NO. 96773
IN THE SUPREME COURT OF ILLINOIS
IN RE ROBERT S.,

Alleged to be a person subject to 
authorized involuntary administration 
of psychotropic medication

Respondent-Appellant
Appeal from the Appellate Court 
Second Judicial District 
No. 2-02-0262

Original Appeal from the Circuit Court 
Sixteenth Judicial Circuit
Kane County, Illinois
No. 01-MH-261
Honorable Franklin D. Brewe 
Judge Presiding
BRIEF AND ARGUMENT OF RESPONDENT-APPELLANT
Jeff M. Plesko, Director
William J. Conroy, Jr., Managing Attorney
Anthony E. Rothert, Staff Attorney
Teresa L. Berge, Staff Attorney
Legal Advocacy Service
ILLINOIS GUARDIANSHIP & ADVOCACY COMMISSION
4302 North Main Street
Rockford, Illinois 61103-5202
(815) 987-7657
Oral Argument Requested
TABLE OF CONTENTS
Page 
Points and Authorities 	i
Nature of the Case 	
Issues Presented for Review 	1
Standard of Review 	2
Jurisdiction 	2
Statutes Considered	3
Statement of Facts	7
Summary of Argument 	15
Argument 	17
Conclusion 	_51
Appendix 	52
ARGUMENT
THE APPELLATE COURT ERRED IN HOLDING THAT 405 ILCS 5/2-107.I.
A STATUTE EXERCISING TJ--IE P.4IRENSPATRI.4E INTEREST OF THE STATE 
OF ILLINOIS, W'HICI-I AUTHORIZES NON-EMERGENCY ADMINISTRATION 
OF PSYCHOTROPIC MEDICATIONS AND ELECTRO-CONVULSIVE THERAPY 
(ECT) TO MENTAL HEALTH RECIPIENTS ON AN INVOLUNTARY BASIS, 
WAS CONSTITUTIONALLY APPLIED TO ROBERT S., WHO WAS A 
CRIMINAL CASE PRETRIAL DETAINEE, AND A PRETRIAL DETAINEE WI-1[) 
HAD BEEN FOUND TO BE UNFIT TO STAND TRIAL	17

Lrrlery v Lvlav, 193 I11. 2d 455. 470. 739 N.E.2d 521 (2000) 	17. 18

Tall . Ed<gar•. 171 ill. 2d 297. 304. 664 N.E.2d 43 (1996) 	17. 18
U.S. Coast., amend. XIV

Troxel v. Granville. 530 U.S. 57. 63. 120 S. CL 2054 (2000), citing 1W1•''u.s.hrn /on v. Glzrck.shcrg. 
521 U.S. 702. 719. [17 S.Ct. 2258 (1997) 	15

In re C'.E.161 11I.2d 200. 206. 641 N.E.2d 345 (1994) 	18. 19. 20. 22. 24

405 ILCS 5/2-2-107.1 (West. 1992) 	18

In re Barbaro H.. 183 [11. 2d 482. 702 N.F.2d 555 (1998) 	19

In re Jrll R.. 336 Ill. App 3d 956. 962. 785 N.E.2d 46 (4th Dist. 2003) 	19. 24

Irr re Brcrrrning. 285 I1!. App. 3d 405. 411. 674 N.E.2d 463 (4th Dist. 1996) 	19. 24

In re Floyd. 274 111. App. 3d 855. 862. 655 N.E.2d 10 (5th Dist. 1995) 	19. 24

In re R.C.. 195 III. 2d 291. 305. 745 N.E.2d 1233 (2001) 	19

In re OR.. 328 111. App. 3d 955, 960. 767 N.E.2c1 872 (2nd Dist. 2002) 	19

BLACK'S LAW DICTIONARY. 1 1 14 (6th ed. 1991) 	19

In re KG.F., 306 Mont. 1. 12-13. 29 P.3d 4.85. 495 (2001) 	19

.Steele v. Hamilton County C'orrrrrrrrrrify Mental Health Board. 90 Ohio St. 3d 176. 188. 736 
N.E.2d 10 (2000) 	20
ii
In re II ifficu~rs. 305 Ill. App. 3d 506. 509. 712 N.E.2d 350 (5th Dist. 1999) 	20
In re Mary Ann P., 202 I11. 2d 393. 403. 781 N.E.2d 237 (2002) 	20
United States v. Gouveia. 467 U. S. 180. 187-88. 104 S.Ct. 2292 (1984) 	21
Phillips v. Irn x.185 I .Supp.2d 992. 1007 (N.D.Ia. 2002) 	21 
Boggs v. New York City Health and Hospitals Corp., 132 A.D.2d 340. 342-43. 523 N.Y.S.2d
71 (N.Y.A.D. 1st 1987) 	21
Rive=ins v. Nevada. 504 U.S. 1 2 7 . 134-35. 112 S. Ct. 1 8 1 0 . 118 I , . Ed. 2d	479 (1992)22. 23.
	27.
	28.30.31
bi'u.shington v. Harper. 494 U.S. 210. 110 S. Ct. 1028 (1990) 	22. 27.
	28.
	29
Sell v. United States.	U.S.	, 123 S. Ct. 2174. 2 1 8 3 . 156 L. Ed. 2d 197 (2003)23, 24, 28. 30.31
725 ILCS 51104-16(d) 	24
725 ILCS 5/104-13(a) and (b) 	28
405 ILCS 5.2-107(a) and (b) 	28
405 ILCS 512-1 11 	28
Khiern v. United States, 612 A.2d 160, 169 (D.C. 1992) 	2$
Woodland v. Angus, 820 F. Seipp. 1497. 1516-18 (D. Utah I993) 	29
405 ILCS 5/2-107.1(a-5)(4)(A)-(F) (!West 2001). as amended 	30. 31
In re rllurv Ann P., 202 Ill. 2nd at 412-413 	31
United States v. Druuenv, 2004 WL 33057 (D.Me. 2004) 	31
hi re Israel. 278 I11. App. 3d 24, 216 I11. Dec. 104 (2nd Dist. 1996) 	31
In re Hatsuye T., 293 III. App. 3d 1046. 1052. 228 Ill. Dec_ 376 (1st Dist. 1997) 	1
II.	THE APPELLATE COURT ERRED IN HOLDING THAT ROBERT S., A 
RESPONDENT IN A FORCED PSYCHOTROPIC MEDICATIONS ACTION, 
WAS NOT DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW, WHERE A 
PSYCHOLOGIST WAS APPOINTED TO PERFORM AN INDEPENDENT 
EXAiMINATION, AS OPPOSED TO A PSYCHIATRIST; AND WHERE THE 
EXAMINATION WAS ULTIMATELY PERFORMED BY AN UNLICENSED 
INTERN WITH ONLY A MASTER'S DEGREE IN COUNSELING PSYCHOLOGY,
WHOSE TESTIMONY AGREED WITH THE TREATING PSYCHIATRIST'S	33

In re Barbara H.. 183 I11. 2d 482. 498. 702 N.E.2d 555 (1998) 	33

In re ii'illicrnr.s. 305 I11.App.3d 506. 509. 712 N.E.2d 350 (5th Dist. 19991 	33

In re Brannin . 285 Ill. App. 3d 405.674 N.E.2d 463 (4th Dist. 1996) 	33, 34. 3S. 45

In re Evelyn S.. 337 III.App.3d 1096. 1103. 788 N.E.2d 310, 317 (5th Dist. 2003).
petition for leave to appeal pending 	33
........................................... . .. . .. ... .. . .. . .. . . .. .

T17/limns v. Ill. State Se/with-ship Comm 'n. 139 Ill. 2d 24. 33, 563 N.E.2d 465 (1990) 	33

In re Rovelstad. 281 Ill. App. 3d 956, 964. 667 N.E.2d 720 (2nd Dist. 1996) 	33

In re John R.. et at.. 339 III. App. 3d 778. 785. 792 N.E.2d 350 (5th Dist. 2003) 	3 3

405 ILCS 5/3-804 (West 2001) 	3

In re Trilliums. 133 Ill. App. 3d 232. 235. 478 N.E.2d 867 (3rd Dist. 1985) 	3

U.S. Const.. amend \IV: Ill. Const. 1970, art. I. sec. 2	35

405 ILLS 5/1-121 	35

405 ILCS 1-121.1 	35

405 ILCS 1-121.5 	35

People v. Baclond. 122 III. 2d 50. 55, 118 Ill. Dec. 407, 521 N.E.2d 884 (1988) 	35
iv
Anthony E. Rathert. InvolUnlar\ Administration Of Psychotropic Drugs In Illinois: Balancing Sa1et\ 
And Civil Liberties. 91 ILB.1 496. 498 (Oct 2003) 	

In re Robert R.. 338 111.App.3d 343. 788 N.E.2d 122 (5th Dist. 2003) 	43.44

In re R.C., 338 Ill. App. 3d 103. 110. 788 N.E.2d 99 (1st Dist. 2003)
(Petition for leave to appeal denied. Table No. 96151. Oct. 7. 2003) 	44

In re Detention of Trevino, 317 I11. App. 3d 324. 330-31. 740 N.E.2d 810 (2nd Dist. 2000) 	45
In re Detention ref Invite. 317 III. App. 3d 111. 115-16. 738 N.E.2ci 983 (2nd Dist. 2000) ...45. 46
III. THE APPELLATE COURT ERRED IN HOLDING THAT ROBERT S., A 
RESPONDENT IN A FORCED PSYCHOTROPIC MEDICATIONS ACTION, 
WHO WAS ALSO A PRETRIAL DETAINEE, AND A PRETRIA1. DETAINEE 
WHO HAD BEEN FOUND TO BE UNFIT FOR TRIAL, HAD NO RIGHT TO 
HAVE NOTICE OF TIIE FORCED TREATMENT ACTION PROVIDED TO 
HIS CRIMINAL CASE ATTORNEY, UNDER DUE PROCESS OF LAW OR 405 
ILCS 5/2-107.1 	47


In re Robert ,S'.. 341 I11.App.3d 238. 275 111.Dec. 190. 792 N.E.2d 421 (2nd Dist. 2003) 	4 7

725 ILCS 5/104-10 -- 5/104-31 	47

725 ILCS 5/104-23(h) and (c). and 104-25(02) 	47

.loltn.so„ . Brelfe. 521 F. Stipp. 723. 726-28 (D.C. I11. 1981) 	47

725 ILCS 5/104-19 	48

725 ILCS 5/104-15(a)( I) 	48

725 ILCS 5/104-15(a)(2) 	4$

725 ILCS 5/I04-17(d) 	48

725 ILCS 5/104-17(e) 	48
vi
hi re B. D. mu/ B.1).. 321 III. App. 3d 161. 166. 746 N.E.2d 822 (1st Dist. 2001) 	People v.:1.1cL)ctrtu1L/. 186 III. App. 3d 1096. 1100. 134 141. Dec. 759 (5th Dist. 1989) 	36
Scope of-Practice: Psychologist Prescribing Legislation. American Psychiatric Association. 
May 2003 	

hi re Sreplten P , 343 M. App. 3d 455. 797 N.E.2d 1071 (4th Dist. 2003) 	37

In re Emmet/ .1. 333 III. App. 3d 69. 775 N.E.2d 193 (3rd Dist. 2002) 	37

lit re L'.L., 161 Ill. 2d 200, 208. 641 N.F.2d 345 (1994) 	37

405 ILCS 512-107.1(a-3)(4)(A)-(a-5)(4)(F) (West 2001). us crmetrc(ecl 	

hi re ;llrrri•:Inn P.. 202 I11.2d 393.405-6. 781 N.E.2d 237 (2002) 	38

405 ILCS 5/1-120. 5/1-121 	39

405 ILCS 512-107.1(a-5)(4)(A) 	4(1

405 ILCS 513-804 	41

hr re R.('.. 338 Ill. App. 3d 103. 788 N.E.2d 99 (1st Dist. 2003) 	41
41
Jr/ re O. C.. 338 111. App. 3d 292. 296. 788 N.E.2d 1 163 (2003) 	41

59 Ill. Adrn. Code 112.90(b) (West 2003) 	42

405 ILCS 5/2-107.1(a-5)(4)(A) -- (a-5)(4)(F) 	42

405 ILCS 511-103 	42
In re Robert S.. 341 Iii.App.3d 238. 275 I11.Dec. 190. 792 N.E.2d 421 (2nd Dist. 2003).42. 45. 46

In In re Lieberman. 201 111.2d 300. 309 (2002) 	42. 44

405 ILCS 513-807 	43

405 ILCS 5/3-804 	43

405 ILCS 5/2-107.1(a-5)(3)	43

V
725 ILCS 5/104-18(a) 	48

725 ILCS 51104-18(a)(1). (2) and(3) 	49

In re C". E., 161 111. 2d 200. 225. 641 N.~.2d 345 (1994) 	49

Ritigirrs 7 . Nei cry/n. 504 U.S. 1 2 7 . 134-35. 112 S . Ct. 1 8 1 0 . 1 18 L. Ed. 2d 479 (1992) 	49

Sell r. United States.	U.S.	123 S. CL 2174. 2183. 156 L. Ed. 2d 197 (2003) 	49

405 ILCS 512-107.1(a)(1) 	4')

In re .llcerv Aim 1'.. 202 Ill. 2d 393, 405, 781 N.E.2d 237 (2002) 	50

American Bar Association: Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases. 31 Hofstra L. Rev. 913. 1006. 1010-11 (2003) 	50
vii
NATURE OF THE CASE
This case involves a petition seeking authorization to administer involuntary non-
emergency administration of psychotropic medication to Respondent-Appellant, Robert S., 
pursuant to the Mental Health and Developmental Disabilities Code, and specifically 405 ILCS 
5/2-107.1 (West 2001), as amended. 405 ILCS 5/1-100, et seq.; 405 ILCS 5/2-107.1. The 
petition was filed on November 19, 2001, in Kane County Circuit Court. (A.14)
On January 18, 2002, and February 1, 2002, a bench trial was held before the Honorable 
Franklin D. Brewe. On February 1, 2002, Judge Brewe granted the petition, authorizing that 
tespondent be administered four (4) psychotropic medications against his will for up to 90 days. 
(A. 13)
Respondent appealed Judge Brewe's order authorizing the involuntary treatment, and it 
yas affirmed by the Second District Appellate Court on June 30, 2003. See, In re Robert S., 341 
Ill. App. 3d 238, 792 N.E.2d 421 (2nd Dist. 2003) (A. 1)
Respondent filed in this Court a Petition for Leave to Appeal pursuant to Supreme Court 
Rule 315. On October 7, 2003, the Court allowed that Petition. (A. 12)

ISSUES PRESENTED FOR REVIEW
Whether 405 ILCS 512-107.1, a statute exercising the parens patriae interest of the State 
of Illinois, which authorizes non-emergency administration of psychotropic medications and 
electro-convuisive therapy (ECT) to mental health recipients, on an involuntary basis, was 
unconstitutionally applied to Roberts S., a pretrial detainee who had been found unfit to stand 
trial.
Whether Robert S. was deprived of due process of law when trial court failed to appoint a 
psychiatrist as an independent examiner pursuant to 405 ILCS 5/3-804, and instead appointed an 
iiillicensed intern with a masters degree in counseling psychology.
1
(2) The court shall hold a hearing within 7 days of the filing of the petition. The People, the 
petitioner, or the respondent shall be entitled to a continuance of up to 7 days as of right. An 
additional continuance of not more than 7 days may be granted to any party (i) upon a showing 
that the continuance is needed in order to adequately prepare for or present evidence in a hearing 
under this Section or (ii) under exceptional circumstances. The court may grant an additional 
continuance not to exceed 21 days when, in its discretion, the court determines that such a 
continuance is necessary in order to provide the recipient with an examination pursuant to 
Section 3-803 or 3-804 of this Act, to provide the recipient with a trial by jury as provided in 
Section 3-802 of this Act, or to arrange for the substitution of counsel as provided for by the 
Illinois Supreme Court Rules. The hearing shall be separate from a judicial proceeding held to 
determine whether a person is subject to involuntary admission but may be heard immediately 
preceding or following such a judicial proceeding and may be heard by the same trier of fact or 
law as in that judicial proceeding.

(3) Unless otherwise provided herein, the procedures set forth in Article VIII of Chapter 3 of 
this Act, including the provisions regarding appointment of counsel, shall govern hearings held 
under this subsection (a-5).

(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:

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

(13) That because of said mental illness or 
developmental disability, the recipient exhibits 
any one of the following: (i) deterioration of his 
or her ability to function, (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.
4
(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.

(5) In no event shall an order issued under this Section be effective for more than 90 days. 
A second 90-day period of involuntary treatment may be authorized pursuant to a hearing that 
complies with the standards and procedures of this subsection (a-5). Thereafter, additional 
180-day periods of involuntary treatment may be authorized pursuant to the standards and 
procedures of this Section without limit. If a new petition to authorize the administration of 
authorized involuntary treatment is filed at least 15 days prior to the expiration of the prior 
order, and if any continuance of the hearing is agreed to by the recipient, the administration of 
the treatment may continue in accordance with the prior order pending the completion of a 
hearing under this Section.

(6) An order issued under this subsection (a-5) shall designate the persons authorized to 
administer the authorized involuntary treatment under the standards and procedures of this 
subsection (a-5). Those persons shall have complete discretion not to administer any 
treatment authorized under this Section. The order shall also specify the medications and the 
anticipated range of dosages that have been authorized.

(b) A guardian may be authorized to consent to the administration of authorized involuntary 
treatment to an objecting recipient only under the standards and procedures of subsection (a-
5).

(c) Notwithstanding any other provision of this Section, a guardian may consent to the 
administration of authorized involuntary treatment to a non-objecting recipient under Article 
Kla of the Probate Act of 1975.

(d) Nothing in this Section shall prevent the administration of authorized involuntary 
treatment to recipients in an emergency under Section 2-107 of this Act.

(e) Notwithstanding any of the provisions of this Section, authorized involuntary treatment 
may be administered pursuant to a power of attorney for health care under the Powers of 
Attorney for Health Care Law or a declaration for mental health treatment under the Mental 
Health Treatment Preference Declaration Act.

405 ILCS 5/2-107.1 (West 2001), as amended
5
§ 405 ILCS 5/3-804. Independent examination; court order; compensation

§ 3-804. The respondent is entitled to secure an independent examination by a physician, 
qualified examiner, clinical psychologist or other expert of his choice. If the respondent is unable 
to obtain an examination, he may request that the court order an examination to be made by an 
impartial medical expert pursuant to Supreme Court Rules or by a qualified examiner, clinical 
psychologist or other expert. Any such physician or other examiner, whether secured by the 
respondent or appointed by the court, may interview by telephone or in person any witnesses or 
other persons listed in the petition for involuntary admission. The physician or other examiner 
may submit to the court a report in which his findings are described in detail. Determination of 
the compensation of the physician, qualified examiner, clinical psychologist or other expert and 
its payment shall be governed by Supreme Court Rule.

