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Articles for
December 2002

Flipper Flap and the ADA

Involuntary Mental Health Treatment Proceedings in Illinois

In re Detention of Lieberman: Is a “Rapist” a “Sexually Violent Criminal” Under the Commitment Act?

Justice Scalia’s Comments On Constitutional Interpretation

An Update on Physician Non-Compete Agreements in Illinois

The Big Picture

Lending A Hand: The DuPage County Bar Foundation

© 1996 - 2002
DuPage County
Bar Association
All Rights Reserved.

Involuntary treatment of mentally ill persons in Illinois is governed by the Mental Health and Developmental Disabilities Code. 1 The U.S. Supreme Court has recognized a constitutional right to refuse unwanted medical treatment. 2 The Court has required that to be committed, a person must be shown to be both mentally ill and a danger either to himself or to others. 3 The Illinois Code defines a person subject to involuntary admission as either

(1) a person with a mental illness who, because of it, is reasonably expected to inflict serious physical harm on himself or another in the near future, or

(2) a person with a mental illness who, because of it, is unable to provide for his basic physical needs so as to guard himself from serious harm. 4

Due to the fact that admission to the mental health system involves such a severe loss of liberty that it has been likened to imprisonment, 5 a practitioner would not want his or her client to enter the system if it is not necessary for the client’s welfare, because the client’s right not to do so may not be affirmed until after the term of commitment is over. This article discusses arguments that the practitioner may use to help prevent his or her client’s involuntary commitment if it would be a wrong done to the client.

The first, and most likely to be successful, argument to make is that the statutory procedures must be followed strictly. 6 The court should be made aware that without strict adherence to all applicable procedures in the Code, orders of commitment may be expected to be reversed. 7 The same strictness is required of decisions in favor of involuntary administration of medication or shock treatment. 8 The court’s decision on involuntary commitment and on involuntary administration of medication must be separate decisions made after separate hearings. 9 The practitioner may bring up the Code provisions requiring that a client who has been detained on an emergency basis must be examined within 24 hours by a psychiatrist other than one who may have filed a petition or the client must be released. She may also inquire into the statutory requirements of a sufficient factual basis for allegations in a petition filed by any person or in a certificate filed by a physician or other examiner. These must include detailed statements of the reasons for admission, including signs and symptoms of a mental illness and descriptions of any acts, threats or other behavior supporting the assertion of need to be admitted. In an emergency admission, the court is required to set forth in detail the facts that are the basis for its conclusion that admission is necessary. If the practitioner is diligent about procedural requirements at the trial level, an appeal to restore his client’s right to refuse treatment may not be necessary. Where the Code’s procedural requirements meet constitutional scrutiny for protecting the individual from improper confinement, the Illinois courts will, of course, look only to the Code. 10

The second argument to make is that the evidence offered by experts may not be rigorous enough to meet the standards set forth by the United States Supreme Court as well as the Illinois Supreme Court. The United States Supreme Court has held that "the courts’ responsibility is to make certain that the expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." 11 The Illinois Supreme Court requires courts to use the Frye test to determine admissibility of expert evidence. In Donaldson v. Central Illinois Public Service Co., the court required application of a general acceptance test which "dictates that scientific evidence is only admissible at trial if the methodology or scientific principle upon which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs...The proper focus of the general acceptance test is on the underlying methodology used to generate the conclusion." 12 The practitioner, faced with an expert witness whose testimony appears irrelevant, insufficient or overblown given its factual basis, may want to quote Donaldson to the trial court. Frye also requires that the facts from which the expert has deduced his conclusions be examined for whether they are the correct ones to use as a matter of general acceptance in the relevant field. This part of the test was not within the scope of the Illinois court’s decision, but it may be useful to suggest that it is likely to be accepted.

The third argument counsel may be able to make is that of constitutional due process. In the involuntary commitment proceeding, this issue might involve questioning the definition of ‘clear and convincing evidence’ which has been required by the U.S. Supreme Court as well as by the Illinois courts. 13 The practitioner could look to law outside Illinois for what the requirements of this standard of evidence are since it is a constitutional requirement not yet well developed in Illinois cases. The Illinois Supreme Court has defined the ‘clear and convincing’ standard as "the quantum of proof that leaves no reasonable doubt in the mind of the fact finder as to the truth of the proposition in question...more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense." 14 The result of a lack of explanation of what is sufficient to meet the standard has left the appellate courts often sounding more anecdotal than analytical in their summaries of the evidence presented to the trial courts. In these cases, evidence tends to consist of testimony by the respondent about his mental state and actions and testimony by expert witnesses on their assessments of the res-pondents mental condition and dangerousness, based on their examinations of the respondent and their interpretations of his actions. The place in this equation for the facts of the respondent’s behavior has been left indefinite, yet that seems to be often what appellate courts rely on in examining decisions made by trial courts. 15 Pointing the trial court toward examining these facts, therefore, may obviate the need for an appeal.

