Mental Health Procedures – Illinois only

Mental Health Procedures:

• Admission
• Discharge
• Medication/Treatment
• Rights of Minors

NOTE:Unless otherwise noted all citations are to the Illinois Mental Health Code, 405 ILCS 5/1-1 et. seq.

INTRODUCTION

These proceedings should not be conducted pro forma. Fundamental liberty interests are involved in proceedings under the Code. The Code's procedural safeguards are not mere technicalities but essential tools to safeguard these liberty interests. Accordingly, those procedural safeguards are construed strictly in favor of the respondent and must be strictly complied with. The petitioner bears a substantial burden of proof that the trial judge should force the petitioner to meet with real, clear, and convincing evidence before the court enters an order infringing on the respondent's important liberty interests.

- In re John R., 339 Ill.App.3d 778 (5^th Dist. 2003)

DEFINITIONS

Discharge:   Means the release of any person admitted or otherwise detained under this Act from treatment, habilitation, or care and custody. §5/1-109

Mental Health Facility:   Means any licensed private hospital, institution, or facility or section thereof, and any facility, or section thereof, operated by the State or a political subdivision thereof for the treatment of persons with mental illness and includes all hospitals, institutions, clinics, evaluation facilities, and mental health centers which provide treatment for such persons. §5/1-114

Minor:   Means a person under 18 years of age. §5/1-117

Recipient:   Means a person who has received or is receiving treatment or habilitation services. §5/1-123

Treatment:    Means an effort to accomplish an improvement in the mental condition or related behavior of a recipient. Treatment includes, but is not limited to, hospitalization, partial hospitalization, outpatient services, examination, diagnosis, evaluation, care, training, psychotherapy, pharmaceuticals, and other services provided for recipients. §5/1-128

PROCEDURAL PROTECTIONS/ NOTICE REQUIREMENTS

I. NOTICE OF RIGHTS – Upon commencement of services, or as soon thereafter as the condition of the recipient permits, every recipient who is 12 years or older and the parent or guardian of a minor or person under guardianship shall be informed orally and in writing of their rights.  Every facility shall post a summary of the relevant rights in a public area of that facility.     §5/2-200(a) (emphasis added).

II.  RECIPIENT’S RIGHT TO DESIGNATE PERSON TO RECEIVE NOTICE – a recipient who is 12 years or older and the parent or guardian of a minor or a person under guardianship can at any time designate a person or agency to receive notice or information about the recipient. §5/2-200 (b)

III. NOTIFICATION OF INTERESTED PARTIES – Upon the commencement of services the mental health facility must ask the recipient whether the recipient wants the mental health facility to contact a spouse, parents, guardian, close relatives, friends, attorney, advocate from Guardianship and Advocacy, or others to inform them of the recipients’ admission. The mental health facility must contact at least 2 of the people named by mail or telephone. §5/2-200 (c) (emphasis added).

IV. STATEMENT OF RIGHTS PRIOR TO EXAMINATION – Whenever a petition is filed for involuntary admission of adults or a petition to review admission of a minor, and prior to the examination for the purpose of certification of a person 12 or older, the person conducting this examination shall inform the person being examined of  (1) the purpose of examination, (2) that he does not have to talk to the examiner, (3) statements made can be used at court proceedings on the issue of whether he is subject to involuntary admission.   If the person being examined is not informed of these rights, the examiner is not permitted to testify at subsequent court hearings.  §5/2-208 (emphasis added).

V. INDEPENDENT EXAMINATION – At a hearing that seeks to subject respondent to involuntary admission or treatment, respondent is entitled to secure an independent examination by a physician, qualified examiner, clinical psychologist or other expert of his choice.  §5/3-804

CASE LAW (What is an “expert”?): The Illinois Supreme Court found that the legislature intended that the court appoint an independent expert appropriate for the nature of the proceeding.  Therefore, the appointment of an unlicensed intern with a master’s degree in psychology was not appropriate in a hearing to subject a person to involuntary treatment.  The potentially harmful side effects of psychotropic medications were beyond the intern’s expertise and required a “medical expert.”  In re Robert S., 213 Ill.2d 30 (2004).

