People v. Lang (113 Ill. 2d 407, 1986)

JUSTICE MORAN

delivered the opinion of the court:

Respondent, Donald Lang, is a 41-year-old, visually impaired, deaf mute. He was never taught to read or write, and for most of his life he has had virtually no ability to communicate with other people in any recognized language system. However, in recent years respondent has attained a limited ability to communicate in sign language, and he continues to receive sign-language instruction on a regular basis.

In March 1981, the circuit court of Cook County found respondent unfit to stand trial for the 1971 murder of a woman. The court also determined that no substantial probability existed that respondent would obtain fitness within one year. Thereafter, the State sought to obtain respondent’s involuntary admission to the Department of Mental Health and Developmental Disabilities (Department). The State’s request for an involuntary-commitment hearing was granted. The circuit court, in accordance with State statute, dismissed the murder charge with leave to reinstate. Ill. Rev. Stat. 1981, ch. 38, par. 104-23(b)(3).

A hearing was held in May 1981, to determine if respondent was a person subject to involuntary admission under the provisions of the Mental Health and Developmental Disabilities Code (Mental Health Code) (Ill. Rev. Stat. 1981, ch. 91½, par. 1 — 100 et seq.). Thereafter, on August 28, 1981, the circuit court found that respondent was a person subject to involuntary admission under section 1 — 119 of the Mental Health Code (Ill. Rev. Stat. 1981, ch. 91½, par. 1 — 119) and ordered that respondent be hospitalized in a mental-health facility designated by the Department. Subsequently, the circuit court, in accordance with the periodic-review provision of the Mental Health Code (see Ill. Rev. Stat. 1985, ch. 91½, par. 3 — 813), has made nine redeterminations of respondent’s involuntary-admission status. In each instance the court has concluded that respondent’s condition continues to meet the criteria for involuntary admission under section 1 — 119. However, no redetermination has been made concerning respondent’s fitness to stand trial for the 1971 murder.

Following the seventh hearing on respondent’s involuntary-admission status, his attorneys petitioned the circuit court for a formal hearing into respondent’s fitness to stand trial for murder. The petition was denied and respondent appealed. That appeal was subsequently consolidated by the appellate court with appeals from the third, fourth, sixth and seventh involuntary-admission hearings. The appellate court reversed the circuit court in part, holding that respondent was entitled to a formal fitness hearing. However, it decided to “defer” consideration of the challenged hearings on involuntary admission in light of its resolution of the fitness issue. (127 Ill. App. 3d 313, 316.) We granted the State leave to appeal (94 Ill. 2d R. 315). Subsequently respondent filed notices of appeal from the eighth and ninth hearings on his involuntary-admission status, and we allowed respondent’s motion to transfer those appeals to this court pursuant to Supreme Court Rule 302(b) (94 Ill. 2d R. 302(b)), and consolidated them with the previously filed appeals in this matter.

At issue is whether the trial court erred in refusing to grant respondent a new fitness hearing. Additionally, respondent contends: (1) that the term “mentally ill” in section 1 — 119 of the Mental Health Code (Ill. Rev. Stat. 1985, ch. 91½, par. 1 — 119) is unconstitutionally vague; (2) that the State failed to present clear and convincing proof that respondent was a person subject to involuntary admission under section 1 — 119; (3) that this court’s standard equating mental illness with “unfitness not due to solely a physical condition” violates the due process and equal protection clauses of the Federal and Illinois constitutions; (4) that the orders for involuntary admission entered after the sixth, seventh, eighth and ninth commitment hearings must be reversed because they were based on inadmissible evidence; (5) that certain testimony at the ninth hearing on involuntary admission should have been stricken because the State violated applicable discovery provisions; (6) that the murder indictment against respondent must be dismissed because he was not provided a discharge hearing pursuant to section 104 — 23(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 104 — 23(a)); and (7) that the trial court impermissibly relied upon evidence that others react negatively to respondent in finding that respondent is dangerous to himself and others.

The events of respondent’s case prior to 1979 are described in previous opinions of this court (see People v. Lang (1979), 76 Ill. 2d 311; People ex rel. Myers v. Briggs (1970), 46 Ill. 2d 281; People v. Lang (1967), 37 Ill. 2d 75) and will not be repeated here. We also note that no appeals were taken from the orders of involuntary admission entered following the first, second and fifth commitment hearings. Respondent filed a notice of appeal from the order continuing his involuntary-admission status following the 10th commitment hearing, and a transcript of that hearing was filed in this court. However, no motion was made to transfer that appeal from the appellate court to this court. As such, the record from the 10th hearing is not a part of the record in the case before this court, and it will not be considered. Finally, we note that, because of the number of appellate cases and the voluminous record, it is impractical to set forth all of the evidence in the record. The following is a summary of the relevant facts needed to resolve the issues raised in this appeal.

The initial hearing on respondent’s involuntary-admission status was held in May 1981. At that hearing the court heard testimony from five psychologists, three psychiatrists, a social worker, and Julius Lang, respondent’s older brother and conservator. Correctional officers and staff from the Cook County department of corrections, where respondent had previously been held, also testified. Thereafter, on August 28, 1981, the court found respondent to be a person subject to involuntary admission, and it ordered that respondent be hospitalized in a mental-health facility designated by the Department. Respondent was placed at the Manteno Mental Health Center in Manteno, Illinois. Subsequently, the State, as required by statute, petitioned the court to continue respondent’s involuntary-admission status. A hearing was held on the State’s petition for involuntary admission, and to review the treatment plan submitted by the Department for respondent. On November 6, 1981, the court found that respondent continued to meet the criteria for involuntary admission. The court also ordered that respondent’s treatment plan include formal instruction in sign language, mathematics and reading; vocational training; and increased involvement with persons who communicate in sign language. The court found that the successful implementation of the treatment plan required respondent’s transfer from Manteno to a Chicago facility. Thereafter, on December 3, 1981, respondent was transferred by the Department to its Chicago-Read Mental Health Center (Chicago-Read).

