{ "id": 4277750, "name": "In re DENETRA P., a Person Found Subject to Authorized Involuntary Treatment (The People of the State of Illinois, Petitioner-Appellee, v. Denetra P., Respondent-Appellant)", "name_abbreviation": "People v. Denetra P.", "decision_date": "2008-05-07", "docket_number": "No. 4\u201407\u20140372", "first_page": "538", "last_page": "547", "citations": [ { "type": "official", "cite": "382 Ill. App. 3d 538" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "705 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "151" }, { "page": "151" }, { "page": "151" } ], "opinion_index": 0 }, { "cite": "301 Ill. App. 3d 1060", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257140 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "1071" }, { "page": "1071" }, { "page": "1071" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/1060-01" ] }, { "cite": "529 A.2d 434", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1987, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "108 N.J. 394", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 292304 ], "year": 1987, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nj/108/0394-01" ] }, { "cite": "549 N.E.2d 292", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "299" }, { "page": "299-300" }, { "page": "299" } ], "opinion_index": 0 }, { "cite": "133 Ill. 2d 33", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260643 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "49" }, { "page": "49-50" }, { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0033-01" ] }, { "cite": "641 N.E.2d 345", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1994, "pin_cites": [ { "page": "347" }, { "page": "354" }, { "page": "354" }, { "page": "354" }, { "page": "355" }, { "page": "354" }, { "page": "355" } ], "opinion_index": 0 }, { "cite": "161 Ill. 2d 200", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783189 ], "weight": 7, "year": 1994, "pin_cites": [ { "page": "204" }, { "page": "219-20" }, { "page": "221" }, { "page": "220" }, { "page": "221" }, { "page": "221" }, { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0200-01" ] }, { "cite": "705 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "151" } ], "opinion_index": 1 }, { "cite": "301 Ill. App. 3d 1060", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257140 ], "year": 1998, "pin_cites": [ { "page": "1071" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/301/1060-01" ] } ], "analysis": { "cardinality": 769, "char_count": 18310, "ocr_confidence": 0.85, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14356667126152914 }, "sha256": "6437bf00aa35760836b76b9cd499f06aec7071862216141d7235d3f452b432cb", "simhash": "1:c956a09ea1de7c59", "word_count": 2963 }, "last_updated": "2023-07-14T21:27:01.752924+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re DENETRA P., a Person Found Subject to Authorized Involuntary Treatment (The People of the State of Illinois, Petitioner-Appellee, v. Denetra P., Respondent-Appellant)." ], "opinions": [ { "text": "PRESIDING JUSTICE APPLETON\ndelivered the opinion of the court:\nA psychiatrist at McFarland Mental Health Center, Aura M. Eber-hardt, petitioned for authority for the involuntary administration of psychotropic medications to respondent, Denetra R See 405 ILCS 5/2 \u2014 107.1 (West 2006). After an evidentiary hearing in which Eber-hardt and respondent testified, the trial court granted the petition. We reverse the judgment because the petition lacks any allegation that Eberhardt made a good-faith attempt to determine whether respondent had executed a power of attorney for health care or a declaration for mental-health treatment (405 ILCS 5/2 \u2014 107.1 (a \u2014 5)(1) (West 2006)). According to respondent\u2019s testimony and her brief, she had executed a power of attorney for health care.\nI. BACKGROUND\nEberhardt testified she was treating respondent for \u201cbipolar affective disorder type I, severe, manic, with psychotic symptoms.\u201d Scott Kains, the assistant State\u2019s Attorney, asked Eberhardt:\n\u201cQ. Does she have a guardian?\nA. No.\n[RESPONDENT]: Yes, I do.\nMR. KAINS: Q. Does she have a power of attorney for health care?\n[RESPONDENT]: I do.\nMR. KAINS: Q. Doctor, do you know?\nA. To my knowledge, no guardian or power of attorney.\n[RESPONDENT]: Memorial Medical Center [(a hospital in Springfield)] has it. Thank you very much.