405 ILCS 5/3-804 (West 2001)
6
STATEMENT OF FACTS
A Petition for Administration of Authorized Involuntary Treatment against Robert S. was 
filed in the circuit court of Kane County'on November 19, 2001. (C.2-3) The petition sought the 
authority to administer non-emergency authorized involuntary treatment. CL, 405 ILCS 5/2-
107.1 (West 2001), as amended (non-emergency grounds and hearing afforded to respondent) 
and 405 ILCS 5/2-107(a) (West 2001) (emergency grounds and no hearing afforded where 
involuntary treatment is "necessary to prevent the recipient from causing serious and imminent 
physical harm to the recipient or others, ....").
Pursuant to its definition within the Mental Health and Developmental Disabilities Code, 
"Authorized involuntary treatment" included treatment by both psychotropic medication and 
electro-convulsive therapy (ECT). 405 ILCS 5/1-121.5; 405 ILCS 5/1-100, et seq.. 
"Psychotropic medication" meant medication used for "antipsychotic, antidepressant, antimanic, 
antianxiety, behavioral modification or behavioral management purposes...." 405 ILCS 5/1-
121.1. The Mental Health and Developmental Disabilities Code did not, and does not, include a 
definition of the term "electro-convulsive therapy." See, Mental Health and Developmental 
Disabilities Code, 405 ILCS 5/1-100, et seq..
The petition sought authority to administer Risperidone, Haldol, Haldol Decanoate and 
Cogentin. (C. 2) Robert had refused to take the proposed medications voluntarily. (R.I/18 57)2
An attorney from the Illinois Guardianship and Advocacy Commission's Legal Advocacy 
Service was appointed to represent Robert, and notice and petition copies were served on that 
attorney. (C.4-5, 7-8) The Legal Advocacy Service provided legal counsel in judicial
' All citations to Illinois statutory law are to that version in effect at the time of the non-emergency involuntary 
treatment hearing of November 19, 2001, unless otherwise specified.
Transcripts of the five reported proceedings in the record are cited as: "R.11/30" for November 30, 2001; "R.1/4" 
for January 4, 2002; "R.1118" for January 18, 2002; "R.211" for February 1, 2002; and, "R.318" for March 8, 2002.
7
proceedings under the Mental Health and Developmental Disabilities Code and related laws, 
including but not limited to admission, civil commitment, legal competency and discharge. See, 
20 ILCS 3955110 (West 2000). It did not represent individuals in criminal cases; and it could not 
have represented Robert S. in the underlying criminal charge pending against him for which he 
was being detained at the mental health center's forensic unit. (Id.) An attorney in a forced 
treatment cases serves not as guardian ad litein. but as an advocate for the respondent's possibly 
ill-advised desires [with regard to the proposed treatment]." In re Tones, 318 Ill. App. 3d 1023, 
1027, 743 N.E.2d 1090 (5th Dist. 2001).
The record discloses that no attorney representing respondent in his pending criminal 
case was served notice of the hearing and/or a copy of the petition for involuntary authorized 
treatment. (C.1-39)
In a pre-trial hearing, Robert moved that the same psychiatrist that had been appointed in 
his two previous forced psychotropic treatment petitions, be also appointed as independent 
examiner in the third, or instant, case. (R.11/30 5) The State had no objection to the 
independent examination, but requested that the Kane County Diagnostic Center be appointed as 
examiner on this third occasion, since it was less costly. (8.11/30 5)
Robert's GAC/LAS attorney objected to the appointment of the Kane County Diagnostic 
Center, since the group had no psychiatrists among its practitioners, who were, instead, 
psychologists. (8.11/30 6) He argued that the lack of expertise as to medication made a 
psychologist an improper choice as an independent examiner in an involuntary treatment case. 
(Id.) It was his position that, because the Center was comprised of psychologists only, Robert 
was "starting behind the 8-ball because of that very thing." (Id.)
8
Counsel's objection was overruled, and the Kane County Diagnostic Center was 
appointed to perform the independent examination. (8.11130 6-7; C.15)
However, instead of a psychologist, an intern with the group, possessing only a master's 
degree in counseling psychology, performed Robert S.'s independent examination. (R.11/30 93-
94, 96, 108, 126) She did not hold a doctorate, or a Psy.D, in psychology; and she was 
unlicensed. (Id.)
Hearing on the merits began on January 18, 2002, before the Honorable Franklin D. 
Brewe. (R.1/18 1-192) Robert S. appeared pro se. (Id.)
The State called Dr. Romulo Nazarene, a full-time staff psychiatrist at Elgin Mental 
Health Center, whose duties in the forensic program were to evaluate the patients, to diagnose 
them, to assess their fitness to stand trial, to treat them either with medication or counseling, and 
to testify in court regarding fitness or sanity. (R.1/18 14-15)
Dr. Nazareno had almost 30 years experience as a physician and 15 years as a 
psychiatrist. (8.1118 12-13) He had personally treated over 200 patients at Elgin Mental Health 
Center, and he had been qualified to testify as an expert on more than 200 occasions. (R.1/18 
13-14) He testified that he was licensed to practice medicine in Illinois, and licensed to prescribe 
psychotropic drugs. (R.1118 15) He had prescribed psychotropic medications to about 200 
psychiatric patients, and Robert S. was one of the 25 forensic patients that he was currently 
treating. (R.1118 15-16)
Doctor Nazarene wanted to administer Risperidone, in pill form. (C.3; R.1/18 55, 63) 
However, on the contingency that Robert might refuse to comply with the judge's order for 
Risperidone, Dr. Nazareno also sought authority to administer Haldol Decanoate, an injectable 
medication. (C.3; R.1/18 55, 56-57, 62) The doctor did not know whether Robert had ever had
9
Haldol, and, when asked if he had any reason to believe that Robert would have an adverse 
reaction to it, responded: "I don't know." (R.111S 64-65) One dose of Haldol Decanoate might 
take two months to clear out of a person's system. (R.1118 64) Authority to force Cogentin was 
also sought, but its use was also contingent upon Robert's refusal of a court order to take 
Risperidone, and only if Robert had a bad reaction to Haldol, or Haldol Decanoate. (R.1118 55-
56, 65)
According to Dr. Nazareno, the side effects for both Risperidone and Haldol were 
dizziness, light-headedness, seizure, nausea, vomiting, muscular rigidity, difficulty swallowing, 
constipation, tardive dyskinesia or neuroleptic malignant syndrome. (R.1118 59, 62-64) But 
Haldol was more prone to side effects than Risperidone, and the side effects were more severe. 
(R.1/18 62-63) For Cogentin, side effects included drooling of saliva, tremors, rigidity, 
constipation and blurred vision, and possibly confusion. (R.1118 65-66)
Although Dr. Nazareno initially testified that Robert suffered no side effects from 
Risperidone that he took pursuant to a previous court order, he acknowledged on cross-
examination that Robert had probably complained of general tiredness, drowsiness, nausea and 
several other side effects. (8.1118 59, 72-73) However, he discounted that, since there were no 
objective signs. (8.1118 73)
Robert had no physiological medical problems. (R.1118 46) When Dr. Nazareno offered 
Robert medication, Robert said that the medication did not help. (R.I118 43-44) He said that the 
voices were kind to him, they were quiet at night, and they let him sleep. (R.1/18 44)
Dr. Nazareno testified that Robert had taken Reperidone previously, by court order for 90 
days, and his socialization and sleep improved. (8.1118 43-46, 60-61, 80) During this time 
period, Robert told him that the voices stopped. (8.1118 43-46, 60) Robert was not agitated or
10
threatening, and he was attending activities and functioning very well at that time. (R.1/18 43-
46, 61) He was attending all of the counseling, the library, the gym and the relaxation group. 
(8.1/18 67) He was even getting out of the unit. (R.1118 67)

But, the only reason that Dr. Nazareno did not file a petition to continue with the forced 
medication beyond the 90 days ordered, was because Robert told him that he would accept them 
voluntarily. (R.1/18 61) In a conversation that took place between Dr. Nazareno and Robert the 
day before the doctor testified, he told Robert that sometimes the administration requests that he 
file 2-107.1 petitions. (R.1/18 81)

It was Dr. Nazareno's opinion that Robert lacked capacity, that the benefits of the 
medications outweighed their side effects, and that they were the least restrictive service that was 
effective. (R.1118 63, 66-67)

When questioned as to Robert's legal status at the facility, Dr. Nazareno testified that 
Robert was not a voluntary patient, but was unfit to stand trial. (R.1/18 58) Robert's court - 
appointed independent examiner later confirmed this, testifying that she tried to determine why 
he was found unfit to stand trial, as a part of her examination. (R.1/18 102-103) In sustaining 
Robert's objection to the State's attempt to call him as a witness against himself, trial court 
stated:

As I understand it from previous testimony, there has been an unfitness to stand 
trial finding made in this case which obviously indicates there is an underlying 
criminal proceeding. Therefore, I will sustain your objection and will not permit 
the State to call Mr. [S.] as a witness. (R.1118 190)

So, there was no question that Robert's status at Elgin Mental Health Center was that of a pretrial 
detainee who had been found unfit to stand trial.

When the state asked Dr. Nazareno what the proposed medication would do for Robert, 
and what were the benefits and side effects, the expert responded: "Psychotropic medication like
11
Risperidone and Haidol is to decrease psychosis, decrease agitation, prevent aggression, 
violence, increase socialization, improve his sleep, decrease suffering and so he can also attend 
activities and make him fit to stand trial." (R.1/l8 58-59)
Instead of being examined by a psychologist, however, Robert was examined by an intern 
with a master's degree in counseling psychology. She did not hold a doctorate, or a Psy.D, in 
psychology. (R.11/30 93-94, 96, 126) Yet, upon calling her as a witness, the prosecutor 
introduced her to the court as "Dr. Leslie Kane, M.S." (R.1/18 91)
Ms. Kane had testified in court before as an expert, but no information as to the number 
of occasions, or the type of cases, was ever disclosed. (R.1/18 96) When Robert asked Ms. 
Kane if she was licensed to practice psychology and make mental diagnoses, her response was: 
"I am not licensed, but I do have the ability to diagnose." (R.1/18 108)
Ms. Kane admitted that she was not allowed to examine without supervision, because she 
was unlicensed. (R.l/18 125-126) When Robert asked her why she was able to examine him 
without supervision. she said: "Because this evaluation doesn't require that you need a license." 
(R.1/18 127) Later, she testified that she was supervised, but that her supervisor did not need to 
be present "for this type of evaluation." (R.1/18 127) She explained that, for a fitness 
evaluation, a licensed psychologist had to assist in the evaluation. (R.1/18 128) However, she 
testified that she could perform evaluations, without supervision, in involuntary medication 
cases. (Id.) When Robert asked her why it was not a requirement, she said: "I didn't develop the 
law. I don't know." (Id.)
Robert's objection to Ms. Kane's credentials was overruled, for the sole reason that she 
had testified as an expert before. (R.1/18 109) Her opinion testimony was in agreement with Dr. 
Nazareno's. (R.1/18 93-138)
12
Because the criminal charges) that was pending against Robert S. was never disclosed, it 
is not known whether it was a felony, or a misdemeanor. (C.1-39: R.11130 1-9; R.1/4 1-9; 
8.1118 1-193; R,2/1 1-97; R.318 1-14) Further, it is not known whether Robert S. had raised the 
defense of insanity in his pending criminal case, or any other defense addressing his mental 
capacity to commit the unknown charged criminal offense. (Id.) There was no evidence of how 
the medications may have changed Robert's behavior, or affected his demeanor, ability to 
communicate with counsel, or assist in his own defense. (Id.)
Trial court found Robert S. subject to involuntary administration of non-emergency 
psychotropic treatment, and authorized all of the requested medications (substituting Resperidol 
for Risperidone) for up to ninety (90) days. (C.27; R.211 94) The sole basis for the court's 
judgment forcing the treatment was to alleviate the almost nightly suffering that Robert 
experienced by hearing voices, and losing sleep. (8.21l 87-88, 90; R.318 10-11) Trial court's 
findings of fact were limited to the criteria set forth in the statute authorizing forced treatment in 
non-emergency circumstances. (R.211 85-94); see, 405 1LCS 5/2-107.1(a-5)(4)(A)-(G) (West 
2001), as amended.
The judgment of the Appellate Court affirming the trial court was entered on June 30, 
2003. See, In re Robert S., 341 I11.App.3d 238, 275 III.Dec. 190, 792 N.E.2d 421 (2nd Dist. 
2003). Relying in part on the recent decision of In re Evelyn S., 337 I11. App. 3d 1096, 273 1]1. 
Dec. I (5th Dist. 2003), petition for leave to appeal pending, the appellate court held that the 
Illinois statute authorizing the involuntary administration of non-emergency psychotropic 
medications to recipients of mental health services was constitutionally applied to criminal case 
pretrial detainees, to criminal case pretrial detainees who had been found unfit to stand trial, and
13
to Robert S.. In re Robert S., supra, 341 Ill.App.3d at 258-59, 275 Il1.Dec. at 205-06, 792 
N.E.2d at 436-37; 405 ILCS 512-107.1 (West 2001), as amended.
The appellate court further held that Robert was not deprived of due process when the 
trial court appointed a psychologist, instead of a psychiatrist, to perform the independent 
examination of Robert in his involuntary treatment case. In re Robert S., supra, 341 1ll.App.3d 
at 255-57, 275 Ill.Dec. at 203-04, 792 N.E.2d at 434-35. The court also ruled that Robert was 
not deprived of due process when the independent evaluation was actually performed by an 
unlicensed intern with neither a doctorate, nor a Psy.D, in psychology, who was allowed to 
testify adversely to him, as an expert, over his objection. In re Robert S., supra, 341 I11.App.3d 
at 255-57, 275 111.Dec. at 203-04, 792 N.E.2d at 434-35.
Finally, the appellate court rejected Robert's claim that due process, and the treatment 
statute itself, required that the State provide notice of the action to force psychotropic 
medications to the attorney representing Robert in the pending criminal case for which he had 
been found unfit to stand trial. In re Robert S., supra, 341 III.App.3d at 259, 275 II1.Dec. at 206, 
792 N,E.2d at 437.
14
SUMMARY OF ARGUMENT
The opinion of the Appellate Court sitting in the Second District failed to address or 
distinguish Riggins v. Nevada, 504 U.S. 127, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992), which is 
on point and requires reversal. It also misapplied and wholly undercut Sell v. United States,	
U.S.	123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003), by holding that, as long as any separate 
ground other than raising to fitness is joined with an action to force treatment, the safeguards set 
forth in Sell may be wholly ignored as to UST defendants. In re Robert S., slip op. at 25.
Robert S.'s right to refuse psychotropic medications was deprived of him through the 
unconstitutional application of section 2-107.1 of the Code. As a criminal defendant refusing 
such medications, the State's parens patriae power was either non-existent, or so minimal, 
relative to his right to refuse, that application of 2-107.1 to him was unconstitutional.
Once it chose to prosecute Robert, the State's relationship was adverse to him, and 
constituted an application of the police power. It was ordered to render him fit to be tried, not to 
perform involuntary therapy upon him. Section 2-107.1 is authority for therapy, only - utilizing 
it against refusing defendants with pending criminal cases is ultra vires, an abuse of the parens 
patriae power, and a violation of due process.
The Second District's opinion implicity and erroneously held that the State's parens 
patriae interest in forced non-emergency psychotropic drug treatment of adults was compelling. 
It further impliedly held that the proofs required under 2-107.1, stated essential and overriding 
state interests, in effect creating a third legal justification to overcome a defendant's right to 
avoid unwanted psychotropic medications or ECT.
Previous to Robert S., the justifications to force psychotropic medications against 
defendants were limited to: (1) emergency situations, described as where the defendant presents
15
a risk of danger to himself or others, or is gravely disabled (referred to as "Harper-type 
grounds," per Sell), or (2) for the purpose of raising a defendant who had been found unfit for 
trial to fitness (Sell). See, Sell v. United States, sup-a, 123 S. Ct. at 2183; Riggins, supra, 504 
U.S. at 135; Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028 (1990). There was no finding 
by trial court that Robert S. was dangerous, or disabled. Since Robert S. was a pretrial detainee 
who had also been found unfit to stand trial (UST), he was subject to forced psychotropic 
medications only pursuant to the strict criteria set forth in Sell. No such judicial scrutiny 
occurred in his case.
Relying, in part, on the recent decision of In re Evelyn S., 337 111. App. 3d 1096, 273 Ill. 
Dec. 1 (5th Dist. 2003), petition for leave to appeal pending, the Second District Appellate Court 
erroneously held that the Illinois statute authorizing the involuntary administration of 
nonernergency psychotropic medications to recipients of mental health services (405 ILCS 512-
107.1 (West 2001), as amended) was constitutionally applied to criminal case pretrial detainees, 
to criminal case pretrial detainees who had been found unfit to stand trial, and to Robert S.. In re 
Robert S., slip op. at 24-25. In combination, Robert S. and Evelyn S. hold that the procedural 
safeguards provided by the Mental Health and Developmental Disabilities Code are adequate for 
pretrial detainees and unfit defendants, for the sole reason that there is no statutory authority 
found in the Criminal Code to force treatment. In re Robert S., slip op. at 24; In re Evelyn S., 
supra, 273 Ill. Dec. at 15; Mental Health and Developmental Disabilities Code, 405 ILCS 5/1-
100, et seq. (2002) (hereinafter cited only as "the Code").
The Second District's opinion also failed to address or distinguish In re Branning, 285 111. 
App. 3d 405, 416, 220 111. Dec. 920 (4th Dist. 1996). Branning held that due process requires a 
"psychiatric examination" in a 2-107.1 case, pursuant to section 3-804. Robert's court-appointed
16
examiner was neither a psychiatrist, nor a psychologist. She was an intern with a master's 
degree, and was unqualified to serve in Robert's case. Her qualifications and expertise were so 
lacking that an non-level playing field was created, prejudicing Robert.
Since psychotropic medications and ECT are the province of psychiatrists, Robert should 
have received the services of a psychiatrist as court-appointed independent examiner.

The State's failure to notify Robert's criminal ease attorney of the action to forcibly treat 
him with psychotropic medications, on a non-emergency basis, was a violation of due process, 
and the plain language found in 2-107.1. The criminal case attorney has access to crucial 
information that the non-criminal defense attorney lacks.
ARGUMENT
THE APPELLATE COURT ERRED IN HOLDING THAT 405 ILCS 512-107.1, A 
STATUTE EXERCISING THE PARENS PATRIAE INTEREST OF THE STATE OF 
ILLINOIS, WHICH AUTHORIZES NON-EMERGENCY ADMINISTRATION OF 
PSYCHOTROPIC MEDICATIONS AND ELECTRO-CONVULSIVE THERAPY 
(ECT) TO MENTAL HEALTH RECIPIENTS ON AN INVOLUNTARY BASIS, WAS 
CONSTITUTIONALLY APPLIED TO ROBERT S., WHO WAS A CRIMINAL CASE 
PRETRIAL DETAINEE, AND A PRETRIAL DETAINEE WHO HAD BEEN FOUND 
TO BE UNFIT TO STAND TRIAL.

When confronted with a claim that a statute violates the due process guarantees of the 
United States and Illinois Constitutions, the scrutiny applied depends on the nature of the right 
upon which the statute allegedly infringes. Lulay v. Lulay, 193 Ill. 2d 455, 470, 739 N.E.2d 521 
(2000); Tully v. Edgar, 171 Ill. 2d 297, 304, 664 N.E.2d 43 (1996). Ordinarily, a relaxed 
scrutiny applies, looking only to see whether the statute bears a rational relationship to a 
legitimate state interest. Lulay v. Lulay, supra; Tully v. Edgar, supra. However, in cases where 
the right infringed upon is among those considered a "fundamental" constitutional right, courts
17
subject the statute to "strict" scrutiny. Id. To survive strict scrutiny, the means employed by the 
legislature must be "necessary" to a "compelling" state interest, and the statute must be narrowly 
tailored thereto, i.e., the legislature must'use the least restrictive means consistent with the 
attainment of its goal. Id.
The fourteenth amendment to the United States Constitution provides that no state shall 
"deprive any person of life, liberty, or property, without due process of law," U.S. Const., 
amend. XIV. The due process clause "includes a substantive component that 'provides 
heightened protection against government interference with certain fundamental rights and 
liberty interests.'" Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000), citing 
Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258 (1997). Statutes that significantly 
interfere with fundamental constitutional rights, such as those guaranteed by the due process 
clause of the fourteenth amendment, should be found unconstitutional as applied. See, Lulay v. 
Lulay, supra, 193 Ill. 2d at 470-471; Tully v. Edgar, supra, 171 I11. 2d at 310.

