concurring with whom ALDISERT and JAMES HUNTER, III, Circuit Judges, join:
I join Part I (Scope of Review), IIA (State Law Liberty Interest), IIB (Constitutional Liberty Interest), III (Due Process Standard) and IV (Decree) of the majority opinion. I do not join in Part IIC of the majority opinion which deals with “least restrictive (intrusive) treatment.”
The differences between the majority opinion and this opinion center almost wholly upon two factors which were given constitutional significance by the district court in determining whether a mentally disturbed patient could refuse medication. The majority has now adopted the district court’s constitutional standard which in-eludes those two factors — “least restrictive treatment” and “risks of side effects.”
In brief, the district court described a mental patient’s right to refuse medication with reference to the following four factors:
(1) does the patient constitute a physical threat to other patients and to staff at the institution;
(2) does the patient have the capacity to decide on his own particular treatment;
(3) do any less restrictive treatments exist; and
(4) are there risks of permanent side effects from the proposed treatment.
Although I agree that involuntarily committed mental patients have a constitutional right to refuse medication under certain circumstances, and I agree with the majority that New Jersey has established appropriate procedures to protect that right, I do not agree that the existence of “less restrictive” treatments and the risk of side effects must be considered -in formulating the constitutional standard. Because of my belief that concepts of least restrictive treatment and risks of side effects have no place in this constitutional analysis, a belief predicated in part on recent Supreme Court developments, I am compelled to dissent from the majority’s affirmance of the district court’s constitutional holding even though I concur with the majority that however a patient’s constitutional rights are measured, New Jersey’s regulations1 are more than adequate to vindicate those rights.
I.
As I have noted above, the district court analyzed the right of a patient to refuse medication with reference to four constitutional factors.
The majority apparently agrees with this formulation. However, in affirming the *856district court’s constitutional analysis, the majority emphasizes the district court’s third factor (availability of less restrictive treatment) and virtually ignores the district court’s fourth factor (risk of side effects). As I have stated, in my opinion, these two factors have no place in a constitutional determination of whether medication may be refused. In order to explain my position which restricts constitutional considerations to (1) the patient’s danger to others and to himself, and (2) his mental capacity, a brief review of the relevant legal precepts is in order.
In determining the scope of the right to refuse treatment, I begin with an accepted principle of due process: the state may not infringe a liberty interest without demonstrating at least the existence of a rational relationship between the need to intrude on such a protected interest and a legitimate state purpose. The Supreme Court has itself endorsed this principle in the context of involuntary commitment of the mentally ill. The Court has noted that involuntary civil commitment entails “a massive curtailment of liberty,” Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972), and has held that “[a]t the least, due process requires that the-nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972). Thus to this extent, I agree with the majority that involuntary medication of the mentally ill implicates a liberty interest within the meaning of the due process clause. It is important then, to discern the legitimate state interests underlying civil commitment of the mentally ill, and determine under what circumstances involuntary medication may be said to be rationally related to these legitimate state interests.
The state is generally said to have three interests in the involuntary commitment of the mentally ill: prevention of harm to other persons or to property, prevention of harm to the individual who is committed, and treatment or care of an individual in need of it. E. g., Jackson v. Indiana, 406 U.S. 715, 737, 92 S.Ct. 1845, 1857, 32 L.Ed.2d 435 (1972); Donaldson v. O’Connor, 493 F.2d 507, 520 (5th Cir. 1974), vacated and remanded on other grounds, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). These three state interests reflect the exercise of two distinct state powers: the police power to protect the health and safety of the community, and the parens patriae power to act on behalf of an individual who does not have the mental capacity to act in his own best interests.2 The prevention of harm to other persons or to property, the subject of the first category of state interests listed above, is a legitimate exercise of the police power.3 Skipping to the third state interest — treatment or care of the committed individual is an exercise of the parens patriae power. The second category of state interests, preventing harm to the individual who is committed, draws on elements of both the police and parens patriae powers. Donaldson v. O’Connor, 493 F.2d 507, 520-21 (5th Cir. 1974), vacated and remanded on other grounds, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975).