ADMISSION AND DISCHARGE OF ADULTS

I.  ADMISSION

A.  Informal:

Any person may be admitted to a mental health facility through an “informal” admission, where the director of the facility considers that person “suitable for admission” on an informal basis. This procedure does not require a formal voluntary application.  Each recipient admitted under this section shall be informed in writing and orally at the time of admission of their right to be discharged at any time during normal day shift hours. §5/3-300

B.  Voluntary:

1.  Form:

Any person age 16 or older may be admitted to a mental health facility as a voluntary recipient for treatment.   §5/3-400

2. Execution:

The person seeking admission, if 18 or older, or any interested party at the request of the person seeking admission, if 18 or older, may execute the application for admission as a voluntary recipient.  In addition a minor, 16 or older may execute the application himself.  The minor will be treated as an adult and subject to all the provisions under Article IV (Voluntary Admission of Adults).  The minor’s parent, guardian or person in loco parents shall be immediately informed of the admission.   (emphasis added).

C. Involuntary:

In order to proceed with a court hearing for the purpose of involuntary hospitalization, the following steps must be taken and followed strictly. Unless the documents are dated and prepared properly, the petition will be dismissed and the patient ordered discharged. There are two possible procedures for subjecting an individual to involuntary commitment, Emergency Admission by Certification (§5/3-600) and Involuntary Admission Upon Court Order (§5/3-700)

1. The Requirements for Both Articles 600 and 700

a. In either procedure a petition must be filed asserting that person is subject to involuntary admission and that “immediate hospitalization is necessary” for the protection of such person or others from physical harm.  § 5/3-601(a)

b. The Petition shall include all of the following:

(1) Reasons:

A detailed statement of the reason for the assertion that the respondent is subject to involuntary admission.

(2) Contacts/Family:

The name and address of the spouse, parent, guardian, substitute decision maker, if any, and close relative, or if none, the name and address of any known friend of the respondent whom petitioner believes may know other names and addresses, If petitioner is unable to provide such names and addresses petitioner shall state that due diligence was made to learn this information.

CASE LAW: Courts require that a petition conform to each of these specifications, but will look to the petition as a whole to determine due diligence, instead of simply looking for a statement.   In re Denise C., 348 Ill.App.3d 889 (1^st Dist. 2004) 

(3) Relationship of Petitioner:

Petitioner’s relationship to respondent and a statement as to whether petitioner has a legal or financial interest in the matter or is involved in litigation with the respondent.

(4) Witnesses:

The names and phone numbers of the witnesses by which the facts asserted may be proved.

2. Emergency Admission by Certification (§5/3-600)

A person 18 years or older who is subject to involuntary admission and in need of immediate hospitalization may be admitted to a mental health facility pursuant to this Article.  Any person 18 years of age or older may present a petition to the facility director of a mental health facility in the county where the respondent resides or is present.  The facility director may prepare the petition.

a. Certificate of Physician, Qualified Examiner, or Clinical Psychologist:

The petition shall be accompanied by a certificate executed by a physician, qualified examiner, or clinical psychologist, who personally examined the respondent 72 hours prior to admission.  It shall also contain clinical observations and facts relied upon in reaching a diagnosis and indicate whether respondent was advised of his rights. 

CASE LAW: A person alleged to be subject to involuntary admission cannot be detained, taken into custody, or admitted unless both the petition and certificate have been executed.  An order for involuntary admission is void where the certificate was executed 1 hour and 20 minutes after the petition.  In re Linda W., 349 Ill.App.3d (5^th Dist. 2005)

b.  Detention Pending Certificate:

In the event that there is no qualified examiner, physician or clinical psychologist immediately available, the respondent may be detained for examination in a mental health facility upon petition alone if the petition further specifies:

(1) Petitioner believes as a result of personal observation that respondent is subject to involuntary commitment;

(2) A diligent effort was made to obtain a certificate;

(3) No qualified examiner, physician or clinical psychologist could be found who has examined or could examine respondent; and

(4) A diligent effort was made to convince respondent to appear voluntarily for examination, unless petitioner believes such an effort would impose a risk of harm to the respondent or others.

