In re L.A.

In re L.A. (2005-368)

2006 VT 118

[Filed 17-Nov-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 118

                                No. 2005-368


  In re L.A.                                     Supreme Court

                                                 On Appeal from
                                                 Washington Family Court

                                                 May Term, 2006


  Matthew I. Katz, J.

  John J. McCullough III and Laura A. Gans of Vermont Legal Aid, Inc.,
    Waterbury, for Appellant.

  William G. Sorrell, Attorney General, Montpelier, and David Bond, Assistant
    Attorney General, Burlington, for Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

        
       ¶  1.  JOHNSON, J.  Patient L.A. appeals from a family court
  decision granting the Commissioner of the Department of Health's petition
  for involuntary psychiatric medication.  Patient argues that the trial
  court erred by applying the wrong standard to determine whether he is
  competent to refuse medication.  The family court ruled that patient was
  incompetent because he refused beneficial medications.  We reverse and
  remand for a new hearing because the involuntary medication statute
  mandates that the family court decide whether patient is capable of making
  a decision about medication and appreciating its consequences.  Although
  the family court made findings about L.A.'s mental illness, it did not make
  findings about L.A.'s capacity to make the medication decision.   Patient
  also argues that the Religious Land Use and Institutionalized Persons Act
  (RLUIPA) protects him from an order for involuntary medication because the
  medications would interfere with the practice of his religious beliefs. 
  Because the Commissioner did not have a full opportunity to respond to this
  issue, and in light of our remand, we reserve judgment on patient's RLUIPA
  claim.  

       ¶  2.  Patient is a sixty-four-year-old man who has been diagnosed
  with bipolar disorder, currently manic with psychotic features, and
  alcoholism.  On April 15, 2005, patient was committed to the Vermont State
  Hospital (VSH) after having been arrested in Burlington for disorderly
  conduct.  Although doctors have prescribed patient a regimen of psychiatric
  medications, he has refused to take them throughout his commitment.  On
  June 29, 2005, the Commissioner filed a petition for involuntary medication
  pursuant to 18 V.S.A. § 7624.  As the statute requires, the family court
  held an evidentiary hearing on the issue of patient's competence. 18 V.S.A.
  § 7625(a).

       ¶  3.  At the hearing, the Commissioner presented the testimony of Dr.
  Munson, patient's treating psychiatrist at VSH.  Dr. Munson described
  patient's diagnoses and symptoms, including persistently elevated mood,
  hyperactivity, rapid speech, delusions, and threatening and sexually
  explicit interactions.  Dr. Munson testified that he believed patient would
  pose a danger to himself or others outside the hospital, but conceded that
  he did not believe patient was particularly dangerous in the controlled
  environment at VSH.  According to Dr. Munson, patient should be on a
  regimen of mood stabilizers, anti-psychotics, and side-effect medications. 
  He believes patient is incapable of rationally evaluating the risks and
  benefits of the medications, and is incompetent to make decisions regarding
  his medication. 
   
       ¶  4.  Patient testified on his own behalf at the hearing, and
  described his objections to taking the medications.  First, according to
  patient, he is "not a sick man."  Patient did testify, however, that he
  understands that Dr. Munson believes that he is sick and that the
  medications would help him.  He also acknowledged that the staff and even
  some of the patients at VSH have advised him that taking his medications
  would likely hasten his discharge.  According to patient's testimony,
  though, he is concerned about how the medications will "affect" him. 
  Patient described "a splendid relationship within [himself] and with the
  spiritual being that flows through [him]."  According to patient, the
  medications would affect his "expression," thereby hindering his spiritual
  life.  Finally, patient expressed concern about the physical side effects
  that accompany many psychiatric medications, including symptoms that mimic
  Parkinson's disease.   

       ¶  5.  The family court made several factual findings based on the
  evidence presented at the hearing.  The court found that patient suffers
  from bipolar disorder and alcoholism, and is delusional.  It listed certain
  of patient's specific delusions, such as his apparent beliefs that he is
  the Prophet Elijah, and that he controls a submarine capable of firing
  missiles.  The court also concluded that patient is dangerous at least some
  of the time.  Based on patient's psychiatric symptoms and the effectiveness
  of medication in treating them, the court found that patient's
  prescriptions were warranted.  Finally, the court concluded that patient
  did not demonstrate a specific religious objection to the medications. 
  According to the court: "Insofar as he refuses altogether the medications
  that might benefit him, Patient is not competent to make a decision
  regarding the proposed regimen of treatment."

