FIFTH DIVISION July 18, 2014

No. 1-13-0709

In re TORRY G., Alleged to be a Person Subject to ) Involuntary Medication ) Appeal from the ) Circuit Court of (People of the State of Illinois, ) Cook County, Illinois. ) Petitioner-Appellee, ) No. 2013 CoMH 142 v. ) ) Honorable Torry G., ) David Skryd, ) Judge Presiding. Respondent-Appellant). )

JUSTICE TAYLOR delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice McBride concurred in the judgment and opinion.

OPINION

¶1 Respondent Torry G. appeals the trial court’s order that he be administered involuntary

psychotropic medication.

¶2 Torry was hospitalized in January 2013 and diagnosed with bipolar disorder and

psychosis. On March 7, 2013, the trial court entered an order authorizing the involuntary

administration of psychotropic medication to Torry for a period of 90 days. Torry now appeals

that order. For the reasons that follow, we reverse.

¶3 I. BACKGROUND

¶4 Torry is a 21-year-old who has exhibited signs of mental illness for the past four years.

He was admitted to Westlake Hospital on January 1, 2013, having consented to voluntary

admission. On January 15, 2013, Torry’s treating psychiatrist, Dr. Richard Goldberg, filed a

petition to involuntarily administer psychotropic medication to Torry pursuant to section 2-107.1

of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/2-107.1 (West No. 1-13-0709

2012)). The primary medications listed in the petition were Tegretol and Zyprexa, and the

alternative medications were Depakote, fluphenazine hydrochloride, fluphenazine decanoate,

Invega, Invega Sustenna, Haldol, and Haldol decanoate.

¶5 Prior to the hearing on the petition, Torry’s counsel filed a motion for a pretrial

conference which stated the following:

“Respondent Torry G. has stressed to counsel that he would like to resolve this matter

without a trial, and has requested that his treating psychiatrist (Dr. Goldberg) find the

most appropriate medication to treat bipolar disorder with the least possible risk of side

effects (Respondent has had side effects from the mood stabilizers Lithium and Depakote

in the past).”

This motion was never ruled upon, and no pretrial conference was held.

¶6 At the hearing on the involuntary-medication petition, Dr. Goldberg testified that Torry

was suffering from bipolar disorder, manic phase, with psychosis. He stated that Torry had been

suffering from mental illness for the past four years. Over that time period, he had been

hospitalized 20 to 25 times, 1 including 4 separate times between October 8, 2012, and January 1,

2013. Dr. Goldberg opined that Torry’s condition had deteriorated over time since April 2011,

when he originally examined him. Regarding Torry’s most recent hospitalization, Dr. Goldberg

testified that when he was brought to the hospital, he was in an “exacerbated manic state.” He

stated that Torry’s mother described him as “a captive or a prisoner in his own head” and

believed that he “desperately” needed to be hospitalized. He further stated, “[Torry’s mother]

1 Counsel for Torry objected to this statement by Dr. Goldberg on the basis of foundation,

but the objection was overruled.

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was pleading with me to make sure [Torry] gets forced medication.” (Torry’s mother did not

testify at the hearing.)

¶7 Dr. Goldberg then described Torry’s symptoms. He stated that Torry had “grandiose

delusions,” such as the belief that the purpose of the hearing was to try Dr. Goldberg for “crimes

against patients” and that once Torry testified against him, Dr. Goldberg would be sent to jail.

While in the hospital, Torry had exhibited sexually provocative and inappropriate behavior, such

as attempting to make eye contact with female peers, sending them love letters, and, on one

occasion, hugging a female peer without permission. He also believed that he had powers to heal

women sexually by touching them. In addition, he displayed impulsive, agitated, and aggressive

behavior.

¶8 Dr. Goldberg testified that Torry had told him repeatedly that he did not have a mental

illness. He stated, “Our sessions are mostly Torry turning things around and making it about me

and how I’m the bad person and I do bad things.” As a result, Dr. Goldberg said, there was no

opportunity to have therapeutic interaction about the behaviors that had caused his

hospitalization.