Procedural Safeguards:   No person can be detained for examination on the basis of petition alone for more than 24 hours unless within that period a certificate is furnished by the mental health facility.  If no certificate is furnished, respondent shall be released.

c. Examination by psychiatrist:

No later than 24 hours after admission, excluding Saturdays, Sundays and holidays, the respondent must be examined by a psychiatrist, but he or she shall not be the person who executed the first certificate.  If no certificate is furnished, the respondent shall be released.

d. Notice of Rights:

Within 12 hours of admission, the recipient must be provided with a copy of the petition and a statement of rights. The server must sign the petition in the area indicated.  Within 24 hours, excluding Saturdays, Sundays, and holidays, after admission, a copy of the petition and statement of rights shall be filed and given to the respondent’s attorney or guardian.

CASE LAW: The statute governing the time for filing petition for civil commitment creates a bright-line test with which the facility director must strictly comply.   Petition is invalid where filed more than 24 hours after a patient was admitted to hospital.  In re Demir, 322 Ill.App.3d 989 (4^th Dist. 2001)

CASE LAW: HOWEVER, the 24 hour period does not start until the respondent enters the psychiatric unit.  Admission to the emergency room is not relevant in calculating the 24 hours. In re Moore, 301 Ill.App.3d 759 (4^th Dist. 1998)

CASE LAW: Dismissal without prejudice of untimely petition does not re-start the 24-hour period for the state to file and serve petition where the patient was never discharged after dismissal of the first petition.   In re Nancy A., 342 Ill.App.3d 355 (5^th Dist. 2003)

CASE LAW: Despite the compelling need for strict compliance with involuntary procedures, failure to comply with the notice provisions is harmless error where respondent did not object at the hearing and there was no prejudice by the lack of notice. In re Jill, 336 Ill.App. 3d 956 (4^th Dist. 2003)

e. Notice of Hearing:

When filing the petition and the first certificate the Clerk of the Court will give two notices which must be served on the recipient and any two individuals that the recipient desires. The recipient must be asked which two individuals he/she would like served. Proof of service must be filed with the court. The Court shall set a hearing within 5 days, excluding Saturday, Sunday, and holidays, after receipt of the petition.  Upon completion of the second certificate, the facility director shall promptly file it with the clerk.

3. Involuntary Admission Upon Court Order (§5/3-700)

A person 18 years or older who is subject to involuntary admission may be admitted to a mental health facility under court order pursuant to this Article.  Any person 18 years or older may execute a petition asserting another person is subject to involuntary admission.  The Court may inquire of the petitioner whether there are reasonable grounds that the facts alleged are true.  This inquiry can proceed without notice to the respondent only if petitioner alleges facts showing an emergency exists.

a. Certificate of Physician, Qualified Examiner, or Clinical Psychologist:

The petition may be accompanied by a certificate executed by a physician, qualified examiner, or clinical psychologist.  If no certificates are filed, then respondent must be examined twice, once by a psychiatrist and once by either a physician, qualified examiner, clinical psychologist or psychiatrist.    If certificates are executed, they shall be promptly filed with the court.

b. Detention Pending Certificate:

The respondent shall be permitted to remain in his or her place of residence pending any examination.  If the examination is ordered, respondent and his attorney or guardian are given 36 hours notice (personal service), as to the order and statement of rights.

The Court, however, can order the respondent to be admitted to a mental health facility pending examination, if the Court finds it necessary in order to complete the examination.  If this occurs, the notices described can be delivered at the same time as the court order.

Procedural Safeguards:   No person can be detained for  examination under this Section for more than 24 hours.  The person shall be released upon completion of examination unless a certificate is executed.  

Any respondent transported to mental health facility for an examination has a right upon arrival to notify at least two individuals of his detention and upon admission to complete two phone calls.