For purposes of the third hearing on involuntary admission held on January 21, 1982 (Ill. App. 1st Dist. No. 82 — 429), the parties stipulated that the testimony of Drs. McCay Vernon and Albert Stipes would be identical to that given at the initial hearing on involuntary admission held in May 1981. Both doctors had testified for the State. In addition to the stipulated testimony, Drs. Gregory Szcerbinauk and John Mitchell testified on behalf of the State, and Dr. Robert Donoghue testified on behalf of respondent.

Dr. Vernon, a psychologist and professor at Western Maryland College, testified that he was experienced in performing psychological evaluation of deaf persons with limited or no ability to communicate, and estimated that he conducted five to 10 such evaluations a year. His evaluation of respondent included the review of existing reports from psychiatrists and psychologists, the review of two psychological histories, and interviews with correctional officers and staff who supervised respondent at the Cook County department of corrections. In addition, Dr. Vernon spent six hours examining and testing respondent. He administered portions of the Wechsler test for children-adolescents, the Leiter International performance scale, the Draw-a-Person test, and the Thematic Apperception test. He also gave respondent a plastic model truck, which he requested respondent to assemble. He stated that respondent did not make a “full commitment” to the tests but was “totally committed” to assembling the model truck. Based on his testing and observations, Dr. Vernon concluded that respondent had at least a 90 to 100 I.Q., and that “relative to I.Q. he [respondent] cannot be called retarded.”

Dr. Vernon diagnosed respondent as suffering from the mental disorder primitive personality, which is also known as surdophrenia. Dr. Vernon explained that the diagnosis of surdophrenia or primitive personality is unique to deaf people and has the following basic characteristics: normal or near normal intelligence; almost total absence of language development; and social information and knowledge are childlike, with major gaps in certain areas where there is good knowledge. On cross-examination Dr. Vernon conceded that the diagnosis of primitive personality does not appear in the Diagnostic and Statistical Manual of Mental Disorders-III (DSM-III) drafted by the American Psychiatric Association. He stated that respondent’s condition was “unique” and that the drafters of the DSM-III “had never seen a person like” respondent. As such, Dr. Vernon believed it unwise to “wedge [respondent] into some existing DSM[-III] definition.” Dr. Vernon testified that his diagnosis of primitive personality was supported by the fact of respondent’s lack of language development and the fact that respondent has “a significant impairment of functioning in major areas,” such as his interactions with other people, and his lack of understanding of many of the rules of society. He testified that respondent had “far more additional difficulties” than most deaf people, explaining that most deaf people, unlike respondent, knew sign language, had at least a third- or fourth-grade reading level, and had learned “the rules of society” through interaction with their deaf peers. Asked by the court whether respondent “perceives the world in a way quite differently than most deaf persons,” Dr. Vernon replied, “Traumatically differently.”

Dr. Vernon also opined that because of respondent’s mental illness, he could reasonably be expected to inflict serious harm on another person. His prediction of dangerousness was premised upon evidence that respondent may have committed two homicides and the fact that respondent did not have the “tools to cope” in society. He testified:

“[W]hen you put a person out into society with as few tools to cope as Mr. Lang has, it’s inevitable he’s going to be exploited; it’s inevitable he is not going to understand many of the things that happen to him; it’s inevitable *** [b]ecause [when] he doesn’t understand what’s happened he’s going to be suspicious. That when he doesn’t get what he wants, he’s not going to understand why. He’s going to get angry. And these are factors just within Mr. Lang’s psychodynamics that would increase the probability of some kind of vile acts on somebody else.”

Dr. Vernon also testified that because of respondent’s lack of “coping skills” he would be unable to care for his basic needs, such as holding a job, managing money, making purchases and relating to other people. He noted that respondent had “a very primitive understanding of right from wrong.” Dr. Vernon recommended that respondent be placed in a “rehabilitative setting” with 24-hour supervision and an opportunity to interact with other deaf people. He also recommended that respondent receive instruction in sign language, reading, writing, and survival skills, and that he receive some kind of vocational training.

Dr. Stipes, a psychiatrist, evaluated respondent over a three-day period in June 1980. His examination included personal observation of respondent, interviews with personnel at the Cook County department of corrections, and review of previous psychological evaluations. A clinical psychologist administered the Wechsler test, the Revised Beta I.Q. test, the Bender gestalt test, portions- of the Standard-Binet test, and some “projective drawings” to respondent at Dr. Stipes’ direction. Dr. Stipes’ diagnosis was mild mental retardation, mixed personality disorder, and prelingual deafness. Dr. Stipes testified that respondent “thinks in such a concrete way.” He believed that respondent “needs constant supervision” and “to have other people anticipate his needs.” He opined that respondent could be expected to inflict harm on others and that respondent would be unable to guard himself against serious physical harm if allowed to leave a hospital setting. Dr. Stipes’ opinion as to respondent’s dangerousness and inability to cope in the community was based on several factors, including respondent’s inability to communicate, his low frustration tolerance, his lack of understanding in social situations, and information on respondent’s past history.

Dr. Szcerbinauk, a psychiatrist at Chicago-Read, interviewed respondent on January 6, 1982, and reviewed respondent’s records. Dr. Szcerbinauk concluded that respondent was not psychotic or retarded, but he agreed with Dr. Vernon’s diagnosis of primitive personality or surdophrenia. He observed that respondent “becomes angry and frustrated when his needs are not met immediately” or when he does not understand a particular message. In those situations respondent occasionally became “upset and aggressive.” For example, Dr. Szcerbinauk said an incident was reported at Chicago-Read where respondent expressed a desire to go outside. When he was told to wait, respondent grabbed a female technician. He was subsequently removed and given emergency sedation. Dr. Szcerbinauk was of the opinion that respondent could inflict harm on others, and expose himself “to harm indirectly by provoking or putting other people into aggressive moods to defend themselves.” He also believed that respondent was unable to care for himself.