While these two state powers — the police power and the parens patriae power — may provide a basis for the involuntary administration of anti-psychotic drugs to the mentally ill under certain circumstances, as the majority holds and as I agree, they nevertheless do not confer unlimited authority on the state to administer medication against a patient’s will. Where the state, in seeking to further its legitimate interests, utilizes, as it does here, means that violate bodily integrity and that constitute a massive imposition on the individual, the courts are *857charged with limiting the exercise of state authority to only those instances which bear a reasonable relationship to the state purposes to be served.
Thus, as I see it, the state under its police power may administer drugs against a patient’s will, but only when such an action is necessary to prevent the patient from endangering himself or others. And the state may administer drugs under its parens patriae power, when the best interests of the patient so require, but only when the patient himself does not have the mental capacity to decide on the course of treatment to pursue.4 Winters v. Miller, 446 F.2d 65, 68-71 (2d Cir.) (until determined to be incompetent, mentally ill individual retains the power to refuse treatment), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971); Lessard v. Schmidt, 349 F.Supp. 1078, 1094 (E.D.Wis.1972) (three judge court) (mentally ill individual should be permitted to make decision on whether to accept hospitalization “unless the state can prove that the person is unable to make a decision about hospitalization because of the nature of his illness”), vacated and remanded on other grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974); Developments in the Law — Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1212 (1974) (improper to extend parens patriae power to “those who are capable of making their own treatment decisions”).5 Forced administration of drugs outside these contexts cannot be regarded as rationally related to the legitimate state interests underlying civil commitment of the mentally ill, and must be deemed a violation of due process.
I recognize that the defendants here argue for a broader authority in the state to compel medication. They refer to the state interest in providing treatment to those in need of it who have been involuntarily committed. They argue, and to this extent I agree with them, that the state has a legitimate interest in treating the sick. If an individual is in need of treatment, as Rennie and the members of his class unquestionably are, the state contends that the compulsory treatment of such a person is rationally related to a legitimate state objective. Thus, under the state’s view, the need for treatment alone provides the necessary authority permitting treatment against a patient’s will.
I have little difficulty in rejecting this position. There can be no dispute that an individual who has not been committed to a mental institution, has a broad due process *858right not to be medicated against his will. If we were to accept the defendants’ view here, this due process protection would largely evaporate, for if the need for treatment a lone would provide a warrant for compulsory treatment of a committed person, it would similarly provide a warrant for treating those who have not been committed, but who nonetheless require treatment. Recognizing such authority in the state is plainly inconsistent with the kernel of personal autonomy protected by due process. Thus, it cannot be the mere need for treatment that, without more, empowers the state to provide it in the face of an individual’s refusal, but that need must be linked to the state’s power to protect the patient or the community from danger, or to the state’s power to act on behalf of an individual who does not have the capacity to act in his own behalf. For the purposes of this discussion, the difference between a committed and an uncommitted individual is that the committed individual is more likely to present a danger to himself or society, or to be unable to act in his own best interests.
Thus, to summarize my position: the state may administer anti-psychotic medication in the face of a patient’s refusal to accept medication only when the state demonstrates either that the medication is necessary to prevent the patient from posing a danger to himself or to others, or that the patient does not have the mental capacity to make a rational decision with respect to medication.6 Under my analysis, therefore, no other factors qualifying, modifying, or embellishing these two tests are relevant as constitutional measures. Because the district court included two additional considerations which I believe are irrelevant and because the majority opinion affirmed that analysis, I turn next to a consideration of “least restrictive treatment” and the risk of side effects as constitutional measurements of a patient’s right to refuse treatment.
II.
The district court held that the patient’s right to refuse treatment had to take into account “whether any less restrictive treatments exist,” and “the risk of permanent side effects from the proposed treatment.” Rennie v. Klein, 462 F.Supp. at 1152. The majority opinion expands upon and qualifies the district court’s least restrictive standard, construing it as generally limited to “course of treatment” decisions as distinct from discrete instances of medication, (maj. op. At 859-860) While not excluding emergency conditions, the majority would grant “more discretion” to an attending physician in such situations in choosing the “least restrictive treatment.” Id. As I indicate below, neither the formulation now announced by the majority nor the formulation announced by the district court is relevant'in a constitutional context.
