with whom ALDI-SERT, Circuit Judge, joins, concurring.
I agree with Judge Weis that persons who are involuntarily committed to New Jersey state mental institutions have a qualified constitutional right to refuse antipsychotic medication. As Judge Weis emphasizes, this constitutional right stems from an important liberty interest created by the due process clause of the fourteenth amendment, and not from an interest rooted in state law. I also agree that the district court erred in finding that the administrative procedures adopted by New Jersey subsequent to the filing of the complaint in this action did not facially comport with the requirements of procedural due process. I say this because I believe Judge Weis is correct in holding that the procedures contained in Administrative Bulletin 78-3 are sufficient under the three-factor test of Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Furthermore, I agree that the injunction should be modified rather than vacated because of the finding of the district court that these procedures have not been fully implemented.
I write separately because I believe that the least restrictive alternative standard approved by five members of this court is not relevant in deciding the procedural and substantive due process issues presented by this appeal. In deciding whether the procedures contained in Administrative Bulletin 78-3 are sufficient under the Matthews test, I believe it is our duty to determine that the procedures provide reasonable assurances that there will be an opportunity for adequate input by various professionals and the patient before the patient’s right to refuse medication can be overridden by the state. The least restrictive alternative standard is irrelevant to a determination of the sufficiency of Administrative Bulletin 78-3 because such a standard does not assist in deciding what procedures are required to protect a patient’s right to refuse medication.
Furthermore, to the extent that the substantive due process rights of involuntarily committed mental patients are at issue in this case, I believe that the least restrictive alternative standard is an inappropriate standard to govern the conduct of state officials when following the procedures in Administrative Bulletin 78-3. As I noted in my concurring opinion in Romeo v. Youngberg, 644 F.2d 147 (3d Cir. 1980) (in banc), cert. granted, - U.S. -, 101 S.Ct. 2313, 68 L.Ed.2d 838 (1981), the least restrictive alternative standard is improper for such purposes because “the Constitution *855only 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.” Id. at 178.1 I would hold that the “substantial departure from accepted professional judgment” standard proposed in my concurring opinion in Romeo governs a patient’s constitutional right to refuse antipsychotic medication and the state’s ability to override that right.
Finally, it is not entirely clear to me how the risk of permanent side effects fits into the constitutional analysis of the other members of the court. I believe that the risk of permanent side effects, although not by itself of independent constitutional significance, is a relevant factor in determining whether an involuntarily committed mental patient has been accorded substantive due process. The risk of permanent side effects would in my view be considered along with other relevant factors in determining whether accepted professional judgment has been exercised.
. Although Romeo dealt with the constitutional rights of the institutionalized mentally retarded, I believe that the analysis in my concurrence rejecting the least restrictive alternative standard also applies to the constitutional rights of the institutionalized mentally ill.
. New Jersey Division of Mental Health and Hospitals Administrative Bulletin 78-3 appears as the Appendix to the district court’s opinion in Rennie v. Klein, 462 F.Supp. 1131 (D.N.J. 1978) at 1148-1151.