¶9 Dr. Goldberg said that on several occasions, he had attempted to talk to Torry about the

risks, benefits, and side effects of medication. However, “[i]t became apparent that he really just

doesn’t understand the need for the medication and there’s no point in belaboring the matter.”

Dr. Goldberg opined that Torry did not have the capacity to make a reasoned judgment about

taking medication because he did not believe he had an illness and did not appreciate the

deterioration he was exhibiting as a result of his illness.

¶ 10 According to Dr. Goldberg, Torry claimed to be willing to take medication voluntarily,

but on multiple occasions when Dr. Goldberg suggested specific medications, Torry refused. Dr.

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Goldberg stated that he believed that Torry was only willing to take medication with no side

effects, and no such medication actually existed. For instance, three weeks prior to the hearing,

Dr. Goldberg suggested to Torry that he take the drug Tegretol, a mood stabilizer used in the

treatment of bipolar disorder (and one of the medications listed in the instant petition). Torry

refused to take it, because he was concerned that the drug would cause him to have suicidal

thoughts. Dr. Goldberg admitted that suicidal thoughts were a listed side effect of the drug, but

he stated that they were a rare side effect and that if Torry experienced any suicidal thoughts, the

medicine would be stopped at once. Nevertheless, Torry continued to refuse to take the drug.

Dr. Goldberg concluded, “[Torry] has not been able to focus on the benefits. He can only focus

on what he believes are the potential risks, which are often illogical or unfounded or – I think it

serves his desire, as has been the case for years now, which is not taking medication.”

¶ 11 Dr. Goldberg further testified that in his opinion, less restrictive alternatives to forced

medication, such as group therapy and psychotherapy, were not appropriate for Torry, because

he had never responded to therapy in a constructive or successful way. He stated that Torry’s

prognosis without medication was poor because he had displayed a pattern of progressive

deterioration that Dr. Goldberg believed would continue, perhaps dangerously.

¶ 12 During cross-examination, counsel for Torry asked Dr. Goldberg about Invega and

fluphenazine, two of the medicines that he sought to have administered to Torry. Dr. Goldberg

admitted that Invega had not been approved for treatment of bipolar disorder. However, he said

that Invega was the parent compound of the drug Risperdal, which was approved for treatment of

bipolar disorder, “so there’s no reason Invega can’t be.” As for fluphenazine, Dr. Goldberg

admitted that it was in the same category as the drug Thorazine, which Torry had been given

during his time at Westlake. Torry’s Thorazine treatments had been discontinued because Torry

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experienced orthostatic hypotension. 2 Dr. Goldberg stated that hypotensive side effects were

“not uncommon” with Thorazine but would be rare with Fluphenazine.

¶ 13 Torry testified in opposition to the petition. He stated that “this all got started” when he

was 17 and took marijuana that was laced with the hallucinogen PCP. He was hospitalized and

taken to a psychiatric ward for evaluation. He was also given psychotropic medication. “I did

not have the right to decline medicine because I was a minor,” he said, “so I was experiencing

these side effects and I didn’t have the right to say no, I don’t want to take these medicines.”

Before that incident, Torry said, he had never been in a hospital overnight. He said that his

teachers had called him a “brilliant” student, and he received A grades when he made the effort

to obtain them.

¶ 14 Torry then testified about the side effects that he had experienced as a result of

psychotropic medication. He stated that he had been taken to the emergency room twice because

of side effects. In one incident, he had headaches induced by the drug lithium that were severe

enough that he was given morphine and had to have a spinal tap. In the other incident, he “fell

over” while at outpatient treatment. Additionally, while in the hospital under Dr. Goldberg’s

care, he had muscle spasms that caused him to fall on the floor. He could not remember exactly

which medications he was on at the time, because he was on more than four medications.

Finally, regarding the medications that Dr. Goldberg requested for him in his petition, Torry

2 Orthostatic hypotension is “a sudden fall in blood pressure that occurs when a person

assumes a standing position.” NINDS Orthostatic Hypotension Information Page, available at

http://www.ninds.nih.gov/disorders/orthostatic_hypotension/orthostatic_hypotension.htm (last

visited June 10, 2014). Symptoms include dizziness, lightheadedness, blurred vision, and

temporary loss of consciousness.