Moreover, appellate courts seem to discount experts’ testimony where the trial court appears to have accepted it uncritically, particularly where the predictions made by the expert ranged well ahead of the facts on which they were based. 16 Under the Frye test, courts are to examine the facts and the process of deducing from them in order to assess both the admissibility and sufficiency of expert testimony. The practitioner may serve his or her client well by digging into the question of whether the expert’s testimony will stand on appeal.

The final argument to make is that the client is entitled both to his choice of counsel and to effective assistance of that counsel. The United States Supreme Court has held that the right to counsel is the same as the right to effective assistance of counsel. 17 This is as true in involuntary commitment cases as in criminal proceedings. 18 The Illinois Code provides for right to counsel, which has been strictly adhered to by the courts. 19 The Code provides for delays in proceedings in order to provide respondents with both choice of counsel and opportunity for that counsel to investigate and prepare the respondent’s case. The attorney must also be allowed to confer with his client if at all possible.

"[A]n adjudication of mental illness is not an adjudication of incompetence to direct one’s legal affairs." 20 Only competent and caring legal representation of persons whose liberty is at issue in the courts can be counted on to prevent irremediable miscarriages of justice, such as Barbara’s case, which can result from courts’ giving too little attention to statutory procedures and constitutional due process and requirements for evidence objective enough to be valid. A con-stitutional challenge requires that the situation must implicate a fundamental principle "so rooted in the traditions and conscience of our people as to be ranked as fundamental." 21 The freedom to run one’s own life is obviously such a fundamental right; but, since in these cases the burden is on the respondent to make this showing, the practitioner needs to make the argument.

 1 405 ILCS 5/1 et seq.

 2 Cruzan v. Missouri Dep’t of Health, 497 U.S. 261, 278 (1990).

 3 O’Connor v. Donaldson, 422 U.S. 563, 573-76 (1975), restated recently in Cooper v. Oklahoma, 517 U.S. 348, 368 (1996).

 4 405 ILCS 5/1-119.

 5 People v. Shelton, 281 Ill. App. 3d 1027, 1036, 667 N.E.2d 562, 568-69 (1st Dist. 1996).

 6 See, e.g., Arthur v. Lutheran General Hospital, 295 Ill. App. 3d 818, 692 N.E.2d 1238 (1st Dist. 1998).

 7 See, e.g., In re Cynthia S., 326 Ill. App. 3d 65, 68-69, 759 N.E.2d 1020, 1024 (2d Dist. 2001); In re George O., 314 Ill. App. 3d 1044, 1046, 734 N.E.2d 13, 16 (3rd Dist. 2000); In re Rovelstad, 281 Ill. App. 3d 956, 667 N.E. 2d 720 (2d Dist. 1996).

 8 See, e.g., In re E.L., 316 Ill. App. 3d 598, 736 N.E.2d 1189 (1st Dist. 2000); In re Timothy H., 301 Ill. App. 3d 1008, 704 N.E.2d 943 (1st Dist. 1999).

 9 Not separating them is reversible error under In re Barbara H., 183 Ill. 2d 482, 702 N.E.2d 555 (1998).

 10 Barbara H., 702 N.E.2d at 557.

 11 Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999).

 12 The Illinois court held this test applicable in People v. Basler, 740 N.E.2d 1, 4 (2000). The test comes from 193 Ill.2d 545, 550, Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). It has been defined by the Illinois court in Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 767 N.E. 2d 314 (2002).

 13 Cooper, 517 U.S. at 368-69.

 14 Bazydlo v. Volant, 164 Ill. 2d 207, 647 N.E.2d 273, 276 (1995).

 15 For examples of the court’s description of behavior that meets its standard for commitment, see In re Rovelstad, supra note 7; In re David D., 307 Ill. App. 3d 30, 716 N.E.2d 1245 (2d Dist. 1999); In re Robert H., 302 Ill. App. 3d 980, 707 N.E.2d 264 (2d Dist. 1999).

 16 See, e.g., In re Bates, 315 Ill. App. 3d 736, 734 N.E.2d 459 (3rd Dist. 2000), In re Jakush, 311 Ill. App. 3d 940, 725 N.E.2d 785 (4th Dist. 2000).

 17 The standard for effectiveness of counsel was stated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

 18 Matter of Carmody, 274 Ill.App.3d 46, 653 N.E.2d 977 (4th Dist. 1995). In People v. Rainey, 325 Ill.App.3d 573, 758 N.E.2d 492 (4th Dist. 2001), the court held that the right to effective counsel may arise from either a state or federal constitutional right or, implicitly, from a statutory requirement that counsel be provided.

 19 Barbara H., 702 N.E.2d at 561-62. The court’s decision rested in part on the ineffectiveness of Barbara’s lawyer.

 20 In re Phyllis P., 182 Ill.2d 400, 402-03, 695 N.E.2d 851, 853 (1998).

 21 Montana v. Egelhoff, 518 U.S. 37, 47-48 (1996).

Theresa Miller received her B.A. in 1963 from the University of Chicago and her J.D. in 1988 from the IIT Chicago-Kent College of Law.