concurring: This is a patient-initiated proceeding instituted by Carroll E. Noel, Jr., a committed insanity acquittee, pursuant to K.S.A. 1991 Supp. 22-3428a. Its subject is Noel’s continued commitment to the State Security Hospital. Noel seeks *318discharge, conditional release, or transfer to a state hospital. He appeals from the March 14, 1991, district court decision ordering continued commitment to the State Security Hospital.
Without question, insanity acquittee discharge is a highly sensitive subject. In re Noel, 226 Kan. 536, 556, 601 P.2d 1152 (1979).
In a proceeding of this sort, the principal or key question for determination is whether the insanity acquittee continues to be dangerous to himself, herself, or others. That is a legal rather than a medical question. 226 Kan. at 552.
Because K.S.A. 1991 Supp. 22-3428a(3) provides that “[a]t the hearing the court may make any order that a court is empowered to make pursuant to subsections (3), (4), and (5) of K.S.A. 1991 Supp. 22-3428,” K.S.A. 1991 Supp. 22-3428 and K.S.A. 1991 Supp. 22-3428a must be read together. K.S.A. 1991 Supp. 22-3428a states in pertinent part:
“(1) [An insanity acquittee] shall be entitled annually to request a hearing to determine whether or not the person will be likely to cause harm to self or others if discharged ....
“(3) At the hearing . . . [t]he court shall receive all relevant evidence . . . and shall determine whether the committed person will be likely to cause harm to self or others if discharged. ... If the court finds by clear and convincing evidence the committed person will not be likely to cause harm to self or others if discharged, the court shall order the person discharged; otherwise the person shall remain committed or be conditionally released.” (Emphasis added.)
Orders authorized by incorporation of K.S.A. 1991 Supp. 22-3428(3), (4), and (5) are identified by this text appearing within those three subsections:
“(3) ... At the hearing, the court shall receive all relevant evidence ... . and shall determine whether the patient will be likely to cause harm to self or others if released or discharged .... At the conclusion of the hearing, if the court finds by clear and convincing evidence that the patient will not be likely to cause harm to self or others if released or discharged, the court shall order the patient discharged or conditionally released, otherwise the court shall order the patient to remain in the state security hospital or state hospital where the patient is under commitment. If the court finds by clear and convincing evidence presented at the hearing that the release or discharge of the patient will not be likely to cause harm to self or others if the patient continues to take prescribed medication or *319to receive periodic psychiatric or psychological treatment, the court may order the patient conditionally released . . . (Emphasis added.)
In addition to the foregoing, K.S.A. 1991 Supp. 22-3428(7) ascribes to the term “likely to cause harm to self or others” its K.S.A. 1991 Supp. 59-2902(g) definition:
“[T]he person:
“(1) [i]s likely, in the reasonably foreseeable future, to cause substantial physical injury or physical abuse to self or others or substantial damage to another’s property, as evidenced by behavior causing, attempting or threatening such injury, abuse or damage; or
“(2) is substantially unable, except for reason of indigency, to provide for any of the person’s basic needs, such as food, clothing, shelter, health or safety causing a substantial deterioration of the person’s ability to function on the person’s own.”
The journal entry memorializing the now-challenged district court decision recites that the district court found Noel “is likely to cause harm to others if removed from the structured setting of Lamed State Security Hospital, and that he should remain unconditionally committed.” The journal entry further recites that the district court “adjudged” and “ordered” that “Noel continues to be a danger to others and that his discharge from the Larned State Security Hospital will pose a danger to others and that pursuant to [K.S.A. 1991 Supp. 22-3428a], the said Carroll E. Noel, Jr. shall remain committed in the Lamed State Security Hospital at Lamed, Kansas.”
The present appeal is prompted by this statement by the district court at the close of the hearing:
“It is my opinion that I have a very narrow issue to determine on applications for review under [K.S.A. 1991 Supp. 22-3428a], And that is if the . . . patient is likely to cause harm to self or others. If I make that determination then the only thing that I can do is to commit him back to the institution. If I don’t find him to be a danger to himself or others then I formulate ... a conditional release plan. . . .
“[Bjased upon the evidence that I’ve heard today and the restrictions that are imposed upon me by the law, and that being that it has to be a clear and convincing demonstration and I don’t think that the evidence supports that, I do find that Mr. Noel based upon the evidence I’ve heard . . . that he still constitutes likely to cause harm to himself or others and therefore he would be committed back to the State Security Hospital until such time as this court would rule otherwise . . . .” (Emphasis added.)