                                     I.

       ¶  6.  Patient first argues that the family court used the wrong
  standard to determine that he is incompetent to refuse medication.  We
  agree that the family court failed to apply the standard articulated in the
  statute, "whether the person is able to make a decision and appreciate the
  consequences of that decision."  18 V.S.A. § 7625(c).   
   
       ¶  7.  Under 18 V.S.A. § 7624(a), the Commissioner may file a
  petition with the family court for the involuntary medication of patients
  who refuse to accept them.  The Commissioner bears the burden of proving
  patient's incompetence by clear and convincing evidence.  Id. § 7625(b). 
  The family court determines whether a person is competent to make decisions
  regarding medication based on "whether the person is able to make a
  decision and appreciate the consequences of that decision."  Id. § 7625(c). 
  The statute further provides, "[i]t is the intention of the general
  assembly to work towards a mental health system that does not require
  coercion or the use of involuntary medication."  Id. § 7629(c). 

       ¶  8.  If the court finds the patient competent, the petition is
  dismissed, and he may continue to refuse medication as he wishes.  Id. §
  7627(d).  If, on the other hand, the court finds the patient incompetent,
  the court goes on to:

    consider at a minimum, in addition to the person's expressed
    preferences, the following factors:

    (1) The person's religious convictions and whether they contribute   
    to the person's refusal to accept medication.

    (2) The impact of receiving medication or not receiving medication   
    on the person's relationship with his or her family or household        
    members whose opinion the court finds relevant and credible based   
    on the nature of the relationship.

    (3) The likelihood and severity of possible adverse side effects
    from the proposed medication.

    (4) The risks and benefits of the proposed medication and its
    effect on:

         (A) the person's prognosis; and

         (B) the person's health and safety, including any pregnancy

    (5) The various treatment alternatives available, which may or may   
    not include medication.

  Id. § 7627(c).  If the above factors support involuntary medication, "the
  court shall make specific findings stating the reasons for the involuntary
  medication by referencing those supporting factors."  Id. § 7627(e).
   
       ¶  9.  Thus, the statute outlines two steps in deciding whether
  involuntary medication is appropriate for a patient.  In the first step,
  the family court determines whether the patient is competent to refuse
  medication.   Second,  the court considers, based on the factors outlined
  in § 7627(e), the merits of involuntarily medicating the patient.  Whereas
  the first step is focused entirely on the patient's decision-making
  ability, the second step is focused on the potential benefits and risks of
  the medication.  Therefore, there may be circumstances in which a competent
  patient may refuse medication that would most likely benefit him. 
  Likewise, the family court could find a patient incompetent to refuse
  medication, yet still conclude that involuntary medication is not
  appropriate.

       ¶  10.  It is important to understand that, in the involuntary
  medication context, the competence inquiry is dictated by the statutory
  language.  The standard is different, and more difficult for the
  Commissioner to meet, from the standard for determining whether a person
  may be involuntarily committed because the statute focuses solely on the
  patient's decision-making abilities, as they may or may not be affected by
  mental illness-not the fact of the patient's diagnosis alone, or the merits
  of the psychiatrist's medical advice.  If a mere diagnosis were the end of
  the analysis, it would preclude the need for a petition procedure
  altogether. 
   
       ¶  11.  In this case, the family court concluded that "[i]nsofar as
  [patient] refuses altogether the medications that might benefit him,
  [p]atient is not competent to make a decision regarding the proposed
  regimen of treatment."  The court's reasoning, however, fails to address
  the first step in the involuntary medication analysis.  Every patient who
  is the subject of a petition for involuntary medication has refused
  prescribed medication.  Indeed, the statute applies only to patients who
  have refused medication.  18 V.S.A. § 7624.  Thus, the fact that patient
  has "refuse[d] altogether" the medication at issue can have no bearing on
  his competence; otherwise, the statutory inquiry into competence would be
  superfluous.  See Judicial Watch, Inc. v. State, 2005 VT 108, ¶ 14, 16
  Vt. L. Wk. 363, 892 A.2d 191 (stating that we will not interpret a statute
  in a way that renders language surplusage).

