Arguments in support

(The following is adapted from recent filings in Cook County, Illinois Circuit Court, Criminal Division, and the Supreme Court of Illinois. Most citations and all footnotes are omitted for brevity.)

1.  The Illinois Mental Health and Developmental Disabilities Code [405 ILCS 5/1-100 et seq.] mandates that the Illinois Department of Human Services and Elgin Mental Health Center formulate an individual services plan, or treatment plan for the Defendant, which must be reasonably calculated to result in sufficient improvement to enable his release, or to arrest his decline, and which takes into consideration his own preferences regarding treatment.

The legally prescribed purpose of the treatment plan does not admit any intention to punish the Defendant for the crime he was charged with, nor does it direct DHS and Elgin to chemically disable him from all possible commissions of bad or dangerous future behavior.  Rather, the most optimistic conception of the purpose of the treatment plan is to enable the Defendant to become a more social and trustworthy person who can live peaceably and as productively as possible in the community.

Toward this purpose the statute recognizes positive value in the Defendant’s own free and willing collaboration with his treatment; and it contemplates the probable negative effects from adversarial coercion or forced treatment.  If a mentally ill person, having been violent in the past due to his mental illness, cannot attain un-coerced insight into his own condition approximating the understanding and diagnoses of those mental health professionals who are treating him, he is not likely to be considered safe for release into the community.  But the treating clinicians are not exact scientists of the mind or behavior.  Their information about their patient comes mostly from their patient. Mutual trust and open, honest agreement are thus great facilitators of positive change; strict orders, poorly understood evaluations, and resentful compliances are not.  The Illinois Mental Health and Developmental Disabilities Code, as a whole, embraces these realities of mental health and mental illness.  Treatment planning cannot avoid them.

2.  Section 2-107 of the Code [405 ILCS 5/2-107] establishes the Defendant’s right to refuse psychotropic medication, for any reason or for no reason; this section also establishes the duty of DHS and Elgin to not make the Defendant take drugs once he has refused, whether or not it may be a current and generally accepted or recommended treatment for his mental illness, unless an immanent threat of serious harm exists and no less restrictive alternative is available.

Whether an individual does or does not take any drug must remain primarily a matter for that individual’s own competent choice under almost all circumstances, and must not become the separate decision of (supposedly) benevolent experts who work for the state.  The only exception must remain situations wherein some serious and immanent harm is truly threatened.  The history of mental treatment in particular is rife with abuse and irrational whim, often recognized only in retrospect.

At the dawn of the discipline of psychiatry, one of its founders (Benjamin Rush, a signer of the Declaration of Independence) believed that terror should be employed to cure mental illness frequently caused by masturbation.  If this seems strange, superstitious or far removed from our modern scientific culture, we should recognize that the bulk of physicians of his time were convinced by Rush’s theories, and his image still adorns the seal of the American Psychiatric Association to this day.

In the 1850’s American psychiatrists generally agreed that African American slaves ran away from their white masters because of a mental illness called drapetomania.  But over 100 years later, in the 1960’s, multiple studies by the National Institute of Mental Health still concluded that blacks had a 65% higher rate of schizophrenia than whites; and a 1974 advertisement for the antipsychotic medication Haldol in a leading professional journal showed an African American man with a clenched Black Power fist, whose symptoms of social belligerence obviously required chemical management.

In 1990, Time magazine declared Prozac a “breakthrough” drug for depression.  Less that a quarter century later, the fraudulent nature of the story told by Ely Lilly and psychiatry is well known, and pharmaceutical companies have backed away from research into new psychotropic medications as they pay billions in fines.   The Director of the National Institute of Mental Health has recently taken the public position that even the latest (“atypical”) antipsychotic drugs cause more long-term harm than good, and the disorders that they supposedly treat are invalid medical concepts anyway.

The Illinois Supreme Court stated a crystal clear precedent, alluding to such history and defining a public policy prerogative with regard to refusal or coercion of psychiatric treatment, in In re C.E. 161 Ill. 2d 200, at 214-215 (1994):

     "Two fundamental concerns have guided our conclusion that the prerogative to refuse unwanted psychotropic medication is a protected right of the mental health recipient. The first of these concerns arises from the substantially invasive nature of psychotropic substances and their significant side effects… Our second concern is the recognition that psychotropic substances may be misused by medical personnel, and subverted to the objectives of patient control rather than patient treatment."  (Internal citations omitted.)

The Unified Code of Corrections [730 ILCS 5/1-1-1 et seq.] does not modify the Defendant’s essential right to refuse psychotropic medication or the duty of DHS and Elgin to not make him take it. Section 5-2-4 [730 ILCS 5/5-2-4] merely specifies certain security procedures and safeguards required before defendants found not guilty by reason of insanity and in need of inpatient treatment may be released back into the community. A “requirement to be medicated” is not specified.