I am satisfied that my analysis to this point compels the conclusion that an involuntarily committed mental patient has a constitutional right to refuse medication, subject only to the two overriding state interests that I have described. I am equally satisfied that I have provided a complete definition of that right, and that there are no further constitutional limitations on the state’s power to compel medication beyond those that I have set forth. Thus, it is in this posture that I note my disagreement with the last two factors found in the district court’s four-factor analysis and adopted by the majority here.
A.
It must be kept in mind that despite the disclaimer found in the majority opinion, *859(maj. op. At 859), we are faced with reviewing here day-to-day, even hour-to-hour decisions by hospital staff respecting the administration of medication on a continuing basis. The record developed in the district court demonstrates that the reactions to such treatments are highly individualized and vary markedly from patient to patient. It would not only be impractical for a court to attempt to review these treatment decisions under a “least restrictive alternative” approach, but it seems inevitable that such review would interfere dramatically with the administration of needed medication and essential therapy. Moreover, the imposition of such a standard would, as a practical matter, require each district court judge to exchange his robe for a medical gown.7 Each judge would of necessity be obliged to assume a supervisory role in the medical discipline, becoming both a super-diagnostician and super-physician for each institutionalized patient. In this very case, for example, the district court was repeatedly called upon to hold hearings and to rule in a medical context on various aspects of Rennie’s day to day treatment.
In a somewhat analogous context and as the forerunner of a least restrictive doctrine as a constitutional measure these concerns were’ discussed in our recent en banc decision in Romeo v. Youngberg, 644 F.2d 147 (3d Cir. 1980) cert. granted - U.S. -, 101 S.Ct. 2313, 68 L.Ed.2d 838 (1981). That case dealt with the constitutional standards applicable to the care of mentally retarded patients in a state institution. Romeo, the patient, sought the right to be free from bodily restraint, a right to personal security and protection from attacks by other inmates, and a right to adequate treatment. However, neither the issues presented in Romeo, nor the claims made by the patient Romeo, nor any aspect of the Romeo record involved the subject with which we are concerned here, i. e., the refusal of an involuntarily committed mentally ill patient to accept anti-psychotic medication. Nor did the Romeo record involve the problems and characteristics of the mentally ill which are critically different from those of the mentally retarded patients.8
In its discussion, the majority opinion in Romeo, did not hold, as it could not in light of the record on which it was predicated, that “[njonreversible physical operations” or “the administration of powerful antipsychotic drugs” constitute constitutional violations. Rather it merely stated, that such procedures “may well constitute fundamental liberty violations,” and that a “least restrictive analysis,” may, therefore, be indicated. The majority opinion, there, explained “[wjhere the issue turns on which of two or more major treatment approaches is to be adopted, a ‘least intrusive’ analysis may well be appropriate.” 9 Following this explanation, the majority opinion in Romeo concluded with the following proposed jury instruction which appears in the Romeo Appendix as III.C., supra, p. 173.
C. If you find that a selection of a mode of treatment subjected the plaintiff to significant deprivations of liberty, then you must go on and determine whether that decision provided for the least intrusive treatment available under the circumstances. If the defendants considered other alternatives and ascertained that the program adopted was the least intrusive available, then you should find . the defendants not liable.
Although Romeo, as I have pointed out, cannot govern the least restrictive standard adopted by the majority in this case,10 I *860recognize that the majority opinion has drawn heavily on Romeo in order to fashion the contours of Rennie’s least restrictive constitutional standard. The majority here, however, contrary to the district court’s formulation, which it affirms, rejects the least restrictive concept as it pertains to “individual dosages.” Rather the majority maintains that the Constitution requires that any medical treatment program prescribed (as contrasted with the administration of individual dosages of medication that the program calls for) must be the “least restrictive.” I cannot agree for at least three reasons.
First, because we are bound here by the record in this case. I do not feel free, as apparently the majority does, to hypothesize under what circumstances, and on what differing records, a choice between treatment modes might arise, and once having arisen, might be regarded as sufficient to trigger the formulation of a constitutional standard. That exercise, I suggest, should be deferred until such an issue is properly presented on an appropriate record.