       ¶  12.  Nor can it be relevant to the court's consideration of
  patient's competence that the medications "might benefit" him.  As
  discussed above, the involuntary-medication analysis does not reach the
  issue of whether medication is beneficial until the court has first
  determined that a patient is incompetent to make a medication decision. 
  J.L. v. Miller, 174 Vt. 288, 291, 817 A.2d 1, 3 (2002) (noting that "upon a
  finding of incompetence, the family court is required to determine whether
  involuntary medication is supported by the factors enumerated in §
  7627(c)").   The fact that the medication might benefit him-as is generally
  expected of medication-cannot be enough to conclude that patient is
  incompetent.  The Legislature intended the statute as a step toward a
  wholly voluntary system of psychiatric medication.  18 V.S.A. § 7629(c). 
  As long as patient can understand the consequences of refusing medication,
  the statute permits him to do so, even if refusing medication will be to
  his detriment.  In other words, a person who is competent to make a
  medication decision within the meaning of the statute has the same right as
  any other person to refuse beneficial medication.

       ¶  13.  The Commissioner argues that § 7625(c) includes the inherent
  condition that a patient's decision must be rational, and that the family
  court implicitly determined that patient's decision was irrational.  The
  Commissioner asserts that we approved such a standard in In re R.L., 163
  Vt. 168, 657 A.2d 180 (1995).  In that case, we reviewed the family court's
  decision regarding a patient's involuntary commitment to VSH.  The patient
  contested the Commissioner's petition for involuntary commitment on the
  grounds that he was willing to accept treatment at VSH voluntarily.  We
  reasoned that the family court could consider the patient's capacity to
  consent to treatment, including whether he was capable of making reasonable
  judgments, in deciding whether voluntary commitment was appropriate.  Id.
  at 174-75, 657 A.2d  at 184-85.  

       ¶  14.  The Commissioner's reliance on In re R.L. in this case is
  misplaced.  Here, instead of involuntary commitment, we consider
  involuntary medication, which is governed by an entirely different
  standard.  Whereas involuntary commitment ultimately depends on whether a
  person has mental illness and poses a danger of harm to himself or others,
  involuntary medication depends on a person's ability to make decisions and
  appreciate their consequences.  Compare 18 V.S.A. § 7101(17) (governing
  involuntary commitment) with id. § 7625(c) (governing involuntary
  medication). (FN1)  The facts underlying a patient's involuntary commitment
  cannot alone support involuntary medication.  In this and many other cases,
  involuntary commitment is a prerequisite to the Commissioner's petition for
  involuntary medication. (FN2)  Id. § 7624(a).  Involuntary medication is an
  even further intrusion on a patient's autonomy than involuntary commitment,
  and the standards we have applied to commitment determinations are
  inapposite.
                                 
       ¶  15.  We agree with the Commissioner, however,  that the
  consequences patient must be able to appreciate must be real, and not
  imaginary or delusional.  Nevertheless, the statute requires only that
  patient appreciate those consequences, not that he make the best decision
  in light of those consequences, or that he agree with his psychiatrist. 
  The family court and the Commissioner appear to assume that there is only
  one competent choice patient could make-to follow his doctor's advice and
  accept medication.  Neither the court nor the Commissioner attempt to
  discern what patient perceives as the consequences of his decision to
  refuse medication.  If patient's disagreement with his psychiatrist were
  sufficient to find him incompetent, the family court would have to grant
  every petition for involuntary medication filed by the Commissioner. 