Within 24 hours, excluding Saturdays, Sundays, and holidays, after admission, the facility will send the petition and notice to at least two people designated by respondent.

c. Notice of Rights:

Within 12 hours of admission the recipient must be provided with a copy of the petition and a statement of rights. The server must sign the petition in the area indicated.  Within 24 hours, excluding Saturdays, Sundays, and holidays, after admission, a copy of the petition and statement of rights shall be given to the respondent’s attorney or guardian.

d. Notice of Hearing:

The Court shall set a hearing to be held within 5 days, excluding Saturdays, Sundays, and holidays, after its receipt of the second certificate or after the respondent is admitted to a mental health facility, whichever is earlier. 

4. Order for Treatment or Discharge

(Both Article VI and VII).  If the respondent is not found subject to involuntary admission, the court shall dismiss the petition and order the respondent discharged.  If respondent is subject to involuntary admission, then the court will enter an order so specifying. If the recipient has been found by the court to be subject to involuntary admission, the commitment is for a period not to exceed one hundred and eighty (180) days.

D. Transportation:

The Court can order a peace officer to take a person into custody and transport him to a mental health facility under either Article VI or Article VII and if as a result of personal observation and testimony in open court, any court has reasonable grounds to believe a person before it is subject to involuntary admission and is in need of immediate hospitalization to protect such person or others. §5/3-607

A peace officer may take a person into custody and transport him to a mental health facility, when as a result of personal observation the officer believes the person is subject to involuntary admission. §5/3-606

CASE LAW: The officer is then required to file the petition under section 3-601.  The Courts have reversed involuntary admissions where the officer failed to file the petition.  In re Demir, 322 Ill. App.3d 989 (4^th Dist. 2001)

E.  Miscellaneous:

If the recipient signs a voluntary admission after the petition has been filed a copy of that voluntary admission must be sent to the clerk’s office. If the recipient is discharged prior to the court hearing a copy of the discharge must be sent to the clerk’s office.

II. DISCHARGE

A.  Voluntary:

1.  Inquiry:

If a voluntary recipient is still in the mental health facility, on or before the 30^th day the recipient must be asked whether he/she wishes to remain as a voluntary. If the recipient says yes, it must be noted in his/her record and he/she then can remain up to sixty (60) days. The same procedure must again be followed before the end of the 60 days. If the voluntary recipient remains mute or asks to be discharged, a petition and two certificates must be filed in the clerks office on or before the 30^th day. The same procedure must be followed regarding service of notice.

2.  Request for Discharge:

A voluntary recipient may sign a five (5) day request for discharge. The recipient must then be discharged within 5 days, excluding weekends and holidays, unless the procedures for involuntary admission are initiated. If the facility elects to initiate involuntary admission procedures to retain the recipient a petition and two (2) certificates must be filed on or before the 5^th day, not including Saturdays, Sundays, and Holidays.

B. Informal:

An informal recipient has the right to be discharged from the mental health facility at any time during normal daily day shift hours of operation, which shall include but need not be limited to 9 a.m. to 5 p.m.. This right commences on the first day-shift hours of operation after admission.

C.  Involuntary:

If a recipient has been found by a court to be subject to involuntary hospitalization, this commitment is for a period not to exceed 180 days. If the recipient continues to be of need of further hospitalization, on or before the 180 days a petition and two certificates must be filed in the clerk’s office. However, the involuntary recipient also has the right to sign for a voluntary admission at the end of the 180 days and continue treatment.

1.  Petition for Discharge:

Any person hospitalized under these procedures, or any person on his behalf, may file a petition for discharge at any time.

2. The Court will then set a hearing within 5 days, excluding Saturdays, Sundays, and holidays.  Notice requirements similar to involuntary admission process apply.

3.  If the Court determines that the recipient continues to be subject to involuntary commitment, no new petition can be filed without leave of the Court.