Dr. Mitchell, a clinical psychologist at Chicago-Read, also agreed with the diagnosis of primitive personality. He testified that respondent had a low tolerance for delayed gratification and was easily frustrated. He stated that he was aware of an incident at Chicago-Read where respondent shook his fist at a staff member, and another incident where respondent twisted the arm of a female employee. The employee was not hurt. In addition respondent had not struck or inflicted serious injury on anyone since .coming to Chicago-Read. Dr. Mitchell observed that respondent presented a “variated picture,” remarking that respondent “can be playful and express concern about other people.” He was of the opinion that if respondent were released into the community he could reasonably be expected to inflict injury on others. His opinion was based on the fact that respondent became “explosive” and angry when people misunderstood him, or when he misunderstood a particular situation.

Dr. Donoghue, a psychologist with a doctorate degree in the psychology of the deaf, testified on behalf of the respondent. Dr. Donoghue, who is deaf, began tutoring respondent in sign language prior to the initial involuntary-admission proceedings in 1981, and was subsequently hired by the Department to supervise respondent’s educational program. He testified that it was his opinion that respondent was not mentally ill or mentally retarded. He stated that respondent was being tutored in sign language five days a week, and that respondent looked forward to his lessons. Respondent was using some language and was “progressing well” according to Dr. Donoghue. He also remarked that respondent was benefiting from the court-ordered hospitalization, and stated that he hoped it continued. Based on the stipulation and testimony, the circuit court on January 22, 1982, found that respondent continued to be a person subject to involuntary admission, and ordered that his treatment at Chicago-Read continue.

Appellate cause No. 82 — 2302 is an appeal from the order of August 11, 1982, finding that respondent continued to be a person subject to involuntary admission (fourth hearing on involuntary admission). The record in that case shows that a petition to continue respondent’s involuntary-admission status was filed by the State on July 21, 1982. The petition was accompanied by the certificate of Dr. John Mitchell, and the certificate of Dr. G. Justinano, a psychiatrist at Chicago-Read. The parties stipulated for purposes of the hearing that if the doctors were called to testify, their testimony would be identical to that contained in their certificates. Both doctors were of the opinion that respondent continued to be mentally ill and because of his illness was likely to inflict serious physical harm on others. Dr. Mitchell’s certificate noted that respondent had made “significant improvement in toleration of frustration and willingness to use sign language.” However, it stated that “minor incidents continue” and “in an open and poorly structured environment these incidents could have been major.” It was also stipulated that Maureen Resheske, a social worker and respondent’s treatment coordinator, would testify that respondent was involved in a physical altercation with his roommate on April 23, 1982, over the latter’s unwillingness to make his bed and clean up his area. A security officer intervened and stopped the fight. It also was reported that on May 10, 1982, respondent shoved an elderly man after respondent had politely escorted the man out of a classroom several times while sign-language classes were in progress. When the man’s age and “confused” condition were explained, respondent became cooperative and resumed his lessons.

The court, in accordance with a stipulation of the parties, also considered testimony given by Dr. McCay Vernon on April 7, 1982. The April 7 testimony concerned respondent’s treatment plan. Dr. Vernon testified that his previous diagnosis of primitive personality was reinforced by the recent medical findings that respondent suffered from glaucoma in the left eye and from an eye disease known as “salt and pepper retinopathy.” Both medical conditions were indicative of prenatal rubella, and that this discovery made the “whole clinical picture *** more easy to understand.” He explained that rubella deaf are more likely than the general deaf population to exhibit behavior problems such as excitability, explosiveness, and hyperactivity, and cognitive disorders like memory problems, sequencing problems, and problems learning language. Rubella-deaf persons also often have cataracts and heart murmurs. Dr. Vernon observed that respondent “responds with greater excitability to stress and frustration than most persons.” He also noted that respondent had memory problems, and exhibited letter reversals in his writing — both indicative of prenatal rubella. On cross-examination, he testified that there was no evidence of a heart murmur or cataracts in respondent’s medical history. Dr. Vernon stated that his previous opinion as to respondent’s dangerousness was reinforced by a recent incident at Chicago-Read in which respondent twisted the arm of a nurse and “the fairly frequent need there to call in security.” Dr. Vernon also questioned respondent’s ability to take care of himself “out of a protected environment” in light of respondent’s refusal to take his eye medication. Despite attempts by the staff to communicate to him that the eye drops “are all that stands between him and his losing his eye,” refusing eye medication has been “one of his ways of resisting authority.” He recommended that treatment at Chicago-Read continue.

Appellate cause No. 83 — 2218 is an appeal from an order of August 24, 1983, finding respondent to be a person subject to involuntary admission (sixth hearing on involuntary admission). At that hearing the parties stipulated that Dr. Vernon’s testimony would be identical to his previously described testimony of April 7, 1982. The parties also stipulated that Maureen Resheske’s testimony would be substantially identical to the statements contained in the petition for involuntary admission filed August 11, 1983. The petition stated that on May 22, 1983, respondent kissed the ear of a female patient. She refused his advances, but respondent persisted. A second female patient requested respondent to stop. He became angry, grabbed the second patient’s arm, and bent it behind her back. Staff and security intervened, and no one was injured. The petition also stated that on June 14, 1983, respondent refused to get ready to go to an eye appointment or to take his medication. After much coaxing, respondent received his medication and left voluntarily for the appointment. On July 6, 1983, it was reported that respondent was in the possession of a master key to Chicago-Read, a solid steel rod, a florescent light, and another set of keys. The keys had been reported missing a month earlier by a nurse. The comprehensive examination and social investigation, filed with the petition, noted that respondent underwent surgery on March 3, 1983, and April 6, 1983, for a detached retina to the left eye. The report stated that respondent is legally blind in the left eye and suffers from glaucoma and rubella retinopathy. Seven different medications were prescribed for his eye condition.

Dr. John Mitchell, who had previously testified as to respondent’s condition, was called to testify by the State. Dr. Mitchell noted that he saw respondent on a regular basis, participated in biweekly staff meetings on respondent’s case, and reviewed the most recent medical records on respondent. He testified that his previous diagnosis of primitive personality or surdophrenia had not changed. However, on cross-examination he conceded that the diagnosis of primitive personality was not listed on the certificate he prepared in conjunction with the petition for involuntary admission. The doctor said he believed that, because of respondent’s mental illness, respondent continued to be a danger to himself and others and was unable to care for himself outside of the hospital. He noted that respondent sometimes balked at taking his eye medication, which endangered his eyesight. He believed that the recent incidents described by Resheske in the petition supported his opinion that respondent continued to be dangerous.