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stated that he had taken Depakote before. He testified that the drug made him restless and unable

to sleep, and it also caused him to talk to himself and exhibit other “bizarre behavior.”

¶ 15 Torry’s counsel asked him whether he was opposed to taking medication for treatment of

his mental illness. Torry replied that he was not concerned about minor side effects of

medication, such as constipation or weight gain, but he was concerned about severe side effects,

such as suicidal or homicidal thoughts. “I’m against those deadly side effects,” he said, “because

I would like to say this in the courtroom, some of those medicines that these doctors use, I see

infomercials all the time saying you take this medicine or are you taking this medicine, you have

a lawsuit.” He testified that he would be willing to take safe, reliable medication that he would

not need to get switched from. He also stated that he was “100 percent” willing to participate in

outpatient services.

¶ 16 Regarding his own mental condition, Torry stated, “I can’t say that I have full-blown

bipolar, but I do realize that I had symptoms of bipolar, which I believe some of the symptoms

were from certain medicines I received.” He stated that he also had some schizoaffective

symptoms and depression. He said, “I believe that those problems needed to be addressed

because I didn’t like what state I was in, but now my state is getting better.” Torry’s counsel

asked him whether he had any symptoms right now that could benefit from treatment. Torry said

that he had a problem with “continuous speech,” although he believed it was more akin to a

speech impediment than a mental disorder.

¶ 17 Torry testified that he got along “[v]ery poorly” with Dr. Goldberg because “he’s an

arrogant doctor in my honest viewpoint.” He also testified that he participated in individual

therapy sessions with his assigned hospital social worker, and those sessions helped him a lot.

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Most recently, he said, he discussed concerns surrounding his first hospitalization with his social

worker, and the conversation was “very therapeutic.”

¶ 18 Finally, Torry testified that he had never previously had an involuntary commitment

order or an involuntary treatment order entered against him.

¶ 19 In addition to testifying on his own behalf, Torry also called to the stand Ronald

Barthelemy, a discharge planner for behavioral health at Westlake Hospital. Barthelemy testified

that he had spoken with Torry about his discharge plan and advised him to consider the Pilsen

Wellness Center, an outpatient mental health center.

¶ 20 Torry’s counsel then introduced into evidence a written statement from Torry’s mother

that was dated February 27, 2013, and included in Torry’s medical chart. In that statement,

Torry’s mother said that she was willing to have Torry return home and live with her, provided

that he would participate in the outpatient program at the Pilsen Wellness Center or a similar

program, even though Torry had not agreed to take psychotropic medication at the hospital.

¶ 21 At the conclusion of the hearing, the trial court found by clear and convincing evidence

that Torry had a mental illness. The court further stated:

“In his own testimony, [Torry] said he’d be willing to take certain medications, but he’s

got to get on some kind of treatment plan to take the medications, but you want to label it

as involuntary, but that’s just how the order is entered. It seems to me that he knows

enough that he’s got to get on some drug regimen to assess him, so at some point he can

get out and do some kind of outpatient treatment, but they need to determine, based on

his condition and his actions, he needs to get on the proper medication to assist him with

all that.”

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The trial court granted the petition for involuntary administration of psychotropic medication to

Torry for a period of 90 days. The order, entered on March 7, 2013, expired, by its own terms,

on June 5, 2013.

¶ 22 II. ANALYSIS

¶ 23 On appeal, Torry contends that the trial court erred in granting the petition for two

reasons: first, the evidence favors a decision that Torry has the capacity to make a reasoned

decision for himself about whether to take psychotropic medication, and second, Torry is willing

to voluntarily take medication, which should be considered a less restrictive alternative to forced

medication under section 2-107.1 of the Code. We need only consider the second of these

contentions, because, for the reasons that follow, we find it to be dispositive of the instant appeal.

¶ 24 A

¶ 25 The State, for its part, does not raise any argument regarding the merits of this appeal.

Instead, it argues solely that we should dismiss Torry’s appeal as moot, since the trial court’s

order expired on June 5, 2013.

