ORDER
PER CURIAM.On consideration of appellant’s petition for rehearing en banc, the motion for leave to file supplement to petition, the lodged supplement, the motion of Legal Counsel for the Elderly to appear as amicus curiae, the lodged brief of amicus curiae, the response, opposition, and reply thereto, it is
ORDERED that the motions are granted and the Clerk is directed to file the lodged supplement to the petition and the lodged brief of amicus curiae; and it appearing that the majority of the judges of this court has voted to deny the petition for rehearing en banc, it is
FURTHER ORDERED that the petition for rehearing en banc is denied.
ROGERS, C.J., and FERREN, J., voted to grant rehearing en banc.
FERREN, Associate Judge, with whom ROGERS, Chief Judge, joins, stating reasons for rehearing this case en banc:
This case of first impression in this jurisdiction presents “a question of exceptional importance,” D.C.App.R. 40(e): whether— and, if so, under what circumstances — the government can lawfully compel a person detained under a charge of first-degree murder, but found incompetent to stand trial, to receive psychotropic medication for the purpose of restoring competency.
I.
As of the time the division issued its first opinion in this case on March 20, 1992, the Supreme Court had said that even a prison inmate (and, presumably, an accused, such as Khiem, who had not yet been tried) “possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Washington v. Harper, 494 U.S. 210, 221-222, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178 (1990). This court had held, moreover, that the “right to bodily integrity belongs equally to persons who are competent and persons who are not.” In re A.C., 573 A.2d 1235, 1247 (D.C.1990) (en banc). Furthermore, we had stressed that, given the constitutional rights at stake, the government cannot lawfully override a person’s objection to forced medication absent a “compelling state interest.” In re Boyd, 403 A.2d 744, 753 (D.C.1979); see In re A.C., 573 A.2d at 1247 (“truly extraordinary or compelling reasons”); see also State v. Law, 270 S.C. 664, 674, 244 S.E.2d 302, 307 (1978) (“compelling state interest” required to justify forced medication); State v. Lover, 41 Wash.App. 685, 690, 707 P.2d 1351, 1353-1354 (1985) (same).
However, in this case — without even discussing the “compelling state interest” test — a division of this court, adopting the trial court’s approach, held that the government may force-medicate an incompetent pretrial detainee in an effort to restore competency when the state’s interest in doing so merely meets a test of “reasonableness,” Harper, 494 U.S. at 223, 110 S.Ct. at 1037, unless the incompetent can demonstrate that the state’s proposed action would be “arbitrary and capricious,” United States v. Charters, 863 F.2d 302, 306 (4th Cir.1988) (en banc), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). The division, therefore, created its own, composite test from two cases, Harper and Charters, in derogation not only of the standard prescribed by our own caselaw (Boyd, A.C.) but also by cases from other jurisdictions on which the division itself relied {Law; Lover).
On May 18, 1992, before the full court could act on the petition for rehearing en banc, the Supreme Court decided Riggins v. Nevada, — U.S. -, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), which, as the division now recognizes, made its own earlier analysis in this case obsolete. As Justice Kennedy — the author of Harper — said, *176concurring in the judgment in Riggins, a case of force-medicating a pretrial detainee “is not a case like Washington v. Harper,” the earlier Supreme Court decision concerning an incarcerated felon’s due process rights (in the context of the state’s peno-logical interest in the orderly administration of its prison) on which the division had principally relied. Riggins, — U.S. at -, 112 S.Ct. at 1818 (Kennedy, J., concurring).
As a consequence of Riggins, the division on rehearing has made two very significant changes from its first opinion. First, it has substantially raised the standard the government must meet before a pretrial detainee can be force-medicated. The division has abandoned Harper’s “reasonableness” standard in favor of traditional strict scrutiny: forced medication must survive a “compelling” state interest test. See ante at [166]. Second, the division has now clearly limited its holding to homicide cases. Whereas the District may have a compelling state interest in force-medicating Khiem, the District will not necessarily have such an interest in force-medicating pretrial detainees charged with lesser crimes.1
This is not to say the division opinion should stand, for it fails to deal sufficiently with the other criteria prescribed by Rig-gins — a concern to which I now turn.
II.
In Riggins, a competent criminal defendant moved to suspend the administration of an antipsychotic drug, Mellaril, until after his trial, arguing (among other things) that its continued use would prevent his showing jurors his true mental state when he offered an insanity defense. The Court held that forced administration of antipsy-chotic medication during trial violated rights guaranteed by the Sixth and Fourteenth Amendments because the record contained no finding that might support a conclusion that administration of antipsy-chotic medication was necessary to accomplish an essential state policy. The Court stressed that forced medication requires an “overriding justification and a determination of medical appropriateness,” — U.S. at-, 112 S.Ct. at 1815, as the division now recognizes. Ante at [165].