Appellate cause No. 84 — 1238 is an appeal from an order of April 25, 1984, finding that respondent continued to be a person subject to involuntary admission (seventh hearing on involuntary admission). The sole witness for the State was Dr. John Mitchell. He stated that his diagnosis continued to be primitive personality, along with the diagnosis of atypical personality disorder. Dr. Mitchell believed that respondent continued to be dangerous, and was of the further opinion that respondent was unable to care for his basic needs so as to guard himself from harm. Dr. Mitchell testified that his opinion with regard to respondent’s dangerousness was supported by recent incidents contained in the hospital records. He observed that one report stated that respondent had intervened in a fight between two other patients. After being scratched or slapped by one of the patients involved in the fight, respondent struck her in the mouth, knocking her to the floor. The patient lost “two or three teeth.” It also was reported that respond-grabbed a patient who walked by his room. Staff intervened immediately and no one was injured. Dr. Mitchell also testified that respondent refused to take his eye medication whenever “something displeases him” and risks losing his eyesight if he does not take the medication. He opined that respondent would not take his eye medication as prescribed if released into the community.

The court also allowed Dr. Donoghue to testify on behalf of the conservator concerning respondent’s condition and progress. He described respondent’s educational program. The doctor noted that the formal education program included instruction in sign language, finger spelling, reading, handwriting, how to tell time, and arithmetic. Respondent was “not very good at memorizing things,” and part of the training included attempts to improve respondent’s ability to memorize. As part of his informal training, respondent participated in a deaf bowling league and other activities sponsored by deaf clubs and organizations. Respondent was always accompanied on the outings by Dr. Donoghue or one of the tutors. Dr. Donoghue stated that the social activities reinforced the formal training by allowing respondent to use sign language with other deaf people. He opined that respondent had made excellent progress over the past two years considering respondent’s age and lack of previous education or training. He stated that respondent was now able to communicate “at a concrete level” but opined that respondent was not yet fit to stand trial for murder. In addition to commenting on respondent’s educational progress, the doctor testified that respondent has “some problems controlling himself.” He explained that respondent sometimes used poor judgment by physically intervening in fights and altercations between other people. Dr. Donoghue also expressed concern that if respondent left Chicago-Read, “he will skip the [eye] medication and become completely blind.” He recommended that respondent continue to be hospitalized and that his treatment program continue.

Appellate cause No. 84 — 2837 is an appeal from a November 15, 1984, order finding that respondent continued to meet the criteria for involuntary admission (eighth hearing on involuntary admission). The following evidence was introduced at the hearing.

Respondent’s treatment coordinator, Maureen Resheske, testified that on September 27, 1984, respondent was transferred to Durso II, a new unit for deaf patients at Chicago-Read. He continued to receive the same educational, workshop, and off-grounds social programs at Durso II. However, Resheske stated that Durso II was more restricted than respondent’s old unit, and he was “required to follow the rules more stringently.” She noted that since respondent was now one of many hearing-impaired patients on the unit, instead of the only deaf patient, he was not treated by the staff as “special” anymore. Respondent was not allowed to “verbalize as he did before,” and he was encouraged to use sign language with the staff. She testified that, because of the new restrictions and requirements at Durso II, respondent’s behavior was sometimes “stubborn.” She noted that respondent had refused his eye medication on occasion and had' become angry at staff members over some of the restrictions.

Mary Johnson, a mental-health technician at Chicago-Read, testified that she went to respondent’s room at approximately 7:30 a.m. on October 18, 1984. She was accompanied by Eddie Thomas, Jr., a security officer. Johnson touched respondent in an attempt to wake him and motioned that it was time to get up. Respondent “waved her away,” and several more attempts were made to wake him. Eventually respondent sat up on the bed, and Johnson began to change the linen. Respondent then stood on the bed and lunged for Johnson’s throat. She stepped back, and respondent was restrained by Thomas. Johnson was unhurt, and she testified that respondent did not actually touch her. She testified on cross-examination that respondent had been allowed to sleep as long as he wanted prior to being transferred to the Durso Unit. Later that morning Johnson noticed that respondent had been placed in leather restraints.

Johnson’s testimony regarding the events in respondent’s room on October 18 was corroborated by Thomas. He further testified that later that day respondent attempted to burn Thomas with a lit cigarette, when the latter tried to take the cigarette away. Respondent’s smoking privileges had been suspended because of the incident earlier that morning involving Johnson. Security officer David Strickland testified that he prevented a physical altercation between respondent and another patient on September 13, 1984. Both patients were “yelling and screaming” and advancing toward each other. He said respondent had a clenched fist and had to be physically restrained. On cross-examination, he testified that he did not know how the incident started.

Dr. John Mitchell also testified for the State. The doctor’s testimony was substantially similar to his testimony in previous hearings. He believed respondent was a primitive personality, which he opined was a mental illness. He described the illness’ characteristics as including occasional poor impulse control, occasional difficulty in adapting to new situations, absence of mental retardation, and lack of development of certain abstract ideas. He doubted respondent would take his eye medication “if left to his own devices.” Dr. Mitchell also doubted respondent could budget his money. The doctor testified that because of respondent’s inability to communicate his needs and wants to others “he might become frustrated or he might become prey to someone who wanted to take advantage of him.” He recommended that respondent’s treatment continue at the Durso II unit.