Here, on an extensive record which took over thirty days of district court hearings to develop, there is no evidence of a choice between major courses of treatment, nor is there any evidence of any major course of treatment that was considered as an alternative to the psychotropic drug treatment by which Rennie was medicated. Moreover, it not only appears that other modes of treatment were inappropriate, but the district court flatly held that, in the case of an individual such as Rennie, the course of drug treatment which he received was both indicated and required. 462 F.Supp. at 1140.11
The district court found that Rennie was “acutely psychotic at times,” and accepted Dr. Stinett’s testimony that Rennie’s symptoms warranted both anti-psychotic medication and lithium. The anti-psychotic drug was deemed necessary to curb Rennie’s perceived delusions and to control his destructive behavior. 462 F.Supp. at 1140. The court was satisfied that any distinction between schizophrenia and manic depression 12 was academic in this case, as either condition warranted the administration of anti-psychotic medication and lithium, id., and drugs were most useful in diffusing schizophrenic thought patterns during acute psychotic episodes. 476 F.Supp. at 1298. It also found “that the benefits and detrimental side effects of all psychotropic drugs are similar.” 462 F.Supp. at 1135. It found “no evidence supporting the superiority of any one of these drugs” over any other. Id. at 1136-37.
The district court found further that such “drugs tend to shorten hospital stays and *861allow patients to function in the community” and referred to testimony “that the failure to treat an acutely psychotic patient with drugs would [constitute] malpractice.” Id. at 1137. In this connection it found that “[m]ore studies exist demonstrating the efficacy of the psychotropic drugs in the treatment of schizophrenia than for any other mode of treatment” and that such drugs may be necessary for a patient “to effectively participate and benefit from other types of therapy, including individual or group psychotherapy and occupational therapy.” Id. The district court, therefore, found that “psychotropic drugs are widely accepted in present psychiatric practice” and “are the treatment of choice for schizophrenics.” Id. These findings are not challenged as clearly erroneous. Krasnov v.. Dinan, 465 F.2d 1298 (3d Cir. 1972).
Thus, the record and the district court’s findings demonstrate beyond question that in this case the only mode of treatment appropriate and considered for Rennie was medication with anti-psychotic drugs. The ensuing discussions in the district court’s opinions 13 consequently dealt not with different courses of treatment, but rather with the manner and the extent by which Rennie would be medicated with such drugs. It was in this setting — a setting involving individual dosages — that the district court fbrmulated its “least restrictive” constitutional analysis — an analysis which I reject. While the majority opinion appears to interpret the district court’s least restrictive standard in terms of courses of treatment, it nevertheless apparently still adheres to the district court’s view that “different drug[s]” or “smaller dosages” or “different therap[ies]” are to be considered in determining the least restrictive standard of professional care. (maj. op. typescript at 20.)14
However, regardless of how the majority interprets the meaning of its “least restrictive standard” in my opinion, any attempt to construct a “least restrictive” constitutional standard in an area where medical judgment should control is unsound, unworkable and unwarranted. The many subjective determinations that form the matrix of a medical judgment are best left to the members of the medical profession. Such determinations ought not to involve the judiciary in an assessment, even if one can be made, as to whether a particular mode of treatment or a particular discrete treatment, is more or less intrusive than another.
Second, the majority has evolved its “least restrictive” treatment standard from cases far removed from the context of treatment involving the mentally ill. In 1960, the Supreme Court decided Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) and introduced the concept of “less drastic means” into our jurisprudential vocabulary. In Shelton, a first amendment case, in explaining why an Arkansas statute was unconstitutional, the court focused on the availability of “less drastic means” in order to attain legitimate governmental objectives. The Arkansas statute required public school teachers to annually list all of their organizational affiliations for the preceding five years. The Supreme Court, while acknowledging that in some respects, the governmental purposes behind Arkansas’ requirement might serve legitimate and substantial objectives, nevertheless held that such purposes cannot *862be pursued by means that stifle “fundamental personal liberties when the end can be more narrowly achieved.” Id. at 488, 81 S.Ct. at 252. The court, in striking down the statute, therefore required as common sense would dictate, that “the breadth of [a] legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose”. Id. As Chief Judge Seitz observed:
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).
