concurring, with whom Judges ALDISERT, ROSENN, and GARTH join.
I agree with the majority that the judgment of the district court must be vacated and the case remanded for a new trial because of the exclusion of relevant expert testimony and the use of improper legal standards in the charge to the jury. I also agree with the majority that this case is governed by the due process clause of the fourteenth amendment and not by the eighth amendment. I write separately because of a pervasive disagreement with the majority with regard to the standards that should be employed in charging the jury on remand.1
I.
Pennhurst is not unfamiliar to this court. Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir. 1979) (in banc), cert. granted, 447 U.S. 904, 100 S.Ct. 2984, 64 L.Ed.2d 853 (1980), was a class action on behalf of the residents of Pennhurst challenging the practice of institutionalizing the mentally retarded. Plaintiff Nicholas Romeo is a member of that class, and the defendants here are also defendants in Halderman. A majority of this court held in Halderman that federal and state statutory provisions granted the residents of Pennhurst a right to treatment in *174the least restrictive environment. See 612 F.2d at 104-07; Developmental^ Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976); Mental Health & Mental Retardation Act of 1966, Pa.Stat. Ann. tit. 50, §§ 4101-4704 (Purdon 1969). The court remanded for an individualized determination of what type of environment, institutional or otherwise, best suited each class member’s' needs. The majority did not have to reach the constitutional issues presented by the plaintiffs.
This suit presents legal issues that take the next step beyond Halderman. The plaintiff alleges that while confined at Pennhurst he was deprived of his rights under the eighth and fourteenth amendments of the Constitution.2 The defendants are state officials who had policymaking and supervisory responsibilities at Penn-hurst when the alleged constitutional violations occurred. They are charged by the plaintiff with failing to adopt policies and procedures that would protect the plaintiff from attacks by other residents and staff. The plaintiff also claims that the defendants violated his constitutional rights after his transfer to the Pennhurst hospital building by causing him to be physically restrained for long periods of time and by refusing to provide adequate treatment. The violations after the plaintiff’s transfer to the hospital building were allegedly to punish him for filing this suit. Although the theory of the plaintiff’s complaint is not entirely clear, the defendants are apparently charged with direct liability rather than vicarious liability for the conduct of other state employees supervised by them. The plaintiff’s complaint requested injunctive relief as well as damages against the defendants in their official and individual capacities, but only the damage claims against the defendants in their individual capacities are raised on this appeal.
II.
The majority establishes a multilevel series of standards to govern the plaintiff’s claims. First, with respect to the protection claim, the majority holds that failure of the defendants to provide for the plaintiff’s safety can be justified only by a showing of substantial necessity. Second, because physical restraint “raises a presumption of a punitive sanction,” it can be justified only by a compelling necessity. In addition, the majority holds that the plaintiff is entitled to an instruction that the defendants must show that restraint was the “least restrictive method of dealing with the patient, in light of his problems and the surrounding environment.” Third, the majority divides the treatment claim into three categories. If the jury finds that no treatment was administered, it may hold the defendants liable unless they can provide a compelling explanation for the lack of treatment. If some treatment was administered, the defendants will not be liable if that treatment was “acceptable in light of present medical or other scientific knowledge. ... Thus, if defendants can demonstrate a coherent relationship between a particular treatment program and a resident’s needs, they would not be liable.” Finally, “least intrusive” analysis applies to the selection of a treatment approach if the jury finds that the approach subjected the plaintiff to “significant deprivations of liberty.”
These standards are unnecessarily complex, and they undoubtedly will cause confusion. This complexity and confusion will affect both the ability of a jury to meaningfully assess liability and the ability of state officials like the defendants to effectively conform their conduct to these standards. The jury will be forced to make artificial distinctions between what are in reality related issues. Moreover, the jury must give essentially similar standards the distinctive meanings envisioned by the majority. For *175example, even if the jury can meaningfully differentiate between compelling necessity and substantial necessity, it is unlikely that it can do so in the manner contemplated by the majority, i. e., as a way “to distinguish between isolated incidents and inadvertent accidents, on the one hand, and persistent disregard of patients’ needs, on the other.”
The majority’s multilevel standards also will inject complexity and confusion into the work of state officials who, like the defendants, have policymaking and supervisory responsibilities at institutions like Pennhurst. These officials will have to formulate policies and procedures to ensure that the institution’s residents are (a) protected from attack unless some substantial necessity justifies the lack of protection, (b) left unrestrained unless some compelling necessity justifies their restraint, and (e) treated with various methods that may, depending on the circumstances, have to be based on accepted medical or other scientific knowledge or be the least intrusive treatment available.