The State also called Dr. Richard Ney, a clinical psychologist at Chicago-Read. The doctor attempted to examine respondent on October 18, 1984. At the time respondent was in restraints. For purposes of the examination, respondent’s hands were removed from the restraints, and Dr. Ney tried to communicate with him with the aid of a sign-language interpreter. However, respondent would not look at the interpreter and refused to cooperate in the examination. Dr. Ney also read previous psychological examinations, interviewed staff at Chicago-Read, and reviewed respondent’s hospital records. Dr. Ney concluded that respondent suffered from “antisocial personality disorder,” a mental disorder listed in the DSM-III. The diagnosis of antisocial-personality disorder requires a history of at least three of 12 traits before age 15: truancy, expulsion or suspension from school for misbehavior, delinquency (arrested or referred to juvenile court because of behavior), running away from home overnight at least twice, persistent lying, repeated sexual intercourse in a casual relationship, repeated drunkenness or substance abuse, thefts, vandalism, school grades markedly below expectations, chronic violations of rules at home or school (other than truancy), and initiation of fights. Dr. Ney testified that his diagnosis of antisocial-personality disorder was supported by evidence in respondent’s records of “truancy,” “delinquency,” and “grades markedly below expectations.” However, he conceded on cross-examination that he was unsure whether respondent had a history of delinquency before age 15. He also stated that his opinion as to respondent’s “truancy” would change if the reason for respondent’s absence from school was that he was expelled for fecal incontinence. Dr. Ney admitted that none of the 12 characteristics listed for antisocial-personality disorder in the DSM-III clearly applied to respondent. He said, however, that he did not “rule out” the diagnosis of primitive personality. Dr. Ney believed respondent posed a danger because of his “unpredictable aggressive behavior.” He also was of the opinion that respondent could endanger himself by “provoking others to attack him.”

The State’s final witness was Dr. Robert Donoghue. Asked whether respondent was mentally ill, the doctor replied that he was “very loath to call anyone mentally ill.” He remarked further that respondent “was pretty close to normal” but that he “displays some traits, some characteristics that would classify him as mentally ill” under the DSM-III. Dr. Donoghue was of the opinion that respondent had an “attention deficit,” a “conduct disorder problem,” and “oppositional tendencies.” Dr. Donoghue opined that respondent was a danger to himself and others because “as long as he doesn’t learn enough communication, as long as he doesn’t learn to control himself, there is a danger of misunderstanding.” He also believed that respondent was unable to care for his basic needs because he was “very unreliable” in terms of taking his eye medication. Dr. Donoghue was of the opinion that respondent’s refusal to take his medication was attributable to his mental illness:

“Sometimes he uses his eye medication to manipulate staff into doing something and that is something that bothers me that he uses something he knows he has to take to get another advantage for himself. I think that is not realistic thinking.

* * *

But in the hospital he uses his medication as a way to manipulate people. He throws a temper tantrum, which is typical of people who have oppositional tendencies or if he’s being stubborn, another trait of an oppositional tendency. He will refuse his medication. He won’t take it. He’ll give the staff a hard time.

I wonder if his thinking is really unbased because he only has one functioning eye and he knows he can lose that eye. So, I don’t think trying to manipulate staff is a healthy sign, at the extent of his eyesight. *** I’m worried if he goes out, if he’s released and goes out that he will neglect his medication, take them whenever he feels like it, and loses [sic] his eyesight. He has only one eye functioning and that one is not in good shape.”

Dr. Donoghue recommended that treatment continue at Durso II.

No witnesses were called to testify by respondent.

Appellate cause No. 85 — 2528 is an appeal from an order of June 25, 1985, finding that respondent continued to be a person subject to involuntary admission (ninth hearing on involuntary admission). At the hearing 10 witnesses testified for the State. Respondent called no witnesses.

The State presented several witnesses who testified concerning defendant’s conduct since the previous order of commitment on November 15, 1984. A security officer testified that on April 22, 1985, respondent knocked a cup of coffee belonging to a female patient off a table after she refused to light his cigarette. Additionally, a nurse technician, Yelena Rumyantseva, related that on March 10, 1985, respondent pushed her against a wall and twisted her wrist after she requested in sign language that he stop smoking in a nonsmoking area. She also related that respondent refused his eye medication the following morning, and pushed another nurse. When Rumyantseva informed respondent that he could not leave the nurses’ station until he received his medication, he grabbed her arm and twisted it behind her back. Security intervened and respondent was given a sedative. Cynthia Wachter, an activities therapist, testified that on May 28, 1985, she alerted security to the fact that respondent was alone in the nursing area. As the officer escorted respondent back to the nonrestricted area, Wachter testified that respondent shook his finger in her face and was “verbalizing.” She related that suddenly respondent grabbed her neck with one hand, pushing her head against a door. He was quickly subdued by security.

Deeadrn Morrison, one of respondent’s tutors, related that on December 20, 1984, respondent took one of her files during a tutoring session and refused to return it. After a security officer intervened and the file was retrieved; respondent became angry, knocked over a blackboard in the room, and ordered Morrison to leave. She left the room and walked to a nurses’ station. While she was still at the nurses’ station preparing a report, respondent approached the station and asked a nurse for permission to get a cup of coffee. Morrison directed the nurse to refuse permission, citing respondent’s misbehavior as the reason. She explained that it was the policy of Durso II to suspend privileges for misbehavior. Respondent became angry, grabbed Morrison by the coat, and picked her up off the floor. A nearby security officer grabbed respondent by the collar and escorted him into the hallway. Morrison testified on cross-examination that she was not afraid of respondent.

Respondent’s treatment coordinator, Maureen Resheske, testified that respondent’s refusal to take his medication had become less frequent in recent months. However, she observed that he “will become upset or he will get angry about something or someone and then refuses medications.” She estimated that respondent refused his medication once or twice a week.

Dr. Richard Ney, who testified previously at the eighth commitment hearing, diagnosed respondent as suffering from “atypical impulse control disorder,” “atypical pervasive developmental disorder,” and “atypical personality disorder.” All three diagnoses are listed in the DSM-III. Dr. Ney noted that the diagnoses differed from his previous diagnosis of respondent as an antisocial personality. According to Ney the change in diagnosis resulted from a greater opportunity to observe respondent. He stated that in recent months he had developed a stronger relationship with respondent, and also had a greater opportunity to review more data on respondent’s case.