Romeo v. Youngberg, supra, at 180 (Seitz, C. J., concurring)
Moreover, the cases giving rise to the least restrictive doctrine, some of which are relied upon by the majority in extending this doctrine to Rennie, involve only a single legislative enactment or a discrete state action as contrasted with the continuing judicial supervision required in a context such as the present one. See, e. g., Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 185, 99 S.Ct. 983, 991, 59 L.Ed.2d 230 (1979) (statute prescribing number of signatures required for listing on electoral ballot); Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 353, 97 S.Ct. 2434, 2446, 53 L.Ed.2d 383 (1977) (statute regulating labeling of apples shipped into state); Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970) (administrative order regulating shipment of cantaloupes out of state); Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1664, 12 L.Ed.2d 992 (1964) (statute prohibiting issuance of passports to members of Communist organizations); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960) (statute requiring teachers to disclose organizations to which they belong or which they support); Dean Milk Co. v. City of Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 297, 95 L.Ed. 329 (1951) (ordinance requiring pasteurization of milk at approved plants within five miles of center of city).
Application of the least restrictive principle in those cases did not require continuing judicial scrutiny, nor did it require judicial intrusion and a continuing judicial presence in another professional discipline. All are inevitable in the present context. I therefore do not believe that the constitutional right to refuse treatment which both the majority and I recognize, albeit on different bases, can either be enlarged or diminished in scope depending upon the course of treatment adopted or the frequency of administration, dosage, or kind of medication prescribed.
Third, the continued vitality of Romeo’s “least intrusive choice of treatment” standard is questionable in any event.15 Hald*863erman v. Pennhurst, 612 F.2d 84 (3d Cir. 1979) (en banc) rev’d and remanded, - U.S. -, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), which addressed only the rights of the mentally retarded, and not the rights of the mentally diseased, as we do here, held in a statutory, and not a constitutional, context that the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq., required habilitation of the mentally retarded in the least restrictive environment.
Our decision in Halderman was reversed by the Supreme Court shortly before Rennie was argued. Justice Rehnquist, writing for the Supreme Court, analyzed the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq., and indicated that in his view it was questionable whether the least restrictive concept was appropriate in that setting. Pennhurst State School and Hospital v. Halderman, -U.S.-,-n. 12, 101 S.Ct. 1531, 1539 n. 12, 67 L.Ed.2d 694 (1981).
Shortly thereafter the Supreme Court granted certiorari to the First Circuit to consider that Circuit s analogue to Rennie, Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980) cert. granted, - U.S. -, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981). Rogers also refers to the least restrictive standard and the Supreme Court then granted certiorari to consider Romeo v. Youngberg, supra, itself, the very case which gives rise to the least restrictive standard adopted by the majority here. Logic would indicate that the likelihood of the survival of “least restrictive” as a constitutional standard is slight indeed. Thus, it seems wrong for the majority, in the face of these case developments, to factor into an otherwise appropriate constitutional standard, a doctrine which is already inappropriate and suspect in this area and which has been torn out of its original first amendment context.
In my opinion, therefore, whatever vitality a “least restrictive alternative” doctrine may have in other contexts, and we address none such other here, there is no place for such a doctrine in a constitutional analysis of a patient’s right to refuse medication under these circumstances.16
*864B.
I also differ with the district court in its inclusion of the fourth factor, “the risk of permanent side effects from the proposed treatment,” as a consideration in defining the circumstances under which the state may compel treatment. As I noted earlier the majority opinion does not even address this factor. I believe that the district court’s analysis which has apparently been affirmed by the majority opinion but without discussion, confuses the contexts in which consideration of this factor is appropriate.
The majority opinion properly discussed the risk of side effects in determining the existence of a patient’s liberty interest in refusing treatment. See maj. op. At 855-856. But a holding that the risk of side effects plays a role in determining whether a liberty interest is implicated does not go the whole way. It does not answer still another critical question: under what circumstances may treatment be refused by the patient or, conversely, compelled by the state? I have answered that question by stating that in my opinion the state may compel medication when it demonstrates either that the patient poses a danger to himself or to others, or that the patient does not have the mental capacity to rationally refuse treatment.
