dissenting.
I respectfully dissent. Before addressing the substantive issue, however, I deem it appropriate to voice disagreement with the majority's framing of the standard of proof applicable in the case before us. Unnecessarily and mistakenly, my colleagues use interchangeably various standards of proof. They seem to acknowledge that the State must prove the need to deny the patient's right to refuse medical treatment by clear and convincing evidence. However, they appear to dilute this test at various points in the opinion by stating that the test is whether there is "substantial" evidence, or whether the evidence preponderates in the sense that one conclusion "is more likely than the other." At other points in the opinion, the test is made to appear more onerous in that "beyond a reasonable doubt" or "excluding every reasonable hypothesis of innocence" is the criterion.
Precise articulation of the "clear and convincing" standard is difficult if not impossible. We do know however that the standard is less burdensome than the requirement of proof beyond a reasonable doubt and somewhat more burdensome than proof by a mere preponderance. In any event, it seems inappropriate to engraft standards applicable to proof of entitlement to punitive damages as in Orkin Extermi*224nating Co., Inc. v. Traina (1986) Ind., 486 N.E.2d 1019, or to couch the test in terms of guilt or innocence as in a criminal setting. A mental patient is guilty of nothing more heinous than affliction with an illness or disease.
The majority's resolution of the substantive issue is more disquieting. To be sure, as noted by Justice Blackmun in his separate concurrence in Youngberg v. Romeo (1982) 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28, the State has a duty to give treatment as well as care to an involuntarily committed patient. Our own State Constitution so requires. Indiana Constitution, Art. IX, See. 1. That duty must be viewed, however, in the context of the patient's rights. Contrary to the holding of the majority opinion, Youngberg v. Romeo, supra, 102 S.Ct. at 2458, and Mills v. Rogers (1982) 457 U.S. 291, 102 S.Ct. 2442, 73 L.Ed.2d 16, are not dispositive of the issue before us. Nor were they intended to be.
Mills v. Rogers, supra, a unanimous decision, gave recognition and deference to adoption by Massachusetts of an "overwhelming state interest" test as set forth in In Re Guardianship of Richard Roe III (1981) 383 Mass. 415, 421 N.E.2d 40. I would adopt the same test for Indiana. Accordingly, I would reverse and remand this case for a determination whether the forcible medication of M.P. clearly and unmistakeably serves an overwhelming state interest notwithstanding the patient's strong objections to the treatment and notwithstanding the extremely adverse side effects, possibly permanent, which may ensue.
It is of particular import that the U.S. Supreme Court in Mills recognized that a state might impose an "overwhelming state interest" burden with regard to a mental patient who has been determined to be incompetent. It would seem that such a standard would be even more readily applicable to a patient who is not incompetent and retains an ability, albeit somewhat limited or encumbered, to make his own decisions concerning medication. I do not perceive that the only and natural alternative to a compelling or overwhelming state interest test is lifetime warehousing of the mentally ill.
My opinion is given support by the decisions of various courts in direct response to U.S. Supreme Court remands in light of Youngberg and Mills, or even more to the point in the decision made on remand in Mills v. Rogers itself,1
Following remand by the U.S. Supreme Court (1982) 458 U.S. 1119, 102 S.Ct. 3506, 73 L.Ed.2d 1381, the Third Circuit sitting en bane in Rennie v. Klein (1983) 3d Cir., 720 F.2d 266, unanimously held that anti-psychotic drugs could not be forcibly administered to an involuntarily committed patient under less than emergency cireum-stances, unless the patient constituted a danger to himself or to others. Inclusion of the Indiana "gravely disabled" condition for initial involuntary commitment, as part of the forced medication equation, would not prompt a different approach. First and foremost, without a judicial determination of incompetency, a patient involuntarily committed does not lose his right to make treatment decisions. Rogers v. Commissioner of Dept. of Mental Health (1983) 390 Mass. 489, 458 N.E.2d 308. Secondly, commitment and confinement for mere purposes of treatment without proof that the individual is dangerous to himself or to others is constitutionally suspect. O'Connor v. Donaldson (1975) 422 U.S. 563, 95 S.Ct. 2486 at 2499, 45 L.Ed.2d 396 (Burger, C.J., concurring). _ Furthermore, the Indiana "gravely disabled" categorization contains danger to self as an essential. See also Rennie v. Klein, supra, 720 F.2d at 269 and 272.
Similarly, following remand by the U.S. Supreme Court sub. nom. Mills v. Rogers, *225supra, the First Circuit Court of Appeals considered the answers to questions as certified by the Massachusetts Supreme Court in Rogers v. Commissioner of Dept. of Mental Health, supra, 458 N.E.2d 308. The law of Massachusetts was restated by the First Circuit in Rogers v. Okin (1984) 1st Cir., 738 F.2d 1, and formed the focus of the holding that a state may require greater protections for mental patients than the minimum protections (as yet unstated by the U.S. Supreme Court) afforded by the Fourteenth Amendment.
