In re Craig H., 2022 IL 126256, opinion filed September 22, 2022

The Illinois Supreme Court, on September 22, 2022, issued an opinion¹ following the Fourth District Appellate Court’s decision² affirming an order permitting involuntary administration of psychotropic medication. The recipient of services was Craig H., whose mother was named as his agent pursuant to his power of attorney (POA) for health care that he executed in 2013. At that time, he had been diagnosed with a mental illness (schizoaffective disorder, bipolar type) for about 24 years. Craig was then 49 years old and his mother was then 77 years old.
The Sangamon County Circuit Court’s order was effective for a period not to exceed 90 days. Craig’s treating psychiatrist, who had filed the petition pursuant to section 2-107.1 of the Mental Health Code, testified at the circuit court hearing that Craig’s mother had repeatedly stopped Craig’s medications in the past.

Craig argued on appeal that the decision to refuse psychotropic medications, made by his mother as his health care agent, should control. The Fourth District Appellate Court, and the supreme court, rejected this argument. The supreme court held that the Mental Health Code, in provisions acknowledging the potential for a recipient of services to have a health care power of attorney, reveals a “legislative intent to carve out a narrow exception to the general applicability of a power of attorney for health care.”³

The supreme court rejected Craig’s argument that the Powers of Attorney Law supersedes all other statutes, including the Mental Health Code. The supreme court noted that the POA Law supersedes only those statutes in existence on its effective date of September 22, 1987, and thus cannot supersede the pertinent provisions of the Mental Health Code which became effective in 1997.⁴ The supreme court also rejected Craig’s argument that the POA Law is the only vehicle for revoking a POA.

The supreme court’s decision seems to conclude that just as a mental health recipient’s refusal of psychotropic medication can be overridden by a proceeding under the strict standards of section 2-107.1, so too can the refusal of an agent—who stands in the shoes of the recipient—be overridden. Otherwise, section 2-107.1 would be rendered meaningless. If, for example, a recipient wanted a foolproof way to avoid receiving psychotropic medication, he or she would need only find an agent to make the refusal on his or her behalf. The supreme court noted the presence of safeguards in section 2-107.1: the requirements of clear and convincing evidence, and of findings that the benefits of the medication outweigh the potential harm and that less restrictive services were considered but found inappropriate.

Section 2-107.1 also requires that a petitioner must make a good faith attempt to determine whether the recipient has executed a health care POA and, if so, that document must be attached to the petition, and the agent must be provided a copy of the petition and notice of hearing.

The supreme court’s In re Craig H. decision has, at the time of this writing, been cited in only one appellate court decision. However, that case did not involve the question of the interplay of a health care POA and a section 2-107.1 proceeding. In People v. Molina, the Fourth District cited to In re Craig H. for the principle that statutes relating to the same subject are intended to be consistent and harmonious.⁵

Two appellate court decisions cited to the Fourth District Appellate Court’s In re Craig H. decision. Neither of those cases addressed the interplay between a health care POA and a section 2-107.1 proceeding. Instead, in both cases, which involved petitions for involuntary administration of medication, the Fifth District found that an exception to the mootness doctrine applied where, as in In re Craig H., “the events are capable of repetition yet are of such a short duration as to evade review.”⁶

It is noteworthy that in both of those Fifth District cases, the court emphasized the importance of using the Illinois Supreme Court-approved standardized form order in involuntary medication hearings. This and other approved standardized forms are available on the supreme court’s website.

The Second District Appellate Court had, in a 2016 decision, rejected a recipient’s argument that the Mental Health Code was not the proper vehicle for ensuring the administration of hemodialysis treatments, which had been ordered in addition to granting permission for involuntary administration of psychotropic medications.⁷ The recipient argued that the court should have either found him incompetent and appointed a guardian of the person, or appointed a surrogate under the Health Care Surrogate Act.⁸

In that case, the treating psychiatrist was unable to determine whether the recipient had executed a POA for health care or a declaration under the Mental Health Treatment Preference Declaration Act.⁹ The second district noted that “[e]ven if one of these alternative vehicles had been used, and assuming that the individual granted such authority would have consented” to the medication, the psychiatrist would not have been adequately assured that she could administer the psychotropic medication.¹⁰ Note that this decision did not address the situation where a substitute decision-maker refused to consent to the administration of medication.

Whether a “care and custody” order exists may also be relevant to a petition for involuntary administration of medication or for involuntary commitment. The statutory definition of “care and custody” includes authorization to an appropriate person to provide or arrange for “proper and adequate treatment” of a person subject to involuntary admission.¹¹

The supreme court’s In re Craig H. decision is an important one to keep in mind when advising clients on the limits of the decision-making power of their health care POA agent in the event that a petition for involuntary administration of medication is filed. In addition, the decision serves as a reminder to urge clients to safely store critical documents, such as executed POA documents, relating to themselves and their family members, so that the documents can be quickly located when a health care agent or other representative needs to be notified of a court proceeding.

Susan M. Goldberg is a member of the Mental Health Law Section Council and the Child Law Section Council, and she is the current chair of the ISBA Immigration and International Law Section Council. Susan has been a Boone County CASA volunteer guardian ad litem for 16 years and is a former member of the ISBA Assembly and the Illinois Bar Foundation Board of Directors. Susan is the managing attorney for the UAW Legal Services Plan office in Belvidere, Illinois.