       ¶  16.  Without conceding that the family court employed the wrong
  standard, the Commissioner urges us to consider the decision as a whole,
  and rely on the court's findings to affirm its conclusion that patient is
  incompetent.  See Caledonia-Record Pub. Co. v. Vt. State Coll., 2003 VT 78,
  ¶ 7, 175 Vt. 438, 833 A.2d 1273 (noting that we may affirm a judgment where
  the correct result was reached for the wrong reason).  The court's 
  findings, however, are inadequate to support such a conclusion.  The
  court's findings regarding patient's delusions, and his illness in general,
  have an impact on the competence determination only insofar as they reflect
  his ability to make decisions.  18 V.S.A. § 7625(c).  Because mental
  illness and psychotic symptoms are almost invariably present in the context
  of involuntary medication petitions, the court must do more than list
  patient's symptoms; it must specifically examine how they affect his
  decision-making capabilities.

       ¶  17.  The court made no specific findings about patient's ability to
  make a decision or to appreciate the consequences of that decision, such as
  patient's fear of developing known physical side effects from the
  medication.  Moreover, although the court addressed the factors in §
  7624(c) in great detail, these factors do not enter the analysis until the
  court has first made a finding that patient is incompetent.  Supra, ¶¶
  8-11.  Certain of the court's other findings are irrelevant to either the
  competence standard or the factors in § 7624(c).  We can find nothing in
  the court's decision that would support any determination as to whether
  patient is competent to refuse medication under the statute.  Accordingly,
  we reverse.  In light of the possibility that patient's condition may have
  changed during the pendency of this appeal, we remand for a new hearing
  regarding patient's competence.

        
                                     II.

       ¶  18.  Patient next asserts that his medication refusal is protected
  by the federal Religious Land Use and Institutionalized Persons Act
  (RLUIPA) because involuntary medication would impede his religious
  exercise.  RLUIPA provides in relevant part:

    No government shall impose a substantial burden on the religious
    exercise of a person residing in or confined to an institution . .
    . even if the burden results from a rule of general applicability,
    unless the government demonstrates that imposition of the burden
    on that person-
      (1) is in furtherance of a compelling governmental interest; and 
      (2) is the least restrictive means of furthering that compelling    
    governmental interest.

  42 U.S.C. § 2000cc-1(a).  "Religious exercise," under the statute,
  "includes any exercise of religion, whether or not compelled by, or central
  to, a system of religious belief."  Id. § 2000cc-5(7)(A).  To sustain a
  claim or defense under RLUIPA, the party raising the issue must first make
  a prima facie case that government action substantially burdens his
  religious exercise.  Having done so, the government bears the burden of
  persuasion on all elements, except whether the challenged government action
  indeed substantially burdens the party's exercise of religion.  Id. §
  2000cc-2(b).  Because RLUIPA is predicated on Congress' Commerce Clause and
  Spending Clause powers, the statute applies only to burdens that would
  affect interstate or foreign commerce, or programs receiving federal funds. 
  Id. § 2000cc-1(b).
   
       ¶  19.  The Commissioner advances several arguments, both procedural
  and substantive, in response to patient's RLUIPA claim.  First, the
  Commissioner argues that patient failed to raise the statute in a timely
  manner, thereby waiving the issue.  The Commissioner also argues that
  patient has not presented facts to show that RLUIPA's jurisdiction, under
  either the Commerce Clause or Spending Clause, is triggered.  See Prater v.
  City of Burnside, 289 F.3d 417, 433 (6th Cir. 2002) (noting that claimant
  "may not rely upon RLUIPA unless it first demonstrates that the facts of
  the present case trigger one of the bases for jurisdiction provided in the
  statute").  Even if patient's defense is properly before the Court, the
  Commissioner asserts that patient has not identified any specific religious
  exercise that involuntary medication will burden.  According to the
  Commissioner, patient's claimed religious beliefs are actually
  manifestations of his mental illness.  Finally, to the extent that
  patient's religious exercise is burdened, the Commissioner argues that the
  burden of involuntary medication is not substantial, and is justified by
  the State's compelling interests.  

