¶ 1. Pаtient 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
¶ 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 hеaring, 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 рarticularly 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 describеd “a splendid relationship within [himself] and with the spiritual being that flows through [him].” According to patient, the medications would affect his “expression,”
¶ 5. The family court made several factual findings based on the evidence presented at the hеaring. 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 mediсation 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 thе 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 thе policy 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:
*38 consider at a minimum, in addition to the person’s expressed prefеrences, 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 оf 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(c), 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
¶ 11. In this case, the family court concluded that “[ijnsofar as [patient] refuses altogether the medications that might benefit him, [pjatient 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 intо competence would be superfluous. See Judicial Watch, Inc. v. State,
¶ 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 incоmpetent to make a medication decision. J.L. v. Miller,
¶ 13. The Commissioner argues thаt § 7625(c) includes the inherent condition that a patient’s decision must be rational, and that the
¶ 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).
¶ 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
¶ 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 Caledonian-Record Publ’g Co. v. Vt. State Coll.,
¶ 17. The court made no specific findings about patient’s ability to make a decision or to appreciatе 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 faсtors 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.
¶ 18. Patient next asserts that his medication refusal is protectеd 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 furtheranсe 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 substantiаlly 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 рrograms 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,
¶ 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 cоnvictions” — 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 аgree 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 to 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 persuasiоn 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,
¶ 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.,
Reversed and remanded for further proceedings consistent with the views expressed herein.
Notes
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).
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 nonhospitalization, 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).