The Youngberg proposition that there is "no reason to think judges or juries are better qualified than appropriate professionals in making [treatment] decisions" may not be reasonably disputed. Conversely, however, I do not believe that there can be any quarrel with the proposition that those professionals are not better qualified than judges or juries in balancing delicate constitutional rights and duties.
The Massachusetts Supreme Court in In Re Guardianship of Richard Roe III, supra, 421 N.E.2d 40, properly refused to abdicate the judicial prerogative to members of the medical profession. The constitutional due process balancing considerations do not permit us to relinquish our function to the medical experts. In this context, therefore, I disagree with my colleagues who hold, or at least imply, that due process requirements are met if but one qualified witness opines that forced medication is desirable.
I do not consider the right of freedom from punitive or protective bodily restraints as involved in Youngberg to be analagous or of persuasive influence in the case before us. As noted, the forced medication here is not sought because M.P. is dangerous to himself or others. The forced medication here is justified, if at all, upon the premise that the patient will possibly be able to cope more adequately with situations of day-to-day existence. The Youngberg inclination to defer almost completely to professionals is not, therefore, appropriate in a situation which does not involve a threat to self or to others.
Youngberg, however, also involved a contention by the patient that he was denied "minimal training." The Court dealt with the allegation that the state had not provided certain adequate training. In that sense it was perfectly understandable for the Court to give preferential credence to the opinion of experts as to the minimal training deemed appropriate or required.
The "minimally adequate or reasonable [treatment]" demanded and contemplated in Youngberg does not require forcible medication against the rational objections of the patient. Neither does the rationale of Youngberg logically extend to a situation such as before us.
Other post- Youngberg cases are also worthy of attention. In a different context, involving a criminal pre-trial detainee, but appropriate to the circumstances of a patient who has not been declared incompetent, the court in Bee v. Greaves (1984) 10th Cir., 744 F.2d 1387, 1392, cert. denied 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985), observed:
"The principle which supports the doctrine of informed consent is that only the patient has the right to weigh the risks attending the particular treatment and decide for himself what course of action is best suited for him.
'The very foundation of the doctrine of [informed consent] is every man's right to forego treatment or even cure if it entails what for kim are intolerable consequences or risks, however warped or perverted his sense of values may be in the eyes of the medical profession, or even of the community, so long as any distortion falls short of what the law regards as incompetency. Individual freedom here is guaranteed only if people are given the right to make choices which would generally be regarded as foolish.'"
In People v. Medina (1985) Colo., 705 P.2d 961, the en bane Colorado Supreme Court made no distinction between competent and incompetent mental patients but clearly and unmistakeably set forth a strong statement in protection of the rights *226of the mentally ill. Extensive quotation from that decision does not, I think, unduly belabor the issue:
"Although the decision to forcibly medicate a patient with antipsychotic drugs undoubtedly involves an aspect of professional medical judgment in connection with psychiatric diagnosis and treatment alternatives, the fact remains that the decision itself directly implicates the patient's legal interests in personal autonomy and bodily integrity. Antipsychotic medications, either alone or in combination, can cause numerous and varied side effects and carry with them the risk of serious and possibly permanent disabilities in the patient L Gaughan and L. LaRue, The Right of a Mental Patient to Refuse Antipsychotic Drugs in an Institution, 4 Law and Psychology Rev. 43, 51-56 (1978); Plotkin, Limiting the Therapeutic Orgy: Mental Patients' Right to Refuse Treatment, 72 Nw.U.L. Rev. 461, 474-79 (1977). The effects of these drugs can be far more debilitating to the patient than the physical restraint incident to the involuntary commitment process. Furthermore, '[t}here is virtual ly no evidence that antipsychotic drugs have a beneficial effect upon patients beyond the time they are in the blood stream.' L. Gaughan and L. LaRue, supra, at 48." 705 P.2d at 968-969.
* a * # * *
"The People argue that once the patient has been involuntarily committed and found to be incompetent, the patient's right to refuse treatment is adequately protected by the rules and regulations of the institution and the opportunity of the patient to seek post-treatment judicial review of the treatment decision. We find no merit whatever in this argument. Relegating the patient to a post-treatment hearing, in addition to requiring the forfeiture of the patient's interest in bodily integrity as related to the initial treatment, would compel a patient to submit to the very risks to which his refusal was most likely directed in the first instance." 705 P.2d at 971.
* a * * * *
"We are satisfied that the interest of both the patient and the state will be adequately served if the physician or professional person desiring to administer antipsychotic medication satisfies the court by clear and convincing evidence of the following four propositions: (1) that the patient is incompetent to effectively participate in the treatment decision; (2) that treatment by antipsychotic medication is necessary to prevent a significant and likely long-term deterioration in the patient's mental condition or to prevent the likelihood of the patient causing serious harm to himself or others in the institution; (8) that a less intrusive treatment alternative is not available; and (4) that the patient's need for treatment by antipsychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment.