\nMR. KAINS: Q. And[,] Doctor, to your knowledge, does she have a declaration for mental[-]health treatment under the Illinois Mental Health Treatment Preference Declaration Act?\nA. No, she does not.\nQ. Is there anything in your chart, Doctor, to indicate that she has a guardian or power of attorney?\nA. No.\n[RESPONDENT]: I told them \u2014 I verbally told them on several occasions.\n[RESPONDENT\u2019S ATTORNEY]: Hold on a second.\u201d\nOn cross-examination, Eberhardt testified: \u201c[Respondent] had a previous hospitalization in[ ] [January 2006], I believe, and that was in New York, as per the records that we have.\u201d Eberhardt testified, however, that she had no records pertaining to that hospitalization\u2014 and, thus, did not know if respondent previously had been administered psychotropic medication \u2014 because respondent refused to sign a release. At that point, respondent interjected: \u201cI did sign a release, and the records are here in Springfield. I\u2019m sorry.\u201d Respondent\u2019s attorney then asked Eberhardt:\n\u201cQ. Have you made a good[-]faith effort to explore whether or not she does have a power of attorney or a guardian?\nA. I am not \u2014 until today when she mentioned that she has a power of attorney, I have no way of knowing that she has a power of attorney. And I, myself, did not make any attempts to try to find out if she has one.\nQ. Is that typically done by someone other than yourself?\nA. Right. The social worker usually helps with that type of search.\nQ. But are you aware of whether or not a search was made?\nA. No, I\u2019m not aware.\u201d\nRespondent took the stand, and her attorney asked her:\n\u201cQ. Who is your power of attorney [sic]?\nA. My power of attorney is in New York, and he is my pastor to the sister church of Jerry Doss here in Springfield, Illinois],] at Abundant Faith.\nQ. What is his name?\nA. His name is Senior Pastor Donald McClerkland (phonetically).\u201d\nII. ANALYSIS\nA. Statutory Conditions for the Involuntary Administration of Medication in a Nonemergency\nAn adult recipient of mental-health services has a right to refuse medication (405 ILCS 5/2 \u2014 107(a) (West 2006)), and the refusal will be honored except in two circumstances. The first circumstance is an emergency, namely, the medication is \u201cnecessary to prevent the recipient from causing serious and imminent physical harm to the recipient or others and no less[-]restrictive alternative is available.\u201d 405 ILCS 5/2 \u2014 107(a) (West 2006). The second circumstance is not an emergency, but the recipient meets the criteria in section 2 \u2014 107.1(a\u2014 5) (4) of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/2 \u2014 107.l(a\u20145)(4) (West 2006)), including an incapacity to make a reasoned decision about treatment (405 ILCS 5/2 \u2014 107.1(a\u2014 5)(4)(E) (West 2006)).\nIn a nonemergency, the involuntary administration of medication to a recipient of mental-health services requires the circuit court\u2019s permission, granted on written petition. Section 2 \u2014 107.1(a\u20145)(1) states as follows:\n\u201c(1) Any person 18 years of age or older, including any guardian, may petition the circuit court for an order authorizing the administration of authorized involuntary treatment to a recipient of services. The petition shall state that the petitioner has made a good[-]faith attempt to determine whether the recipient has executed a power of attorney for health care under the Powers of Attorney for Health Care Law [(755 ILCS 45/4 \u2014 1 through 4 \u2014 12 (West 2006))] or a declaration for mental[-]health treatment under the Mental Health Treatment Preference Declaration Act [(755 ILCS 43/1 through 75 (West 2006))] and to obtain copies of these instruments if they exist. If either of the above-named instruments is available to the petitioner, the instrument or a copy of the instrument shall be attached to the petition as an exhibit. The petitioner shall deliver a copy of the petition, and notice of the time and place of the hearing, to the respondent, his or her attorney, any known agent or attorney-in-fact, if any, and any guardian, if any, no later than [three] days prior to the date of the hearing.\u201d 405 ILCS 5/2\u2014 107.1(a \u2014 5)(1) (West 2006).