¶ 26 An appeal is moot where no actual controversy is presented or where the issues raised

below have ceased to exist, such that a reviewing court cannot grant relief to the appellant. In re

Nicholas L.,

(2011). In this case, there can be no dispute that the

underlying judgment is moot, since the involuntary medication order was limited in duration to

90 days and that period has long since passed. As a general rule, Illinois courts do not decide

moot questions or render advisory opinions. In re Alfred H.H.,

(2009); In re

Barbara H.,

(1998).

¶ 27 Torry, however, argues that we may still consider this appeal under the public interest

exception to the mootness doctrine. This exception allows a court to decide a moot case when

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(1) the question presented is substantially of a public nature, (2) there is a need for an

authoritative determination for future guidance of public officers, and (3) there is a likelihood

that the question will recur in the future. In re J.B.,

(2003); Alfred H.H.,

.

¶ 28 In the present case, Torry’s first contention – that the evidence shows that he has the

capacity to make a reasoned decision about whether to take psychotropic medication – is purely

a sufficiency of the evidence claim and, as such, does not qualify for the public interest

exception.

(sufficiency of the evidence claims are “inherently case-specific

reviews” that do not present broad public interest issues). However, Torry’s second contention

presents a question of law, namely, whether voluntary acceptance of medication can be

considered a less restrictive alternative to court-ordered involuntary medication under the

involuntary medication statute (405 ILCS 5/2-107.1 (West 2012)). This question of law involves

the issue of statutory compliance and therefore qualifies as a matter of a public nature. In re

Donald L.,

(citing In re Nicholas L.,

(2011)). There is a need for an authoritative interpretation of the matter, since no Illinois case

has directly addressed this question. Furthermore, there is a likelihood of future recurrence of

this question because individuals who are willing to take medication can nonetheless find

themselves facing a petition for involuntary medication. See, e.g., In re Israel,

(1996) (where respondent was voluntarily taking Valium, the State was not precluded

from filing a petition to involuntarily administer Haldol and Risperdal to him); Nicholas L.,

(State filed an involuntary-medication petition where respondent

consented to oral, but not injectable long-acting, medication). Accordingly, the public interest

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exception applies to permit review of Torry’s contention regarding his willingness to accept

voluntary medication and the legal effect thereof.

¶ 29 B

¶ 30 We therefore turn to consider the substantive issue in this appeal, namely, whether the

trial court erred in authorizing the involuntary administration of psychotropic medication to

Torry.

¶ 31 Our supreme court has observed that the administration of involuntary mental health

services entails a “ ‘massive curtailment of liberty.’ ” In re Barbara H.,

(1998) (quoting Vitek v. Jones,

(1980)); see Dennis E. Cichon, The Right to

“Just Say No”: A History and Analysis of the Right to Refuse Antipsychotic Drugs,

, 284 (1992) (“Autonomous decisionmaking in matters affecting the body and mind is

one of the most valued liberties in a civilized society.”). When the State seeks to forcibly

administer psychotropic medication to an individual, the interference with the individual’s liberty

is

“ ‘particularly severe.’ ” In re Robert S.,

(2004) (quoting Riggins v. Nevada,

(1992)). Consequently, our supreme court has held that mentally ill persons

have a constitutionally protected liberty interest to refuse the administration of psychotropic

medication. In re C.E.,

(1994). However, the State also has a legitimate

parens patriae interest in furthering the treatment of the mentally ill by forcibly administering

psychotropic medication to patients who are incapable of making sound decisions.

.

These competing interests are balanced in the involuntary-medication statute, section 2-107.1 of

the Code, which provides that psychotropic medication shall not be involuntarily administered to

a patient unless all of the following factors are present:

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“(A) That the recipient has a serious mental illness or developmental disability.

(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’s 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.

(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.

(D) That the benefits of the treatment outweigh the harm.

(E) That the recipient lacks the capacity to make a reasoned decision about the

treatment.

(F) That other less restrictive services have been explored and found

inappropriate.

(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.” 405 ILCS 5/2-107.1(a-5)(4) (West 2012).