Furthermore, in the unlikely event that state officials are able to formulate appropriate policies and procedures under the different standards, they still may be uncertain as to what standards govern their conduct. Treatment programs, for example, could be governed by more than one standard. Testimony at the trial indicated that some behavior modification programs utilize “timeout” principles involving periodic mechanical restraint of the limbs to eliminate aggressive behavior. It is not clear whether such a program has to be the least intrusive alternative or only be acceptable in light of present medical or other scientific knowledge.
This complexity and confusion is unnecessary. In some situations the development of multilevel standards may be unavoidable. I do not believe, however, that such standards are required in this case to accurately differentiate the factual and legal issues presented. As will be noted below, the plaintiff’s claims are interrelated, and it is unrealistic to treat them as discrete questions. Protection, restraint, and treatment are not severable issues in the context of the institutionalized mentally retarded. I believe that a single standard can be established to protect the constitutional rights of committed persons while recognizing the legitimate interests of the state.
III.
It is important to examine the relevant constitutional principles before formulating a standard to govern the issues presented in this case. Initially, I agree that conditions of confinement of the mentally retarded are subject to due process scrutiny. Government action that infringes liberty interests is subject to scrutiny under the due process clause and, at a minimum, it must be supported by a legitimate state interest. A mentally retarded person does not lose this protection merely because he is institutionalized.
This is not the end of the matter, however. Institutionalization by definition entails some restrictions on the personal liberty of committed individuals. As I noted in Halderman, 1 believe that “the state’s willingness to provide the residents with such necessities as food, shelter, medical care, and supervision, for which the residents have no other source, forms an adequate basis for some state-imposed restrictions on their liberty.” 612 F.2d at 125 (Seitz, C. J., dissenting). The questions that remain, of course, are the degree to which personal liberty can be infringed and the duties owed by the state to residents of its institutions.
The state may not confine a mentally retarded individual unless it has at least a legitimate purpose for doing so. Because the state can confine an individual only for certain purposes, the conditions of that confinement must bear a reasonable relationship to those purposes. As the majority notes, three state interests traditionally have been advanced to justify commitment of the mentally disabled: danger to others, danger to self, and the need for care or treatment. When analyzing these state interests it is tempting to speak of them as being analytically distinct. In reality, they *176represent a finely meshed interaction of state interests and patient needs. This is especially true in the context of postcom-mitment issues. For example, it is somewhat artificial to speak of danger to self as being distinct from the need for care or treatment. The very fact that an individual is dangerous to himself means that he needs care and treatment. Similarly, the need for a safe environment, which is raised by the plaintiff’s protection claim, implicates all three interests. Some of the plaintiff’s injuries are the result of retaliation by other patients for his attacks on them, and this retaliation has a double effect: it makes the plaintiff’s environment physically unsafe and it tends to impede his maximum development. Although the three interests are not entirely coextensive, this interrelation must be kept in mind when employing legitimate state interest analysis.
With this view of state interests and patient needs in mind, I believe that the plaintiff has a constitutional right to minimally adequate care and treatment. The existence of a constitutional right to care and treatment is no longer a novel legal proposition. See, e. g., Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974), rev’d on other grounds and remanded, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Rouse v. Cameron, 373 F.2d 451 (D.C.Cir.1966). Although the seminal right-to-treatment cases were concerned only with the mentally ill, recent cases have extended this right to the mentally retarded. See, e. g., Welsch v. Likins, 550 F.2d 1122 (8th Cir. 1977); Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).
It is important to remember, however, that insofar. as a constitutional right to treatment is concerned, there are critical differences between the mentally ill and the mentally retarded. Cf. Kremens v. Bartley, 431 U.S. 119, 135-36, 97 S.Ct. 1709, 1718-19, 52 L.Ed.2d 184 (1977) (in defining appropriate class in rule 23 action challenging state commitment statute, court must pay careful attention to differences between mentally ill and mentally retarded). For example, this court noted in Halderman that “[sjtrictly speaking, since mental retardation is not a curable disability, the term ‘treatment’ is inappropriate. Rather, ‘habi-litation,’ which refers to ‘that education, training and care required by retarded individuals to reach their maximum development’ ... is the more appropriate term.” 612 F.2d at 95 n.14 (citation omitted). It is in this sense that I use the term “treatment” in this opinion. In addition, profoundly retarded persons such as the plaintiff are generally unable to provide themselves with food, shelter, and clothing as well as basic protection from other persons and physical hazards. Thus, the danger rationales justifying commitment of the mentally retarded are often quite different from those justifying commitment of the mentally ill.