\nSection 2 \u2014 107. l(a \u2014 5) (4) sets forth what the petitioner must prove in the hearing. It says:\n\u201c(4) Authorized involuntary treatment shall not be administered to the recipient unless it has been determined[,] by clear and convincing evidence^] that all of the following factors are present. In determining whether a person meets the criteria specified in the following paragraphs (A) through (G), the court may consider evidence of the person\u2019s history of serious violence, repeated past pattern of specific behavior, actions related to the person\u2019s illness, or past outcomes of various treatment options.\n(A) That the recipient has a serious mental illness or developmental disability.\n(B) That because of said mental illness or developmental disability, the recipient currently exhibits any one of the following: (i) deterioration of his or her ability to function, as compared to the recipient\u2019s ability to function prior to the current onset of symptoms of the mental illness or disability for which treatment is presently sought[;] (ii) suffering[;] or (iii) threatening behavior.\n(C) That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in item (B) of this subdivision (4) or the repeated episodic occurrence of these symptoms.\n(D) That the benefits of the treatment outweigh the harm.\n(E) That the recipient lacks the capacity to make a reasoned decision about the treatment.\n(F) That other less[-]restrictive services have been explored and found inappropriate.\n(G) If the petition seeks authorization for testing and other procedures, that such testing and procedures are essential for the safe and effective administration of the treatment.\u201d 405 ILCS 5/2 \u2014 107.1(a\u20145)(4) (West 2006).\nB. Substituted Judgment\nIn In re C.E., 161 Ill. 2d 200, 204, 641 N.E.2d 345, 347 (1994), the trial court found section 2 \u2014 107.1 of the Code to be unconstitutional and, therefore, denied a petition, pursuant to that section, to authorize the involuntary administration of psychotropic substances to C.E. The Department of Mental Health and Developmental Disabilities appealed. C.E. maintained that section 2 \u2014 107.1 was unconstitutional because it did not specifically require the application of the substituted-judgment test. C.E., 161 Ill. 2d at 219-20, 641 N.E.2d at 354. Under the substituted-judgment test, the \u201c \u2018surrogate decision-maker attempt[ed] to establish, with as much accuracy as possible, what decision the patient [would have made] if he [had been] competent to do so.\u2019 \u201d C.E., 161 Ill. 2d at 221, 641 N.E.2d at 354, quoting In re Estate of Longeway, 133 Ill. 2d 33, 49, 549 N.E.2d 292, 299 (1989).\nThe supreme court held that although section 2 \u2014 107.1 did not explicitly adopt the substituted-judgment test, subsections (d)(4) and (d)(6) required proof that the benefits of the psychotropic medication outweighed its harms and that other alternatives for treatment would have been ineffective (405 ILCS 5/2 \u2014 107.1(d)(4), (d)(6) (West 1992)); according to the supreme court, the wishes of the recipient while the recipient was competent would \u201coften be highly pertinent to proof of these two factors.\u201d C.E., 161 Ill. 2d at 220, 641 N.E.2d at 354. Thus, the supreme court found section 2 \u2014 107.1 to be consistent with the substituted-judgment test:\n\u201cConsequently, we conclude that section 2 \u2014 107.1 permits the court\u2019s consideration of the \u2018substituted judgment\u2019 of the mental[-] health recipient, and that the court respect the wishes expressed by the mental[-]health patient when the patient was capable of making rational treatment decisions in his own behalf. When those wishes have not been clearly proven, however, the court should be guided by an objective standard of reasonableness, as shown by the evidence presented [(\u00bf.e., the best-interests test)].\u201d C.E., 161 Ill. 2d at 221, 641 N.E.2d at 355.\nThis alternative standard \u2014 \u201can objective standard of what a reasonable person would prefer under the circumstances of the particular case\u201d \u2014 is known as the \u201cbest-interests test.\u201d C.E., 161 Ill. 2d at 221, 641 N.E.2d at 354.\nIn Longeway, the supreme court explained:\n\u201cEmploying th[e] theory [of substituted judgment], the surrogate first tries to determine if the patient had expressed [an] explicit intent regarding this type of medical treatment prior to becoming incompetent. [Citation.] Where no clear intent exists, the patient\u2019s personal value system must guide the surrogate:\n\u2018 \u201c[E]ven if no prior specific statements were made, in the context of the individual\u2019s entire prior mental life, including his or her philosophical, religious[,] and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering^] and death, that individual\u2019s likely treatment/nontreatment preferences can be discovered.