See C.E.,

(provisions of section 2-107.1 “are narrowly tailored to specifically

address the State’s concern for the well-being of those who are not able to make a rational choice

regarding the administration of psychotropic medications”). The State bears the burden of

proving all of the statutory factors by clear and convincing evidence (405 ILCS 5/2-107.1(a-5)(4)

(West 2012); Nicholas L.,

), which is defined as a degree of proof that

leaves no doubt in the mind of the fact finder as to the veracity of the proposition in question

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(Israel,

(citing Bazydlo v. Volant,

(1995))). We

review the trial court’s findings of fact under the manifest weight of the evidence standard,

meaning that we defer to its findings unless the opposite conclusion is apparent or the findings

are unreasonable, arbitrary, or not grounded in evidence. In re C.S.,

(2008).

¶ 32 In this case, Torry contends that the State failed to prove by clear and convincing

evidence that other, less restrictive services had been explored and found inappropriate, per

subsection (F). He argues that he testified at trial that he was willing to take medication on a

voluntary basis, and his voluntary acceptance of medication should be considered a less

restrictive alternative than court-ordered involuntary medication. As noted previously, the State

has waived all argument on this point. Ill. S. Ct. R. 341(h)(7), (i) (eff. Feb. 6, 2013) (points not

argued are waived).

¶ 33 We begin by considering the legal question of whether a respondent’s willingness to take

medication voluntarily constitutes a “less restrictive service[]” within the meaning of section 2-

107.1 of the Code.

¶ 34 As Torry points out in his brief, voluntary treatment is the preferred method for patients

to receive mental health services in Illinois. See In re Hays,

(1984).

Examination of our case law reveals two reasons for this preference. First, since voluntary

treatment is, by definition, agreed to by the patient in question, it does not invoke the “ ‘massive

curtailment of liberty’ ” (Barbara H.,

(quoting Vitek,

)) that is

attendant upon involuntary mental health services. Moreover, psychiatric evidence indicates that

mental health treatment that is free from compulsion is more therapeutic and effective than

forced treatment. Hays,

(citing Developments in the Law, Civil Commitments

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of the Mentally Ill,

, 1399 (1974)); In re James E.,

(2003); C.E.,

-21 (where a patient is forcibly medicated and perceives the drug’s

effects as destructive and malignant, an antitherapeutic reaction can result that will worsen the

patient’s mental state). Thus, the provision of mental health services that are voluntary rather

than involuntary, where possible, is consonant with our supreme court’s expressed desire to

provide mentally ill persons the most beneficial kind of treatment with the minimum amount of

intrusion necessary to maintain protection of the public. See In re Stephenson,

(1977).

¶ 35 In light of these considerations, any treatment to which a mental patient is willing to

consent should be considered a “less restrictive service[]” than forced treatment under section 2-

107.1. Thus, when a patient is willing to take some forms of psychotropic medication, but not

others, and the State seeks to forcibly administer medication in the latter category, the State must

first prove by clear and convincing evidence that the drugs that the patient is willing to take

“have been explored and found inappropriate” (405 ILCS 5/2-107.1(a-5)(4)(F) (West 2012)).

¶ 36 We now turn to apply this standard to the instant case. There was conflicting testimony

at trial regarding Torry’s willingness to take medication. Torry himself testified that he would be

willing to take safe, reliable medication that he would not need to be switched from. Regarding

the side effects of psychotropic medications, Torry stated that he was not concerned about minor

side effects, such as constipation or weight gain, but only about “deadly” side effects such as

suicidal or homicidal thoughts. By contrast, Dr. Goldberg testified that Torry was only willing to

take medication with no side effects, which, according to him, was functionally equivalent to

being unwilling to take any medication at all.

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¶ 37 Initially, we note that it is not clear whether Dr. Goldberg had a sufficient basis for his

statement that Torry was not willing to take any medication that had any side effects. The only

example he gave of a medicine that Torry refused to take was Tegretol, which does have

potentially deadly side effects, namely, suicidal thoughts. He did not elaborate upon any other

medications he might have asked Torry about. There is a significant logical gap between Torry’s

demonstrated unwillingness to take one particular drug with potentially deadly side effects and

his purported unwillingness to take any drug that would be appropriate to treating his condition,

and Dr. Goldberg’s testimony does little to bridge that gap.