Relative Interests of the State and Robert S.
Section 2-107.1, which was adopted and took effect on August 13, 1991, delineated the 
non-emergency circumstances under which psychotropic medication could be administered 
against the wishes of the recipient. In re C.E.,161 Il].2d 200, 206, 641 N.E.2d 345 (1994); see, 
405 ILCS 512-107.1 (West 1992). Some three years later, this Court acknowledged that 
recipients of mental health services had a right to refuse unwanted non-emergency psychotropic 
drugs. In re C. E., 161 111. 2d 200, 213, 641 N.E.2d 345 (1994). This was based upon the 
substantially invasive nature of the medications, their significant side effects, and their history of 
misuse by medical personnel, and even governments. In re C. E., 161 111. 2d at 214-15.
18
As a recipient receiving mental health services, C.E. made it clear that there was no doubt 
that Robert S. possessed a federal constitutional right under the due process clause of the 
fourteenth amendment to refuse the administration of psychotropic medication under the 
"liberty" interests recognized in constitutional jurisprudence. In re C. E., supra. In In re 
Barbara H., 183 Ill. 2d 482, 702 N.E.2d 555 (1998), this Court indicated that the right of a 
recipient to refuse unwanted psychotropic drugs implicated a fundamental liberty interest, 
requiring narrow statutory construction. Barbara H., 183 Ill. 2d at 498.
But at the same time, the C.E. panel found that section 2-107.1 embodied Illinois' 
"significant" parents patriae interest in providing for persons who suffer from a serious mental 
illness or development disability and, therefore, lack capacity to make rational decisions 
concerning their need for medication. C.E., 161 Ill. 2d at 217: see also, In re Jill R., 336 III. App. 
3d 956, 962, 785 N.E.2d 46 (4th Dist. 2003) ("significant parens patriae interest"); In re 
Branning, 285 Ill. App. 3d 405, 411, 674 N.E.2d 463 (4th Dist. 1996) ("significant parens 
patriae interest"); In re Floyd, 274 Ill. App. 3d 855, 862, 655 N.E.2d 10 (5th Dist. 1995) 
("significant parens patriae interest"). By way of comparison, the State's parens patriae interest 
in protecting the welfare of children is "compelling." See, In re R.C., 195 Ill. 2d 291, 305, 745 
N.E.2d 1233 (2001); In re Q.R., 328 I11. App. 3d 955, 960, 767 N.E.2d 872 (2nd Dist. 2002).
The term "parens patriae" means "parent of the country." BLACK'S LAW 
DICTIONARY, 1114 (6th ed. 1991). The concept of parens patriae recognizes the State's duty 
to protect and provide for the well-being of those unable to take care of themselves, including the 
mentally ill. In re Floyd, 274 III. App. 3d 855, 863, 655 N.E.2d 10 (5th Dist. 1995). The State's 
duties under the parens patriae doctrine are humanitarian and benevolent in nature. In re 
K.G.F. , 306 Mont. 1, 12-13, 29 P.3d 485, 495 (2001).
19
Prior to the use of antipsychotic medication in the treatment of schizophrenia and related 
psychoses, persons suffering from these illnesses were placed in hospitals with little chance of 
being released. Because there was a lack'of effective treatment for the mental illnesses, hospitals 
were providing nothing more than custodial care to these patients. Since physicians began 
treating mental illnesses with antipsychotic medication in the 1950s, the number of mentally ill 
persons requiring long-term hospitalization has been greatly reduced. Steele v. Hamilton County 
Community Mental Health Board, 90 Ohio St. 3d 176, 188, 736 N.E.2d 10 (2000). The parens 
patriae power, as it relates to forced non-emergency treatment, is grounded on the goal of 
providing freedom to the recipients, not prosecuting them.
Since persons who stiffer from mental illness have constitutionally protected liberty 
interests that permit them to refuse the forced non-emergency administration of psychotropic 
medications, any legislation that infringes upon these liberty interests must bear an "important 
and substantial relationship" to the State's interest as parens patriae in providing for mentally ill 
people who lack the capacity to make informed decisions concerning psychotropic medications. 
In re Williams, 305 Ill. App. 3d 506, 509, 712 N.E.2d 350 (5th Dist. 1999). Because the 
involuntary administration of medications affects important liberty interests, strict compliance 
with statutory procedures is required. Id. The statute was found to be constitutional, in part, 
because it was "narrowly tailored" to address only those recipients in whom the State had a 
parens patriae interest. In re C. E., supra, 161 Ill. 2d at 217-9.
The Code is also intended to protect recipients from the potential misuse of psychotropic 
medication by medical staff. C.E., supra. Section 2-107.1 was supposed to ensure that 
involuntary treatment would be used "...for therapeutic purposes only...." In re Mary Ann P., 
202 Ill. 2d 393, 403, 781 N.E.2d 237 (2002) citing C.E., 161 Ill. 2d at 218-19. It was not to be
20
used "...as a means to manage or discipline recipients of mental health services." Id. As such, 
2-107.1 actions do not lie against defendants whose criminal cases are pending.
Robert S. was not only a recipient, but he was also a pretrial detainee. The sixth 
amendment right to counsel attaches at or after the initiation of adversarial judicial proceedings-
whether by way of a formal charge, preliminary hearing, indictment, information, or 
arraignment. United States v. Gouveia, 467 U. S. 180, 187-88, 104 S.Ct. 2292 (1984). It is at 
that point where the government has committed itself to prosecute and where the adverse 
positions of the government and the defendant have solidified. Id., 467 U.S. at 189. It is then 
that a defendant finds himself faced with the prosecutorial forces of organized society, and 
immersed in the intricacies of substantive and procedural criminal law. Id., 467 U.S. at 189. 
So, this is not the case of a mentally ill person who is debilitated to the point of not 
understanding his treatment needs, so that the government must step in and act in a parental role 
on his behalf; to the contrary, he was a criminal defendant asserting his constitutionally protected 
rights against the government that was seeking to prosecute him. The State was his opponent, 
not his supportive parent.
Once it chose to prosecute Robert, the State's relationship was adverse to him, and 
constituted an application of the police power. Pursuant to its police powers, the state 
investigates, prosecutes, tries and punishes criminal misconduct. Phillips v. Iowa,185 F.Supp.2d 
992, 1007 (N.D.Ia. 2002) Criminal prosecutions are punitive in nature; a while civil 
commitments are not. See, Boggs v. New York City Health and Hospitals Corp., 132 A.D.2d 
340, 342-43, 523 N.Y.S.2d 71 (N.Y.A.D. 1st 1987)
Section 2-107.1 is authority for therapy, only - utilizing it against refusing defendants 
with pending criminal cases is ultra vires, an abuse of the parens patriae power.
21
As a pretrial criminal case detainee, Robert had a significant constitutionally protected 
liberty interest under the fourteenth amendment's due process clause in avoiding the unwanted 
administration of antipsychotic drugs. Riggins v. Nevada, 504 U.S. 127, 134-35, 112 S. Ct. 
1810, 118 L. Ed. 2d 479 (1992). The use of psychotropic medication implicates Sixth 
Amendment and Due Process rights to a fair trial. Id. It is worth noting that In re C.E. failed to 
cite or mention Riggins, which was decided some two years prior. In re C.E..161 I11.2d 200. It 
did, however, cite Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028 (1990). In re C.E.,161 
I11.2d at 211, 213. The inescapable conclusion is that the C.E. panel never intended for 2-107.1 
to be utilized against defendants pending their trials.
In Riggins, a state court conviction for murder was reversed where the defendant was 
involuntarily treated with antipsychotic medication prior to, and during, his criminal trial, due to 
the risk to him of suffering criminal trial prejudice. Riggins, supra, 504 U.S. at 138. The basis 
for the treatment in Riggins was virtually identical to that supporting the order herein appealed 
from. in that both Riggins, and Robert S., were involuntarily treated with psychotropic 
medication in order to alleviate their hearing voices and having problems sleeping. Riggins, 
supra, 504 U.S. at 127, 129. Just as the trial court found herein, the Riggins Court found that the 
administration of the psychotropic medication upon the defendant was medically appropriate. 
Riggins, supra, 504 U.S. at 133. But medical appropriateness is just the initial scrutiny that must 
be applied.
Since the medication may cause a change in the behavior of the defendant, the concerns 
are similar to those in cases of manipulation of material evidence. Riggins, supra, 504 U.S. at 
139 (Kennedy, J., concurring). Side effects may make it difficult for a defendant to focus on 
testimony of the witness, or to assist counsel in his defense. Riggins, supra, 504 U.S. at 137
22
(Kennedy, J., concurring). They may adversely effect jurors' perceptions of a defendant's 
character, especially with demonstrations of remorse or compassion. Riggins, supra, 504 U.S. at 
143-4 (Kennedy, J., concurring).
The concerns addressed in Riggins apply to pretrial detainees across the board, not just 
those who have been found to be unfit to stand trial. It is important to note that Mr. Riggins was 
not found to be unfit when he attempted, unsuccessfully, to decline the forced medications. 
Riggins, supra, 504 U.S. at 130. All pending criminal defendants have a due process right to a 
fair trial and the assistance of counsel - not just UST defendants.
This constitutionally protected liberty "interest in avoiding involuntary administration of 
antipsychotic drugs" is an interest that only an "essential" or "overriding" state interest may 
overcome. Riggins, 504 U.S., at 134, 135. In addition, a court forcibly medicating a criminal 
defendant must determine whether the side effects of the antipsychotic medication are likely to 
undermine the fairness of the criminal trial. Sell v. U.S., supra, 123 S. Ct. at 2187, citing 
Riggins, supra, 504 U.S. at 142-145 (Kennedy, 1, concurring).
In Riggins, the United States Supreme Court reversed "because the record contained no 
finding that might support a conclusion that administration of antipsychotic medication was 
necessary to accomplish an essential state policy...." Riggins, 504 U.S., at 138. The Court held 
that forcing antipsychotic drugs on Mr. Riggins was impermissible, absent a finding of 
overriding justification and a determination of medical appropriateness. Riggins, supra, 504 
U.S. at 135.
Therefore, it is abundantly clear that the administration of involuntary non-emergency 
psychotropic medication to Robert S., a pretrial detainee, in order to alleviate hearing voices at 
night and losing sleep, is an unconstitutional application of 2-107.1. The State's parens partriae
23
interest is "significant," only. See, C.E.. 161 III. 2d at 217; see also, In re Jill R., 336 Ill. App. 3d 
at 962; In re Braining, 285 III. App. 3d at 411; In re Floyd, 274 Ill. App. 3d at 862. It doesn't 
approach an "essential" or "overriding" State interest, so Robert's is paramount.
Finally, as a pretrial detainee who had been found unfit to stand trial (UST), Robert S. 
had a significant constitutionally protected liberty interest under the fourteenth amendment's due 
process clause in avoiding the unwanted administration of antipsychotic drugs that only an 
essential" or "overriding" state interest could overcome. Sell v. United States, - U.S.	123 
S. O. 2174, 2183, 156 L. Ed. 2d 197 (2003).
Upon finding a defendant not fit, the court must order the defendant to undergo treatment 
to render him mentally fit to stand trial. 725 ILCS 5/104-16(d). There is no State goal to provide 
treatment that would enable him to be free - and no authority to utilize the parens patriae power 
to potentially infringe his trial rights, whatever the intent may be. But, what conclusion is to be

drawn from a system where the administration of a forensic mental health facility initiate 
2-107.1 petitions against USTs, as opposed to their treating physicians?
Sell vs. United States
The following language from the United States Supreme Court describes the appropriate 
criteria to utilize to determine when a UST may be constitutionally force non-emergency 
psychotropic medications:

These two cases, Harper and Riggins, indicate that the Constitution permits the 
Government involuntarily to administer antipsychotic drugs to a mentally ill 
defendant facing serious criminal charges in order to render that defendant 
competent to stand trial, but only if the treatment is medically appropriate, is 
substantially unlikely to have side effects that may undermine the fairness of the 
trial, and, taking account of less intrusive alternatives, is necessary significantly to 
further important governmental trial-related interests.
24
This standard will permit involuntary administration of drugs solely for trial 
competence purposes in certain instances. But those instances may be rare. That is 
because the standard says or fairly implies the following:

First, a court must find that important governmental interests are at stake. The 
Government's interest in bringing to trial an individual accused of a serious crime 
is important. That is so whether the offense is a serious crime against the person 
or a serious crime against property. In both instances the Government seeks to 
protect through application of the criminal law the basic human need for security. 
See Riggins, supra, at 135-136, 112 S.Ct. 1810 (" '[P]ower to bring an accused to 
trial is fundamental to a scheme of "ordered liberty" and prerequisite to social 
justice and peace' " (quoting Illinois v. Allen, 397 U.S. 337, 347, 90 S.Ct. 1057, 25 
L.Ed.2d 353 (1970) (Brennan, J., concurring))).

Courts, however, must consider the facts of the individual case in evaluating the 
Government's interest in prosecution. Special circumstances may lessen the 
importance of that interest. The defendant's failure to take drugs voluntarily, for 
example, may mean lengthy confinement in an institution for the mentally ill--and 
that would diminish the risks that ordinarily attach to freeing without punishment 
one who has committed a serious crime. We do not mean to suggest that civil 
commitment is a substitute for a criminal trial. The Government has a substantial 
interest in timely prosecution. And it may be difficult or impossible to try a 
defendant who regains competence after years of commitment during which 
memories may fade and evidence may be lost. The potential for future 
confinement affects, but does not totally undermine, the strength of the need for 
prosecution. The same is true of the possibility that the defendant has already 
been confined for a significant amount of time (for which he would receive credit 
toward any sentence ultimately imposed, see 18 U.S.C. § 3585(b)). Moreover, the 
Government has a concomitant, constitutionally essential interest in assuring that 
the defendant's trial is a fair one.

Second, the court must conclude that involuntary medication will significantly 
further those concomitant state interests. It must find that administration of the 
drugs is substantially likely to render the defendant competent to stand trial. At 
the same time, it must find that administration of the drugs is substantially *2185 
unlikely to have side effects that will interfere significantly with the defendant's 
ability to assist counsel in conducting a trial defense, thereby rendering the trial 
unfair. See Riggins, supra, at 142-145, 112 S.Ct. 1810 (KENNEDY, J., 
concurring in judgment).

Third, the court must conclude that involuntary medication is necessary to further 
those interests. The court must find that any alternative, less intrusive treatments 
are unlikely to achieve substantially the same results. Cf. Brief for American 
Psychological Association as Atnicus Curiae 10-14 (nondrug therapies may be 
effective in restoring psychotic defendants to competence); but cf. Brief for 
American Psychiatric Association et al. as Amici Curiae 13-22 (alternative
25
treatments for psychosis commonly not as effective as medication). And the court 
must consider less intrusive means for administering the drugs, e.g., a court order 
to the defendant backed by the contempt power, before considering more intrusive 
methods.

Fourth, as we have said, the court must conclude that administration of the drugs 
is medically appropriate, Le., in the patient's best medical interest in light of his 
medical condition. The specific kinds of drugs at issue may matter here as 
elsewhere. Different kinds of antipsychotic drugs may produce different side 
effects and enjoy different levels of success.

We emphasize that the court applying these standards is seeking to determine 
whether involuntary administration of drugs is necessary significantly to further a 
particular governmental interest, namely, the interest in rendering the defendant 
competent to stand trial. A court need not consider whether to allow forced 
medication for that kind of purpose, if forced medication is warranted for a 
different purpose, such as the purposes set out in Harper related to the individual's 
dangerousness, or purposes related to the individual's own interests where refusal 
to take drugs puts his health gravely at risk. 494 U.S., at 225-226, 110 S.Ct. 1028. 
There are often strong reasons for a court to determine whether forced 
administration of drugs can be justified on these alternative grounds before 
turning to the trial competence question.

For one thing, the inquiry into whether medication is permissible, say, to render 
an individual nondangerous is usually more "objective and manageable" than the 
inquiry into whether medication is permissible to render a defendant competent. 
Riggins, 504 U.S., at 140, 112 S.Ct. 1810 (KENNEDY, J., concurring in 
judgment). The medical experts may find it easier to provide an informed opinion 
about whether, given the risk of side effects, particular drugs are medically 
appropriate and necessary to control a patient's potentially dangerous behavior (or 
to avoid serious harm to the patient himself) than to try to balance harms and 
benefits related to the more quintessentially legal questions of trial fairness and 
competence.

For another thing, courts typically address involuntary medical treatment as a civil 
matter, and justify it on these alternative, Harper-type grounds. Every State 
provides avenues through which, for example, a doctor or institution can seek 
appointment of a guardian with the power to make a decision authorizing 
medication--when iii the best interests of a patient who lacks the mental 
competence to make such a decision. E.g., Ala.Code §§ 26- 2A-102(a), 26-2A-
105, 26-2A-108 (Michie 1992); Alaska Stat. §§ 13.26.105(a), t3.26.116(b) 
(2002); Ariz.Rev.Stat. Ann. §§ 14-5303, 14-5312 (West 1995); Ark.Code Ann. §§ 
28-65-205, 28-65-301 (1987). And courts, in civil proceedings, may authorize 
involuntary medication where the patient's failure to accept treatment threatens 
injury to the patient or others. See, e.g., 28 CFR § 549.43 (2002); cf. 18 U.S.C. § 
4246.
26
if a court authorizes medication on these alternative grounds, the need to consider 
authorization on trial competence grounds will likely disappear. Even if a court 
decides medication cannot be authorized on the alternative grounds, the findings 
underlying such a decision will help to inform expert opinion and judicial 
decisionmaking in respect to a request to administer drugs for trial competence 
purposes. At the least, they will facilitate direct medical and legal focus upon such 
questions as: Why is it medically appropriate forcibly to administer antipsychotic 
drugs to an individual who (1) is not dangerous and (2) is competent to make up 
his own mind about treatment? Can bringing such an individual to trial alone 
justify in whole (or at least in significant part) administration of a drug that may 
have adverse side effects, including side effects that may to some extent impair a 
defense at trial? We consequently believe that a court, asked to approve forced 
administration of drugs for purposes of rendering a defendant competent to stand 
trial, should ordinarily determine whether the Government seeks, or has first 
sought, permission for forced administration of drugs on these other Harper-type 
grounds; and, if not, why not.

When a court must nonetheless reach the trial competence question, the factors 
discussed above, supra, at 2183-2185, should help it make the ultimate 
constitutionally required judgment. Has the Government, in light of the efficacy, 
the side effects, the possible alternatives, and the medical appropriateness of a 
particular course of antipsychotic drug treatment, shown a need for that treatment 
sufficiently important to overcome the individual's protected interest in refusing 
it? See Harper, supra, at 221-223, 110 S.Ct. 1028; Riggins, supra, at 134-135, 112 
S.Ct. 1810. Sell v. United States,	U.S. _, 123 S.Ct. 2174, 2184-87 (2003) 
(emphasis in original).

From the above passage, several conclusions can be drawn. It is never acceptable 
to force psychotropic treatment on a defendant with capacity, unless he is dangerous. 
Such treatment would be medically inappropriate, and there is no State interest.