The district court, however, rather than employ its fourth factor solely in the determination of the existence of a liberty interest, would balance the risk of permanent side effects against the danger that the patient presented to himself or others, and against the patient’s incapacity to rationally determine his course of treatment. Such an analysis would allow the patient to refuse medication entailing a risk of side effects even when the patient posed a risk of harm to himself or to others.
Just as I reject the district court’s balancing formula and the majority opinion’s adherence to a least restrictive standard, so too it seems plain to me that the state’s power to administer medication posing a risk of serious permanent side effects is indeed limited, but not by the patient’s right to refuse treatment. It is, rather, limited by the standard of care with which the state is charged. The state, under my analysis, has power to treat a person against his will once it demonstrates that the treatment compelled is essential for the safety of the individual or the community. Alternatively, the state has power to compel medication when it appears that the patient does not have the capacity to decide for himself on the appropriate course of treatment. Once the state has satisfactorily demonstrated that it may compel treatment, it may treat that person even if the only medication or treatment available poses a risk of permanent side effects. How much risk the state may impose on an involuntary patient must be determined with reference to the applicable standard of care. The state cannot provide medical treatment that entails an unacceptably high risk of serious side effects in light of the patient benefits to be gained and the disorders to be remedied. Such a course of treatment would constitute medical malpractice. Even more so, the state cannot compel treatment where its conduct would transgress the more stringent standard (for a plaintiff to meet) by which constitutional torts are measured.17 Thus, I recognize that the risk of permanent side effects lim*865its state authority to administer medication. But these risks do not independently strengthen the patient’s due process right to refuse medication, and do not independently figure in the calculus of when the state may compel medication over a patient’s refusal. It is this distinction that is critical for the purposes considered here, and in failing to recognize this distinction, I would hold the district court’s analysis and consequently the majority opinion’s affirmance of that analysis to be flawed.
III.
I conclude, then, that the protection of liberty embodied in the due process clause of the Fourteenth Amendment includes a right to refuse administration of anti-psychotic drugs. The state may compel such medication in the face of a patient’s refusal to accept it only by demonitrating either that the medication is necessary to prevent a danger to the patient or to others in the community, or that the patient does not have the mental capacity to determine for himself his course of treatment. Because the majority opinion has added to this constitutional measurement inappropriate and irrelevant considerations of “least restrictive treatment” and risks of side effects, neither of which I regard as constitutional imperatives, I respectfully disagree.
To the extent, however, that the majority opinion holds that New Jersey’s procedures protect the liberty interest of involuntarily committed mentally ill patients to refuse medication, I join the majority and thus concur in that holding. I do so because in considering an appeal from the entry of a preliminary injunction, our scope of review is limited to “determining whether there has been an abuse of discretion, an error of law or a clear mistake in the consideration of the proof.” Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975) (emphasis supplied). It is obvious to me from the discussion of Administrative Bulletin 78 — 3 in the majority opinion, that the district court’s injunction must be vacated on the ground that the district court erred as a matter of law in concluding that the procedures established by New Jersey did not satisfy the requirements of due process.
. See Romeo v. Youngberg, 644 F.2d 147 (3d Cir. 1980) (en banc) cert. granted, - U.S. -, 101 S.Ct. 2313, 68 L.Ed.2d 838 (1981).
. “When civil commitment is used to vindicate a societal interest rather than to further the interest of the mentally ill individual, it constitutes an exercise of the police power.” Developments in the Law — Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1222 (1974).
. As the majority points out, At 859, note 12, it cannot be assumed that an individual does not have the capacity to make a rational decision on a course' of treatment simply because he has been involuntarily committed to a state mental institution.
One commentator writes:
If every mental illness automatically rendered the affected individual incapable of rational decisionmaking regarding the advisability of hospitalization, there would be no due process objection to parens patriae commitments based solely on the presence of mental illness. However, psychiatric literature indicates that many forms of mental illness have a highly specific impact on their victims, leaving decisionmaking capacity and reasoning ability otherwise largely unimpaired. Moreover, in numerous areas of the law, lack of capacity to undertake the relevant function rather than the mere presence of a mental illness is required to justify an exercise of the parens patriae power.