¶ 38 More importantly, though, it appears that the trial court found Torry’s testimony to be

more credible than Dr. Goldberg’s testimony on this point. At the close of the hearing, the trial

court issued the following findings of fact:

“In his own testimony, [Torry] said he’d be willing to take certain medications, but he’s

got to get on some kind of treatment plan to take the medications, but you want to label it

as involuntary, but that’s just how the order is entered. It seems to me that he knows

enough that he’s got to get on some drug regimen to assess him, so at some point he can

get out and do some kind of outpatient treatment, but they need to determine, based on

his condition and his actions, he needs to get on the proper medication to assist him with

all that.” (Emphases added.)

This statement shows that the trial court credited Torry’s testimony that he was willing to take

certain medications and that he “knows enough that he’s got to get on some drug regimen.” In

light of these findings, involuntary medication would only be permissible under section 2-107.1

if the State showed that all of the medications which Torry was willing to take would be

“inappropriate” (405 ILCS 5/2-107.1(a-5)(4)(F) (West 2012)) to treat his condition.

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¶ 39 The State failed to make any such showing. Of the nine medications listed in the petition,

Dr. Goldberg testified that Torry refused to take Tegretol, and Torry testified that he had

previously experienced unpleasant side effects from taking Depakote. As for the remaining

seven medications, no testimony was adduced at trial regarding Torry’s willingness (or lack

thereof) to take them. Nor was it shown that the medications which Torry would have been

willing to take were not appropriate as a substitute for the medications in the petition. Israel,

, is illustrative because of the contrast it presents with the instant case.

In Israel, even though the respondent was voluntarily taking Valium, the court held that the State

was not precluded from seeking to involuntarily administer Haldol and Risperdal to him. 3

. The court based this conclusion upon medical testimony that the respondent was only taking

Valium to treat his anxiety, not for behavioral modification, and that the only medications which

would treat his delusions and paranoia were Haldol and Risperdal.

By contrast, in the instant

case, Torry testified and the trial court found that he was willing to take medication, but there

was no testimony establishing that such medication could not effectively treat his mental illness.

In the absence of such a showing, it cannot be said that the State met its burden of proof by clear

and convincing evidence, and the trial court’s finding to the contrary was against the manifest

weight of the evidence. See C.S.,

(finding is against the manifest weight

of the evidence where it is not grounded in evidence).

¶ 40 As a concluding matter, we note that, prior to trial, counsel for Torry filed a motion for a

pretrial conference to try and settle the matter without need for a trial. In that motion, Torry

3 The issue in Israel was not the “less restrictive services” clause of section 2-107.1;

rather, it was a challenge to the court’s subject matter jurisdiction. Id. at 31. Nonetheless, we

find the court’s analysis to be cogent here.

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“requested that his treating psychiatrist (Dr. Goldberg) find the most appropriate medication to

treat bipolar disorder with the least possible risk of side effects.” At the start of the trial, the

parties and the court had an off-the-record discussion about this motion, but it was never

officially ruled upon and no pretrial conference was held. It is unclear from the record why this

motion was not granted. Nor shall we speculate on the trial court’s reasons. We simply note

that, where a respondent is willing to voluntarily take psychotropic medication, a pretrial

settlement would be favored, since it would serve the ends of judicial economy as well as

protecting the respondent’s liberty interests and effectuating treatment. See Robert S.,

(forcible administration of psychotropic medication is a particularly severe interference

with an individual’s liberty); Hays,

(psychiatric evidence shows that voluntary

mental health treatment is more effective than forced treatment).

¶ 41 III. CONCLUSION

¶ 42 For the foregoing reasons, we find that the State failed to prove by clear and convincing

evidence that less restrictive services had been explored and found inappropriate, and, therefore,

the trial court erred in granting the petition to involuntarily administer psychotropic medication

to Torry. See 405 ILCS 5/2-107.1(a-5)(4)(F) (West 2012).

¶ 43 Reversed.

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