People v. Katarzyna G. (In re Katarzyna G.), 2–12–0807.

2013 IL App (2d) 120807

995 N.E.2d 585

374 Ill.Dec. 446

In re KATARZYNA G., Alleged to be a Person Subject to Involuntary Treatment (The People of the State of Illinois, Petitioner–Appellee, v. Katarzyna G., Respondent–Appellant).

No. 2–12–0807.

Appellate Court of Illinois, Second District.

Aug. 30, 2013.

Veronique Baker, Guardianship and Advocacy Commission, Chicago, Ann Krasuski, Guardianship and Advocacy Commission, Hines, for appellant.

Joseph H. McMahon, State's Attorney, St. Charles (Lawrence M. Bauer, Diane L. Campbell, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice McLAREN delivered the judgment of the court, with opinion.

[374 Ill.Dec. 449]¶ 1 Respondent, Katarzyna G., appeals from an order of the circuit court of Kane County authorizing the involuntary administration of psychotropic medication. At issue is whether, because respondent was not given written notice about the psychotropic medications in Polish, which is the language she understands, the State failed to establish that respondent lacked the capacity to make a reasoned decision about whether to take medication. We answer this question in the affirmative and reverse the order granting the State's petition.

¶ 2 The facts relevant to resolving the issue raised are as follows. Respondent moved to the United States from Poland in 1977, when she was around 25 years old. She worked cleaning houses for many years, owned her own home, and raised a family.

¶ 3 In May 2008, respondent was arrested for aggravated battery to a police officer. She was found not guilty by reason of insanity, was court-ordered to attend outpatient treatment at the John H. Stroger, Jr. Hospital of Cook County, and eventually was involuntarily admitted to the Elgin Mental Health Center (EMHC) in August 2011. The EMHC doctor who treated respondent indicated that respondent suffers from a “delusional disorder persecutory type,” which is a psychotic disorder, and that she has so suffered since her arrest. Since respondent was admitted to the EMHC, she has refused to take any kind of medication that could treat her illness.

¶ 4 As a result, respondent's treating doctor petitioned the court for permission to involuntarily administer to respondent various medications that the doctor believed could help treat respondent's mental illness. At the hearing, a Polish-speaking interpreter was present for respondent.¹ When the State asked the doctor whether respondent was given notice about the medications' benefits and side effects, the following exchange was had:

“Q. Doctor, has [respondent] been provided with written materials on the risks and benefits of the medications you wish to prescribe?

A. Yes.

Q. And in your opinion does [respondent] have the capacity to make a reasoned decision about the medications?

A. No, she doesn't because of her mental illness which interferes with her making a reasoned decision.

* * *

Q. Is [respondent] able to make a reasoned decision about potential benefits and side effects of medication?

A. She—her perceptions interfere with her realizing that she has a mental illness, that there is a mental illness to treat, that there is medication to treat it, and she has difficulty facing the reality of that information. So she would have difficulty making a reasoned decision.”

¶ 5 The assistant State's Attorney also inquired about whether a Polish interpreter was present when the doctor would talk to respondent about treatment. That dialogue proceeded as follows:

“Q. How often were you able to talk to [respondent] with a Polish interpreter?

A. Let me see. I would say 10 times.

Q. Ten times over how long a period of time?

A. Since the end of August [2011].

Q. Since the end of August [2011]?

A. Uh-hum.²

Q. So about once a month?

A. Yes.

Q. When you went over the benefits and side effects of the medications you're seeking with her was there a Polish interpreter present?

A. There was a Polish interpreter there. I told [respondent] that I wanted to discuss some medications with her, but she would not discuss that at the time. So I gave her the sheets about the medication, and she said she was—at first she didn't want to take them, but then she did take them and she said she would go over them with the interpreter who was coming.

Q. Do you know if [respondent] went over them with the interpreter who was coming?

A. No, I don't.”

¶ 6 Respondent testified that she has been feeling sad. She indicated that, when she spoke with her doctor about the medications, her doctor said that the “medication [would] make [her] happy, that they were just a few milligrams.” Respondent also stated that “[b]efore court [she] received information about the medication.”

¶ 7 Based on the evidence presented at the hearing, the trial court granted the State's petition. Respondent never claimed in the trial court that the notice she had received about the medications was defective in that it was not in Polish. Respondent timely appealed.

¶ 8 Before addressing the merits of this appeal, we address three preliminary matters. Specifically, we consider whether the issue is moot, whether respondent forfeitedreview of the issue, and the procedural posture of the case.