Initially, the party seeking the treatment order must establish the patient's incompetency. As already noted, the fact that the patient has been involuntarily certified for mental health treatment does not by itself establish the patient's incompetency to make treatment decisions. Under our decision in Goedecke [v. State Dep't. of Institutions], a court is prohibited from ordering the forced medication of an involuntarily committed but competent patient unless the court is satisfied that the patient's mental illness has so impaired his judgment as to render him 'incapable of participating in decisions affecting his health.' 198 Colo. [407] at 411, 603 P.2d [123] at 125 [(1979) ]. If the patient is competent to participate in the treatment decision, then the patient's refusal to submit to the proposed treatment must be respected out of the law's regard for a person's right to make decisions on matters affecting his own bodily integrity." 705 P.2d at 973.
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*227"Finally, the court must determine whether the need for antipsychotic medication is sufficiently compelling to override any legitimate interest of the patient in refusing treatment. The patient's refusal may stem from a prior unfavorable experience with similar treatment, an absolute and unequivocal religious belief or practice, advice from a family member, a personality clash with the attending physician, or any of a number of reasons. The court to the extent permitted by the evidence, must determine whether the patient's refusal is bona fide and legitimate and, if so, whether the prognosis without treatment is so unfavorable that the patient's personal preference must yield to the legitimate interests of the state in preserving the life and health of the patient placed in its charge and in protecting the safety of those in the institution." 705 P.2d at 974.2
See also Large v. Superior Court (1986) 148 Ariz. 229, 714 P.2d 399, 410 (Cameron, J., dissenting); In Re Guardianship of Ingram (1984) 102 Wash.2d 827, 689 P.2d 1363.
The recognition and deference given by the U.S. Supreme Court to In Re Guardianship of Richard Roe III, supra, 421 N.E.2d 40, would appear to acknowledge that we need not look solely to constitutional guarantees or statutes to protect involuntarily committed patients from forcible antipsychotic medication. It is an acknowledgment that the judiciary by resort to the common law may forge the needed substantive protection. See Note, A Common Law Remedy for Forcible Medication of the Institutionalized Mentally Ill (1982) 82 Columbia L.Rev. 1720.
It may be noted that the regulations of New Jersey (as constitutionally approved in Rennie v. Klein, supra, 720 F.2d 266) and those of Massachusetts (as approved in Rogers v. Okin, supra, 738 F.2d 1) are comprehensive and specific concerning the circumstances under which medication may be forced, and the factors and procedures required for such decision. I find no rule or regulation in Indiana which provides guidance for administrative or medical decisions concerning forced medication of mental patients.3 Accordingly, and for this reason alone, though not argued by the parties, I conclude that the practices and procedures followed in Indiana mental institutions are constitutionally deficient. Provision for review of treatment upon petition by the patient (I.C. 16-14-1.6-7) and/or annual reporting by the institution concerning care and treatment (I.C. 16-14-9.1-10 (e)) are not sufficient. A scholarly treatment of the issue and a thoughtful proposal for administrative or statutory guidelines is contained in Note, Right to Refuse Antipsychotic Medication: A Proposal for Legislative Consideration, 17 Ind.L.Rev. 1035 (1984).
The majority opinion does not address the State's contention that under our statute it is the patient's burden pursuant to his petition for treatment review to prove that the medication is inappropriate. To the extent the State argues that under the Indiana treatment review procedure (I.C. 16-14-1.6-7) the burden is upon the patient, I must disagree. In this respect, the posture of the case and of the burden is no different than in Rennie v. Klein, supra, 720 F.2d 266, and other cases in which the issue was framed by a complaint by the patient filed against the mental institution. In my view the burden remains upon the State to prove that the medication is necessary no matter how or by whom the issue is presented. Furthermore, as earlier stated, I believe the State must carry that burden by proof of an overwhelming State interest and such proof must be by clear and convincing evidence.
*228"As the Supreme Court has stated, 'The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 1804, 1810, 60 L.Ed.2d 323 (1979)" Rennie v. Klein, supra, 720 F.2d at 277.
In summation, I dissent because I believe the majority takes a myopic, if not erroneous, view of Youngberg and Mills v. Rogers; because the delicate balance between individual constitutional rights and the doe-trine of parens patricqe should not be the sole prerogative of the medical profession; and because the State of Indiana must assume its administrative or legislative duty to articulate standards and guidelines for the confinement and treatment of mental patients.
For all of these reasons I dissent and would reverse the judgment of the trial court.
. The Third Circuit Court of Appeals in Youngberg v. Romeo, supra, merely forwarded resolution of the issue to the District Court following remand. Youngberg v. Romeo (1982) 3d Cir., 687 F.2d 33. I find no reported decision of the District Court on remand. However, the message of the Third Circuit in Rennie v. Klein (1983) 3d Cir., 720 F.2d 266, serves the same purpose.
. It is possible to make an argument that a patient's incompetence to effectively participate in the treatment decision should not depend solely upon a judicial determination of legal incompetency. We need not decide that question.
. The only rule or regulation which even remotely concerns such matters is 440 TAC 1-1-21 which deals solely with mechanical restraints and seclusion for patients. It therefore appears that the Department of Mental Health has been somewhat delinquent in meeting the legislative mandate of IC 16-14-1.6-9 requiring such regulations.