\u201d \u2019 \u201d Longeway, 133 Ill. 2d at 49-50, 549 N.E.2d at 299-300, quoting In re Jobes, 108 N.J. 394, 415, 529 A.2d 434, 445 (1987), quoting S. Newman, Treatment Refusals for the Critically and Terminally III: Proposed Rules for the Family, the Physician and the State, 3 N.Y.L. Sch. Hum. Rts. Ann. 35, 47 (1985).\nC. Harmless Error if the Record Lacks Any Indication That a Power of Attorney Exists\nIn In re Miller, 301 Ill. App. 3d 1060, 1071, 705 N.E.2d 144, 151 (1998), the respondent challenged the form of the petition for involuntary administration of psychotropic medication in that the petition lacked any allegation that the petitioner had made a good-faith attempt to determine whether the respondent had executed a power of attorney for health care or a declaration for mental-health treatment. We held as follows:\n\u201c[Section 2 \u2014 107.1(a)\u2014(1)] provide[s] that the petition shall state that the petitioner made a good-faith attempt to determine whether the respondent had executed a power of attorney for health care or a declaration for mental[-]health treatment and obtain copies of those instruments if they exist (405 ILCS 5/2 \u2014 107.1(a)(1) (West Supp. 1997)). The petition in this case did not contain such an allegation. Nonetheless, we agree with the State that any error here was harmless because neither the record before us nor [the] respondent in his brief indicates that such instruments actually existed in this case. Once again, however, we caution that because noncompliance with the statute in this case does not result in reversal, it would be incorrect to assume that future instances of noncompliance will yield the same result.\u201d (Emphasis in original.) Miller, 301 Ill. App. 3d at 1071, 705 N.E.2d at 151.\nD. The Foregoing Principles Applied to the Present Case\nIn the present case, the petition lacks any allegation that \u201cthe petitioner *** made a good[-]faith attempt to determine whether the recipient ha[d] executed a power of attorney for health care *** or a declaration for mental[-]health treatment *** and to obtain copies of these instruments if they exist\u201d (405 ILCS 5/2 \u2014 107.1(a\u20145)(1) (West 2006)). The State cites Miller for the proposition that this omission is \u201charmless because neither the trial record nor respondent in her brief provided sufficient proof that a power of attorney or [an advanced directive for health care] actually existed.\u201d (Emphasis added.) In Miller, however, we found harmless error not because the respondent failed to adduce \u201csufficient proof\u201d that such instruments actually existed in his case but because \u201cneither the record before us nor [the] respondent in his brief indicatefd] that such instruments actually existed.\u201d (Emphasis added.) Miller, 301 Ill. App. 3d at 1071, 705 N.E.2d at 151. This was a far cry from laying a burden of \u201csufficient proof\u2019 upon the respondent in that case. Laying such a burden upon him would have been inconsistent with section 2 \u2014 107.1(a\u20145)(1), which required of the petitioner a good-faith effort to ascertain whether the respondent had executed a power of attorney for health care or a declaration for mental-health treatment and, if such an instrument existed, a good-faith effort to obtain a copy of it so as to attach it to the petition. 405 ILCS 5/2 \u2014 107.1(a\u20145)(1) (West 2006).\nAccording to the supreme court\u2019s interpretation of section 2 \u2014 107.1(a\u20145)(4) (405 ILCS 5/2 \u2014 107.1(a\u20145)(4) (West 2006)), the trial court, if possible, must apply the substituted-judgment test before resorting to the best-interests test. C.E., 161 Ill. 2d at 221, 641 N.E.2d at 355. A power of attorney for health care or a declaration for mental-health treatment would be essential to the application of the substituted-judgment test. People prepare such documents for the very purpose of expressing their explicit intent regarding certain types of medical treatment should they become incompetent. See Longeway, 133 Ill. 2d at 49, 549 N.E.2d at 299. In the present case, both the record and respondent\u2019s brief indicate that a power of attorney for health care exists. Even if respondent refused to consent to the release of all her medical records, it does not follow that she was opposed to the release of a particular document, the power of attorney for health care. In fact, in the hearing, she stated where the document could be obtained.