The state does not contest that it has placed the plaintiff in Pennhurst to provide basic care and treatment. Indeed, he has a right to treatment under state law, see Halderman, 612 F.2d at 100-103, and the fact that Pennhurst has programs and staff to treat patients is indicative of such a purpose. I believe that when the purpose for confining a mentally retarded person is to provide care and treatment, as is undoubtedly the case here, it violates the due process clause to fail to fulfill that purpose. With the above considerations in mind, I will now examine the contours of the constitutional right to care and treatment in the context of each of the plaintiff’s claims.
IV.
A. Protection Claim
The plaintiff’s first claim is that the defendants violated his constitutional rights by not adopting policies and procedures that would protect him from attacks by other residents and Pennhurst employees. In its charge to the jury on this issue, the district court stated that the defendants could be held liable only if they were “deliberately indifferent to the medical and psychological needs of [the plaintiff].” The plaintiff argues that the district court erred in using this language. The phrase “deliberate indifference” derives from Estelle v. Gamble, *177429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), in which the Supreme Court held that deliberate indifference to the serious medical needs of prisoners “constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Id. at 104, 97 S.Ct. at 291 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.)). The question presented here is whether this eighth amendment standard is a correct statement of the duty imposed by the due process clause to care for and to treat the institutionalized mentally retarded.
The constitutional right to care and treatment means that the defendants must provide a “basically safe and humane living environment.” Goodman v. Parwatikar, 570 F.2d 801, 804 (8th Cir. 1978). This duty includes reasonable protection from attacks by other residents and staff. At a minimum, the defendants have an affirmative obligation to discover the needs of mentally retarded patients for protection and to respond to those needs in an adequate manner. Because the deliberate indifference standard is not a proper method to implement these affirmative due process requirements, use of such language in the charge was reversible error.
The plaintiff contends that the correct legal standard is that the defendants must take reasonable steps to protect the plaintiff. This standard, however, is virtually indistinguishable from the standard that would apply in a state malpractice action. Some courts have analogized to common-law tort principles in adopting the standard of care for a section 1983 claim. See, e. g., Whirl v. Kern, 407 F.2d 781 (5th Cir.), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969). However, the Supreme Court has exhibited concern in an eighth amendment context about turning every state malpractice claim into a constitutional violation. See Estelle, 429 U.S. at 106, 97 S.Ct. at 292, (“deliberate indifference” standard used to distinguish constitutional violations from medical malpractice). Constitutionalization of state torts is equally a concern in due process analysis. See, e. g., Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); United States v. Delerme, 457 F.2d 156 (3d Cir. 1972). Adoption of the standard requested by the plaintiff would make section 1983 coextensive with malpractice claims when state action is present.
Distinguishing constitutional violations from ordinary malpractice claims is especially difficult in the present case because care and treatment often involve issues similar to those presented by malpractice actions. Nevertheless, I believe that this distinction should be maintained in order to confine the jury to constitutional deliberations. It is true that some malpractice claims may also rise to the level of a constitutional violation. This does not mean, however, that liability under section 1983 should be coextensive with liability in state malpractice actions. The fourteenth amendment was not intended to remedy every tort violation in which there is state involvement. Section 1983 itself places limitations on the constitutionalization of state tort claims by requiring that plaintiffs be deprived, under color of state law, of a right secured by the Constitution and laws of the United States. Strict adherence to these requirements prevents section 1983 from becoming a “font of tort law to be superimposed upon whatever systems may already be administered by the States.” Paul v. Davis, 424 U.S. at 701, 96 S.Ct. at 1160.
Because federalism principles are implicated here, I believe that a further limitation is necessary. Under these circumstances I would hold that allegations of constitutional violations based only upon mere malpractice do not state a cause of action under section 1983. See Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976) (neglect, carelessness, or malpractice without more does not establish constitutional violation under § 1983); Harper v. Cserr, 544 F.2d 1121, 1124 (1st Cir. 1976) (section 1983 would not afford relief for complaint alleging negligence or malpractice). This construction of the statute implements the objectives of section 1983 *178without encroaching on interests that are only a matter of state concern. It must be remembered that with respect to the institutionalization of the developmentally disabled, the Constitution only establishes minimum standards below which the state’s conduct may not fall. Although common-law tort principles may provide a useful starting point in formulating the appropriate standard of care under section 1983, they cannot be determinative of the constitutional issue.