Dr. Ney’s diagnosis of atypical-impulse-control disorder was based on “observations that there have been intermittent episodes of aggressive action on the part of” respondent. The doctor specifically noted the incidents testified to where respondent had grabbed or twisted nurses’ arms. He explained that atypical-impulse-control disorder was a “residual category” which does not meet all the criteria for any one specific impulse-control disorder. He remarked that the disorder did not manifest itself all the time, noting that there are “periods when there is just no evidence of it at all, and then these discrete periods in which it seems to occur.” Dr. Ney testified that “typically an impulse control disorder is seen as a function of multiple handicaps.” He believed “fewer episodes of acting out” would occur as a person became better able to express his emotions.

Dr. Ney’s second diagnosis, “atypical pervasive developmental disorder,” usually developed in childhood. According to Dr. Ney, persons suffering from the disorder tended to be “very rigid in how they organize their environment” and had great difficulty in accepting change. He noted that other symptoms of the disorder are “low frustration tolerance,” “inappropriate or constricted affect,” and “unexplained rage reactions.” The disorder in respondent’s case, according to Ney, was in a “residual state,” meaning that the full disorder was no longer present. The third diagnosis offered by Dr. Ney was “atypical personality disorder.” He explained that respondent had some, but not all, of the symptoms for the paranoid, antisocial and narcissistic personality disorders. He observed that respondent’s “suspiciousness and wariness of others” was characteristic of the paranoid personality disorder, and that his aggression toward others was a symptom of an antisocial personality. He also stated that respondent had “an inflated sense of self-importance and a belief that others understood” his attempts to communicate, and that these were characteristics of the narcissistic personality disorder. Dr. Ney’s final diagnosis was “borderline intellectual functioning.” This diagnosis was based on respondent’s score on the performance section of the Wechsler Adult Intelligence Scale-Revised test, which had been administered for the purposes of the hearing. Ney admitted, however, that respondent had difficulty in understanding some of the test instructions, and conceded that this inability to understand instructions “does call into question whether it [the score] is really that low.”

It was Ney’s opinion that respondent was likely to inflict serious physical harm on others because of his atypical-impulse-control disorder. He opined that respondent’s behavior was unpredictable and it was difficult to know “what situations will frustrate him” and when he will “lash out at someone.” However, he stated that respondent was less likely to harm someone he knows. Dr. Ney also believed that respondent was unable to care for his basic needs, opining that respondent “seems to have difficulty in planning for the future” and “making appropriate decisions especially with regard to his deteriorating eye condition.”

Dr. Bernard Green, a psychologist at the speech and hearing center of Michael Reese Hospital in Chicago, testified that his primary diagnoses were borderline intelligence and probable neurological impairment — organic brain syndrome. His diagnosis of borderline intelligence was based on the test results administered under the direction of Dr. Ney. According to Dr. Green, persons with borderline intelligence had I.Q. scores between 70 and 79. He viewed the results of the recent tests as indicating respondent’s “present functioning” and not his potential. Moreover, he believed that respondent’s performance on the tests was adversely affected by his hearing loss, inability to communicate, and his experiential and educational deprivation, making it “more difficult to accurately assess what his true potential is.” Dr. Green also recommended that respondent undergo neuropsychological testing to determine whether he had a neurological impairment. The doctor opined that the “probability” of such impairment was indicated by respondent’s difficulty in learning sign language, his difficulty in identifying simple words, and letter reversals in his writing. Dr. Green also stated that a number of factors strongly suggested that respondent suffered from a mental illness. He explained that respondent showed “marked difficulty in terms of impulse control,” had problems “modulating his affect,” and experienced difficulties in interpersonal relationships. According to Green, respondent showed signs of withdrawal, aggression and depression. He testified that his diagnosis was not incompatible with the diagnoses of Dr. Ney. Dr. Green testified that respondent was likely to inflict harm on others in an “unstructured setting” because of his low level of frustration tolerance, suspiciousness, and problems in modulating his affect. He recommended that hospitalization at Chicago-Read continue.

Dr. Susan Feder, a psychiatrist at both Chicago-Read and Michael Reese Hospital, testified that she had seen respondent on a weekly basis since September 28, 1984. The weekly meetings lasted from 5 to 30 minutes. She also reviewed respondent’s records and interviewed staff at Chicago-Read. Dr. Feder agreed with Dr. Ney’s diagnoses of “atypical impulse control disorder” and “atypical pervasive developmental disorder, residual state.” Her third diagnosis of “mixed personality disorder” was described as including some, but not all, of the traits of the borderline, narcissistic, antisocial, and paranoid personality disorders. The traits of borderline personality exhibited by respondent were intense swings in relationships, moods and self-esteem. A narcissistic characteristic was respondent’s “inappropriate assessment of his communication skills.” Traits of an antisocial personality were reports of theft and his failure to follow rules at Chicago-Read. Dr. Feder also testified that respondent was guarded, suspicious and mistrustful of others — traits of the paranoid personality disorder.

Dr. Feder believed a “high risk” existed that respondent would inflict serious harm on others. Her reasons for concluding that respondent posed a danger were his inappropriate assessment of his communication skills, his low frustration tolerance, her opinion that he exhibited perseverative thinking, and his memory impairment. Dr. Feder opined that when respondent “cannot have his needs met or understand immediately, then he will act in an unpredictable fashion, and, at times aggressively.” She believed that respondent was “very capable” of caring for his grooming and hygiene, but doubted he could meet his needs “in an unstructured environment, where he would have to ask instructions or directions.” Dr. Feder also doubted that he would take his eye medication regularly if left to his own devices, and noted that failure to take the eye medication could cause respondent to lose sight in his one good eye.

