concurring in the result.
I have no doubt that the New Jersey regulations found in Administrative Bulletin 78-3 satisfy the due process requirements of the Constitution. I also agree that today’s decision is controlled by Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), rev’g Romeo v. Youngberg, 644 F.2d 147 (3d Cir. 1981) (in banc). I cannot, however, join in the limited professional judgment standard articulated by Judge Garth and, as the author of the least intrusive means standard *271enunciated in Romeo, I believe it is incumbent upon me to write separately.
The issue before this Court continues to be the definition of the constitutional rights afforded the mentally ill and mentally retarded who are involuntarily institutionalized. In Romeo, we reversed the district court’s holding that the only substantive restraints upon the states in this context were found in the Eighth Amendment’s prohibition of cruel and unusual punishment. We found instead that involuntarily institutionalized persons retain liberty and due process interests in minimally adequate care and treatment. This declaration of constitutional rights was specifically affirmed by the Supreme Court. Youngberg, supra, 457 U.S. at 318-19, 102 S.Ct. at 2459-60. The Supreme Court, however, rejected the use of the least intrusive means test and endorsed the standard articulated by Chief Judge Seitz:
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. (quoting Romeo v. Youngberg, 644 F.2d at 178 (Seitz, C.J., concurring)).
Had the Supreme Court not rejected the least intrusive means test in Youngberg, I would stand by that principle unreservedly. The treatment of those who have committed no crime and are institutionalized simply as a result of illness or incapacity has for too long been a blot on aspirations for a humane and just society. The Constitution does not tolerate “warehousing” patients or recklessly placing them in physical constraints or on antipsychotic drugs for the administrative convenience of state institutions. This was the underlying concern in our Romeo opinion and, in my view, that concern survives the Supreme Court’s reversal in Youngberg.
What does not appear to survive Young-berg is the least intrusive means test. Much as I agree with the sentiments expressed in Judge Weis’s opinion, I do not believe that the difference between the effects of physical restraints and antipsychotic drugs suffices to preserve a higher constitutional standard for the administration of the latter. Whether the long-term effects of prolonged shackling are more or less pronounced than the effects of the short-term administration of drugs to combat a psychotic episode is not presently before this Court. Without such an empirical determination, I do not believe that a constitutional distinction can be drawn between the use of drugs and physical restraints. Thus, I believe that Youngberg must be read to control the forcible administration of antipsychotic drugs to involuntarily institutionalized persons.
The Supreme Court’s remand of this action specifically directed us to reevaluate our previous holding in light of Youngberg. Rennie v. Klein, 458 U.S. 1119, 102 S.Ct. 3506, 73 L.Ed.2d 1381 (1982). Under Youngberg, a court must determine whether “the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” 457 U.S. at 323, 102 S.Ct. at 2462 (footnote omitted). The key question on remand therefore is to give an operative meaning to the somewhat amorphous “professional judgment” standard.
Our point of departure is the recognition of constitutional rights for the involuntarily institutionalized. A constitutional standard which provided no protection beyond that of the tort of medical malpractice would be inappropriate for the involuntarily institutionalized mentally ill. These patients are not in a position to “shop around” for a second opinion, to reject the treatment prescribed, or to insist upon their right to “informed consent.” Because such patients are dependent on the state they must be granted a measure of protection beyond that afforded the average citizen.
I therefore agree with Chief Judge Seitz that the Supreme Court’s “professional judgment” standard in Youngberg provides primarily a starting point for defining the constitutional rights at stake in this case. *272The professional judgment of a physician acting with the power of state authority requires more than comparable professional decisions in a voluntary doctor-patient relationship. In the case of the forcible use of antipsychotic drugs, a state-employed physician must, at the very least, consider the side effects of the drugs, consult with other professionals and investigate other options available before that physician can be said to have discharged full professional judgment.1
Consequently, I take issue with the narrow holding of Judge Garth’s opinion which would allow antipsychotic drugs to be:
constitutionally administered to an involuntarily committed mentally ill patient whenever, in the exercise of professional judgment, such an action is deemed necessary to prevent the patient from endangering himself or others.
At 269. The determination whether the patient poses a threat to himself or others, to my mind, precedes even the contemplation of the forcible administration of antipsychotic drugs. Indeed, no citizen of New Jersey could be involuntarily institutionalized absent such a determination. Title 30:4-23 of the New Jersey Statutes defines “mental illness” as the existence of “mental disease to such an extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community.” N.J.Stat. Ann. (1981). Such persons may be forcibly institutionalized under Title 30:4-27 only where there is a danger that the patient may injure himself or some other member of the public. DiGiovanni v. Pessel, 104 N.J.Super. 550, 250 A.2d 756 (1969). See also 1 Harper & James, Law of Torts § 315 (1956) (“an officer or a citizen may take in custody an insane person when it is reasonably necessary to prevent threat of harm to himself or others”).
It therefore provides little protection for such citizens to allow the precondition for their involuntary institutionalization to suffice as the constitutional basis for the forcible administration of antipsychotic drugs. Accordingly, such a minimum determination would not appear to conform to the constitutional professional judgment standard.
Because the New Jersey regulations would satisfy any of the standards set forth in the various opinions, I concur in the result reached affirming the preliminary injunction and remanding this ease to the district court in light of Romeo as modified by Youngberg and today’s opinions.
BECKER, Circuit Judge, joins in this concurrence.
. I believe that this view is consistent with Chief Judge Seitz’s concurrence: “[t]he decision to administer drugs ... requires a consideration of whether there may be any harmful side effects to the patient and whether there are possible alternatives to the use of the drugs.” At 274. Thus, this standard governs the necessarily difficult decisions made by professional staff members in the “hope of improving the patient’s condition and returning him to his community.” Id. 273.