\u201d (Emphasis added.) 405 ILCS 5/3\u2014 814(d) (West 2000). We thus find that defendant is not correct that the court erred simply by exercising its discretion not to hold a hearing. Defendant forwards no argument that, in substance, this decision was an abuse of discretion.\nFinally, we acknowledge that an anomaly lingers in this analysis. Sections 5 \u2014 2\u20144(e) through (g) provide a mandatory, fully adversarial hearing with mandatory review by an independent psychiatrist for the complex and involved questions of transfer to a nonsecure facility and discharge. Under our reading, these sections also provide such protections for the much less complex analysis of whether an NGRI acquit-tee\u2019s treatment plan is facially adequate, while withholding the protections for the obviously complex question of review of defendant\u2019s actual treatment.\nWe note that the Mental Health Code, recognizing that treatment plan review is a more ministerial process, does not even provide for a discretionary hearing of such a challenge, offering merely \u201ccourt review.\u201d 405 ILCS 5/3 \u2014 814(c) (West 2000). On the other hand, the Mental Health Code does provide a discretionary hearing and independent psychiatric review of the more involved question of review of actual treatment. 405 ILCS 5/3 \u2014 814(d) (West 2000). That section 5 \u2014 2\u20144 of the Unified Code of Corrections should do the opposite is indeed anomalous. Be that as it may, however, the plain and unambiguous language of section 5 \u2014 2\u20144(e) provides only for treatment plan review and leaves this court no room to expand its coverage to review of actual treatment.\nDefendant next appeals the trial court\u2019s decision to deny him the right to review of his treatment by an independent psychiatrist under section 5 \u2014 2\u20144(f). 730 ILCS 5/5 \u2014 2\u20144(f) (West 2000). In his oral request at the conclusion of the court\u2019s consideration of the treatment plan, defendant reiterated his desire for a hearing to review his actual treatment and made his first request for an independent psychiatric evaluation as part of that proceeding. The trial court denied the request for a hearing and a psychiatric evaluation.\nDefendant is correct that, under section 5 \u2014 2\u20144(f), \u201c[i]f requested by either the State or the defense or if the court feels it is appropriate, an impartial examination of the defendant by a psychiatrist or clinical psychologist *** who is not in the employ of the Department of Human Services shall be ordered, and the report considered at the time of the hearing.\u201d (Emphasis added.) 730 ILCS 5/5 \u2014 2\u20144(f) (West 2000). However, the \u201chearing\u201d referred to in this subsection is the hearing mandated by section 5 \u2014 2\u20144(e), which, as just discussed, covers only treatment plan review, transfer to a nonsecure setting, or discharge. Independent psychiatric examination for review of actual treatment is governed by section 3 \u2014 814(d). Under that section, \u201c[t]he court may order an independent examination on its own initiative and shall order such an evaluation if either the recipient or the State\u2019s Attorney so requests and has demonstrated to the court that the plan cannot be effectively reviewed by the court without such an examination.\u201d 405 ILCS 5/3 \u2014 814(d) (West 2000). Defendant contends that the trial court erred in failing to give him an opportunity to demonstrate the need for an independent examination. Under our reading of the section, however, defendant has put the cart before the horse. The issue of whether to grant an independent examination is not raised until the court, in its discretion, decides to hold a hearing. In this case, the court declined to hold a hearing to review defendant\u2019s treatment and thus the question of an independent examination never became an issue. We therefore conclude that it was not error for the trial court to exercise its discretion in declining to address the issue of an independent psychiatric review when declining to grant defendant a hearing to review his actual treatment.\nCONCLUSION\nIn conclusion, we affirm the trial court\u2019s finding that defendant\u2019s treatment plan was adequate. We also find that the trial court did not err in denying defendant\u2019s request for a hearing and an independent psychiatric evaluation to determine whether he is receiving adequate treatment.\nAffirmed.\nCAHILL and McBRIDE, JJ., concur.\nAlthough our disposition obviates the need to rule on this issue, we note that defendant\u2019s initial challenge to his treatment plan is subject to the procedural provisions of sections 5 \u2014 2\u20144(e) through (g), including a mandatory, adversarial hearing, and review by an independent psychiatrist. 730 ILCS 5/5 \u2014 2\u20144(e) through (g) (West 2000). However, by pursuing his relief in two tiers, defendant specifically declined a formal hearing on his facial challenge to the treatment plan and cannot now contest the court\u2019s failure to hold a full hearing on the issue.",
        "type": "majority",
        "author": "JUSTICE GORDON"
      }
    ],
    "attorneys": [
      "Mark J. Heyrman, of Edwin E Mandel Legal Aid Clinic, of Chicago, for appellant.",
      "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Janet Powers Doyle, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORA MARKWART, Guardian, ex rel. John Markwart, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1-00-2084\nOpinion filed December 28, 2001.\nMark J. Heyrman, of Edwin E Mandel Legal Aid Clinic, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Janet Powers Doyle, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0080-01",
  "first_page_order": 98,
  "last_page_order": 111
}