Developments in the Law — Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1214-15 (1974) (footnotes omitted).
. The limitation on parens patriae commitments suggested by Lessard and Winters appears to be required by the due process clause. Since the state interest in acting as parens patriae is premised on the need for the state to act to protect the well-being of - its citizens when they cannot care for themselves, the imposition of involuntary commitment would seem necessary to vindicate that interest only when an individual is incapable of making his own evaluation of his need for psychiatric treatment. By contrast, compulsory hospitalization of persons with the mental capacity to determine the desirability of obtaining care in accordance with their personal values would
interfere with individual autonomy and physical liberty without any assurance that the state, as a substitute decisionmaker, would better ascertain the best interest of the individual.
Developments in the Law — Civil Commitment of the Mentally 111, 87 Harv.L.Rev. 1190, 1213-14 (1974) (footnotes omitted).
. Other than in the respect that Massachusetts legislative enactments differ from those of New Jersey, I do not read the recent First Circuit Court of Appeals opinion in Rogers v. Okin, 634 F.2d 650, (1st Cir. 1980) cert. granted,U.S. -, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981), as varying in any substantial or material manner from my analysis here. Nor do I read the Rogers discussion of a least restrictive standard as a constitutional imperative. Rather, that discussion, in the context in which it appears, seems to me in its nature to be more akin to the non-constitutional administrative provisions which appear in New Jersey Administrative Bulletin 78-3.
. Even the majority opinion recognizes that the participants in the procedure adopted by New Jersey to vindicate the patient’s due process rights must be “mental health professionals rather than judges who have doffed their black robes and donned white coats.” (maj. op. typescript at 27).
. Romeo v. Youngberg, supra, at p. 154 n.1. Cf. Kremens v. Bartley, 431 U.S. 119, 135-36, 97 S.Ct. 1709, 1718, 52 L.Ed.2d 184 (1977).
. Id. at 166.
. The Romeo discussion, as it pertains to anti-psychotic drugs and surgery has been characterized as “bald dictum.” Id. at 186 (Garth, J., concurring).
Chief Judge Seitz, in his concurring opinion in Romeo stated:
I also emphasize that, as the majority appears to concede, this appeal does not *860present 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. Id. at 173 n.l (Seitz, C. J., concurring).
Romeo v. Youngberg, 644 F.2d 147, 178 (3d Cir. 1980).
. Even if the Rennie record revealed that two or more modes of treatment were considered appropriate for Rennie, which it does not, I cannot help but observe that in the instant context, even that predicate appears to be faulty because it would require that acceptable, although differing, medical judgments must be measured by a constitutional standard.
As Chief Judge Seitz stated in his concurring opinion in Romeo, supra, an opinion in which I joined:
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.
Id. at 178.
For an interesting discussion of the least restrictive doctrine as applied to the mentally afflicted, see Hoffman & Foust, Least Restrictive Treatment of the Mentally III: A Doctrine in Search of Its Senses, 14 San Diego L.Rev. 1100 (1977). Among other admonitions expressed, the authors warn against the danger of elevating legal precepts above effective medical therapy. Id. at 1103-1105.
. Manic depression is basically a mood disorder while schizophrenia is primarily a thought disorder characterized by delusions, hallucinations, and faulty logic. Manic depressives, however, may also display thought disorders at the manic end of the mood patterns whereas schizophrenia is characterized by sustained rather than episodic periods of thought disorder. 462 F.2d at 1139-1140.
. Rennie v. Klein, 462 F.Supp. 1131 (D.N.J. 1978) and Rennie v. Klein, 476 F.Supp. 1294 (D.N.J. 1979).