\nIII. CONCLUSION\nFor the foregoing reasons, we reverse the trial court\u2019s judgment.\nReversed.\nSTEIGMANN, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE APPLETON" }, { "text": "JUSTICE COOK,\ndissenting:\nI respectfully dissent. While the petition did not state that petitioner made a good-faith attempt to determine whether respondent had executed a power of attorney for health care, the omission is harmless as respondent had the opportunity to produce the alleged power of attorney and has not.\nDr. Eberhardt testified that respondent did not have a power of attorney, guardian, or declaration for mental-health treatment and that she never mentioned having any one of those until her outbursts during the hearing. Because respondent never claimed to have a power of attorney before the hearing, Dr. Eberhardt had no way of knowing if respondent had a power of attorney or how to locate it if it existed. Dr. Eberhardt testified respondent lacked capacity and suffered from bipolar affective disorder with severe and manic psychotic symptoms, euphoric affect, disorganized raging thoughts, grandiose delusions, and increased spending.\nThe only evidence of respondent\u2019s power of attorney is her statement during the hearing that she had a power of attorney. If respondent did not claim to have a power of attorney before the hearing and if she refused to consent to the release of all of her medical records, how was the State supposed to locate the power of attorney if one exists? Unlike records it has in its control, the State has to rely on respondent for assistance in producing a power of attorney. At the very least, respondent has to inform the State that it exists before the hearing and direct the State as to where it might be found. If such a document actually existed, respondent could have objected when the pleading was filed and the document could have been located. Also, respondent was represented at her hearing and is represented on appeal. Neither her hearing counsel nor her appellate counsel produced a power of attorney. The majority implies the document is easy to obtain as respondent stated where the document could be obtained in the hearing, yet respondent has not attached it to her brief.\nThe majority distinguishes respondent\u2019s case from Miller, which stated \u201cneither the record before us nor [the] respondent in his brief indicat[ed] that such instruments actually existed,\u201d by emphasizing that in this case respondent indicated a power of attorney exists. (Emphasis added.) Miller, 301 Ill. App. 3d at 1071, 705 N.E.2d at 151. The only indication of a power of attorney is the statement that one exists made during the hearing by one shown to be delusional and lacking capacity.\nA hearing for involuntary administration of medications should not be derailed by a last-second statement of a delusional patient claiming to have a power of attorney when medical professionals testify that the patient never before made such a claim and they had no way of obtaining such a document without the assistance of the patient who had thus far refused to cooperate or even acknowledge her illness.", "type": "dissent", "author": "JUSTICE COOK," } ], "attorneys": [ "Cynthia Z. Tracy, of Guardianship & Advocacy Commission, of Peoria, and Veronique Baker, of Guardianship & Advocacy Commission, of Chicago, for appellant.", "John P. Schmidt, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and John E. Teefey, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "In re DENETRA P., a Person Found Subject to Authorized Involuntary Treatment (The People of the State of Illinois, Petitioner-Appellee, v. Denetra P., Respondent-Appellant).\nFourth District\nNo. 4\u201407\u20140372\nOpinion filed May 7, 2008.\nCOOK, J., dissenting.\nCynthia Z. Tracy, of Guardianship & Advocacy Commission, of Peoria, and Veronique Baker, of Guardianship & Advocacy Commission, of Chicago, for appellant.\nJohn P. Schmidt, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and John E. Teefey, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0538-01", "first_page_order": 556, "last_page_order": 565 }