The court also heard the testimony of Nancy Purdy, a treatment coordinator at Chicago-Read. Purdy, who has a master’s degree in deaf education, testified that she is fluent in sign language. Purdy testified that she evaluated respondent’s educational skills in March 1985. The Wide-Range Achievement test, which measures spelling, arithmetic and reading recognition, was administered to respondent as part of the evaluation. According to Purdy, respondent performed poorly on the mathematics portion of the test where his score was “equivalent to a pre-schooler, eight months.” Respondent was able to count to 10 and identify some numbers by holding up his fingers. She said he had difficulty identifying larger numbers. On the spelling portion of the test respondent was able to copy symbols and write his name accurately. However, he “had difficulty” spelling words. Purdy also testified that respondent had a receptive vocabulary (ability to understand) of about 900 signs, and she stated on cross-examination that his receptive vocabulary could be as high as 1,500 signs. She testified that respondent used and expressed between 150 and 200 signs frequently, but that some of the 150 to 200 signs in his expressive vocabulary were informal “home” signs developed by respondent. According to Purdy, persons typically have a larger receptive vocabulary than expressive vocabulary. She testified that respondent used his informal “home” signs more frequently than formal signs, even when he knew the formal sign equivalent to the “home” sign. According to Purdy, respondent “doesn’t have connective language, he has a vocabulary mostly of nouns and some verbs,” and she opined that respondent would not “acquire sufficient language and subtleties of language to stand trial in the foreseeable future.”

The State’s final witness was Dr. Robert Donoghue. The doctor observed that he had previously diagnosed respondent as suffering from a conduct disorder. He testified that he had “mixed feelings” about the diagnosis because while “there are times he [respondent] demonstrates traits that might be indicative of mental illness” he can sometimes be “perfectly normal.” According to Donoghue, respondent sometimes exhibited explosive reactions, did not seem to relate well to people, and was sometimes very unrealistic in his demands. All three traits, according to Donoghue, indicated mental illness. He opined, however, that respondent’s “main problem” was that he had not reached the level of communication where he could generalize. Because of his limited ability to communicate, he sometimes would not “understand what’s going on and becomes frustrated.” The doctor believed respondent knew “a lot more” signs than the 900-sign estimate given by Nancy Purdy. He also disagreed with Purdy’s opinion that respondent would not become fit to stand trial in the foreseeable future. He opined that respondent was making progress toward becoming fit. Dr. Donoghue further testified that he disagreed with the opinions of doctors Ney and Green concerning respondent’s intelligence level. He believed that respondent was not retarded or borderline. Dr. Donoghue also questioned Dr. Green’s diagnosis of organic brain syndrome, stating he found no evidence of such diagnosis. He also stated that it was his opinion that respondent did not suffer from clinical depression.

Dr. Donoghue was of the opinion that respondent could physically harm others in situations where he misinterpreted other people’s intentions or was unable to adequately express his own sentiments. The doctor explained that in such situations respondent sometimes became frustrated and bad-tempered. Dr. Donoghue also believed that respondent could take care of most of his basic needs in that he could dress and wash himself, and buy food and clothing. Respondent also has some basic cooking skills. However, Dr. Donoghue expressed concern that respondent would not take his eye medication on a regular basis if he were allowed to leave the hospital.

First, we consider whether respondent is entitled to a formal hearing into his fitness to stand trial for murder. We note that, at least in a legal context, the issue of whether respondent is fit to stand trial for murder is totally unrelated to the issue of whether he is subject to involuntary admission under the Mental Health Code. Fitness hearings and involuntary admission hearings are separate proceedings with different purposes.

The goals of civil commitment laws (involuntary admission) are to provide care and treatment to mentally ill persons who are unable to care for themselves, and to protect society from the dangerous mentally ill. See In re Stephenson (1977), 67 Ill. 2d 544, 554; Durham and La Fond, The Empirical Consequences & Policy Implications of Broadening the Statutory Criteria for Civil Commitment, 3 Yale L. & Pol’y Rev. 395 (1985); Myers, Involuntary Civil Commitment of the Mentally Ill: A System In Need of Change, 29 Vill. L. Rev. 367, 380 (1983); La Fond, An Examination of the Purposes of Involuntary Civil Commitment, 30 Buffalo L. Rev. 499 (1981).

In contrast, the purpose of a fitness hearing (see Ill. Rev. Stat. 1985, ch. 38, par. 104 — 16) is to determine whether an accused can participate in his defense and function at trial, since the trial of an unfit defendant violates due process (Pate v. Robinson (1966), 383 U.S. 375, 378, 15 L. Ed. 2d 815, 818, 86 S. Ct. 836, 838; People v. Murphy (1978), 72 Ill. 2d 421, 430). A defendant is unfit to stand trial or otherwise plead if, “because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense.” (Ill. Rev. Stat. 1985, ch. 38, par. 104 — 10.) Thus, “ ‘[f]itness speaks only to a person’s ability to function within the context of trial.’ [Citation.] It does not refer to sanity or competence in other areas. A defendant can be fit for trial although his mind may be otherwise unsound.” (People v. Murphy (1978), 72 Ill. 2d 421, 432. See also People v. Heral (1976), 62 Ill. 2d 329, 336; People v. Burson (1957), 11 Ill. 2d 360, 369.) “There are many prisoners who, although competent to stand trial, are mentally disturbed or defective and require psychiatric treatment.” Withers v. People (1961), 23 Ill. 2d 131, 136.

It follows, therefore, that a finding that a person is mentally ill and subject to involuntary admission is not necessarily indicative of his fitness to stand trial. “Although commitment to an institution may indicate that the individual needs some form of psychiatric treatment, it does not follow that he lacks the mental capacity to stand trial.” (People v. Richeson (1962), 24 Ill. 2d 182, 184.) A person can be mentally ill and dangerous, and still be able to understand the nature and purpose of the criminal proceedings against him, and to assist in his defense. People v. Lang (1979), 76 Ill. 2d 311, 327; People v. Murphy (1978), 72 Ill. 2d 421, 432-33.

The record here reveals that the circuit court found respondent to be unfit to stand trial on March 23, 1981. The State subsequently sought to obtain respondent’s involuntary admission under the Mental Health Code. On August 28, 1981, respondent was found to be a person subject to involuntary admission. The circuit court, in accordance with statute, then dismissed the murder charge “with the leave to reinstate.” (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 23(b)(3).) Nine redeterminations have been made regarding respondent’s involuntary-admission status. However, a hearing has not been held in more than five years to determine whether respondent continues to be unfit to stand trial.

