concurring in part and dissenting in part.
[¶ 18] I concur in Part II of the majority opinion and respectfully dissent from Part III. I would hold the finding that T.E. has refused the medication is clearly erroneous, the petitioner has failed to meet his burden to involuntarily treat T.E. with prescribed medication, and the court’s order to involuntarily medicate T.E. must be vacated.
[¶ 19] To support involuntary medication, each of the factors required by N.D.C.C. § 25 — 03.1—18.1(1)(a), must be proven by clear and convincing evidence. N.D.C.C. § 25-03.1-18.1(3); Interest of C.W., 552 N.W.2d 382, 385 (N.D.1996); Interest of J.S., 528 N.W.2d 367, 368 (N.D.1995). At issue here is the requirement “[t]hat the patient was offered that treatment and refused it.” N.D.C.C. § 25-03.1-18.1(l)(a)(2). There is no evidence, much less clear and convincing evidence, that T.E. has been offered his medicine and refused to take it since the prior order was in place.
[¶ 20] Indeed, counsel for petitioner at oral argument conceded there was no evidence of actual refusal since the prior medication order was issued. Instead, petitioner argues and the majority opinion, interprets refusal to mean taking medication because one is subject to a court order. This makes a mockery of the plain language of the statute.
[¶ 21] This interpretation also defeats the time limitation statutorily imposed by N.D.C.C. § 25-03.1-18.1(3): “The order for involuntary treatment with prescribed medication, however, may not be in effect for more than ninety days.” If taking the medication under a court order is treated as “refusal,” then involuntary treatment orders can be endless rather than finite.
*106[¶ 22] To give meaningful effect to the 90-day statutory limit, and the evidentiary burden of clear and convincing evidence of the four factors under N.D.C.C. § 25-03.1 — 18.1 (l)(a), when an order is based upon refusal, it must be allowed to end and a new actual refusal established. The procedures for commitment are clear that it is the right of the patient “to be free from unnecessary medication.” N.D.C.C. § 25-03.1-40(10). Further, N.C.C.C. § 25-03.1-33 specifically provides that “[n]o determination that a person requires treatment . .■. operates as an adjudication of legal incompetence, or of the inability to give or withhold consent.”
[¶23] The portions of the transcript cited by the majority make clear that T.E. is taking his medication. The majority says that same evidence proves T.E. “will refuse” to take the medication once the order expires. Prediction does not meet the requirements of the statute. Petitioner must show, by clear and convincing evidence, T.E. “was offered” and “refused” to take the treatment. Prediction does not meet the evidentiary burden; actual refusal is required.
[¶ 24] Allowing an order for involuntary medication to expire to determine whether a patient will thereafter voluntarily continue any needed medications is consistent both with the requirements of N.D.C.C. § 25-03.1-18.1 and the express legislative intent to “[s]afeguard individual rights.” N.D.C.C. § 25-03.1-01(2). Further, from a practical perspective, although an expiration may mean a short lapse in medication, the determination of whether a patient has achieved sufficient insight to voluntarily continue does support a therapeutic objective. An assessment of the patient’s progress or lack of progress cannot be made if a subsequent order is based solely on the prediction that the patient will refuse, despite the fact the patient is currently taking the medication. And in many instances, including T.E.’s, the expiration of a 90-day involuntary medication order will occur well in advance of the expiration of the ongoing continuing treatment order. In T.E.’s case, the treatment order extends until August 22, 2008. The expeditious procedures of Chapter 25-03.1 allow a subsequent involuntary medication order to be quickly obtained, should one be needed and clear and convincing evidence be demonstrated, while T.E. remains under the terms of his treatment order.
[¶ 25] Mary Muehlen Maring