       ¶  20.  The family court concluded that patient's opposition to
  psychiatric medication did not "constitute[] a religious exercise as that
  phrase is used in the Act."  The court analyzed patient's RLUIPA argument
  concurrently with its analysis of patient's "religious convictions"-one of
  the factors the court was required to consider after finding patient
  incompetent, but before ordering involuntary medication-under 18 V.S.A. §
  7627(c)(1).  The court looked to the Oxford American Dictionary's
  definition of religion, concluding that "religion" means "belief in a
  personal God or gods entitled to obedience and worship; expression of this
  in worship; particular system of faith and worship; thing that one is
  devoted to."  Applying this definition, the court concluded that it had "no
  clue as to whether [patient] believes in God or gods," and thus concluded
  that RLUIPA and 18 V.S.A. § 7627(c)(1) were inapplicable.  Ultimately, the
  court concluded, patient's beliefs were "secular in nature, not religious,"
  and thus, involuntary medication would not burden patient's exercise of
  religion.  
   
       ¶  21.  Despite the court's decision to rule on this issue, we need
  not address the merits of patient's RLUIPA claim, as we agree with the
  Commissioner that patient failed to raise the issue in a timely manner. 
  Patient's counsel mentioned RLUIPA for the first time during his closing
  argument.  As a result, the Commissioner lacked notice of this claim, and
  was unable examine the witnesses, or present any other evidence, in a
  manner that would address the elements of RLUIPA.  Notice was especially
  important in this context because of the shifting burdens of production and
  persuasion facing patient and the Commissioner regarding the various RLUIPA
  elements.  In this sense, RLUIPA was similar to an affirmative defense,
  which must ordinarily be raised in a party's responsive pleading.  V.R.C.P.
  8(c).  "Rule 8(c) is a notice provision, intended to prevent unfair
  surprise at trial."  Merrilees v. Treasurer, 159 Vt. 623, 623, 618 A.2d 1314, 1315 (1992) (mem.).  Although 18 V.S.A. § 7624 does not provide for
  any responsive pleading to a petition for involuntary medication, and thus,
  Rule 8(c) is not technically applicable here, the policy underlying the
  rule is nonetheless implicated.  To allow full development of the requisite
  facts and arguments, patient should have raised his RLUIPA claim at the
  earliest opportunity.
   
       ¶  22.  Despite this waiver, patient may raise his RLUIPA argument
  again on remand if he so chooses.  With adequate notice, the Commissioner
  will have an opportunity to present jurisdictional objections and
  substantive evidence in response to patient's argument.  Similarly, patient
  will have an opportunity to argue, as he has in his appellate brief, in
  favor of a more expansive interpretation of religious exercise than the
  dictionary definition employed by the family court in its original
  decision.  See, e.g., Thomas v. Review Bd. of Indiana Employment Sec. Div.,
  450 U.S. 707, 714 (1981) (stating that "[t]he determination of what is a
  'religious' belief or practice is more often than not a difficult and
  delicate task" which should not "turn upon a judicial perception of the
  particular belief or practice in question; religious beliefs need not be
  acceptable, logical, consistent, or comprehensible to others"); United
  States v. Seeger, 380 U.S. 163, 185 (1965) (considering "whether the
  beliefs professed . . . are sincerely held and whether they are, in [the
  believer's] own scheme of things, religious"); United States v. Ballard,
  322 U.S. 78, 86 (1944) ("Religious experiences which are as real as life to
  some may be incomprehensible to others.").  Thus, on remand, the notice
  concerns we have addressed above will no longer prevent the family court's
  full consideration of patient's religious concerns in light of both sides'
  arguments.  See Merrilees, 159 Vt. at 623, 618 A.2d  at 1315 (noting that
  Rule 8(c) need not apply where notice considerations are not implicated).

       Reversed and remanded for further proceedings consistent with the
  views expressed herein.


                                       FOR THE COURT:


                                       ______________________________    
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  We decided In re R.L. in 1995, prior to the Legislature's current
  expression of its intent to achieve a more voluntary treatment system.
  18 V.S.A § 7629(c).

FN2.  The Commissioner may also commence involuntary medication actions for
  persons who have previously been committed to the hospital, and are
  currently out of the hospital on an order of non-hospitalization, or for
  persons committed to the custody of the Commissioner of Corrections, and
  for whom the Commissioner of Corrections and the Department of
  Developmental and Mental Health Services agree that involuntary medication
  would be appropriate.  18 V.S.A. § 7624(a).