¶ 9 First, we note that the issue raised is moot. However, in cases like this, where the question raised in the appeal is “ ‘capable of repetition, yet evading review,’ ” our supreme court has considered moot issues. In re Barbara H., 183 Ill.2d 482, 491, 234 Ill.Dec. 215, 702 N.E.2d 555 (1998) (quoting In re A Minor, 127 Ill.2d 247, 258, 130 Ill.Dec. 225, 537 N.E.2d 292 (1989)). Additionally, the public interest exception to the mootness doctrine also provides us with a basis upon which to consider the issue. In re Robert S., 213 Ill.2d 30, 45, 289 Ill.Dec. 648, 820 N.E.2d 424 (2004); see also In re Nicholas L., 407 Ill.App.3d 1061, 1071, 348 Ill.Dec. 431, 944 N.E.2d 384 (2011) (noting that mootness does not apply to questions about compliance with the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/1–100 et seq. (West 2012)) because such matters involve substantial public concern). Because only one exception must apply for us to bypass mootness and consider the merits of an appeal (see In re Christopher P., 2012 IL App (4th) 100902, ¶ 19, 364 Ill.Dec. 532, 976 N.E.2d 1095), we need not consider whether the third exception to the mootness doctrine also applies.

¶ 10 Second, the record reflects that respondent never raised in the trial court any claim concerning the propriety of the notice she was given about the medication. Ordinarily, the failure to raise an issue in the trial court results in forfeiture of that issue on appeal. See People v. Enoch, 122 Ill.2d 176, 185–86, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). However, we decline to determine that the issue is forfeited. In its brief, the State did not claim that respondent forfeited review of the issue. As such, the State forfeited any forfeiture argument. See People v. De La Paz, 204 Ill.2d 426, 433, 274 Ill.Dec. 397, 791 N.E.2d 489 (2003). We note that at oral argument, in response to this court's questions about whether respondent forfeited review of the issue, the State argued that at the hearing in the trial court respondent forfeited any issue concerning notice. However, the record reflects that respondent took no issue “with regard to notice or timeliness of today's hearing.” (Emphasis added.) Notice of the hearing is distinguishable from notice about proposed medications' risks and benefits. Additionally, forfeiture is not apt because the issue relates to public and liberty interests relating to the administration of psychotropic drugs upon an unwilling patient. Courts have disregarded forfeiture when the issues raised deal with public and liberty interests. See In re Janet S., 305 Ill.App.3d 318, 320, 238 Ill.Dec. 700, 712 N.E.2d 422 (1999); see also In re Tiffany W., 2012 IL App (1st) 102492–B, ¶ 21, 365 Ill.Dec. 84, 977 N.E.2d 1183.

¶ 11 Third, regarding the procedural posture of this case, although the issue of whether respondent received sufficient written notice is not forfeited, below there was no hearing on the merits giving the parties and the trial court the opportunity to fully and fairly adjudicate the matter. Thus, we are reviewing the entire record, as well as concessions made by the State on appeal, to determine whether the facts establish that respondent understood written English. Even when an issue is forfeited, the respondent (the proponent of the claimed error) has the burden on review to establish that the evidence supports the claim of error. In this particular instance, we are convinced that the record supports the claim of error.

¶ 12 Turning to the analysis of the merits of the claim of error, the issue raised in this appeal is whether the notice respondent received about the proposed medications enabled her to make a reasoned decision about her treatment. “The State must present clear and convincing evidence that a respondent lacked the capacity to make a reasoned decision about taking the prescribed psychotropic medication.” In re Cathy M., 326 Ill.App.3d 335, 341, 260 Ill.Dec. 162, 760 N.E.2d 579 (2001). “ When reviewing the sufficiency of this evidence, we will reverse the trial court's order if it is against the manifest weight of the evidence.” Id. “A judgment is against the manifest weight of the evidence when the opposite conclusion is clearly evident, plain, and indisputable.” Id.

¶ 13 In resolving whether respondent received proper notice, we must examine the applicable sections of the Code. Whether there has been strict compliance with the Code presents a question of law, which is reviewed de novo, but the State still bears the burden of presenting clear and convincing evidence of compliance. Nicholas L., 407 Ill.App.3d at 1072, 348 Ill.Dec. 431, 944 N.E.2d 384.

¶ 14 In examining the statutes at issue, we are guided by the well-settled rules of...