The Court noted in Riggins that “the question whether a competent criminal defendant may refuse antipsychotic medication if cessation of medication would render him [or her] incompetent at trial is not before us.” — U.S. at-, 112 S.Ct. at 1815. Thus, the Court put off a Khiem-type case to another day.2 In giving reasons for stopping short of such a ruling, the Court stressed that it had “no occasion to finally prescribe such substantive standards as mentioned above, since the District Court allowed administration of Mel-laril to continue without making any determination of the need for this course or any findings about reasonable alternatives.... Nor did the order indicate a finding that safety considerations or other compelling concerns outweighed Riggins’ interest in freedom from unwanted antipsychotic drugs.” Id. — U.S. at-, 112 S.Ct. at 1815-16 (third emphasis added). In short, the Court resolved the case on the absence *177of findings, leaving it to the trial court on remand to address the “substantive standards.” Id. — U.S. at-, 112 S.Ct. at 1815.
The six member majority of the Court, in an opinion by Justice O’Connor, did note that
Nevada certainly would have satisfied due process if the prosecution had demonstrated and the District Court had found that treatment with antipsychotic medication was [1] medically appropriate and, [2] considering less intrusive alternatives, [3] essential for the sake of Rig-gins’ own safety or the safety of others. Similarly, the State might have been able to justify medically appropriate, involuntary treatment with the drug by establishing that it could not obtain an adjudication of Riggins’ guilt or innocence by using less intrusive means. [Citations omitted.]
— U.S. at-, 112 S.Ct. at 1815 (emphasis added). That is all the guidance the Court gave. Significantly, however, as the foregoing statement makes clear, the Court indicated that involuntary medication would not necessarily be permitted for every pretrial detainee, even if less intrusive means were not available for achieving competency.
Justice Kennedy, writing separately, stressed the limitations on forced medication. Concurring in the judgment (leaving only Justices Scalia and Thomas in dissent), he pointed out that “this is not a case like Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), in which the purpose of the involuntary medication was to insure that the incarcerated person ceased to be a physical danger to himself or others.” — U.S. at-, 112 S.Ct. at 1818 (Kennedy, J., concurring). Emphasizing the potentially dangerous side effects of antipsychotic medication, Justice Kennedy wrote to express his view that “absent an extraordinary showing by the State, the Due Process Clause prohibits prosecuting officials from administering involuntary doses of antipsychotic medicines for purposes of rendering the accused competent for trial in most cases, and to express doubt that the showing can be made, given our present understanding of the properties of these drugs.” Id. — U.S. at -, 112 S.Ct. at 1817 (emphasis added). He added that “the documented probability of side effects seems to me to render involuntary administration of the drugs by prosecuting officials unacceptable absent a showing by the State that side effects will not alter the defendant’s reactions or diminish his capacity to assist counsel.” Id. — U.S. at-, 112 S.Ct. at 1819. Furthermore, he said, “[i]n my view medication of the type here prescribed may be for the very purpose of imposing constraints on the defendant’s own will, and for that reason its legitimacy is put in grave doubt.” Id. — U.S. at -, 112 S.Ct. at 1820. Accordingly, it appears that Justice Kennedy believes forced-medication will rarely, if ever, be appropriate under the current state of medical knowledge, for he concluded that
If the State cannot render the defendant competent without involuntary medication, then it must resort to civil commitment, if appropriate, unless the defendant becomes competent through other means. If the defendant cannot be tried without his behavior and demeanor being affected in this substantial way by involuntary treatment, in my view the Constitution requires that society bear this cost in order to preserve the integrity of the trial process.
Id.
Justice Kennedy wrote his opinion, in part, because he believed the Court majority did not go far enough in instructing the District Court about what to do, substantively, on remand. See id. — U.S. at-, 112 S.Ct. at 1818. The fact that the six-member majority did not go further — absent “briefing or argument,” id. — does not necessarily mean it would disagree with Justice Kennedy when addressing the substantive issue, especially in a case such as this where, in contrast with Riggins, the defendant has never taken psychotropic drugs and there is no clear finding of “medical appropriateness,” — U.S. at -, 112 S.Ct. at 1815, without fear of dangerous side effects. See supra note 2.