The State has an essential and overriding interest in forced treatment against a 
defendant, based upon "Harper-type grounds," in emergency situations, where the 
defendant presents a risk of danger to himself or others, or is gravely disabled. 
Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028 (1990) However, it lacks an 
essential and overriding interest when grounds to force treatment are not "Harper-type 
grounds." Riggins. Section 2-107.1, grounded in therapy and non-emergency, is not a
27
"Harper-type ground," and Robert should not have been treated against his will to reduce 
the suffering attendant to hearing voices and losing sleep.
Before an attempt is made to restore a UST with such medications. "Harper-type 
grounds" should be considered as a basis to medicate. Illinois recognizes that defendants can be 
UST due to either a mental condition or a physical condition, and "Harper-type grounds" are 
consistent with those grounds. See, 725 ILCS 51104-13(a) and (b). Sell requires that, if 
"Harper-type grounds" would require a civil action, a guardian must be appointed to the 
defendant, in order to exercise his right to refuse and to act in his best interest, vis-a-vis the 
government prosecuting him.
In Illinois, psychotropic medications or ECT may be administered to a recipient over his 
objection, without a hearing or court order, when "...necessary to prevent the recipient from 
causing serious and imminent physical harm to the recipient or others and no less restrictive 
alternative is available." 405 ILCS 512-107(a) and (b). Illinois doctors and dentists may perform 
emergency medical and dental procedures upon incapable recipients without their consent, and 
without a hearing or court order. 405 ILCS 512-111. These are "Harper-type grounds." Other 
States may require civil action.
The police power is the only State interest that can support an action to force treat a 
defendant with psychotropic medications. Even then, only in rare cases will the State's police 
power interest be paramount to a UST's right to refuse.
However the parens patriae interest might be defined, it is clear that the government's 
exercise of its police power to thwart serious crime is a more important interest. Khiem v. United 
States, 612 A.2d 160, 169 (D.C. 1992). Since the governmental interest in bringing a defendant 
to trial is more compelling than its interest in forcing psychotropics in non-emergency
28
circumstances upon a recipient, Sell and Riggins clearly demonstrate that any such civil statute 
applied to a pretrial detainee will be applied in an unconstitutional fashion. The defendant's 
fundamental right to refuse will be paramount.
The State of Utah's claim that its parens patriae interest would permit it to force a 
pretrial detainee to receive unwanted non-emergency antipsychotic drugs was soundly rejected 
by the only court that appears to have considered the issue. Woodland v. Angus, 820 F. Supp. 
1497, 1516-18 (D. Utah 1993). The court noted that, in cases involving a pretrial detainee, "The 
State ... cannot merely assert its parens patriae interest and ignore a [pretrial detainee's] 
significant liberty interest in the unwanted administration of antipsychotic medication." 
Woodland, 820 F. Supp, at 1517.
Therefore, as alluded to in Sell, if the State wants to utilize the parens patriae function to 
medicate with psychotropics, it must dismiss the criminal charges and proceed against the former 
UST defendant civilly.
Even where "Harper-type grounds" exist, the medications must be medically appropriate 
and not infringe on fair trial rights (Riggins fair trial). If "Harper-type grounds" do not exist, 
then the exercise of the police power allows forced psychotropic restoration in rare instances, 
according to the strict criteria described (Sell trial competence).
According to the Sell criteria, psychotropic medications may be involuntarily 
administered to a mentally ill defendant facing "serious criminal charges" in order to render him 
fit to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to 
have side effects that may undermine the fairness of the trial, and, taking account of less 
intrusive alternatives, is necessary significantly to further important governmental trial-related 
interests. Sell v. U.S., supra, 123 S. Ct. at 2184-5. The crime must be serious, and the
29
governmental interest must be important. Sell v. U.S., supra, 123 S. Ct. at 2185. A court must 
first consider the facts of die individual case in evaluating the governmental interest in 
prosecution. Sell v. U.S., supra, 123 S. Ct_ at 2185. It must find that the drugs are substantially 
Iikely to raise a defendant to fitness, but at the same time, be substantially unlikely to have side 
effects that would interfere significantly with a defendant's ability to assist counsel in conducting 
a defense, thereby rendering the trial unfair. Sell v. U.S., supra, 123 S. Ct. at 2185, citing 
Riggins, supra, 504 U.S. at 142-5 (Kennedy, J., concurring). The court must also consider less 
intrusive means for administering the drugs, e.g., a court order to the defendant backed by the 
contempt power, before considering more intrusive methods. Sell v. U.S., supra, 123 S. Ct. at 
2185.

It is apparent that the safeguards afforded USTs in Sell are more expansive, and stricter, 
than Riggins. But, in the instant case, Robert S. was afforded none of the safeguards mandated 
by either these two Supreme Court cases. Trial court's findings of fact were limited to the 
criteria set forth in the statute authorizing forced treatment in non-emergency circumstances. 
(R.2/1 85-94); see, 405 ILCS 512-107.1(a-5)(4)(A)-(F) (West 2001), as amended. But, section 
2-107.1 grounds are not "Harper-type grounds," nor are they Sell grounds.

To involuntarily treat a person by ECT or psychotropic medication, it must be determined 
that the following factors are present:

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

(B)	That because of said mental illness or developmental 
disability, the recipient exhibits any one of the following:
(i) deterioration of his or her ability to function,
(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 as set forth in
30
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. 405 ILCS 5/2-107.1(a-5)(4)(A) - 
(a-5)(4)(F) (West 2001), as amended (emphasis added).
The procedural safeguards set forth in Riggins and Sell have little in common with 
section 2-107.1 of the Code. For instance, the seriousness of the crime charged is irrelevant to 2-
107.1, and there is no record of Robert's charge. Nor was there a finding of how potential side 
effects might effect Robert's ability to participate in his ability to assist in his own defense in the 
criminal trial, or his demeanor. There was no finding that the State was exercising a compelling 
or overriding interest. These omissions caused the Supreme Court to reverse in Riggins.

When applied to criminal defendants, section 2-107.1 is the proverbial square peg. Trial 
court's order allowing the psychiatrist to administer Haldol Decanoate, if Robert refused the 
Risperidone, runs afoul of Sell, which requires that a contempt action be initiated first, as a way 
of exhausting less intrusive methods. Sell, 123 S. Ct. at 2185. On the other hand, 2-107.1 
treatment decisions are within the sole discretion of the treating physician. See, In re Mary Ann 
P., 202 Ill. 2d at 412-13. Mary Ann P. conflicts also with those cases that are interpreting the 
"less intrusive" requirement in Sell to require a try on pills, before long-acting psychotropic 
medications are forced. See, United States v. Dumeny, 2004 WL 33057 (D.Me. 2004).

Trial court found that Robert lacked capacity, in part, because he was an involuntary 
patient, but this is a misapplication of a concept that is limited to civil commitment. See, In re
31
Israel, 278 Ill. App. 3d 24, 216 I11. Dec. 104 (2nd Dist. 1996). Obviously, USTs do not get an 
opportunity to sign voluntary admission forms, which are probably not found on the forensic 
unit, anyway. See, In re Hatsuye T., 293 Ill. App. 3d 1046, 1052, 228 Ill. Dec. 376 (1st Dist. 
1997)(staff's acceptance of voluntary admission form indicates respondent has capacity at that 
time). So, the 2-107.1 criminal defendants begin the hearing with a handicap as to the capacity 
issue.
For the above reasons, Robert S. submits that 405 ILCS 512-107.1 was unconstitutionally 
applied to him.
32
H. THE APPELLATE COURT ERRED IN HOLDING THAT ROBERT S., A 
RESPONDENT IN A FORCED PSYCHOTROPIC MEDICATIONS ACTION, 
WAS NOT DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW, WHERE A 
PSYCHOLOGIST WAS APPOINTED TO PERFORM AN INDEPENDENT 
EXAMINATION, AS OPPOSED TO A PSYCHIATRIST; AND WHERE THE 
EXAMINATION WAS ULTIMATELY PERFORMED BY AN UNLICENSED 
INTERN WITH ONLY A MASTER'S DEGREE IN COUNSELING PSYCHOLOGY, 
WHOSE TESTIMONY AGREED WITH THE TREATING PSYCHIATRIST'S.

Involuntary administration of mental health treatment implicates fundamental liberty 
interests. In re Barbara H., 183 Ill. 2d 482, 498, 702 N.E.2d 555 (1998). Even a person 
involuntarily admitted retains a constitutional and statutory right to refuse psychotropic drugs. In 
re Williams, 305 I11.App.3d 506, 509, 712 N.E.2d 350 (5th Dist. 1999). Proceedings to force 
involuntary nonemergency mental health treatment u-iust at least meet minimum due process 
requirements. In re Branning, 285 Ill. App. 3d 405, 674 N.E.2d 463 (4th Dist. 1996). The 
Code's procedures are even more important to protect due process, when the respondent is a 
pretrial detainee who has been found unfit to stand trial. In re Evelyn S., 337 III.App.3d 1096, 
1103, 788 N.E.2d 310, 317 (5th Dist. 2003), petition for leave to appeal pending.

A fundamental requirement of due process is an opportunity to be heard. Williams v. Ill. 
State Scholarship Comm'n, 139 Ill. 2d 24, 33, 563 N.E.2d 465 (1990) citing Mathews v. 
Eldridge, 424 U.S. 319, 333 (1976). It is well established that the Code's procedural safeguards 
are essential to protecting the liberty interests of respondents in mental health cases. In re 
Rovelstad. 281 Ill. App. 3d 956, 964, 667 N.E.2d 720 (2nd Dist. 1996). The Code's procedural 
safeguards are not mere technicalities, but essential tools to safeguard these liberty interests. In 
re John R., et al., 339 Ill. App. 3d 778, 785, 792 N.E.2d 350 (5th Dist. 2003). One of the ways 
in which the Code assures that respondents are not deprived of their interests in refusing 
unwanted non-emergency medication without due process is by affording respondents the right 
to an independent examination. 405 ILCS 513-804 (West 2001).
33
The purpose of permitting respondents to have independent examinations in such cases is 
to aid them and their counsel in preparation and presentation of a defense. Because a 
respondent's liberty is at stake, the assistance of an independent expert is essential to a fair and 
impartial hearing. In re Williams, 133 Ill. App. 3d 232, 235, 478 N.E.2d 867 (3rd Dist. 1985) 
citing Report, Governor's Commission for Revision of the Mental Health Code of Illinois 60 
(1976) (Governor's Commission).
In recommending the enactment of section 3-804, the Governor's Commission 
recognized,
[T]he rights to counsel and to be heard in a civil commitment proceeding will 
often fail to adequately protect the respondent unless he is able to secure the 
advice or testimony of his own examiner. Otherwise, the respondent and his 
lawyer will have difficulty in rebutting or exposing errors and other deficiencies 
in the testimony of the expert state witnesses. Williams, supra, 133 Ill. App. 3d at 
235, quoting Governor's Commission at 60.

Since the respondent's liberty is at stake, the assistance of an independent expert is essential to a 
fair and impartial hearing. Williams, 133 I11. App. 3d at 235.

For section 2-107.1 respondents who request an independent examination, state and 
federal due process require that they be provided a "psychiatric examination." In re Branning, 
285 III. App. 3d 405, 417, 674 N.E.2d 463 (4th Dist. 1996); U.S. Const., amend )(IV; Ill. Const. 
1970, art. I, sec. 2. In Branning, the trial court had denied the request of a respondent in a forced 
non-emergency electro-convulsive therapy (ECT) petition for the appointment of an independent 
examiner. Branning, supra, 285 III. App. 3d at 408. The appellate court held that, among other 
mandated procedural safeguards, a respondent was due an independent psychiatric examination, 
when requested. Branning, 285 I11. App. 3d at 417. It noted the value of the independent 
examination to both parties, and found that the fiscal and administrative burdens did not 
outweigh the important protection it would provide. Id.
34
A psychiatrist is a medical doctor who has trained postgraduate to become a specialist in 
psychiatry. The term "psychiatrist" is defined by the Code as a physician who has successfully 
completed an accredited residency progrLm in psychiatry, at section 5/1-121. See, 405 ILCS 
511-121. The definitions of the terms "psychotropic medication" and "authorized involuntary 
treatment" are subsections of the same Code section that defines the term "psychiatrist." See, 
405 ILCS 5/1-121; 1-121.1; 1-121.5. Statutes should be construed in conjunction with other 
statutes addressing the same subject. People v. Badoud, 122 111. 2d 50, 55, 118 111. Dec. 407, 521 
N.E.2d 884 (1988). The placement of this series of definitions within the Code support the 
conclusion that involuntary non-emergency treatments by psychotropic medications and/or ECT 
are solely within the province of psychiatry.
In the case at bar, Robert S. moved for appointment of an independent examiner. 
(8.11130 5) Robert requested that the court appoint the same psychiatrist who had been 
appointed to, and had, examined him in the two previous cases where he had faced petitions for 
involuntary treatment. (R.11/30 5) The State did not object to the request for appointment of an 
independent examiner, but asked the circuit court to appoint the Kane County Diagnostic Center 
so that the examination would be less costly. (R.11/30 5)
Robert S, demurred, advising the court that while the Diagnostic Center employed 
psychologists, it did not have a psychiatrist on its staff. (R.11130 6) An independent examiner 
who lacked the qualifications to give advice or testify about medication would not adequately aid 
Robert in the preparation and presentation of a defense to a petition seeking involuntary 
treatment with psychotropic drugs; thus, he argued that the appointment of a psychologist was 
insufficient. (R.11/30 6) The trial court sided with the State, and the Diagnostic Center was 
appointed to perform the independent examination. (8.11130 6-7; C.15)
35
However, psychologists and psychiatrists are not of the same medical discipline. In re 
B.D. and B.D., 321 Ill. App. 3d 161, 166, 746 N.E.2d 822 (1st Dist. 2001). The primary 
difference between psychiatry and psychology is the power to prescribe controlled substances.

People v. McDonald, 186 I11. App. 3d 1096, 1 100, 134 111. Dec. 759 (5th Dist. 1989). It was

precisely this difference -- prescription of medication -- that was the subject matter of the 
petition for involuntary treatment.
The relative differences in the training of the two disciplines is set forth in a recent 
position statement by the American Psychiatric Association, advocating against extending 
prescribing privileges to psychologists:
`BACKGROUND: The psychotropic medications used to treat mental illnesses 
are among the most powerful available to modem medicine. If not appropriately 
prescribed and monitored, they can cause potentially disabling and life-
threatening side effects. For example, many anti-depressants can cause stroke, 
coma. seizures and tremors.

Fifty percent of persons whose mental illness require psychotropic medications 
also have other serious medical conditions requiring medications. This 
interaction of different medications, which can magnify or nullify the effects of 
certain drugs or even result in a deadly combination, presents an extremely 
complex challenge to the most knowledgeable and skilled physicians. Effective 
use of medications to treat brain disorders requires medical training, with a 
thorough understanding of physiology, chemistry, drug interactions and medical 
problems that masquerade as or cause brain malfunctions. Diagnosing and using 
medications to treat mental illnesses such as clinical depression and schizophrenia 
requires the same level of medical skill and knowledge as diagnosing and treating 
heart disease or diabetes.

Psychologists are not qualified to prescribe medication. Psychologists, who 
can earn a Ph.D. by taking only a single course in the biological basis of behavior, 
are trained in the social and behavioral sciences and provide services that do not 
physically invade the body cavity, such as psychological assessment and 
psychotherapy. During their training, which typically occurs in a non-medical 
setting, they do not observe or participate in the treatment of patients with mental 
illnesses or patients with comorbid physical and mental illness. Their training and 
experience is relating to patients with mental health conditions. This limited 
training does not adequately prepare psychologists to detect and treat concomitant
36
non-mental illnesses or to understand and deal with the interactions of 
psychotropic with other medications prescribed to help other body systems.

Psychiatrists are medical doctors who specialize in the diagnosis and treatment of 
mental disorders and substance abuse disorders. Like other physicians, 
psychiatrists spend 12 or more years in math and science baccalaureate graduate 
education, medical school, internship and residency, and complete 10,000 hours 
of training. Moreover, their training occurs in a hospital setting under an 
approved program of supervision by senior physicians, and a psychiatric 
physician manages the care of 200-300 patients with a range of emotional and 
other physical illnesses. Management of care includes performing physical 
examinations, ordering and evaluating medical tests, making medical diagnoses, 
prescribing medication for medical illness (including mental illness) and other 
treatments, and monitoring the effects of such treatment upon the entire body 
system not only the mental illness medication response.' Scope of Practice: 
Psychologist Prescribing Legislation, American Psychiatric Association, May 
2003

The disparity in training between the two disciplines raises a safety issue, which is only 
compounded by the prospect of forced non-emergency ECT. Not only must an expert in a 2-
107. 1 case understand the effects of combining several psychotropic medications, or treating 
with ECT, but for some cases, he or she must understand how ECT is used in combination with 
the several medications. See, In re Stephen P., 343 I11. App. 3d 455, 797 N.E.2d 1071 (4th Dist. 
2003); In re Emmert J., 333 Ill. App. 3d 69, 775 N.E.2d 193 (3rd Dist. 2002).

Forcible administration of psychotropic medication on a non-emergency basis is 
permitted only when the court finds evidence of each of section 2-107.1's elements by clear and 
convincing proof. In re C.E., 161 Ill. 2d 200, 208, 641 N.E.2d 345 (1994). The elements that 
the State was required to establish, in the case sub judiee, were the following:

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

(B)	That because of said mental illness or developmental 
disability, the recipient exhibits any one of the following:
(i) deterioration of his or her ability to function,
(ii) suffering, or (iii) threatening behavior.
37
(C)	That the illness or disability has existed for a period marked 
by the continuing presence of the symptoms as 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. 405 ILCS 512-107.1(a-5)(4)(A) - 
(a-5)(4)(F) (West 2001), as amended.
The appointment of a non-psychiatrist as an independent examiner in a forcible 
medication proceeding cannot assist a respondent in rebutting each element of the State's case. 
Therefore due process requires a psychiatrist, to perform a "psychiatric examination," Branning, 
285 Ill. App. 3d at 417
While a non-psychiatric expert might be able to aid a respondent in defending against 
some of the elements of the statute, it is questionable how a non-psychiatrist could assist in 
defense of the claim that the benefit of a particular treatment regimen of medications, or ECT, 
outweighs the harm. As this Court has noted, neither the jury, nor the Court, may pass on the 
propriety of the treatment proposed by the treating physician in the petition. In re Mary Ann P., 
202 I11.2d 393, 405-6, 781 N.E.2d 237 (2002) (mental health treatment is a "highly specialized 
area of medicine which is better left to the experts.")
Furthermore, the independent examiner's role includes, at least in the hypothetical, the 
providing of opinions and advice upon which resolution without court order may occur. An 
independent examiner without prescribing privileges cannot fulfill this role, since it "dangerously 
approaches the practice of medicine." See, In re Mary Ann P., supra, 202 111.2d at 406. The
38
independent examiner must be qualified to give any opinion or advice about the benefits and side 
effects of, or the alternatives to, the medications requested in the petition.
Respondent submits that, in the first instance, due process can be satisfied only when the 
independent examiner appointed by the court is a "psychiatrist," as that term is defined in section 
1-121 of the Code. Because the independent examiner appointed to Robert S. was not a 
"psychiatrist," he was deprived due process.
But, alas, Robert S. did not receive his independent examination by either a psychiatrist, 
or a psychologist. Instead, Ms. Kane, an employee of the Diagnostic Center, examined him in 
response to the court's order for an independent examination. (R.I/18 49-95) She was not a 
licensed psychologist and did not have a doctorate, only a master's degree. (R.1/18 94, 108) 
Indeed, without a license, Ms. Kane admitted she could not perform an examination 
independently without supervision.' (8.1118 125-126) Had she been a physician or psychiatrist, 
the mere fact of non-licensure would have foreclosed her testimony. See, 405 ILCS 5/1-120, 
511-121. The unlicensed intern that performed the examination of Robert could in no way be 
considered to be an expert. Her "credentials" are not even found in the Code.
Substituting the opinions of unlicensed therapists, where the advice and testimony of 
properly trained and accredited mental health professionals is needed, invites an unacceptable 
and real risk of injustice, A clear example is California's notorious McMartin Preschool child 
abuse case, in which 369 children were diagnosed as having been sexually abused-when few, if 
any actually were. The charges were predicated upon the flawed examinations of the children 
conducted primarily by a therapist, like Kane, who had a master's degree, but was unlicensed. 
See Jean Montoya, Something Not so Funny Happened on the Way to Conviction: The Pretrial 
Interrogation of Child Witnesses, 35 Ariz. L. Rev. 927 (1993) (and sources cited therein); Diana 
Mounts, Evaluating And Admitting Expert Opinion Testimony In Child Sexual Abuse 
Prosecutions, 41 Duke L. J. 691 (1991); Terence W. Campbell and Demosthenes Lorandos, 
Cross Examining Experts in the Behavioral Sciences, 2 Cross Exam. Exp. in Beh. Sci. § 10:67.1 
(2003).
39
Ms. Kane testified on behalf of the State. (R.1/18 93-138) In her opinion, Robert 
suffered from a serious mental disease, i.e., schizophrenia, paranoid-type. (R.1/18 120) She also 
testified that the administration of the rndication outweighed the adverse effects. (R.1/18 123)
ivls. Kane opined that Robert lacked insight into his illness, because he did not agree that 
he suffered from a mental illness. (8.1118 123) He lacked capacity because he lacked insight 
into his illness. (Id.) And, because psychosocial therapy required that an individual have insight 
into their illness, too, there were no less restrictive services for Robert available. (R.1/18 123-
124)
Although not a clinical psychologist, Ms. Kane verified the opinions in her report "to a 
reasonable degree of psychological certainty" and concluded that Mr. S. met the criteria to 
involuntarily receive psychotropic medication "to a reasonable degree of psychological
certainty." (R1/18 106-7, 124)
In order to be subject to forced treatment, the mental illness must be "serious." See, 405
ILCS 512-107.1(a-5)(4)(A). The presence of a serious mental illness in Robert was a matter of 
some bona fide dispute at trial.
Robert denied delusions and hallucinations, taking the position that he did not suffer from 
a mental illness. (R.1/18 119-120, 123) On cross-examination, both Dr. Nazareno and Ms. Kane 
admitted that they did not observe any symptoms of mental illness in Robert during their 
testimony. (R.1118 84, 136) Ms. Kane saw no delusions or hallucinations when she examined 
him. (R. 1118 136-137) Robert, who appeared pro se, was complimented by trial court, who 
said he did "an exemplary job" in representing himself. (R.318 11)
Robert's chart indicated that he was originally diagnosed with delusional disorder, which 
was later changed to schizophrenia paranoid-type. (R.1/18 110, 121) A debate exists amongst
40
clinicians regarding the treatment of delusional disorder, some finding psychotropic medications 
generally not effective, while others disagree. David M. Siegel, Psychoactive Medication and 
Your Client: Better Living and (Maybe) Better Law Through Chemistry, Champion 22 (Dec. 
2003). Robert's independent examiner should have been qualified to review the accuracy of Dr. 
Nazareno's diagnosis, the seriousness of the illness, the efficacy of the proposed medications, 
and to testify on an equal footing.
AIthough the trial court was correct to grant Robert S.'s motion for an independent 
examination, the appointment of a non-psychiatrist to serve as an independent examiner in a 
section 2-107.1 proceeding defeated the purpose of allowing independent examinations. 
Respondents named in petitions for involuntary treatment are entitled to an independent 
examination. 405 ILCS 5/3-804; In re R.C., 338 I11. App. 3d 103, 788 N.E.2d 99 (1st Dist. 
2003). The intern's lack of education and training in the field of psychiatric medicine made it 
impossible for her to "provide a check" on Robert's treating psychiatrist. Robert suffered 
prejudice when the court appointed him an examiner who was not an expert in the field -- the 
equivalent of no examiner at all.
As noted by the Governor's Commission, the purpose of an independent examination is 
not only to obtain the advice of an independent expert but also his or her testimony. Governor's 
Commission at 60. Although the trial court allowed Ms. Kane, lacking any license, to testify that 
the benefits of the specified medical treatment would outweigh the harm, it is difficult to fathom 
that any court would permit a non-licensed physician or psychiatrist-much less an individual 
not even trained as either----to give an expert opinion on the subject. An expert's opinion can 
only be as valid as the reasons for the opinion. In re 4. C., 338 Ill. App. 3d 292, 296, 788 N.E.2d 
1163 (2003).
41
It is also significant that only a physician can determine whether an individual like Robert 
S. has the capacity to make a reasoned decision about treatment with medication. Only a 
physician is authorized to "ascertain and-document whether [a] recipient [of mental health 
services] is capable of giving informed consent" for psychotropic medication or ECT. 59 Ill. 
Adm. Code I. 12.90(b) (West 2003). Not being a physician, Ms. Kane was not competent to 
determine whether Mr. S. lacked capacity to give, or withhold, his consent to treatment with 
medications. She was thus unqualified to aid Mr. S's defense by either advising or testifying on 
the subject of capacity.
Perhaps an independent examiner who was a clinical psychologist or a licensed clinical 
social worker might be of some use to a respondent in defending against a petition for 
involuntary treatment. A clinical psychologist or licensed clinical psychologist could render 
advice, testimony, or both, about whether Robert S. had a mental illness, whether he exhibited 
specific symptoms because of his mental illness, and whether less-restrictive treatment 
alternatives had been explored and found inappropriate. 405 ILCS 5/2107.1(a-5)(4)(A) -- (a-
5)(4)(F). But Ms, Kane was not a clinical psychologist. See 405 ILCS 5/1-103 (definition of 
clinical psychologist).
The Appellate Court mistakenly dwelled upon the observation that Ms. Kane might have 
been a "qualified examiner" and, thus, the plain language of section 3-804 authorized her 
appointment as an independent examiner. In re Robert S., slip op. at 20-24. The Appellate Court 
failed to apply the precept of statutory interpretation that in construing a statute, this Court 
presumes that the General Assembly, in its enactment of legislation, did not intend absurdity, 
inconvenience, or injustice. In re Lieberman, 201 111.2d 300. 309 (2002).
42
Section 3-804 does authorize the trial court to order "an examination to be made by an 
impartial medical expert pursuant to Supreme Court Rules or by a qualified examiner, clinical 
psychologist or other expert." 405 [LCS 3/3-804. But section 3-804 appears in Chapter III of the 
Code, which governs the admission, discharge, and transfer of mentally ill persons. In cases 
involving admission, discharge, or transfer, it is entirely reasonable for the court to appoint a 
qualified examiner other than a psychiatrist. The testimony of a psychiatrist is not required 
before a person can be found subject to involuntary admission. 405 ILCS 5/3-807. Just as 
qualified examiners might complete a certificate or testify at an involuntary admission hearing, a 
qualified examiner would be able to assist a respondent in defending against an involuntary 
admission case, thereby furthering the purpose of section 3-804.
Chapter III does not govern involuntary treatment with psychotropic medication. 
Treatment with medication is governed by Chapter II of the Code and incorporates the 
procedures set forth in Chapter III for proceedings for involuntary treatment. 405 ILCS 5/2-
107.1(a-5)(3). When the procedures contained in Chapter III were drafted, the legislature did not 
contemplate independent examinations in proceedings for involuntary treatment; indeed, it was 
not until a decade later that procedures for authorizing the involuntary administration of 
psychotropic medication in nonemergency situations were added to the Code. Anthony E. 
Rothert, Involuntary Administration Of Psychotropic Drugs In Illinois: Balancing Safety And 
Civil Liberties, 9 ILBJ 496, 498 (Oct 2003).
There are differences between proceedings for involuntary treatment and proceedings for 
involuntary admission such that the literal language of the statutory procedure could produce a 
result that is absurd, inconvenient, or unjust. In re Robert R., 338 I11.App.3d 343, 788 N.E.2d 
122 (5th Dist. 2003). In circumstances where adhering to the literal language of the statute
43
would yield a result that is "clearly and demonstrably at odds with the obvious intent of the 
General Assembly," courts may disregard, modify, or supply language to give effect to the 
legislative design. Robert R., 338 111.App.3d at 352, guoting Lieberman, 201 I11.2d at 320.
The legislature intended to assure that forced treatment respondents were not deprived of 
due process by providing for the advice or testimony of their own examiner to aid in rebutting or 
exposing errors and other deficiencies in the testimony of the expert state witnesses. Governor's 
Commission at 60. The appointment of a person who is unqualified to provide advice or
testimony on the subjects about which the expert state witnesses are required to testify is clearly 
and demonstrably at odds with the obvious intent of the General Assembly. See Lieberman, 201 
I11.2d at 320.
While the Appellate Court's literal interpretation of section 3-804 frustrates the intent of 
the legislature, this Court may disregard, modify, or supply language to give effect to the 
legislative design. Lieberman, 201 111.2d at 320. The obvious intent of the legislature was to 
provide respondents a chance to enlist the aid of an independent expert who would be capable of 
providing expert review, advice and testimony; the intent of the General Assembly can be 
revived by interpreting section 3-804 as requiring the appointment of an independent psychiatrist 
when applied to cases seeking the involuntary treatment of a respondent by either psychotropic 
medications and/or ECT.
The Appellate Court's interpretation of section 3-804 does not square with the Court's 
previous pronouncements of what due process requires. This Court declined review of the 
opinion in In re R.C., 338 111. App. 3d 103, 110, 788 N.E.2d 99 (1st Dist. 2003) (petition for 
leave to appeal denied. Table No. 96151, Oct. 7, 2003), which noted, inter olio.. "... Illinois 
requires an independent psychiatric examination in proceedings for involuntary treatment." R.C.,
44
788 N.E.2d at 103, citing In re Branning, 285 III. App. 3d 405. 417, 674 N.E.2d 463 (4th Dist. 
1996) (emphasis added). The Robert S. Court failed to distinguish from Branning.
Bral ring's requirement that a forcible medical treatment respondent is entitled to an 
independent examination by a psychiatrist is supported by recent Appellate Court decisions. The 
Court has held that, as under the Code, persons named in proceedings under the Sexually 
Dangerous Person Act are entitled to due process, which requires that the respondent be given a 
fundamentally fair trial. In re Detention of Trevino, 317 Ill. App. 3d 324, 330-3I, 740 N.E.2d 
810 (2nd Dist. 2000); In re Detention of Kortte, 317 111. App. 3d 111, 115-16, 738 N.E.2d 983 
(2nd Dist. 2000). Respondents are entitled to defend themselves on a level playing field with the 
State. The State is not permitted to maintain a strategic advantage over the respondent when 
"that advantage casts a pall on the proceedings." Trevino, 317 Ill. App. 3d at 330. Yet, this level 
playing field was denied respondent.
Dr. Nazareno had almost 30 years experience as a physician and 15 years as a 
psychiatrist. (8.1118 12-13) He had personally treated over 200 patients at Elgin Mental Health 
Center, and he had been qualified to testify as an expert on more than 200 occasions. (R.1118 
13-14) He testified that he was licensed to practice medicine in Illinois, and licensed to prescribe 
psychotropic drugs. (R.1118 15) He had prescribed psychotropic medications to about 200 
psychiatric patients, and Robert S. was one of the 25 forensic patients that he was currently 
treating. (R.1118 15-16)
When the State was afforded the advice and testimony of a Dr. Nazareno, but Robert S. 
was in turn allowed someone less competent than a clinical psychologist to aid in his defense, the 
State enjoyed an insurmountable strategic advantage. As the court below implicitly recognized, 
Ms. Kane would not have been permitted to give advice or testimony about the reasonableness of
45
the particular medications and dosages that constituted the treatment sought by the petition. 
Robert S., 341 Ill.App.3d at 255. But due process requires that access to expert evidence of 
equal quality be provided. Kortte, 317 Ill. App. 3d at 118 (emphasis added).
A respondent's inability to challenge the contents of the proposed treatment necessarily 
deprives him due process and bestows a great advantage upon the State. The State had the 
advantage of presenting as expert testimony a specific treatment plan that faced no real challenge 
from the respondent, who did not have the advice or testimony of an expert competent on the 
subject. in these cases, the court is supposed to determine whether the benefits of the proposed 
treatment outweighs the harm as well as whether the proposed treatment is the least restrictive 
appropriate for the respondent. Without appointment of an independent psychiatrist, a 
respondent is "...virtually incapable of rebutting the State's evidence." See, Kortte, 317 Ill. App. 
3d at 116. The State's ability to present unopposed evidence is an advantage that casts a pall on 
the proceedings.
The trial court and the Appellate Court wrongly interpreted section 3-804 of the Code as 
only assuring Robert S. the assistance of a psychology intern to assist in the preparation and 
presentation of his defense to a petition for involuntary treatment, effectively denying him an 
independent examination. This noncompliance with the procedural protections of the Code 
deprived Mr. S. of the opportunity to adequately prepare and present a defense so that he might 
be heard; thus, the failure to appoint an independent examiner competent to provide advice and 
testimony about section 2-107.1 of the Code impermissibly deprived Mr. S. of due process.
46
III. THE APPELLATE COURT ERRED IN HOLDING THAT ROBERT S., 
A RESPONDENT IN A FORCED PSYCHOTROPIC MEDICATIONS 
ACTION, WHO WAS ALSO A PRETRIAL DETAINEE, AND A 
PRETRIAL DETAINEE WHO HAD BEEN FOUND TO BE UNFIT FOR 
TRIAL, HAD NO RIGHT TO HAVE NOTICE OF THE FORCED 
TREATMENT ACTION PROVIDED TO HIS CRIMINAL CASE 
ATTORNEY, UNDER DUE PROCESS OF LAW OR 405 ILCS 5/2-107.1

The appellate court rejected Robert's claim that due process, and the treatment statute 
itself, required that the State provide notice of the action to force psychotropic medications to the 
attorney representing Robert in the pending criminal case for which he had been found unfit to 
stand trial. In re Robert S., slip op. at 26-27. But it is clear that, in Illinois, the criminal defense 
attorney will have a great deal of crucial information about a UST than any other lawyer could 
ever have access to. The provisions most relevant to fitness procedures are found at 725 ILCS 
5/104-10 -- 5/104-31.

In the first place, even though the circuit court retains jurisdiction of the case, the 2-107.1 
hearings take place at DHS's forensic unit, usually hundreds of miles distant. See, 725 ILCS 
51104-23(b) and (c), and 104-25(g)(2). The probability is high that the civil case attorney will 
have no knowledge of what event may be the basis for criminal charges, or even the existence of 
criminal charges, as the forensic units are located at facilities that house civil recipients, as well. 
The condition of the defendant will most likely undercut his ability to be a reliable historian, as 
he has been determined to be unable to understand the nature and purpose of the proceedings 
against him, or to assist in his criminal defense. See, Johnson v. Breije, 521 F. Supp. 723, 726-
28 (D.C. Ill. 1981). It is just as likely that the judge, the prosecutor, and the defense attorney in 
the criminal matter are unaware of what is happened at the DHS forensic unit. There is no 
statutory obligation to inform anyone when a defendant is ordered to undergo authorized
47
involuntary treatment. As such, forced non-emergency treatment cases constitute ex pane 
proceedings vis-u-vis the criminal case.
Numerous reports about the defendant are generated, but the civil attorney cannot have 
access to them. Any report filed of record with the court that concerns the diagnosis, treatment 
or treatment plans made are not filed in the defendant's court record, are kept confidential, and 
are available only to the circuit court, the appellate court, the State and the criminal defense.
See, 725 ILCS 5/104-19,
The criminal case defense counsel may have access to the report of a qualified expert, per 
sections 13(a), 13(b), 13(e), and/or 15. That report would include the qualified expert's 
diagnosis of the defendant, an explanation of how it was reached and facts upon which it was 
based. See, 725 ILCS 5/104-15(a)(l). It would also include a description of a defendant's 
mental or physical disability, if any, and its severity. See, 725 ILCS 5/104-15(a)(2). It would 
include an opinion as to what extent the disability impaired the defendant's ability to understand 
the nature and purpose of the proceedings against him or to assist in his defense, or both. Id.
When an unfit defendant is committed to the Department of Human Services to be 
restored, the clerk of the circuit court provides DHS with the order, the county and municipality 
in which the offense was committed, and additional matters that the circuit court directs. See, 
725 ILCS 5/104-17(d). Within 30 days of the order to undergo treatment, the person 
supervising defendant's treatment must provide a report to the court, the State and defense 
counsel with required information, including a diagnosis. See, 725 ILCS 5/104-17(e).
The defendant's treatment supervisor is required to submit reports to the court, the State 
and the defense. See, 725 ILCS 5/104-18(a). These reports are required: (a) within 7 days of a 
fitness hearing; (b) whenever the supervisor believes that the defendant has attained fitness; and,
48
(c) whenever the supervisor believes that there is not a substantial chance that the defendant will 
.attained fitness, with treatment, within one year of the original finding of fitness. See, 725 ILCS 
5/104-18(a)(1). (2) and(3).
These several reports, which be crucial to avoiding what happened to Robert S., are no 
doubt confidential. The civil attorney will not have access to them, of course, the obvious way 
': rectify this shortcoming is to notify a criminal defense attorney when a 2-107.1 petition is 
:filed against his client.
Almost ten years ago, a respondent claimed that 2-107.1 violated due process, because it 
did not require that patients be served with notice of the proceedings against them. In re C. E., 
161 Ill. 2d 200, 225, 641 N.E.2d 345 (1994). He was correct, in that the statute had no such 
language. But, in finding that 2-107.1 complied with due process, this Court imposed a notice 
requirement, stating: "We conclude that the trial court must ensure that notice of the date, time 
and place of the section 2-107.1 hearing is served upon the mental health recipient, his attorney. 
his guardian (if any), and any other interested parties to the proceeding." In re C. E., 161 111. 2d 
200, 225-6, 641 N.E.2d 345 (1994). This is a clear statement that procedural due process 
requires notice to the criminal defense attorney. It is abundantly clear that DHS would know 
who the criminal case defense attorney was, or could easily make determination.
:Robert's criminal case attorney was an interested party to the forced treatment case 
against his client. It is clear from Riggins and Sell that facts concerning the criminal ease must 
be presented. and analyzed, before forced treatment may occur. Effectuation of the 
:'institutional procedural safeguards set forth in the above cases will require an understanding of 
the facts of the criminal case.
Section 2-107.1(a)(1) itself requires service "to the respondent, his or her attorney, any
known agent or attorney-in-fact, if any, and the guardian, if any...." 405 ILCS 512-107. l (a)(I )
(emphasis added). A plain reading of the statute requires that the attorney representing the 
defendant in the criminal case should be'served. This is the most reliable indicator of the 
legislature's intent, and the language must be given its plain and ordinary meaning. In re Mary 
Ann P.. 202 Ill. 2d 393, 405, 781 N.E.2d 237 (2002).
No record was made of Robert S.'s charge, but it could involve the death penalty. The 
American Bar Association, in establishing its guidelines for such cases, also reflect the 
importance of the matter:
Counsel at all stages of the case should engage in continuing interactive dialogue 
with the client concerning all matters that might reasonably be expected to have a 
material impact on the case, such as:... relevant aspects of the client's relationship 
with correctional, parole or other governmental agents (e.g., prison medical 
providers or state psychiatrists)
**
For example, actions by prison authorities (e.g., solitary confinement, 
administration of psychotropic medications) may impede the ability to present the 
client as a witness at a hearing or have legal implications, and changes in the 
client's mental state (e.g., as a result of the breakup of a close relationship or a 
worsening physical condition) may bear upon his capacity to assist counsel and, 
ultimately, to be executed... Thus, the failure to maintain such a relationship is 
professionally irresponsible. American Bar Association: Guidelines for the 
Appointment and Performance of Defense Counsel in Death Penalty Cases, 
31 Hofstra L. Rev. 913, 1006, 1010-11 (2003)

If this Court holds that criminal defendants, and UST defendants, are amenable to 
2-107.1 petitions, it should hold further that their criminal case attorneys should receive 
notice of such actions.
50
CONCLUSION

For the foregoing reasons, Respondent-Appellant, Robert S., respectfully requests that 
Honorable Court reverse the judgments of the Second District Appellate Court and the Kane 
County Circuit Court, and grant such other and further relief as is just and proper, under that 
circumstances.
Respectfully submitted,

LEGAL ADVOCACY SERVICE 
William J. Co oy, Jr.
Jeff M. Plesko, Director

William J. Conroy, Jr., Managing Attorney 
Anthony E. Rothert, Staff Attorney 
Teresa L. Berge, Staff Attorney

Legal Advocacy Service
ILLINOIS GUARDIANSHIP & ADVOCACY COMMISSION 
4302 North Main Street
Rockford, Illinois 61103-5202
51
APPENDIX
52
TABLE OF CONTENTS OF APPENDIX

Page No.
In re Robert S., 341 Ill. App. 3d 238, 792 N.E.2d 421 (2003) 	A. 1
Order Granting Petition for Leave to Appeal, October 7, 2003	A. 12
Order For The Authorized Involuntary Treatment, February 1, 2002 (C.27) 	A. 13
Petition for Authorized Involuntary Treatment, November 19, 2002 (C.2) 	A.14
Table of Contents of Record on Appeal 	A. 16
Report of Proceedings 	A. 17
1 of 1 DOCUMENT
In re ROBERT S., Alleged to be a Person in Need of Involuntary Psychotropic
Medication (The People of the State of Illinois, Petitioner-Appellee, v. Robert S.,
Respondent-Appellant).
No. 2-02-0262
APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
341 I11. App. 3d 238; 792 N.E.2d 421; 2Q03 Ill. App. LEXIS 856; 275 III. Dee. 190 
June 30, 2003, Decided
SUBSEQUENT HISTORY: [**1] Released for 
Publication August 1, 2003.