In developing a standard to assess whether the defendants have infringed the plaintiff’s constitutional right to care and treatment, it is also important to keep in mind the nature of the conduct that will be evaluated by the jury. The question of how best to treat the mentally retarded is a hotly debated subject among experts, and the answers most likely will change over time with the acquisition of new knowledge. Although the statutes in Halderman required us to enter the debate, I believe that such a debate should not be elevated to constitutional proportions. A statute is relatively easy to change but the Constitution is not. In my view, the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made. Cf. Developments in the Law — Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1342-44 (1974) (discussing use of an administrative law model to ensure that court does not engage in evaluating various psychiatric theories).
Although I have indicated that the care and treatment of the institutionalized mentally retarded must be left largely to the appropriate professionals, some judicial scrutiny is essential if the right to care and treatment is not to become meaningless. As I noted previously, the defendants must discover the needs of the institution’s residents and, if action is necessary, respond adequately to those needs. Once the defendants have taken action, or have chosen not to act, it must be determined whether their conduct satisfies the Constitution.
I would hold that the jury should be instructed that the defendants are liable if their conduct was such a substantial departure from accepted professional judgment, practice, or standards in the care and treatment of this plaintiff as to demonstrate that the defendants did not base their conduct on a professional judgment. This is not a malpractice standard. By “accepted professional judgment” I do not-mean some standard employed by a reasonable expert or a majority of experts in the community, as state malpractice actions would require, but rather that the choice in question was not a sham or otherwise illegitimate. The jury is to decide only whether the defendants’ conduct had some basis in accepted professional opinion. Furthermore, unlike state malpractice actions, a departure from accepted professional judgment must be substantial to give rise to liability. Although violations of the standard that I have developed would probably contravene state malpractice standards as well, this does not mean that the two standards are coextensive. The “substantial departure from accepted professional judgment" standard effectively distinguishes between conduct that violates the minimum requirements of the Constitution and conduct, such as ordinary malpractice, that does not.
Instructions consistent with the previous paragraph properly balance the plaintiff’s constitutional right to minimally adequate care and treatment against the legitimate interests of the state. Thus, with regard to the plaintiff’s claim that the defendants failed to adopt policies and procedures that would adequately protect him from attacks by other residents and staff, the jury should be charged in accordance with the “substantial departure from accepted professional judgment” standard. The district court’s charge is inconsistent with this standard, and it improperly excluded expert testimony relevant to the above inquiry.
B. Restraint Claim
In his second claim, the plaintiff alleges that the defendants violated his constitutional rights by causing his freedom of *179movement to be restricted through the use of various mechanical restraints while he was confined in the Pennhurst hospital building.3 The majority holds that the least restrictive alternative standard applies to this claim. I believe that this standard does not represent what the Constitution requires as a minimum for a number of reasons. In Halderman this court held that the residents of Pennhurst have a right to treatment in the least restrictive environment under the Developmentally Disabled Assistance and Bill of Rights Act and the Pennsylvania Mental Health & Mental Retardation Act of 1966. However, Halder-man rested solely on statutory grounds and the present case involves the Constitution.4 Furthermore, the least restrictive alternative standard is inappropriate here for a far more fundamental reason.
The major issue in Halderman was whether institutionalization was per se illegal. Although we referred to the living conditions at Pennhurst, the main issue in Halderman was where the members of the class should be treated. That question is not presented in this case. See note 2 supra. The only question here is whether, assuming institutionalization is legal, the actions taken within the institution satisfy the Constitution. Regardless of the validity of least restrictive alternative analysis in other facets of treatment of the mentally retarded, it simply has no applicability to conditions within an institution.
Implicit in the least restrictive alternative theory is the notion that the state’s only interest in institutionalizing a person is treatment. See, e. g., Wyatt v. Aderholt, 503 F.2d 1305, 1313 (5th Cir. 1974) (state interests other than treatment are “trivial” compared to massive curtailment of liberty involved). But see Morales v. Turman, 562 F.2d 993, 998 (5th Cir.) (questioning this and other aspects of Wyatt), rev’d and remanded on other grounds, 430 U.S. 322, 97 S.Ct. 1189, 51 L.Ed.2d 368 (1977) (per curiam). I believe, however, that this gives inadequate recognition to the subtle interrelation of the various state interests involved.