*320The foregoing statutes direct that upon the district court hearing in a K.S.A. 22-3428a proceeding, the court initially is to determine whether the committed insanity acquittee will be likely to cause harm to self or others if the person is released or discharged. Which of the dispositional orders is to be made by the court follows from the likelihood of harm determination. In summary, these are the authorized and directed dispositions:
If the court finds by clear and convincing evidence the acquittee will not be likely to cause harm to self or others if discharged, the court shall order the acquittee discharged;
If the court does not find by clear and convincing evidence that the acquittee will not be likely to cause harm to self or others if discharged, the court shall order either (1) that the acquittee remain committed or (2) that he or she be conditionally released; and
If the court finds by clear and convincing evidence the acquittee will not be likely to cause harm to self or others if the acquittee continues to take prescribed medication or to receive periodic psychiatric or psychological treatment, the court may order the acquittee conditionally released.
Noel suggests that within subsection (5) of K.S.A. 1991 Supp. 22-3428 authority is granted for a district court order requiring his transfer from the State Security Hospital to “any state hospital.” That is not quite so. In particular, that subsection concerns conditionally released patients and their fulfillment or modification of imposed conditions of release. Noel is not a conditionally released patient; he does not satisfy the threshold requirement for orders possibly available under K.S.A. 1991 Supp. 22-3428(5). That section patently contemplates its application to persons being processed for reentry into society as a conditionally released person and to conditionally released persons seeking modification of imposed conditions. Noel’s suggestion that K.S.A. 1991 Supp. 22-3428a(3) empowers a district court to order transfer of an insanity acquittee committed to the State Security Hospital from that hospital to any state hospital is too strained for acceptance.
K.S.A. 1991 Supp. 22-3428(2) provides that “[w]henever it appears to the chief medical officer of the state security hospital *321that a . . . committed [insanity acquittee] is not dangerous to other persons, the officer may transfer the person to any state hospital.”
I am not directed to and I find no other statutory reference to inter-institution transfer of insanity acquittees operative prior to the amendment of K.S.A. 22-3428 by L. 1992, ch. 309, § 3, effective July 1, 1992. K.S.A. 22-3428, in effect when this case was heard and decided in the district court and the appeal herein was taken, did not refer to likelihood to cause harm to self and gave the chief medical officer, not the district court, the authority to determine danger to other persons and permissive authority to transfer.
In this case, the district court determined that Noel is a person who is likely to cause harm to self or others if discharged. Otherwise put, it was not determined that Noel is a person not likely to cause harm to self or others if discharged. Accordingly, the court was statutorily authorized and required to order either that Noel remain committed or that he be conditionally released.
As I see it, the district court was of the mistaken view that, upon its determination that Noel is a person likely to cause harm to self or others, it was required to order that Noel remain committed at the State Security Hospital. In fact, the previously referred-to statutory provisions afforded to the district court additional discretionary authority to order conditional release. Thus, I agree with my colleagues that this case must be remanded to the district court for further consideration and action with consideration given to the availability of conditional release as a possible disposition. Disposition by order of continued commitment at the state security hospital is not the single mandated disposition upon determination of likelihood to cause harm to self or others.
Although we have been requested to address the recently enacted amendments to K.S.A. 22-3428 appearing at L. 1992, ch. 309, § 3, effective July 1, 1992, those amendments do not have retroactive effect and present discussion of them produces only dicta. We should decline the request.
Further, it is inappropriate to now address Foucha v. Louisiana, 504 U.S__, 118 L. Ed. 2d 437, 112 S. Ct. 1780, (1992), decided May 18, 1992, only two weeks before oral argument in *322the case before us. The district court has had no opportunity to consider Foucha. Foucha’s holdings and their effect upon the case before us.has not been briefed by the parties. Present discussion of Foucha produces only dicta. We should address Foucha another day.
It is a mistake for us to purport to engraft Foucha requirements onto the operative statutory law in effect when this case was heard and decided in the district court. Beyond that, we should not undertake judicial legislation. If the operative statutory law should be changed, that first should be accomplished by the legislature.
I concur with the majority in its decision to remand for further proceedings. The district court should be directed to reconsider its decision, with consideration given to the availability of authorized alternative disposition.