CASE LAW:  At the discharge hearing a patient makes a prima facie case for discharge where she testified that she was not harmful to herself and could take care of herself.  State is required to present clear and convincing evidence to refute patient’s case or patient must be discharged.  In re Bates, 315 Ill.App.3d 736 (3^rd Dist. 2000)

ADMISSION AND DISCHARGE OF MINORS

I. OUTPATIENT SERVICES

A minor 12 or older can request and receive 5 counseling sessions (Each not to exceed 45 minutes) on an outpatient basis without the consent of any adult.   The mental health facility cannot inform the minor’s parent, guardian or person in loco parents    unless the facility director believes such disclosure is necessary.  If the mental health facility director intends to disclose information about the counseling services, the director must inform the minor.  The minor’s parent, guardian or person in loco parents will not be financially responsible for the costs of the counseling services. §5/3-501

II. ADMISSION

A. Involuntary:

1. Upon Application of Parent or Guardian:

Any minor may be admitted to a mental health facility for inpatient treatment upon application to the facility if it is found that the minor “has a mental illness or emotional disturbance of such severity that hospitalization is necessary and that the minor is likely to benefit from inpatient treatment.”   §5/3-503

2. Emergency Admission:

A minor eligible for admission under §5/3-503 and who is in such a condition that immediate hospitalization is necessary may be admitted upon the application of a parent or guardian, or person in loco parents, or of an interested person 18 years of age or older when, after diligent effort, the minor’s parent, guardian or person in loco parents cannot be located or refused to consent to the admission.  §5/3-504

3. ANCRA:

Section 5 of the Abused and Neglected Child Reporting Act, 325 ILCS 5/1 et seq, (“ANCRA”) allows a physician treating a child to take temporary protective custody without the consent of the person responsible for the child's welfare if:

a. The physician has reason to believe that continuing the child in his or her place of residence or in the care and custody of the person responsible for the child's welfare presents an imminent danger to that child's life or health; and

b. There is not time to apply for a court order under the Juvenile Court Act for temporary custody of the child. 

Under Section 5, a physician who takes protective custody must make every effort to notify the child's caretaker, DCFS, and the hospital administrator. 

Once the hospital takes PC, the administrator becomes the temporary custodian with authority to consent to emergency medical treatment and provide care, shelter, and nourishment to the minor.  Whenever acting in good faith, a hospital that takes protective custody is cloaked in full immunity from civil and criminal liability.

4.  Notice of Rights:

The application for admission under §5/3-503 or §5/3-504 shall contain in large, bold-face type a statement in simple nontechnical terms of the minor’s objection and hearing rights.  A minor 12 years of age or older shall be given a copy of the application and his right to object shall be explained to him in an understandable manner.  A copy of the application shall also be given to the person who executed it, to the minor’s parent, guardian or person in loco parents, and attorney, if any, and to 2 other persons whom the minor may designate.  §5/3-505

5.  Review of Records/Authorization for Treatment:

Thirty days after the admission of a minor under §5/3-503 or §5/3-504, the mental health facility director shall review the minor’s record and assess the need for continued hospitalization.  The director shall consult with the person who executed the application for admission if continued hospitalization is indicated and request authorization for continued treatment of the minor.  The request and authorization must be noted in the record.  Every 60 days thereafter a review will be conducted and a new authorization will be secured for the duration of the hospitalization.  Failure or refusal to authorize continued treatment constitutes a request for the minor’s discharge.  §5/3-506

B. Voluntary:

1.  Admission by the Minor:

A minor who is 16 or older may request his or her admission without parental consent.  A minor so admitted will be treated as an adult under Article IV and be subject to all provisions of that article.  The law requires, however, that the parent or guardian be informed of the admission. §5/3-502

2.  Notice of Rights:

Upon commencement of services, or as soon thereafter as the condition of the recipient permits (At least within 12 hours), every recipient, age 12 or older and the parent/guardian of a minor or recipient under guardianship, shall be informed orally or in writing of their rights.  §5/2-200(a)

III. OBJECTION TO ADMISSION

A. Objection by the Minor or Interested Person 18 or Over:

An interested person 18 or over or a minor who is 12 or older and admitted on the application of another person may object to the admission.  The objection must be in writing and sent to the facility director.  Once the objection is received, the minor should be discharged within 15 days, excluding Saturdays, Sundays and holidays unless:

1. The minor withdraws the objection in writing, or

2. The mental health facility files a petition and 2 certificates with the court for the review of the admission.  The certificates must be executed pursuant to §5/3-703 (Article VII).  This petition must be filed within 15 days. §5/3-507

B. Objection by Parent or Guardian:

§5/3-507 If the parent or guardian or person in loco parents requests discharge, the minor must be discharged within 5 days* to the custody of that person unless:

1. The minor is 12 or older and objects to the discharge; or

2. The mental health facility files a petition and 2 certificates with the court for the review of the discharge.  This petition must be filed within 5 days*. §5/3-508

*Note: Section 5/3-508 does not exclude Saturdays, Sundays and holidays from the calculation of the 5-day period.  Because other portions of the statute specifically state that the time limit for filing a petition excludes such days, we believe the omission is intentional and that the petition must be filed within 5 calendar days. 