As already noted, the three state interests normally associated with confinement of the developmentally disabled — danger to others, danger to self, and need for care or treatment — overlap and mesh together to some extent in this context. This is especially true as to actions taken within the institution, where decisions about proper care or treatment often must be made on a day-to-day basis. The least restrictive alternative test gives inadequate recognition to this fact. Because the state’s interests are rather complex, a particular mode of care or treatment may serve one state interest but not another. For example, physical restraints may serve short-run safety *180needs but not long-run habilitation needs. By focusing on the “best” care or treatment through a rather rigid view of the state interests, least restrictive alternative analysis tends to obscure the true nature of the state interests. Because the standard to be applied must give recognition to the interplay of the various interests, I believe the majority’s test is an inappropriate standard for constitutional purposes. In short, even if least restrictive alternative analysis provides an appropriate framework for answering the question of where to place the mentally retarded, it is simply too rigid a tool once we leave that question and focus on conditions of care and habilitation within a particular institution.
Moreover, the least restrictive alternative standard is not easily transferable from the context in which it originated to the situation presented by this case. The standard evolved from the less drastic means analysis formulated by the Supreme Court in cases involving free speech. See, e. g., Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). Since its first exposition of the less drastic means doctrine, the Supreme Court has been rather cautious in using the doctrine because some less drastic alternative almost always exists. If used without caution, the doctrine could invalidate almost any state action. See generally Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 188-89, 99 S.Ct. 983, 992-93, 59 L.Ed.2d 230 (1979) (Blackmun, J., concurring); Note, Less Drastic Means and the First Amendment, 78 Yale L.J. 464, 472 (1969).
These difficulties can be avoided where there is one, objectively ascertainable less drastic means. See Richardson, Freedom of Expression and the Function of Courts, 65 Harv.L.Rev. 1,40 (1951). This single, objective alternative simply does not exist in the care and treatment of the mentally retarded because what is the best care or treatment at any given time may be a subject of great professional debate. Thus, judges and juries likely will not be able to make a single, objective determination. Furthermore, because a mentally retarded individual’s needs change over time, the least restrictive alternative standard will in effect require continuing evaluation of the “best” method, not a single determination. Although Congress or the states may adopt this standard as part of a statutory scheme, such difficulties caution against use of the doctrine as a constitutional matter. Thus I disagree with the majority’s application of the least restrictive alternative standard to the plaintiff’s restraint claim.
The “substantial departure from accepted professional judgment” standard that I developed in relation to the protection claim should also apply to the restraint claim. This standard provides for judicial scrutiny yet gives the state leeway in which to accommodate the interests it has in confining the mentally retarded. At first glance, this standard may appear to be inappropriate in the context of a restraint claim. As I noted earlier, however, the state’s interests are interrelated, and it is unrealistic to view each of the plaintiff’s claims as separate and distinct. Mechanical restraints, when used properly in accord with preestablished procedures, can be an integral part of a treatment program.5 Furthermore, restraints may be essential to protect the safety of the patients.6 Whether this is the *181situation here is, of course, a question for the jury.
I believe that the jury should be instructed that physical restraint related to the provision of care or treatment violates the plaintiff’s rights if the defendants’ conduct was such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the defendants did not base their conduct on a professional judgment. Restraint for the convenience of the staff or for punishment serving no legitimate purpose would be a substantial departure from accepted professional judgment and thus a violation of the plaintiff’s constitutional right to care and treatment. Of course, other prerequisites to establishing the defendants’ liability also would have to be met.
C. Treatment Claim
The plaintiff’s final claim is that the defendants deprived him of his constitutional rights by not making available adequate treatment while he was confined in the Pennhurst hospital building. The plaintiff also appears to be asserting that he has a right to treatment in the least restrictive alternative. My discussion of the least restrictive alternative standard in the preceding section applies with equal force to the treatment claim. As a result, I agree with the majority’s holding that least restrictive alternative analysis is inappropriate when assessing the adequacy of treatment already administered. I do not agree, however, that the standard articulated by the majority is a correct statement of what the Constitution requires, nor do I concur in the majority’s promulgation of a three-tier framework for analyzing treatment claims.
The majority holds that when the jury finds that some treatment has been administered, it should determine whether the treatment is regarded as acceptable in light of present medical or other scientific knowledge. This standard is in effect the same standard that would apply in a state malpractice action. As noted previously, it is of vital importance to maintain the distinction between common-law tort actions and constitutional decisions. The “substantial departure from accepted professional judgment” standard preserves this distinction while accommodating the concerns of both the institutionalized mentally retarded and state officials.