PRIOR HISTORY: Appeal from the Circuit Court of 
Kane County. No. 01--MH--26 1. Honorable Franklin 
D. Brewe, Judge, Presiding.

DISPOSITION: Affirmed.

LexisNexis (TM) HEADNOTES - Core Concepts:


COUNSEL: For Robert S., Appellant: Teresa L. Berge 
and William J. Conroy Jr.. Guardianship & Advocacy 
Commission, Rockford, [L, Jeffery M. Plesko, 
Guardianship & Advocacy Commission, Chicago, IL.

For People of the State of Illinois, Appellee: Honorable 
Meg Gorecki, Kane County State's Attorney, St. Charles, 
IL, Martin P. Maltz Deputy Director and Diane L. 
Campbell, State's Attorneys Appellate Prosecutor, Elgin, 
IL.

JUDGES: JUSTICE GROMETER, delivered the 
opinion of the court. BOWMAN and BYRNE, JJ., 
concur.

OPINIONBY: GROMETER

OPINION: f'423] [*** 192] JUSTICE GROMETER 
delivered the opinion of the court:
Respondent, Robert S., appeals from an order of the 
circuit coup of Kane County granting the State's petition
to involuntarily administer psychotropic medication. We 
affirm.

I. BACKGROUND
Respondent was charged with a crime not specified 
in the record. Subsequently, respondent was found unfit 
to stand trial and admitted to the Elgin Mental Health 
Center (EMHC). On November 19, 2001, respondent's 
psychiatrist, Dr. Romulo Nazareno, filed a petition 
seeking to involuntarily administer psychotropic 
medication to respondent. A hearing on the petition was 
originally scheduled for November 26, 2001. However, it 
was continued four times, and it not did commence until 
January 18, 2002. Respondent represented himself at the 
hearing.
On January 18, 2002, the State indicated it was 
ready to proceed. [**2] However, respondent requested 
a two-week continuance in order to subpoena his 
witnesses. The State objected and suggested that the 
court begin the hearing, noting that it was unlikely that 
the hearing could be completed in one day. The trial 
court decided to commence the hearing with the 
understanding that after the State presented its case, the 
matter would he continued to give respondent time to 
subpoena his witnesses.
The State's first witness was Dr. Nazareno. Dr. 
Nazareno diagnosed respondent with paranoid 
schizophrenia. Dr. Nazareno testified that respondent's 
symptoms included hallucinations, delusions, and a 
deterioration in the ability to function. For instance, 
respondent complained of sleep deprivation as a result of 
auditory hallucinations. Moreover, respondent believed 
that the government implanted a microchip in his brain in 
an effort to read his mind. Respondent claimed that
A. 1
Page 2
34 i Ill. App. 3d 238; 792 N.E.2d 421, *;
2003 I11. App. LEXIS 856, **; 275 Ill. Dec. 190, ***
EMHC staff and patients were sending messages to a 
"mind reader" by actions such as rubbing their chins or 
adjusting [***193] [*424] their eyeglasses. In 
addition, respondent threatened to kill an EMHC patient 
who respondent believed was having a relationship with 
women intended for respondent.
Dr. Nazareno noted j**3] that respondent's 
symptoms subsided when he was medicated on a 
previous occasion. However, once the medication order 
expired, defendant began hearing voices, having trouble 
sleeping, and believing that female celebrities had fallen 
in love with him. Respondent also threatened to kill a 
member of the EMHC staff.
Dr. Nazareno recommended administering 
Risperidone to respondent because in the past he 
responded well to the drug, without side effects. As 
alternatives, Dr. Nazareno recommended Haldol, Haldol 
Detonate, and, for side effects, Cogentin. Dr. Nazareno 
opined that the benefits of administering the 
psychotropic medication would outweigh the harm. He 
also stated that respondent lacks the capacity to make a 
reasoned decision about potential side effects and 
benefits of the treatment. According to Dr. Nazareno, 
respondent's psychosis is the reason he cannot make a 
knowledgeable decision whether to take the medication. 
Dr. Nazarene tried less restrictive treatments. such as 
counseling and group therapy, but they were not 
effective without medication.
On cross-examination, Dr. Nazareno admitted that 
respondent never threatened him and that he has never 
personally witnessed respondent [**4] threaten others. 
Dr. Nazareno also acknowledged that during the court 
proceeding, he did not see a deterioration in respondent's 
functioning and noted that respondent did not exhibit his 
ususal symptoms, such as talking to himself. However, 
Dr. Nazareno stated that respondent's behavior and the 
way in which he asked questions showed some paranoia 
and delusions. For instance, during questioning, 
respondent insinuated that Dr. Nazareno hears voices. 
Dr. Nazareno pointed out that there are times during 
which an individual can contain delusions by focusing on 
a task.
Over respondent's objection, the State called Lesley 
Kane, an intern at the Kane County Diagnostic Center 
(KCDC). Kane conducted a court-ordered independent 
examination of respondent_ Kane's examination consisted 
of interviewing respondent for 60 to 90 minutes, talking 
to respondent's case worker, and reviewing two to three 
years of respondent's records. The trial court qualified 
Kane as an expert over respondent's objection.
Citing symptoms similar to those identified by Dr. 
Nazareno, Kane diagnosed respondent with paranoid 
schizophrenia. With respect to whether respondent
exhibited a deterioration of his ability to function, [**5] 
suffering, or threatening behavior, Kane stated that 
respondent has become increasingly tense and agitated, 
verbally aggressive, and more threatening. In addition, 
his sexual preoccupations have increased and EMHC 
staff noted an increase in the use of profanity. Kane 
further testified that respondent's illness has existed for a 
period marked by the continuing presence of symptoms, 
noting that respondent has had a history of delusions 
since the 1970s, Kane believed that the benefits of 
psychotropic medication would outweigh the harm. Kane 
noted that respondent's behavior poses a risk to himself 
and to others and that the side effects of the medication 
can be dealt with effectively. Kane opined that 
respondent's suffering, the deterioration of his ability to 
function, and his violent and threatening behavior would 
decrease with medication.
Kane also concluded that respondent lacked the 
capacity to make a reasoned decision about psychotropic 
medication. According to Kane, respondent is unaware
of the severity of his illness. Regarding	[***191]
[*425] less restrictive alternatives, Kane stated that 
respondent has been offered psychooocial therapy, but, 
because respondent does not have insight into his [**6] 
illness, "it doesn't seem as though that alone is going to 
be helpful." Kane also noted that in individuals with 
schizophrenia, therapy is more of an augment to 
medication. Kane opined "to a reasonable degree of 
psychological certainty" that respondent meets the 
criteria for psychotropic medication.
On cross-examination. Kane admitted that during 
her independent examination of respondent she did not 
observe defendant suffering from delusions or 
hallucinations. She also indicated that respondent did not 
exhibit such symptoms at the hearing.
The State recalled Dr. Nazareno. He testified that 
respondent does not have the capacity to make a 
reasoned and rational choice regarding whether he needs 
medication. Dr. Nazareno noted that respondent does not 
believe he is ill. Dr. Nazareno added that respondent's 
judgment is so impaired by his illness that he sees only 
the risks, and not the benefits, of the medication.
Kelli Childress, a former assistant State's Attorney, 
testified that she first met respondent in 1999 when she 
was assigned to a hearing in which respondent was 
involved. On or about October 31, 2001, Childress 
received a telephone call from respondent. Respondent 
told Childress [**7] that he remembered her from the 
1999 hearing and he had been thinking about her ever 
since. Respondent accused Childress of helping the 
government with a scheme to read his mind. Respondent 
believed that he and Childress were supposed to be 
together and that the government indicated to him that
A. 2
Page 3
341 Ill. App. 3d 238; 792 N.E.2d 421, *;
2003 Ill. App, LEXIS 856, **; 275 Ill. Dec. 190, ***
Childress felt the same way about him. Respondent 
asked Childress if she would help him get out of EMHC 
so that they could be together. Childress told respondent 
that she was involved with someone else and that the 
information he had was incorrect. Childress stated she 
felt threatened during the conversation.
Respondent called Childress again on December 31, 
2001. According to Childress, the tone of this 
conversation was less accusatory and more romantic. 
Respondent told Childress that she was beautiful, that he 
had feelings for her, and that the government informed 
him that they were supposed to be together. Respondent 
stated that he thought about marrying Childress, having 
children, and moving to California. Respondent told 
Childress that the government informed him that she was 
romantically involved with other patients at EMHC and 
with a player for the Chicago Bears.
Childress testified [**8] that she was familiar with 
respondent's case and why he was at EMHC. She was 
afraid that if respondent believed that she was part of 
some government scheme to read his mind, he could 
become violent. As a result, after both calls, Childress 
contacted the State's Attorney's office and the court 
liaison at EMHC. In addition, following the first call, she 
contacted local police, Childress has not heard from 
respondent since the second call. On cross-examination, 
Childress admitted that respondent did not specifically 
threaten her.
Mark Thomas, a licensed clinical social worker at 
EMHC, testified that he is respondent's primary therapist. 
Thomas stated that respondent's psychiatric diagnosis is 
paranoid schizophrenia. According to Thomas, 
respondent's condition had been deteriorating over the 
four-or five-month period prior to the hearing, with 
increased agitation, verbal outbursts, and verbal 
aggression.
[***195] [*426] According to Thomas, 
respondent believes that the voices he hears are caused 
by a chip implanted by the government. Respondent 
believes that the chip enables the government to read his 
mind. On two occasions in the three months prior to the 
hearing, respondent became agitated with Thomas [**9] 
because respondent believed that Thomas was "signaling 
the mind readers" by rubbing his limbs. A third incident 
occurred when Thomas sided with a technician who had 
a dispute with respondent. At that time, respondent 
cursed at Thomas within inches of his face. Thomas 
considered respondent's behavior during the third 
incident to constitute a threat.
Thomas testified that respondent told him that he 
suffers from hallucinations and delusions. The 
hallucinations and delusions center on female celebrities, 
but have included staff at EMHC. In addition, respondent
told Thomas that he wanted to have a relationship with 
Childress and he hoped to have babies. Respondent also 
told Thomas that his conversations with Childress had 
gone well and that she had been receptive.
Thomas also stated that respondent believes that 
certain women have been "reserved" for him by the mind 
readers. Respondent becomes verbally abusive when he 
believes these women have ignored him or when he 
believes the women have been having relationships with 
other EMHC patients. Respondent confronted one patient 
who he believed was having a sexual relationship with 
one of his "reserved" women.
Thomas opined that respondent 1** 10] suffers as a 
result of hearing voices. Thomas believed that 
respondent's ability to function has deteriorated in the 
three months prior to the hearing. Thomas also stated 
that of the 36 patients he is in charge of or monitors, 
respondent poses the highest risk. Thomas stated that 
respondent is in the upper echelon" of patients of who 
frighten him.
On cross-examination. Thomas testified that 
respondent has a "remarkable ability" to contain his 
psychosis. Nevertheless, he thought that respondent had 
exhibited evidence of mental illness in the courtroom. 
For instance, Thomas noted respondent's allusions to 
government mind readers and his claim that the 
government implanted a chip in his body.
The State then called respondent as a witness. 
Respondent objected. The trial court sustained 
respondent's objection on the basis that respondent was 
at EMHC because he was found unfit to stand trial in an 
underlying criminal proceeding. The State then rested. 
Respondent requested two weeks to subpoena his 
witnesses, and the court continued the matter until 
February 1, 2002.
At that time, respondent first called Denise Dojka, 
Psy.D., a clinical psychologist at EMHC and 
respondent's psychological [**1l] therapist. She stated 
that respondent suffers from paranoid schizophrenia. 
Dojka has never seen respondent participate in any 
violent behavior. Nevertheless, based on a risk 
assessment she conducted of respondent, Dojka believed 
that he was one of the more dangerous people in his unit.
On cross-examination, Dojka testified that 
respondent hears voices that call him derogatory names 
and wake him at night. Respondent believes that the 
voices are from the government and that they are 
transmitted through an implant in his head. The voices 
inform respondent that women who would like to have a 
sexual relationship with him are being brought to other 
patients. Respondent told Dojka that he would have liked 
to have a relationship with Childress and that he wanted
A. 3
Page 4
341 Ill. App. 3d 238; 792 N.E.2d 421, *;
2003 Ill. App. LEXIS 856, * 275 I11. Dec. 190, ***
Childress to have his children. However, he no longer 
believed that it was possible [f** 196] [*4271 to have a 
relationship with Childress because he believes that 
Childress was given large sums of money to have sex 
with another patient who respondent believes is inferior 
to himself.
Dojka testified that she considered respondent 
dangerous because he has several risk factors. According 
to Dojka, respondent's history of violence, symptoms of 
mental [** 12] illness, refusal of treatment, anger, and 
the lack of feasibility of future plans all contribute to a 
finding that respondent has at least a moderate risk of 
committing violence in the future, especially since he is 
not medicated.
Dojka feared that respondent would commit 
violence against Childress and Lynette Krueger, Dojka's 
diagnostic psychology student. Respondent wanted to 
have relationships with these women, but he believed 
that they were sleeping with others. This made 
respondent feel betrayed and resentful.
Dojka believed that respondent needs to be 
medicated. She noted that on a previous occasion he was 
medicated for a 90-day period and his sleeping 
improved, he was much more relaxed, he participated in 
activities, and he seemed to be functioning at a higher 
level. Dojka also believed that respondent is suffering. 
She noted that he told her he felt "tormented" by the 
voices.
Becky Mitchell, an activity therapist at EMHC, 
testified that between October 2001 and February 2002, 
she accompanied respondent to two or three activities. 
Mitchell testified that during these activities, respondent 
did not cause her any problems and he did not have any 
problems with the other patients. [**13] However, 
Mitchell opined that respondent had the potential to be 
dangerous to others. Mitchell's opinion was based on 
respondent's status as a mental health patient, the 
statements of clinicians, and her past experiences with 
other patients. On cross-examination, Mitchell testified 
that respondent told her that he hears voices that 
"torment" him.
Respondent's last witness was Jose Padilla, an 
activity staff member at EMHC. Padilla testified that he 
never had to restrict respondent as a result of his 
behavior. Padilla did not observe respondent express any 
anger towards other patients. On cross-examination, 
Padilla acknowledged that he sees respondent only about 
once a month.
The trial court found respondent subject to the 
involuntary administration of medication for a period not 
to exceed 90 days. In addressing the factors relied on in 
making its determination, the trial court noted, among
other things, that respondent lacked the capacity to make 
a reasoned decision about the treatment. The trial court 
denied respondent's motion to reconsider, and this timely 
appeal followed.

II. ANALYSIS
Before addressing the merits of respondent's appeal, 
we note that this case is moot. The [**l4] trial court 
order authorizing the administration of psychotropic 
medication was limited to a period of 90 days. That 
period has long since passed. Nevertheless, because this 
case involves "an event of short duration which is 
'capable of repetition, yet evading review' " (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)), we 
will address the issues raised by respondent. See In re 
Cathy M., 326 Ili. App. 3d 335, 339, 260 I11. Dec. 162, 
760 N.E.2d 579 (2001),
Initially, respondent claims that the trial court's order 
should be reversed because it fails to comply with 
section 2-107.1 of the Mental Health and Developmental 
Disabilities [*** 197] [*428] Code (Mental Health 
Code or Code) (405 ILCS 512-107.1 (West 2000)) in 
three respects. First, respondent argues that the hearing 
on the petition to administer psychotropic medication 
was held outside the statutorily mandated time frame. 
Second, respondent contends that the court's order does 
not designate the persons authorized to administer the 
medication. Third. [**15] respondent asserts that the 
petition listed a criterion for involuntary treatment that is 
no longer recognized by statute. These inquiries 
constitute questions of law, which we review de novo. In 
re M.A., 293 Ill. App. 3d 995. 998, 228 Ill. Dec. 266, 689 
N.E.2d 138 (1997). We address each contention in turn.
Respondent first argues that the State failed to 
comply with the timing provisions for a hearing on a 
petition to administer psychotropic medication. 
According to respondent, section 2--107.1(a--5)(2) of the 
Code (405 ILCS 5/2-107.1(a-5)(2) (West 2000)) requires 
the trial court to hold a hearing on a petition to 
administer psychotropic medication no later than 42 days 
after the petition is filed. Respondent notes that the 
hearing in this case did not commence until 60 days after 
the petition was filed. Accordingly, respondent urges 
reversal of the trial court's order.
Section 2-107.1(a-5)(2) governs the time frame 
within which the trial court must hold a hearing on a 
petition to involuntarily administer psychotropic 
medication. That provision provides in relevant pan:
"The court shall hold a hearing within 7 days of the 
filing [**16] of the petition. The People, the petitioner, 
or the respondent shall be entitled to a continuance of up
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to 7 days as of right. An additional continuance of not 
more than 7 days may be granted to any party (i) upon a 
showing that the continuance is needed in order to 
adequately prepare for or present evidence in a ]tearing 
under this Section or (ii) under exceptional 
circumstances. The court may grant an additional 
continuance not to exceed 21 days when, in its 
discretion, the court determines that such a continuance 
is necessary in order to provide the recipient with an 
examination pursuant to Section 3-803 or 3-804 of this 
Act, to provide the recipient with a trial by jury as 
provided in Section 3-802 of this Act, or to arrange for 
the substitution of counsel as provided for by the Illinois 
Supreme Court Rules." 405 ILCS 512-107.1(a-5)(2) 
(West 2000).
Here, the petition to administer psychotropic 
medication was filed on November 19, 2001. Pursuant to 
section 2-107.1(a-5)(2), the trial court was required to 
hold a hearing within seven days. In fact, a hearing on 
the petition was scheduled for November 26, 2001. The 
record suggests that at the November [** 17] 26 hearing, 
the trial court denied respondent's motion to proceed pro 
se, The court then continued the matter on respondent's 
motion until November 30, 2001.
On November 30, 2001, the trial court denied 
respondent's motion to reconsider its decision denying 
respondent's request to represent himself. Respondent 
then moved for an independent examination to be 
conducted by F.P. Johnson. See 405 ILCS 512-107.1(a-
5)(2), 3-804 (West 2000). The trial court granted 
respondent's motion for an independent examination and 
continued the cause to December 21, 2001. See 405 
ILCS 5/2-107.1(a-5)(2) (West 2000) (granting trial court 
the discretion to continue matter for a period not to 
exceed 21 days in order to provide the recipient with an 
examination pursuant to Section 3-804 of the Code). 
However, the court appointed the KCDC to conduct the 
examination.
The record reflects that on December 21, 2001, the 
trial court entered an order [***198] [*429] continuing 
the matter until January 4, 2002, on respondent's motion. 
On January 4, 2002, respondent renewed his motion to 
represent himself. The trial court granted the motion. The 
court then entered an ['6 * 18] order continuing the matter 
until January 18, 2002. The record shows that the matter 
was continued on the State's motion for cause, 
Respondent agreeing to such motion, also seeking 
continuance." On January 18, 2002, the State indicated it 
was ready to proceed. However, respondent requested a 
two-week continuance in order to subpoena his 
witnesses. The State objected and suggested that the 
court begin the hearing, noting that it was unlikely that 
the hearing could be completed in one day. The trial 
court decided to commence the hearing with the
understanding that after the State presented its case, the 
matter would be continued to give respondent time to 
subpoena his witnesses. Consequently, the hearing on the 
petition did not commence until 60 days after the petition 
was originally filed.
In interpreting the Code's procedural safeguards, this 
court has advocated strict construction in favor of the 
respondent. In re Janet S., 305 Ill. App. 3d 318, 320, 712 
N.E.2d 422, 238 Ill. Dec. 700 (1999). However, it is well 
established that when a party acquiesces in proceeding in 
a certain manner, he cannot later complain prejudice on 
appeal. Hill v. Cowan, 202 111. 2d 151, 159, 269 Ill. Dec. 
875, 781 N.E.2d 1065 (2002) [**19] ("One cannot 
complain of error which he induced or in which he 
participated at trial"); see also People v. Villarreal, 198 
III. 2d 209, 228, 260 Ill. Dec. 619, 761 N.E.2d 1175 
(2001); People v. Abston, 263 Ill- App. 3d 665, 671, 200 
Ill. Dec. 361, 635 N.E.2d 700 (1994). Under the facts of 
this case, it is apparent that all but one of the delays in 
commencing the hearing on the petition were attributable 
to respondent. Only the continuance granted on January 
4, 2002, was not solely attributable to respondent. 
However, the record reveals that the continuance on 
January 4, 2002, was a mutual request by both parties. 
The order continuing the matter reflects that the 
continuance was granted on the State's motion, but that 
respondent agreed to the continuance and asked for a 
continuance himself. Accordingly, while the hearing on 
the petition was not held within the statutorily mandated 
time frame, we decline to reverse the trial court's order 
because respondent either agreed to the delays or they 
were attributable to him.
Respondent also complains that the trial court's 
order violated section 2-107.1 of the Code because it did 
not designate the persons [**20] authorized to 
administer medication. Section 2-107.1(a-5)(6) provides 
that an order authorizing the administration of 
psychotropic medication "shall designate the persons 
authorized to administer the authorized involuntary 
treatment under the standards and procedures of this 
subsection." 405 ILCS 512-107.1(a-5)(6) (West 2000). 
Here, the trial court order authorizing involuntary 
treatment provides;
"The petition is granted, and ROBERT S[.] shall 
receive psychotropic medication to be administered by 
DR. NAZARENO (or designee whose license and 
credentials permit) at Elgin Mental Health Center for a 
period not to exceed 90 days."