3.  This case presents no relevant issue of fact, and it does not concern the proprieties or standards of practice in psychiatry or any other professional field of medicine; the only issue is one of law alone, regarding the legally prescribed nature of a treatment plan for the Defendant, which DHS and Elgin have a ministerial duty to formulate under the Mental Health Code and the Unified Code of Corrections.

The Elgin treatment team recommends, and would apparently prefer for reasons of their own, that the Defendant take antipsychotic medication. However, they cannot convince him that this would be in his best interest. He refuses to follow their recommendation, and he gives every indication that he will continue to do so indefinitely.

Having taken no psychotropic medication for many years, Defendant yet has not been involved in any serious incidents to indicate that he might threaten harm to himself or anyone else during that entire time.  In fact he is consistently reported to be getting along well with everyone. Thus, DHS and Elgin have had no reason to consider asking a court for any involuntary medication order, and they have not done so.

While unable or unwilling to ask for a court order for involuntary medication, DHS and Elgin have yet stated or implied in the Defendant’s treatment plan that he must willingly take psychotropic medication as a necessary criterion for eligibility for conditional release.  This is equivalent to telling him he will never be released if he doesn’t take medication, because DHS and Elgin know very well that he never will take medication.  Thus, they are simply refusing to formulate a treatment plan reasonably calculated to enable his release, though that is precisely what the law requires of them.

There might be any number of behavioral criteria, to theoretically qualify the Defendant for conditional release.  Indeed, taking medication is itself only a behavioral criterion.  No one knows what the Defendant thinks, whether he secretly believes things that are delusional, whether he harbors grudges or whether he honestly understands his mental illness correctly.  They can only carefully observe how he behaves and what he tells them.  Nobody knows with certainty how (or whether) any drug works against a specific mental illness or whether it will make future violent acts by a specific person less likely, except through observing how the behavior of the person taking the drug changes or fails to change.  When someone refuses to take recommended medication, clinicians in the position of DHS and Elgin have a right to demand whatever behavioral demonstrations or proofs will convince them that releasing the person will be safe. Indeed, it is their job to do exactly that.  But making a person take drugs is a substitute or short cut for careful observation of behavior, at best. More importantly in this case, it is an illegal substitute. At worst, trying to make this Defendant take psychotropic medication at this time is pure coercion, totally at odds with the purpose of a plan for individual mental health services, as envisioned in the law. This is not reasonable calculation of possible future release for the Defendant, but only a continuing strategy to force him to take drugs.

We may suppose arguendo that without taking antipsychotic medication this Defendant can never prove by his behavior, to a reasonable degree of medical and psychiatric certainty, that he is qualified for conditional release.  But the behavioral criteria themselves can and must be formulated, because he will not take the medication, and the law still requires a reasonable plan.  If only drugs will really do the final trick, that will be born out by the obvious failure of an honest non-drug treatment plan.  (And perhaps that, alone, might convince the Defendant to willingly try taking psychotropic drugs.)  In any event, a “treatment plan” that merely acknowledges a permanent impasse is not the ministerial act that the law requires of DHS and Elgin.

4.  A court order is appropriate because DHS and Elgin are refusing to perform an official act required of them; this Court need not prescribe the manner in which they exercise such discretion as they properly have, in ordering them to perform the statutorily mandated ministerial act.

The Illinois Mental Health and Developmental Disabilities Code, 405 ILCS 5/, especially Sections 3-209, 2-102(a), 1-101.2(a), and 2-107, in combination with Section 5-2-4 of the Unified Code of Corrections, cannot be logically understood except to require DHS and Elgin to perform the ministerial act of the formulation and periodic review of a treatment plan for the Defendant, which considers his preference not to take psychotropic drugs, and which is also reasonably calculated to enable his release.

The law does not require any specific behavioral criteria for the Defendant’s release , nor does it detail procedures for evaluation of his progress, nor does it mention any time frame or goal .  DHS and Elgin retain discretion and all professional psychiatric or medical judgment in these matters.  Their refusal to formulate an appropriate treatment plan for this patient, or their refusal to consider his preference regarding treatment, or their refusal to reasonably calculate a way forward toward release for the Defendant (three alternative interpretations of what exactly is happening here) … are not matters over which they have any proper discretion.  As public officials they have a prescribed duty that they are paid by the taxpayers to fulfill, and this Honorable Court must compel them to do so.

5.  Conclusion.

DHS and Elgin are required by law to perform a purely ministerial act: to formulate and periodically review a written treatment plan for the Defendant that is reasonably calculated to result in sufficient improvement in his mental health to enable his release.  The required treatment plan must provide for Defendant’s care and services in the least restrictive environment, and must consider his own views concerning treatment.  Because the Defendant has long and often voiced his objections to taking psychotropic medication, as it is his right to do, and in the absence of any threat by the Defendant of immanent harm to anyone, the treatment plan may not include a necessary requirement that he take drugs.

There is no relevant issue of fact in this case.  The only issues are of law.  DHS and Elgin are arbitrarily refusing to perform a purely ministerial act legally required of them, and an order from this Court compelling them to perform that act is therefore appropriate and necessary.