C.  Petition For Review:

Once the mental health facility files a petition, the court shall appoint counsel for the minor and set a hearing to be held within 5 days, excluding Saturdays, Sundays and holidays.   §5/3-509

IV.  OTHER DISCHARGE ISSUES

A. DCFS’s Refusal to Accept Lockout Cases:

Unwillingness of the minor’s parent, guardian, or person in loco parents to provide for his care or residence shall not be grounds for the court’s refusing to grant discharge. 

Mental health facilities are in an extremely difficult position when the minor’s condition has stabilized and the minor is ready for discharge but the parent or guardian refuses to pick the child up from the hospital. Ideally DCFS would immediately become involved in these “lockout” situations by filing petitions with the juvenile court, assuming temporary custody of the minor, and placing the child in suitable post-discharge placements.  Oftentimes, however, DCFS refuses to become involved, claiming the child is not its responsibility.  

ADMINISTRATION OF PSYCHOTROPIC MEDICATION

I. RIGHT OF REFUSAL

If treatment includes the administration of psychotropic medication the physician must advise the recipient, in writing, of the side effects of the medication. An adult recipient, or if the recipient is under guardianship, must advise the recipient’s guardian, must be given the opportunity to refuse such services. §5/2-107

A.  Emergency:

If refused, medication must not be given unless in an emergency to prevent the recipient from causing serious and imminent harm to the recipient or others.  In an emergency, medication administered for up to 24 hours and the circumstances leading to the emergency administration must be set forth in writing in the recipient’s record. The medications may not be continued beyond 24 hours unless the need for such medication is redetermined at least every 24 hours based upon a personal examination by a physician or a nurse. Such medications may not be administered for longer than 3 consecutive days, excluding Saturdays, Sundays and holidays, unless a mental health facility petitions the court for an order.

Under no circumstances may “long acting psychotropic medications” be admitted under this section.  (Any psychotropic medication where a single dose has an intended clinical effect of at least 48 hours.)

II. COURT ORDERED ADMINISTRATION

If a recipient refuses psychotropic medication any person 18 years of age or older may petition the court for the administration of psychotropic medications against a recipient’s will. In order to obtain such an order the following steps must be followed. § 5/2-107 & §5/2-107.1

CASE LAW: The procedures described herein are not mere technicalities and will result in reversal of orders of involuntary administration of medication.   In re O.C., 338 Ill.App3d 292 (4^th Dist. 2003)(holding that failure to file petition and provide notice, as well as failure to prove all seven factors by clear and convincing evidence required reversal of court’s order for medication)

A.  Petition for Authorization of Involuntary Treatment:

The petitioner must deliver a copy of the Petition for Administration of Authorized Involuntary Treatment to the circuit court. The petition must state that petitioner made a good faith effort to attempt to determine whether the recipient has an executed a power of attorney for health care or a declaration for mental health treatment and to obtain copies of them. If the instruments are available, they must be attached to the petition.  The matter will be set for a hearing.

B.  Notice:

Petitioner must also provide a copy of the petition, plus a notice of the date and time of the hearing to the respondent, the respondent’s attorney, any known agent or attorney-in-fact, and the guardian (if applicable), no later than 3 days prior to the hearing date.  Service by facsimile is proper if the party sending the petition receives acknowledgement of service within 24 hours, otherwise service must be made by personal service.

C.  Hearing:

The court holds a hearing within 7 days of the filing of the petition, unless the recipient requests a continuance.  If a jury trial is requested, the court may grant an additional 21 days.  The procedures contained in Article VIII govern the hearing.