. If despite its apparent disclaimer, the standard which the majority now announces does include constitutional and thus judicial oversight over least restrictive dosages and treatments, many of which are administered as often as four or more times a day, even Romeo from which the majority’s present standard was derived would find such a standard unsuitable. Romeo itself stated:
.. the application of a constitutional standard of “least intrusive alternative” on continuing treatment programs, which often involve qualitative medical determinations subject to daily, possibly hourly changes, would prove unworkable. The judiciary is not in a particularly advantageous position to determine which of two medications is less intrusive, nor especially competent in assessing present therapeutic benefits versus long-term consequences and side effects for each administration of a drug.
Romeo, supra, at 166-67.
. As the majority opinion recites, typescript at 3-6, Rennie’s complaint was filed in 1976. At the district court level, three published opinions have been filed. The first was filed in response to Rennie’s motion for a preliminary injunction. Rennie v. Klein, 463 F.Supp. 1131 (D.N.J.1978). The second, reported with the first, responded to a renewed motion for a preliminary injunction. Rennie v. Klein, 462 F.Supp. 1151 (D.N.J. 1978). The third responded to the motion for a preliminary injunction on behalf of a certified class. Rennie v. Klein, 476 F.Supp. 1294 (D.N. J.1979). A panel of this court first heard the present appeal on April 22, 1980. The panel’s opinion was circulated among the members of the court but its filing was withheld pending the filing of the court’s en banc opinion in Romeo v. Youngberg, 644 F.2d 147 (3d Cir. 1980). See Romeo v. Youngberg, 644 F.2d 147, 186 (3d Cir. 1980) (Garth, J., concurring).
Prior to that date, this court had reviewed, on appeal, Halderman v. Pennhurst, 612 F.2d 84 (3d Cir. 1979) (en banc) rev’d and remanded, -U.S. -, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). We held that the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976), required that the mentally retarded be habilitated in the least restrictive environment. Chief Judge Seitz, in his concurring opinion in Romeo v. Youngberg, 644 F.2d 147, 180 (3d Cir. 1980) succinctly *863characterized the distinction between environment and treatment:
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, (emphasis supplied)
As noted in text, the Supreme Court reversed Halderman calling into grave question the reliance which the Halderman majority had placed on a least restrictive analysis even where it only involved the long-term habilitation needs of the mentally retarded.
The First Circuit’s opinion in Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980) cert. granted,U.S. -, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981), involved essentially the same issue as this case, i. e., may a mentally diseased involuntarily committed patient, as distinct from a mentally retarded patient, refuse medication. The discussion in Rogers, which held that a patient could constitutionally refuse medication under certain circumstances briefly adverted to the relevance of “less restrictive alternatives.” Rogers v. Okin, supra. The Supreme Court evidencing, in my opinion, its interest in the relevance of “least restrictive alternatives” in the care, treatment, and housing of both mentally retarded and mentally diseased patients, granted certiorari in both Rogers v. Okin, supra, and Romeo v. Youngberg, supra. It was against this background that this court considered en banc the present case, Rennie v. Klein, and the majority opinion adopted as part of its constitutional standard a least restrictive treatment test.
. I note Justice Blackmun’s uneasiness with the “least restrictive” test:
I add these comments to record purposefully, and perhaps somewhat belatedly, my unrelieved discomfort with what seems to be a continuing tendency in this Court to use as tests such easy phrases as “compelling [state] interest” and “least drastic [or restrictive] means.” . . . And, for me, “least drastic means” is a slippery slope and also the signal of the result the Court has chosen to reach. A judge would be unimaginative indeed if he could not come up with something a little less “drastic” or a little less “restrictive” in almost any situation, and thereby enable himself to vote to strike legislation down. This is reminiscent of the Court’s indulgence, a few decades ago, in substantive due process in the economic area as a means of nullification.
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).
. I deliberately do not define this latter standard, as it is not necessary to the determination here. My only purpose in referring to a constitutional standard of care is to make clear that the risk of permanent side effects is a question restricted to a standard of care, not a factor to be considered in the right to refuse treatment itself. Nevertheless, I observe that whatever the constitutional standard may be, it does not in this content include any “right” to the least restrictive form of treatment, for the reasons discussed in text supra.
In this connection, sée also Romeo v. Young-berg, supra, pp. 173-81, (Seitz, C. J., concurring), which proposes as a constitutional standard, with which I agree:
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.
Id. at p. 178.