Relying on two recent cases from this court (In re 
Richard C., 329 Ill. App. 3d 1090, 264 Ill. Dec. 234, 769 
N.E.2d 1071 (2002); In re Cynthia S.. 326 III. App. 3d 
65, 259 Ill. Dec. 959, 759 N.E.2d 1020 (2001)), 
respondent argues that the trial court's order is defective
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because it does not limit treatment to specific health care 
professionals who are familiar with his condition. We 
disagree.
[***199] ["430] In Cynthia S.. this court reversed 
the trial court order authorizing the administration of 
[**21] psychotropic medication because the court's 
order failed to designate the persons authorized to 
administer the prescribed psychotropic medication. 
Cynthia S., 326 Ill. App. 3d at 69. In Cynthia S., the trial 
court order provided " The petition is granted, and 
Cynthia [S.] shall receive psychotropic medication 
(including the necessary lab work and medical 
examinations) to be administered by the Illinois 
Department of Human Services for a period not to 
exceed 90 days, by those staff whose license allows them 
to administer psychotropic medication pursuant to 
Illinois law.' " Cynthia S., 326 Ill. App. 3d at 68. We 
found that requiring the trial court to list named 
individuals authorized to administer medication ensures 
involvement by a qualified professional familiar with the 
recipient's individual situation and health status. Cynthia 
S., 326 Ill. App. 3d at 68-69. See also In re Mary Ann P., 
202 Ill. 2d 393, 408, 269 III. Dec. 440, 781 N.E.2d 237 
(2002) ("We believe that the specificity requirement for 
involuntary treatment orders reflects the legislature's 
legitimate concern that only qualified health care 
professionals, [**22] familiar with the respondent's 
mental and physical status, be permitted to administer the 
treatment and that the respondent, as well as the treaters, 
be notified of the exact nature of the treatment 
authorized").
Similarly, in Richard C., this court reversed the trial 
court order authorizing the administration of 
psychotropic medication because the trial court order 
failed to designate the persons authorized to administer 
the prescribed psychotropic medication. Richard C., 329 
IIi. App. 3d at 1094. In Richard C., the trial court order 
provided, " It is hereby order [sic] the patient is to 
receive haloperidol decanoate IM of 12.5-100 
mg/monthly with EKG as needed to monitor respondent's 
cardiac state, CBC and differential blood testing yearly 
and blood chemistries yearly.' " Richard C., 329 I11. App. 
3d at 1094.
The court orders in both Cynthia S. and Richard C. 
did not specifically list named individuals authorized to 
administer psychotropic medication. In contrast, here the 
trial court order listed Dr. Nazareno or a designee. At the 
hearing on the petition. Dr. Nazareno, a staff psychiatrist 
at EMHC, testified that he is licensed [**23] to practice 
Medicine in Illinois and to administer psychotropic 
medication in this state. Furthermore, Dr. Nazareno 
testified that he has been treating respondent since April 
1999. Accordingly, Dr. Nazareno is a qualified
professional familiar with the recipient's individual 
situation and health status.
Respondent argues, however, that allowing a 
"designee" to administer the medications runs contrary to 
established case law. See In re Jennifer H., 333 111. App. 
3d 427, 431, 266 I11. Dec. 776, 775 N.E.2d 616 (2002) 
(holding trial court's involuntary treatment order invalid 
for failure to list persons authorized to administer 
treatment); Cynthia S., 326 Ill. App. 3d at 68-69. 
According to respondent, the trial court's order 
authorizes anyone with a license and permitting 
credentials to administer the medications. We disagree.
As noted above, the trial court order authorizes the 
administration of psychotropic medication by Dr. 
Nazareno "or designee whose license and credentials 
permit." A "designee" is defined as "[a] person who has 
been designated to perform some duty or carry out some 
specific role." Black's Law Dictionary 457 (7th ed. 
1999). (***200] [*431] We [**24] read the trial court 
order as allowing Dr. Nazareno to name, in his absence, 
an individual whose license and credentials permit him 
or her to administer the medication to respondent. This 
interpretation recognizes the reality that Dr. Nazareno 
may not always be available to personally administer the 
prescribed treatment. It also reinforces the concern of the 
legislature by ensuring that respondent's treatment is 
administered under the guidance of Dr. Nazareno, a 
qualified health care professional who is familiar with 
respondent's situation and health status. Thus, we find 
that the trial court's order complied with section 2-
107.l (a-5)(6) of the Code.
Respondent next contends that the petition did not 
comply with section 2-107_ i of the Code because it listed 
"disruptive behavior," which is no longer a statutory 
prerequisite for involuntary treatment. According to 
respondent, the inclusion of this factor in the petition 
resulted in an invalid pleading, which prejudiced him. 
We disagree.
Prior to June 2, 2000, section 2-107.1 of the Code 
authorized the involuntary administration of 
psychotropic medication if, among other things, the State 
proved by clear and convincing evidence [**25] that the 
recipient had a serious mental illness or developmental 
disability and that because of said condition, "the 
recipient exhibits any one of the following: (i) 
deterioration of his ability to function, (ii) suffering, (iii) 
threatening behavior, or (iv) disruptive behavior." 405 
ILCS 512-107.1(a)(4)(B) (West 1998). Effective June 2, 
2000, the legislature amended section 2-107.1 to delete 
the reference to "disruptive behavior." Pub. Act 91-726, 
eff. June 2, 2000 (amending 405 ILCS 512--107.1 (West 
1998)). See Jennifer H., 333 I1I. App. 3d at 431.
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In the present case, the petition to administer 
involuntary medication consisted of a preprinted form 
completed and signed by Dr. Nazareno. Among other 
things, the petition stated that respondent refuses to 
submit to treatment by psychotropic medication, that he 
lacks capacity to give informed consent, and that because 
of his mental illness, respondent "exhibits any one of the 
following; [sic] deterioration of ability to function, 
suffering, threatening behavior, or disruptive behavior." 
(Emphasis in original.) In examining the petition, it is 
apparent ["*26] that Dr. Nazareno underscored the 
terms "deterioration of ability to function," "suffering," 
and "threatening behavior." By preparing the form in this 
manner, we believe that it was Dr. Nazareno's intention 
to proceed on the petition by demonstrating that 
respondent suffered from a serious mental illness and 
that he exhibited a deterioration of his ability to function, 
suffering, or threatening behavior. It would have been 
better practice to excise the term "disruptive behavior" 
from the petition. Nevertheless, we cannot say that the 
presence of the term in the petition rendered the pleading 
invalid.
Moreover, as respondent concedes, the trial court 
did not mention the "disruptive behavior" factor in 
making its decision. Instead, the court found that the 
State had proven by clear and convincing evidence that 
respondent had experienced a deterioration in his ability 
to function, was suffering, and had displayed threatening 
behavior. Thus, we fail to see how respondent was 
prejudiced.
Next, respondent argues that the trial court's order 
must be reversed because the State failed to prove by 
clear and convincing evidence that respondent lacked the 
capacity to make a reasoned decision [**27] about the 
proposed treatment. More specifically, respondent asserts 
that the State failed [***201] [*432] to present 
sufficient evidence that he was informed in writing about 
the risks and benefits of the proposed course of 
medication.
When reviewing the sufficiency of the evidence, a 
court of appeals will reverse the fact finder's 
determination only if it is against the manifest weight of 
the evidence. In re Edward S., 298 Ill. App. 3d 162, 165, 
232 Ill. Dec. 348, 698 N.E.2d 186 (1998). A trial court's 
decision is against the manifest weight of the evidence 
only if the opposite conclusion is clearly evident. Edward 
S., 298 111. App. 3d at 165.
Section 2--] 07.1(a--5)(4)(E) of the Code (405 ILCS 
512--107.1(a--5)(4)(E) (West 2000)) provides that the 
State must prove by clear and convincing evidence that 
the recipient lacks the capacity to make a reasoned 
decision about the proposed course of treatment. Cathy 
M., 326 Ill. App. 3d at 341. To this end, the Code
requires the proposed recipient's physician or the 
physician's designee to advise the recipient in writing[] 
of the side effects, risks, and benefits of the treatment, 
[**28] as well as alternatives to the proposed treatment, 
to the extent such advice is consistent with the recipient's 
ability to understand the information communicated." 
405 ILCS 512-102(a-5) (West 2000). If the patient is not 
informed of the side effects, risks, and benefits of the 
proposed involuntary treatment, the trial court order 
authorizing such treatment must be reversed. Cathy M., 
326 Ill. App. 3d at 342; Edward S„ 298 Ill. App. 3d at 
166.
In both Cathy M. and Edward S., we reversed the 
trial court orders authorizing the administration of 
psychotropic medication because the State failed to 
present clear and convincing evidence that the respective 
respondents were informed of the risks and the benefits 
of the proposed course of treatment. Cathy M., 326 Ill. 
App. 3d at 343; Edward S., 298 Ill. App. 3d at 166. In 
Cathy M., the respondent was not given any written 
information regarding the proposed treatment. Cathy M., 
326 Ill. App. 3d at 342. In Edward S., there was hearsay 
testimony regarding the contents of a note given to the 
respondent by a doctor. [**29] However, this court held 
that this evidence was insufficient to demonstrate that the 
State provided the respondent with the necessary 
information from which he could make an informed 
decision. Edward S., 298 Ill. App. 3d at 166.
In contrast, the record discloses that Dr. Nazareno 
informed respondent in writing about the side effects, 
risks, and benefits of the proposed involuntary treatment. 
Dr. Nazareno testified that on several occasions he 
discussed psychotropic medication with respondent. 
According to Dr. Nazareno, when he tried to discuss the 
drugs he wished to administer, respondent told him he 
did not need the medication. Dr. Nazareno also testified 
that when he attempted to give respondent information 
regarding each drug, respondent told him that he "knows 
the medication." Dr. Nazareno testified that the last time 
he tried to give respondent information about the drugs 
was two or three weeks before the hearing. At that time, 
respondent stated that he [did] not need it." Thus, it 
appears that each time Dr. Nazareno attempted to present 
respondent with written information, respondent refused 
to accept the information. We cannot accept respondent's 
request [**30] that we reverse the trial court's order 
where his own actions made it impossible for Dr. 
[***202] [*433] Nazareno to accomplish his statutory 
duties. See In re Barry B., 295 Ill. App. 3d 1080, 1086, 
230 Ill. Dec. 404, 693 N.E.2d 882 (1998). Based on this 
evidence, we cannot say that the trial court's order to 
administer psychotropic medication was against the 
manifest weight of the evidence.
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Respondent next challenges the trial court's decision 
to appoint psychologist Leslie Kane as an independent 
examiner. Respondent asserts that the trial court erred in 
qualifying Kane as an expert because she lacked 
sufficient education and training in the field of 
psychiatric medicine. Alternatively, respondent argues 
that the trial court should have limited Kane's testimony 
to "non-psychiatric subjects."
Whether an individual is an expert is a matter 
generally reserved to the sound discretion of the trial 
court. People v. Miller, 173 Ill. 2d 167, 186, 219 Ill. Dec. 
43, 670 N.E.2d 721 (1996), An individual will be 
allowed to testify as an expert where his or her 
experience and qualifications provide him or her with 
knowledge that is not common to laypersons and where 
the testimony [**31 ] will aid the trier of fact in reaching 
its conclusions. People v. Henney, 334 I11. App. 3d 175, 
184, 267 ill. Dec. 681, 777 N.E.2d 484 (2002), There is 
no precise requirement as to how the expert acquires 
specialized knowledge or experience. People v. Novak, 
163 Ill. 2d 93, 104, 205 Ill. Dec. 471, 643 N.E.2d 762 
(1994). An expert may develop expertise through 
research, education, scientific study, training, practical 
experience, or a combination of each. Miller, 173 I11. 2d 
at 186; Novak, 163 Ill. 2d at 104. At least one court has 
concluded that an expert's education alone is sufficient to 
qualify him or her as an expert. In re J.7., 327 Ill. App. 3d 
70, 79, 761 N.E.2d 1249, 260 Ill. Dec. 693 (2001) 
(finding that trial court did not err in qualifying witness 
as an expert where witness had bachelor's and master's 
degrees in psychology and was working on his doctorate 
in the same field). We will not reverse the trial court's 
determination absent an abuse of discretion. Henney, 334 
Ill. App. 3d at 184.
Here, the record shows that Kane was not licensed to 
practice psychology. However, Kane testified that she 
performed the [**32] examination of respondent under 
the supervision of a licensed clinical psychologist. 
Moreover, she testified regarding her education and 
experience. Kane had a bachelor's degree in psychology 
and a master's degree in counseling psychology. At the 
time of the hearing, Kane was completing her eighth and 
final year in a doctorate program. While Kane was 
working towards her master's degree, she interned at a 
counseling agency where she worked with adolescents 
and their families. After completing her master's degree, 
Kane spent eight years at a community counseling center 
where she performed crisis intervention counseling for 
juvenile delinquents. Kane also worked as an extern at 
the Kane County Diagnostic Center and the Cook 
County jail. In September 2001, Kane started an 
internship at the Kane County Diagnostic Center. 
According to Kane, she has extensive experience with 
psychiatric and psychological patients. In addition, Kane
testified that she had previously testified in court as an 
expert. The trial court qualified Kane as an expert 
because she had previously testified in court as an expert 
witness.
Although we do not necessarily agree that the fact 
that Kane previously testified [**33] as an expert in 
court was a sufficient basis to qualify her as an expert on 
this occasion, we may affirm the result below on any 
basis that is supported by [***203] [*434] the record. 
Krilich v. American National Bank & Trust Co. of 
Chicago, 334 Ill. App. 3d 563, 573, 268 Ill. Dec. 531, 
778 N.E.2d 1153 (2002). In this case, we find that the 
combination of Kane's education, training, and 
experience provided a valid basis to qualify her as an 
expert.
Moreover, we do not accept respondent's alternate 
argument that the trial court should have limited Kane's 
testimony to nonpsychiatric subjects. As respondent 
notes in his brief, the primary difference between a 
psychiatrist and a psychologist is that the former has the 
power to prescribe controlled substances while the latter 
does not. See People v. McDonald, 186 Ili. App. 3d 
1096, 1100, 134 Ill. Dec. 759, 542 N.E.2d 1266 (1989). 
Here, although Kane testified that she believed that the 
administration of psychotropic medications would 
benefit respondent, she did not testify regarding the type 
or dosage of the psychotropic medications Dr. Nazareno 
wanted authorization to administer to respondent. 
Accordingly, we find that [**34] the trial court's 
decision did not constitute an abuse of discretion.
Respondent also claims that the admission of Kane's 
testimony deprived him of due process. According to 
respondent, the trial court should have appointed a 
psychiatrist as an independent examiner.
Section 3-804 of the Code governs independent 
examinations in mental health proceedings. That 
provision provides in relevant part:
"The respondent is entitled to secure an independent 
examination by a physician, qualified examiner, clinical 
psychologist, or other expert of his choice. If the 
respondent is unable to obtain an examination, he may 
request that the court order an examination to be made 
by an impartial medical expert pursuant to Supreme 
Court Rules or by a qualified examiner, clinical 
psychologist or other expert." (Emphasis added.) 405 
ILCS 5/3-804 (West 2000).