The majority also divides treatment claims into three categories and formulates different standards of review for each category. I believe, however, that such distinctions are artificial and will lead to unnecessary complexity and confusion. See part II supra. The jury should be instructed to apply the “substantial departure from accepted professional judgment” standard to all aspects of the treatment claim. Inaction by the defendants or the use of restrictive procedures in treatment can, of course, be taken into consideration by the jury in determining whether professional judgment has been exercised.
V.
The lamentable conditions that exist at Pennhurst have been detailed elsewhere. See Halderman, 612 F.2d 84. The institution is unsanitary and understaffed, and many of its residents are subjected to violence and enforced inactivity. I stand second to no one in condemning these conditions, and, as I emphasized in my dissent in Halderman, I believe that the federal judiciary has a duty to ensure that these conditions are eliminated. However, our duty in this case is only to establish minimum constitutional standards to govern the individual claims of a Pennhurst resident against certain Pennhurst officials. I would hold that the Constitution requires the district court to instruct the jury that the defendants’ conduct comports with due process if it is not a substantial departure from accepted professional judgment. Because the majority’s decision is inconsistent with this standard, I cannot join the opinion of the court.
. The existence of a-qualified immunity defense is not raised on this appeal. Consequently, I will not address this question even though it is discussed in the majority opinion.'
I also emphasize that, as the majority appears to concede, this appeal does not present claims involving nonreversible surgery or the administration of antipsychotic drugs. Therefore, in my view the majority opinion would not be controlling if such claims were asserted in other litigation.
. The procedures used to commit the plaintiff are not at issue here. See generally Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640, 99 S.Ct. 2523, 61 L.Ed.2d 142 (1979). Nor is it significant that the plaintiffs mother, and not the state, applied for his commitment. See Halderman, 612 F.2d at 94. Accordingly, those factors have no bearing on the analysis that follows.
. Testimony at the trial demonstrated that the plaintiff was restrained in three different ways. When restraints were used the plaintiff was generally in “soft restraints.” These restraints allow limited freedom of movement and confine a resident to the same area by securing his arms or legs to a chair or bed. Sometimes metal shackles were used on the plaintiff. This type of restraint consists of a metal wrist or leg band to which a leather belt is attached. The leather belt is tied tó a chair or bed to restrict the resident to that particular area. Finally, the plaintiff was occasionally restrained by a leather muff around his hands. See Trial Transcript, vol. 4, at 170-71; vol. 7, at 50-56.
. The holding in Halderman that the Developmentally Disabled Assistance and Bill of Rights Act was enacted under § 5 of the 14th amendment does not mean that the legal standard of that statute — that patients have a right to treatment in the least restrictive environment — controls the disposition of the constitutional issues here. See Halderman, 612 F.2d at 98. In Halderman we held only that the statute was a permissible exercise of Congress’ § 5 enforcement power. The distinction between § 5 and § 1 of the 14th amendment is crucial because Congress may proscribe conduct that a court would not find unconstitutional. Indeed, the test under § 5 is that normally associated with the necessary and proper clause. See, e. g., Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). Thus the court’s holding in Halderman, which relied on Katzenbach v. Morgan (see 612 F.2d at 98 & n.18), merely means that the standard in the Developmentally Disabled Assistance and Bill of Rights Act is permissible under the necessary and proper clause. The test normally associated with the necessary and proper clause, however, is not an appropriate method of analyzing what due process requires as a minimum.
. Pennsylvania law establishes one such procedure by requiring that mechanical restraints be used within an institution only when “the director of a facility or his designee determine that [restraints] are required by the medical needs of [a] person admitted or committed.” Pa.Stat.Ann. tit. 50, § 4422 (Purdon 1969). Testimony at the trial showed that the plaintiff was restrained only on the order of a licensed physician. The majority, however; appears to assume that the defendants did not comply with § 4422 because the physician’s order was not supplemented by an order of the director of Pennhurst. See majority op. at nn.21 & 25. But it is not clear to me that physicians employed at Pennhurst cannot be the director’s “designee” within the meaning of the statute. Moreover, this issue is not raised on appeal and was not briefed by the parties.
. Protection may include both protection from self and protection from others. Confinement in a hospital may present special problems because of the presence of medical equipment and supplies and the fragile health of many patients. For example, testimony at the trial *181indicated that profoundly retarded residents often need to be restrained when confined in the Pennhurst hospital building because other patients are in traction or receiving intravenous fluids. See Trial Transcript, vol. 7, at 40-41, 76.