The State contends that since it has not yet reinstated the 1971 murder charge, respondent is not entitled to a readjudication of his fitness to stand trial. The State construes section 104 — 23 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 104 — 23) as precluding subsequent hearings into an accused’s fitness to stand trial following an election by the State to seek involuntary admission, and dismissal of the charge with the leave to reinstate. That section provides in relevant part:

“(b) If at any time the court determines that there is not a substantial probability that the defendant will become fit to stand trial or to plead within one year from the date of the original finding of unfitness *** the State shall request the court:

* * *

(3) To remand the defendant to the custody of the Department *** and order a hearing to be conducted pursuant to the *** [Mental Health Code]. If the defendant is committed to the Department *** pursuant to such hearing, the court having jurisdiction over the criminal matter shall dismiss the charges against the defendant, with the leave to reinstate. *** A former defendant so committed shall be treated in the same manner as any other civilly committed patient for all purposes including admission, selection of the place of treatment and the treatment modalities, entitlement to rights and privileges, transfer, and discharge. ***

(c) If the defendant is restored to fitness and the original charges against him are reinstated, the speedy trial provisions of section 103 — 5 shall commence to run.” (Ill. Rev. Stat. 1985, ch. 38, pars. 104-23(b)(3), (c).)

The State contends that, as a “former defendant” under section 104 — 23(b)(3), respondent has no statutory right to have his fitness readjudicated. We disagree. Although section 104 — 23(b)(3) does not require subsequent fitness hearings once the State elects to proceed pursuant to that section, neither does it prohibit subsequent fitness hearings. Thus, we do not think that section 104— 23(b)(3) is dispositive of the issue here. Rather, we agree with respondent that the issue is properly resolved by looking to general principles of due process.

Due process is concerned with the “deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” (Board of Regents v. Roth (1972), 408 U.S. 564, 569, 33 L. Ed. 2d 548, 556, 92 S. Ct. 2701, 2705. See also Bishop v. Wood (1976), 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074.) Thus, our first inquiry is whether the denial of a new fitness hearing to respondent would implicate a liberty or property interest protected by the due process clause.

The dismissal of a criminal charge with leave to reinstate does not discharge a defendant from the indictment or terminate the proceedings against him, and prosecution of the charge may be reinstated on the State’s motion. (People v. Bryant (1951), 409 Ill. 467, 470; People v. Rodgers (1982), 106 Ill. App. 3d 741, 745.) Thus, even though the charges are dismissed with leave to reinstate and the defendant is released from custody, the dormant charges still constitute a limitation on the accused’s liberty. In holding that a similar procedure that allowed prosecutors to take a “nolle prosequi with leave” violated a defendant’s speedy trial rights, the Supreme Court in Klopfer v. North Carolina (1967), 386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988, noted:

“[A defendant] is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him to go ‘whithersoever he will.’ The pendency of the indictment may subject him to public scorn and deprive him of employment ***. By indefinitely prolonging this oppression, as well as the ‘anxiety and concern accompanying public accusation,’ the criminal procedure condoned in this case *** clearly denies the [defendant] the right to a speedy trial *** guaranteed to him by the Sixth Amendment of the Constitution of the United States.” (386 U.S. 213, 221-22, 18 L. Ed. 2d 1, 7, 87 S. Ct. 988, 992-93.)

A distinction exists between Klopfer and the present case, however. The defendant in Klopfer was competent, whereas the respondent here was found to be unfit to stand trial. We believe that a defendant’s unfitness tolls any sixth amendment speedy trial concerns (see United States v. DeLuca (S.D.N.Y. 1981), 529 F. Supp. 351), since the conviction of an unfit defendant violates due process (Pate v. Robinson (1966), 383 U.S. 375, 378, 15 L. Ed. 2d 815, 818, 86 S. Ct. 836, 838).

However, the distinction between Klopfer and the present case disappears once a defendant’s competency is restored and he is adjudged fit to stand trial. Indeed, the only asserted justification for dismissing the murder charge “with the leave to reinstate” is respondent’s unfitness to stand trial. If respondent’s competency to stand trial is restored, the State is no longer justified in preventing him from obtaining a trial on the dormant charge. As such, we cannot agree that respondent’s right to a fitness hearing is contingent upon reinstatement of the murder charge by the State. If the readjudication of a defendant’s fitness were contingent upon the State reinstating the charges, a real possibility would exist that a defendant could be placed under a “cloud of an unliquidated criminal charge” (Klopfer v. North Carolina (1967), 386 U.S. 213, 227, 18 L. Ed. 2d 1, 10, 87 S. Ct. 988, 995 (Harlan, J., concurring)) indefinitely and possibly long after the defendant became fit for trial. The focus of procedural due process is on the safeguards necessary to guard against erroneous deprivations of liberty or property. Here, we conclude that the guarantee of fundamental fairness inherent in the due process clause requires periodic review of respondent’s fitness status, so as to determine if he is fit to stand trial, thereby ensuring that respondent’s speedy trial rights are not violated.

In addition to subjecting respondent to public scorn (see Klopfer v. North Carolina (1967), 386 U.S. 213, 221-22, 18 L. Ed. 2d 1, 7, 87 S. Ct. 988, 992-93), the dormant criminal charge continues to have a profound effect on the quality of respondent’s life. Despite attempts by the Department to place respondent in a nursing home or other facility which is less restrictive than Chicago-Read, private facilities refuse to accept him because of his possible “forensic involvement.” Thus, respondent has a substantial interest in clearing his name and record of an alleged murder for which he was in-dieted more than 15 years ago. More than five years have passed since respondent’s fitness to stand trial was formally adjudicated. We hold, therefore, that he is entitled to a hearing into his fitness to stand trial for murder.

Any entitlement to subsequent fitness hearings will depend on the outcome of the hearing herein ordered. If respondent is found fit to stand trial, the circuit court shall set the matter for trial. (See Ill. Rev. Stat. 1985, eh. 38, par. 104 — 20(b).) If the court finds respondent to be unfit and further finds that no substantial probability exists that he will attain fitness within one year, the provisions of section 104 — 23 will still be applicable, and the charges will remain dismissed “with the leave to reinstate” provided respondent is civilly committed. In such case, respondent will be entitled to another hearing into his fitness status within one year from the last finding of unfitness. Thereafter, fitness hearings are to be held at l