Whether the statute mandates the appointment of a 
psychiatrist is a question of statutory construction, which 
we review de novo. People v. Roake, 334 Ill. App. 3d 
504, 510, 268 Ill. Dec. 286, 778 N.E.2d 272 (2002). The 
primary rule of statutory construction is to ascertain and 
give effect [**35] to the legislature's intent. Regency
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Savings Bank v. Chavis, 333 Ill. App. 3d 865, 867, 267 
111. Dec. 504, 776 N.E.2d 876 (2002). Generally, the 
most reliable indicator of legislative intent is the plain 
language of the statute. In re Kenneth F., 332 IlL App. 3d 
674, 684, 266 111. Dec. 189, 773 N.E.2d 1259 (2002). 
The plain language of section 3-804 of the Code does not 
require the trial court to appoint a psychiatrist as an 
independent examiner. Rather, the statute allows the 
court to appoint an impartial medical expert pursuant to 
supreme court rules or a qualified examiner, clinical 
psychologist, or other expert. As we previously 
discussed, Kane was properly qualified as an expert.
Despite the plain language of the statute, respondent 
insists that he was deprived of due process by the trial 
court's failure to appoint a psychiatrist as his independent 
examiner. According to respondent, the trial court's 
decision to appoint a psychologist effectively foreclosed 
any chance that he could obtain a judgment in his favor. 
Citing to In re Ashley K., 212 I11. App. 3d 849, 156 Ill. 
Dec. 925, 571 N.E.2d 905 (1991), respondent contends 
that [**36] the trial court was required to accept the 
testimony of the State's psychiatric experts over any 
testimony by experts in the field of psychology that he 
presented.
In Ashley K., the trial court entered an order 
precluding the subject minor from undergoing any 
therapy and from visiting her former foster parents. In so 
acting, the trial court rejected the testimony of two child 
psychiatrists, Drs. Leventhal and (***204] [*435] 
Zinn, in favor of the testimony of two other individuals, 
the minor's therapist and Anne Brown, a licensed 
psychologist.
On appeal, the reviewing court noted that Brown 
was not a medical doctor and that at the time Brown 
testified, she had been a licensed psychologist for only 3 
1/2 years and had not seen or spoken to the minor in 
almost 3 years. Brown's testimony was based on reports 
from medical experts which Brown deemed "confusing." 
The minor's therapist had been out of school for only 1 
1/2 years and had been licensed for only 9 months. In 
addition, the court took judicial notice that another court 
had cast doubt on Brown's conclusions and held that her 
testimony was questionable because it was based on a 
test she was too inexperienced to administer. In contrast, 
Dr. [**37] Leventhal had been a medical doctor for 16 
years and had been board certified in child adolescent 
psychiatry for 10 years. Dr. Zinn had been a medical 
doctor for 20 years and board certified in child 
psychiatry for 13 years. The court then stated:
The circuit court cannot disregard expert medical 
testimony that is not countervailed by other competent 
medical testimony or medical evidence. Moreover, the 
circuit court, itself, cannot second-guess medical experts.
If the circuit court does not follow medical evidence that 
is not refuted by other medical evidence, the circuit court 
is acting contrary to the evidence." Ashley K., 212 Ill. 
App. 3d at 890.

It is this language from Ashley K. that respondent claims 
foreclosed any chance that the trial court would rule in 
his favor.
We question the applicability of this language from 
Ashley K. to the present case, First, we note that Ashley 
K. did not involve the interpretation of the Code. In fact, 
mandating the trial court to adopt the opinion of a 
psychiatrist over the opinion of a psychologist in mental 
health cases renders the independent-examination 
provision of the Code virtually meaningless. It would 
[**38] require the trial court to disregard language 
authorizing it to appoint a 'qualified examiner, clinical 
psychologist or other expert." See 405 ILCS 5/3-804 
(West 2000). This clearly ignores the plain language of 
the statute.
More importantly, however, we do not interpret 
Ashley K. to compel the trial court to accept psychiatric 
testimony over psychological testimony. In In re C.B., 
248 Ill. App. 3d 168, 188 I11. Dec. 28, 618 N.E.2d 598 
(1993), the court interpreted the passage we quote from 
Ashley K. as "reaffirming the notion that the best interest 
of the child is the paramount consideration and that 
qualified and competent medical testimony concerning 
the child for whom the custody decision is being made 
must not be disregarded when determining what is in the 
child's best interest." (Emphasis in original.) C.B., 248 
Ill. App. 3d at 179. In other words, the decision in 
Ashley K. turned on the credibility, or lack thereof, of 
the witnesses. In this regard, we believe that Kane was a 
credible, qualified individual, and her appointment did 
not predispose the trial court to rule against respondent. 
Significantly, [**39] we note that Kane's examination 
consisted of interviewing respondent for 60 to 90 
minutes, talking to respondent's case worker, and 
reviewing two to three years of respondent's records. 
Further, Kane conducted her examination just weeks 
before respondent's hearing, and her examination was 
performed under the supervision of a licensed 
psychologist_ Moreover, there is no indication that 
Kane's credentials had previously been called into 
question. These factors distinguish Kane's testimony 
from that of the witnesses in Ashley K. Accordingly, we 
conclude that the trial court did not err in appointing 
Kane as respondent's independent examiner,
[***205] [*436] Next, respondent argues that 
section 2-107.1 of the Code "was never intended to be 
applied to non-dangerous pretrial detainees." According 
to respondent, when the statute is applied to such 
individuals, it is constitutionally infirm. In this regard,
A. 9
Page 10
341 I11. App, 3d 238; 792 N.E.2d 421, *;
2003 III. App. LEXIS 856, **; 275 111. Dec. 190, ***
respondent complains that section 2-107.1 fails to take 
into consideration the seriousness of the crime charged. 
Respondent also claims that the trial court failed to 
determine whether he would be able to participate in a 
fair trial.
At the outset, we note that section 2-107.1 of the 
Code does [f*40] not exempt pretrial detainees from its 
coverage. In In re Evelyn S., 337 111. App. 3d 1096, 337 
Ill. App. 3d 1096, 788 N.E.2d 310, 273 Ill. Dec. 1, the 
Fifth District rejected the proposition that the Code of 
Criminal Procedure of 1963 (Criminal Code) (725 ILCS 
5/100-1 et seq. (West 1998)), rather than the Mental 
Health Code, governs the administration of psychotropic 
medication to pretrial detainees found unfit to stand trial. 
Evelyn S., 337 Ill. App. 3d at 1102. The court noted that 
while the Criminal Code includes procedures for the 
involuntary commitment of defendants found unfit to 
stand trial, it does not contain provisions for determining 
whether the treatment of a pretrial detainee found unfit to 
stand trial may include the involuntary administration of 
psychotropic medication. Evelyn S., 337 Ill. App. 3d at 
1104. As the Evelyn S. court aptly suggested, in the 
absence of the procedural safeguards provided by the 
Mental Health Code, there would be no procedural 
safeguards at all. Evelyn S., 337 [11. App. 3d at 1104. 
Thus, respondent's argument that section 2-107.1 does 
not apply to pretrial detainees is not well taken- [**41]
In addition, we find little merit in respondent's 
argument that the. application of section 2-107.1 deprived 
him of his constitutional right to a fair trial. In support of 
his position, defendant cites principally to United States 
v. Comes, 289 F.3d 71 (2d Cir. 2002), vacated & 
remanded,	 U.S.	,	 L. Ed. 2d	_ S. Ct.
(2003), United States v. Sell, 282 F.3d 560 (8th Cir. 
2002), vacated & remanded, 539 U.S. _, 156 L. Ed. 2d 
197, 123 S. Ct. 2174 (2003), and United States v. 
Brandon, 158 F.3d 947 (6th Cir. 1998). In Games, Sell, 
and Brandon, the courts addressed whether the 
government could forcibly administer psychotropic 
medication for the sole purpose of rendering a detainee 
competent to stand trial. Gomes, 289 F.3d at 75; Sell, 
282 F.3d at 562; Brandon, 158 F.3d at 949. The Supreme 
Court recently reviewed the decision in Sell, and held 
that the Constitution permits the involuntary 
administration of psychotropic medication for the sole 
purpose of rendering a defendant competent to stand trial 
"if the treatment is medically [**42] appropriate, is 
substantially unlikely to have side effects that may 
undermine the fairness of the trial, and, taking account of 
less intrusive alternatives, is necessary significantly to 
further important governmental trial-related interests."
Sell, .539 U.S.	L.	Ed. 2d	 	, 156 L. Ed. 2d
197, 123 S. Ct. 2174, 2184 (2003). See also Games, 156 
L. Ed. 2d 625. 123 S. Ct. 2605, 2003 U.S. LEXIS 4810
(vacating the decision of the lower court and remanding 
for further consideration in light of Sell).

Here, the trial court was not asked to decide whether 
respondent could be subject to the involuntary 
administration of psychotropic medication solely for the 
purpose of rendering him competent to stand trial. 
Indeed, the record is barren of any evidence that the 
petition to administer psychotropic medication was filed 
solely for the purpose of fitness for trial. Moreover, 
respondent never argues that the purpose of the State's 
petition was to render him fit for trial. Instead, the trial 
[***206] [*437] court reviewed each of the factors 
listed in section 2--107.1(a--5)(4) of the Code (405 ILCS 
512-107.1(a)(4) [**43] (West 2000)) and found that the 
State proved each factor by clear and convincing 
evidence. The court found that respondent suffered a 
mental illness, the result of which resulted in a 
deterioration of his ability to function, suffering, and 
threatening behavior. Moreover, the court found that the 
benefits of the proposed treatment outweighed the harm 
and that less restrictive alternatives were inappropriate. It 
is evident that the trial court granted the State's petition 
because it found the involuntary administration of 
psychotropic medication to be medically appropriate. 
Notably, in rendering its decision the trial court never
mentioned respondent's fitness to stand trial. 
Accordingly, respondent's reliance on Gomes. Sell, and 
Brandon is misplaced, and we reject respondent's 
constitutional challenges. See United States v. Keeven, 
115 F. Supp. 2d 1132, 1137 (E.D. Mo. 2000) (finding 
procedural safeguards outlined in Brandon inapplicable 
where purpose of petition was to manage and prevent the 
recipient's dangerousness).
Lastly, respondent urges reversal of the trial court's 
order on the basis that the attorney in his criminal trial 
was not notified [**44] of the hearing on the petition. 
Section 2--107.1(a--5)(1) of the Code (405 ILCS 512-
107.1(a--5)(1) (West 2000)) provides that "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 
the guardian, if any." Although the statute does not 
require notice to the attorney representing the respondent 
in a criminal trial, respondent asserts that "notions of 
fundamental fairness and due process" require 
notification of his criminal defense attorney. Respondent 
asserts that information regarding a client's regimen of 
psychotropic medication can be crucial to the criminal 
defense attorney at hearings on his client's fitness.
A criminal defendant is presumed fit to stand trial. 
725 ILCS 51104-10 (West 2000); People v. Easley, 192 
Ill. 2d 307, 318, 249 Ill. Dec. 537, 736 N.E.2d 975 
(2000). Once a criminal defendant is found unfit to stand
A. 10
Page 11
341 I11. App. 3d 238; 792 N.E.2d 421, *;
2003 Ili. App. LEXIS 856, **; 275 Ili. Dec. 190, ***
trial, the defendant must be found fit before any trial can 
occur. In this regard, the Criminal Code requires the 
defendant's treatment supervisor to submit [**45] to the 
defense a written progress report containing information 
regarding, inter alia, the type, the dosage and the effect 
of the medication on the defendant's appearance, actions 
and demeanor." 725 ILCS 5/104-18 (West 2000). This 
information must be presented to the defense under 
certain circumstances, including prior to the date for any 
hearing on the issue of the defendant's unfitness or when 
the treatment supervisor believes that the defendant has 
attained fitness. Thus, contrary to respondent's argument, 
the Criminal Code contains a provision requiring 
notification to a criminal defendant's attorney regarding
his or her client's drug treatment. Although this notice 
comes after the decision to involuntarily administer 
psychotropic medication has been made, it resolves 
respondent's concern that the criminal defense attorney 
be aware of a respondent's drug regimen prior to any 
further proceedings on the respondent's fitness.

III. CONCLUSION
For the reasons stated above, we affirm the 
judgment of the circuit court of Kane County.
Affirmed.
BOWMAN and BYRNE, II., concur.
A. 11
ILLINOIS SUPREME COURT 
JULEANN HORNYAK, CLERK
SUPREME COURT BUILDING
SPRINGFIELD, ILLINOIS 62701	! RECEIVED OCT 0 9 Z
(217) 782-2035	:1
October 7, 2003
Mr. William J. Conroy, Jr. 
Legal Advocacy Service 
Rockford Regional Office 
4302 N. Main St.
Rockford, IL 61103-5202
No. 96773 - In re Robert S., etc. (People State of Illinois, 
respondent, v. Robert S., petitioner). Leave to 
appeal, Appellate Court, Second District.
The Supreme Court today ALLOWED the petition for leave to 
appeal in the above entitled cause.
We call your attention to Supreme Court Rule 315(g) con-
cerning certain notices which must be filed.
96773
A. 12
.++..+4d vl yyL1A1V1u
CIRCUIT COURT FOR THE 16TH JUDICIAL CIRCUIT
KANE COUNTY
ORDER FOR THE AUTHORIZED INVOLUNTARY TREATMENT
Clerk of the Circ • Court
Kane County. IL
FEB 0 1 2002
IN THE MATTER OF: ROBERT S	01 MH 261
It is hereby ordered that:
{	j The petition is denied.

[	] The matter is continued until:

{	] The petition is granted, and ROBERT S	shall receive	psychotropic
medication to be administered by ,O!	 (or designee 
whose license and credentials permit) at Elgin Mental Health Center for a 
period not to exceed 90 days.
	ilI	L4 '0L
	'~	0.).2.w4-_
Iii di l r7~; /L
	)4 A-Lei)	c-coil) 6'	-
The necessary testing and lab procedures to be authorized are:
It is further ordered that:
Date: 02/01/2002	Enter:	 
Judge
NOTICE TO PERSONS RECEIVING THIS ORDER
If you are affected by or interested in this order you should know that:
1. A final order of the Court may be appealed. The court must notify the 
respondent of the right to appeal and the indigent's right.to free 
transcripts and counsel. If the client wishes to appeal and cannot obtain 
counsel, counsel will be appointed by the court. Notice of appeal must be 
filed with the Clerk of the Court within thirty (30) days of this order.
2. An order authorizing administration of psychotropic medication is valid for 
no more than 90 days.
3. If the res_ucndant's treatment needs change, then upon proper method of 
review the court may modify this order.
C
FILED 444
This matter coming to be heard on the petition of DR. ROMULO NAZARENE	ENTERED 
for administration of psychotropic medications.
The medications authorized to be administered area,	,
-	r''y(•/	D'	t' /;.e! G
y; L
	e-el	C i	f
i-i,i	7-
MNDD-25. EMHC, 011301 ref: 405 ILCS 5, sections 2-107.1, 3-300 et. seq.
0C
s
Ref.:405 ILCS 512-107.1
Pt i i iION FOR ADMINISTRATION OF AUTHORIZED INVOLUNTARY TREATMENT
STATE OF ILLINOIS
CIRCUIT COURT FOR THE	JUDICIAL CIRCUIT
	COUNTY
IN THE MATTER OF	)
R	fs	
v 2-r		)
DOCKET NUMBER I
r
Who is alleged to be a person who has mental itlness/deyelopmental disability and for whom this petition for 
(circle either one or both)

administration of authorized involuntary treatment is initiated for the following reasons (briefly explain reasons individual 
meets the criteria for each of the following):

	1.	The individual has refused to submit to treatment byetropic medico o r electro
convulsive therapy; and	(circle either one or bothE

	f	f The individual lacks capacity to give informed consent; and	-.
G ~~
That because of said mental illness or developmental disability, the individua( exhibits aGy oneaf thec 
following, deterioration of ability to function, suffering, threatening behavi r,-ardisruptive-behavior, and
r,
That the illness or disability has existed fora period marked by the continuing presence of the ;symptoms 
set forth in item (2) above, or the repeated episodic occurrence of these symptoms; ant

That the benefits of the treatment clearly outweigh the harm; and	I	,.„

5.	That the individual lacks the capacity to make a reasoned decision about the treatment; and

9. ~	That other less restrictive services were explored and found Inappropriate.

7	The petition seeks authorization for testing and other procedures, that said testing and procedures are 
essential for the safe and effective administration of treatment.

The petitioner has made a good faith attempt to determine whether the individual has executed a Power of 
Attorney for Health Care Law or a declaration for mental health treatment under the Mental Health 
Treatment Preference Declaration Act. If either of the above are available, they are attached to the 
Petition_


WHEREFORE, The Petitioner requests the court for an order authorizing the clinical staff member

	0 late a	-0:	rP~Jt,c Fl 0 at the	III-	facility/hospital to administer one or
(Osychiatrist name)	(name of institution)

pore of the below rusted checked options to the individual	1	6	
(individual's name)


1 r,	r,-i,Yrn+n.	,..
To administer psychotropic medication to the individual for	'! 0	days (not to exceed 90 days)
Psychotropic medications to be given to the individual.
1st Choice	`y`~	 
Name of Medication
Alternatives -	- JA4.	o -Q	~~	-	
Name of Medication
11115?k2	'Utl Nflp.
~J	Name of Medication 
Name of Mediation
TESTING (If applicable)
ELECTRO CONVULSIVE THERAPY
To administer electro convulsive therapy to the individual for	 ys (not to exceed 90 days) 
treatments.
electro convulsive maintenance treatment will be given to the individual within
The initial number of treatments to be administergd-w
ice CY r;;+t
- -	.1. ,_.J
Dosage Range 
Dosage Rarfg'e
6t!'l4 U.Stni}`:'l

	'2- 0 0
as~  	&
❑	e Range
	O~
6s ge Rt ge 
9
Specific testing and procedures necessary to administer the above are as following:
I have read and understood this Petition and affirm that the statments made by me are true to the best of my knowledge. I 
affirm that I advised the individual, in writing, of the risks and benefits of the proposed treatment.

Dated:	A) rv i 16) yO 0 1	- Signed: 
Address:
r2-
M /	} 7'	
/ t	60/2,	
Relationship to Respondent:
(formerly MHDD-25) 
IL462-2025 (R-1-00)
Page 2
TABLE OF CONTENTS OF RECORD ON APPEAL
Instruments	. Filing Dates	Page Nos.

Title 	Cl
Petition for Psychotropic Medication (11-19-01) 	C2-3
Revised General Order 97-18 (11-19-01) 	C4-5
Notice of Hearing to Kane County State Attorney (11-20-01) 	C6
Notice of Hearing to Guardianship & Advocacy Commission (11-20-01) 	C7
Notice of Hearing to Robert S. (11-20-01) 	C8
Notice of Hearing to Romulo Nazareno, M.D. (11-20-01) 	C9
Order Continuing Hearing (11-26-01) 	C10
Notice of Motion (11-30-01) 	C 11
Motion to Reconsider (11-30-01) 	C12-13
Minute Order (11-30-01) 	C14
Order on Motions and Continuance (11-30-01) 	C15
Order Continuing Hearing (12-21-01) 	C16
Order Continuing Hearing (1-4-02) 	C17
Minute Order (1-18-02) 	C18
Order Continuing Hearing (1-18-02) 	C I9
Subpoena (1-25-02) 	C20-21
Subpoena (1-25-02) 	C22-23
Subpoena (2-1-02) 	C24-25
Minute Order (2-1-02) 	C26
Order for Authorized Involuntary Treatment (2-1-02) 	C27
Order Providing Transcript (2-20-02) 	C28
Motion to Reconsider (3-1-02) 	C29-36
Order Denying Motion to Reconsider and Appointing GAC (3-8-02) 	C37
Order (3-8-02) 	C38
Notice of Appeal (3-8-02) 	C39
A. 16
REPORT OF PROCEEDINGS 
November 30, 2001

Respondent's Motions to Reconsider Motion to Proceed Pro Se 
and for Independent Examination (R.11/30 1-9)


January 4, 2002

Respondent's Second Motion to Reconsider Motion to Proceed Pro Se 
and the State's Motion to Continue (R.1/4 1-9)
January 18, 2002
	
	
	
	
	
Trial Witness
	
	Page No.
	
	
				
	Direct

	Cross	Redirect
	Reopen
	Cross
Romulo Nazareno, M.D.
	12-23,41
	69
	139
	141
Kelli Childress
	24
	36
	
	
Lesley Kane
	93
	125
	
	
Mark Thomas
	145
	168
	
	
February 1, 2002
	
	
	
	
Trial Witness
	
	Page No.
	
	
				
		
		
	Direct

	Cross	Redirect
	Re-Cross
	
Denise Dojka
	6
	26	42
	49
	
Becky Mitchell
	50
	58	61
	
	
Jose Padilla
	63
	68	70
	71
	
March 8, 2002
	
	
	
	
Respondent's Motion to Reconsider Order for Authorized Involuntary Treatment (R.318 1-14)
A. 17