D. Burden of Proof:

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.

1. Recipient has a serious mental illness or developmental disability.

2. Recipient, because of mental illness or developmental disability exhibits one of the following: deterioration of ability to function, suffering, or threatening behavior.

3. The illness or disability has existed for a period marked by the continuing presence or repeated episodic occurrence of the symptoms described in the previous paragraph.

4.  Recipient lacks the capacity to make a reasoned decision about the treatment.

CASELAW:  In order to prove this factor, the State must also prove that it complied with 405 ILCS 5/2-102(a-5), which requires the treating physician to advise the recipient, in writing, of the side effects, risks, and benefits of the treatment, as well as proposed alternatives to the treatment.  In re John R., 339 Ill.App.3d 778 (5^th Dist. 2003)

5. Benefits of treatment outweigh the harm.

6. Other less restrictive services have been explored and found to be inappropriate.

7. If the petition requests authorization for testing and other procedures, a finding that such testing and procedures are essential for the safe and effective administration of the treatment.

CASELAW: All seven factors must be proven.  State’s failure to prove above factors 3, 4, 5 led to reversal of the trial court’s order for involuntary treatment.  In re R.K., 338 Ill.App.3d 514 (1^stDist. 2003)

E.  Order:

In no event shall an order be effective for longer than 90 days.

A second 90-day period of involuntary treatment may be authorized pursuant to a hearing that complies with the above procedures in subsection A. and B. of this memorandum.  §5/2-107.1(a-5) 

Thereafter, additional 180-day periods of involuntary treatment may be authorized without limit pursuant to these standards and procedures. 

If a new petition is filed within 15 days of the expiration of the prior order, and recipient asks for or agrees to a continuance, treatment may continue pending completion of the hearing.

F.  Miscellaneous:

Nothing in this section prevents the administration of authorized involuntary treatment to recipients in an emergency under 405 ILCS 5/2-107.

Notwithstanding these procedures, authorized involuntary treatment may be administered pursuant to a power of attorney for health care or a declaration for mental health treatment.

III. COURT ORDERED ADMINISTRATION OF TREATMENT FOR MINORS

A. Unusual, Hazardous, or Experimental Services or Psychosurgery (405 ILCS 5/2-110) – This section was previously titled “Electro-convulsion therapy (“ECT”), Psychosurgery Consent” and as such was held unconstitutional by the 4^th District in In re Branning, 285 Ill.App.3d 405 (4^th Dist. 1996).

1.  In re Branning – the Court found that the statute allowing the guardian to authorize ECT on behalf of a ward with the requirement of only court approval did not provide the necessary procedural due process given the significant liberty interest in refusing unwanted ECT. 

2.   The legislature subsequently amended the section by changing its title and deleting any reference to ECT, but leaving the same limited procedural protections of requiring only court approval.

3. NOTE:  Although there have been no additional cases concerning the changes in this section, it is arguably still unconstitutional, given the Brannon court’s failure to distinguish in its analysis ECT from the other stated experimental or unusual treatments authorized by the statute. 

B. ECT Treatments – 405 ILCS 5/2-110.5 essentially codified the In re AMP decision.

In re: AMP, 303 Ill.App.3d 907 (4^th Dist. 1999) addresses the procedural requirements of petitions for ECT treatment of minors in light of the applicable statutory provision being declared unconstitutional. 

The 4^th District held before ordering the authorization of ETC to a minor, the Court must first determine whether the minor or person subject to guardianship is competent to exercise a right to refuse treatment, pursuant to In re E.G, 133 Ill.App.2d 98 (1990).  As stated in In re E.G., “mature minors may possess and exercise rights regarding medical care that are rooted in this State’s common law.”

If the minor is mature and refuses to consent or if the minor is not a “mature minor, the court applied the framework of the statutory section dealing with ECT and adults (2-107.1).

The statute, in addition to requiring adherence to the procedures in section 2-107.1, mandates that prior to entering an order approving ECT, two licensed psychiatrists, one of which must be the minor’s treating psychiatrist, must examine the patient and concur with ECT treatment.

SUMMARY – MENTAL HEALTH DEADLINES