*178It is important to emphasize that the Court majority in Riggins referred to the need for a “finding that safety considerations or other compelling concerns outweighed Riggins’ interest in freedom from unwanted antipsychotic drugs,” — U.S. at -, 112 S.Ct. at 1816 (emphasis added), and that Justice Kennedy referred to the need for an “extraordinary showing ” before force-medication can be permitted, id. — U.S. at-, 112 S.Ct. at 1817 (emphasis added). This sounds very much like the “compelling state interest” test this court has adopted in Boyd3 and in A. C.4 — and the state courts, cited by the division in Khiem, have adopted when considering forced medication. See Law, 270 S.C. at 674, 244 S.E.2d at 307 (“compelling State interest” required to justify forced medication); Lover, 41 Wash.App. at 690, 707 P.2d at 1353-1354 (same).5
It is important to underscore, moreover, that in Riggins, as well as in both Harper and Charters (on which the division relies), the courts premised their analysis as much on the patient’s own medical interest as on the state’s interest. In contrast, in this case there is no trial court finding — and no ruling by this court — that the government’s proposal to force-medicate Khiem was in his medical interest independent of the state’s own interest in making him competent to stand trial.6 Indeed, there is not even a finding that forced medication is likely to restore Khiem’s competence. Nor are there any findings, as there were in Harper and in Charters, that Khiem is dangerous and that such medication is necessary to protect others.7 There is also a serious question whether the findings as to side effects are sufficient under Riggins, and these findings surely would be insuffi*179cient in Justice Kennedy’s view.8
In fact, as indicated earlier, see supra note 2, in the instant case there is a major factual difference from Riggins and from other cases on which the division relies. Here, Khiem has never taken psychotropic medication; the side effects, if any, for him are unknown. Compare Riggins, — U.S. at-, 112 S.Ct. at 1814 (“administration of Mellaril” presumed “medically appropriate” because defense counsel never suggested treatment was “medically improper”); Law, 270 S.C. at 671, 244 S.E.2d at 306 (“psychotropic medications had positive effects”); Lover, 41 Wash.App. at 690, 707 P.2d at 1354 (medication “made it possible” for defendant to “appearf ] at trial and confront[ ] witnesses”). This makes it all the more important for the trial court to address very specifically the question whether, absent any medical track record with Khiem, forced medication would be “medically appropriate.” Riggins, — U.S. at-, 112 S.Ct. at 1814.
The division opinion on rehearing, therefore, despite honoring Riggins in important respects, fails to require the kind of trial court findings essential under Riggins to protect Khiem’s liberty interest.
III.
In sum, the division opinion, on rehearing, fails to come to grips as a matter of law — and as a matter of fact on this record — with the findings required, in light of Riggins, before a court may order forced-medication of a pretrial detainee. I am deeply troubled that this court is either too busy or too unconcerned to sit as a full court to hear this important issue about state-compelled injections of mind and body controlling drugs into an incompetent human being. Riggins makes clear that this case is on the frontier of judicial law-making affecting an exceptionally important liberty interest. Only three judges out of nine have formally ruled in this case. When only a third of the active judges, drawn by lot, sits on a case such as this, the decision is, by definition, a minority ruling if one recognizes that the en banc court has a responsibility to hear all exceptionally important cases. See D.C.App.R. 40(e). We should rehear this case en banc to determine whether the full court, after immersing itself in the briefs and record— and after oral argument focusing on Rig-gins — agrees with the division’s result and reasoning.
. Nor does the District have an overriding state interest per se in force-medicating every incompetent pretrial detainee charged with murder; each case requires a careful balancing of the individual’s and the state’s competing interests. If the record in a particular case were to show, for example, that forced-medication would cause dangerous side effects or, in any event, would not be likely to restore competency, the government's interest in bringing an alleged murderer to trial would probably not override the accused's interest in remaining drug free.
. It is important to note that the Court’s entire discussion of the issues the Court did not reach in Riggins — including a Khiem-type situation— assumes that antipsychotic drugs have already been administered to the detainee for medical reasons, and that such administration "was medically appropriate.” Riggins, — U.S. at -, 112 S.Ct. at 1815. The Court, therefore, focused entirely on the question of terminating medication the defendant no longer wished to take. In contrast is Khiem’s situation: antipsy-chotic drugs have never been administered for medical reasons, because Khiem’s doctors had determined such treatment was not in the patient's best interest and because Khiem posed no threat to himself or others. Thus, Khiem has no experience with such drugs that could serve as a basis for evaluating possible side effects.
. In re Boyd, 403 A.2d 744, 753 (D.C.1979). In Boyd we held that, in a nonemergency situation, the state could not compel an involuntarily hospitalized, mentally ill and incompetent person who voiced religious objections to take psychotropic drugs against her will, which was to be ascertained, if necessary, by using substituted judgment analysis.
. In re A.C., 573 A.2d 1235, 1246 (D.C.1990) (en banc). In A.C., we reviewed a court-authorized "caesarean section on a dying woman in an effort to save the life of her unborn child.” Id. at 1237. We held that "in virtually all cases the question of what is to be done is to be decided by the patient — the pregnant woman — on behalf of herself and the fetus. If the patient is incompetent or otherwise unable to give an informed consent to a proposed course of medical treatment, then her decision must be ascertained through the procedure known as substituted judgment,” id. at 1237, which means that "the court, as surrogate for the incompetent, is to determine as best it can what choice that individual, if competent, would make.” 573 A.2d at 1249 (quotation omitted). It is not at all clear that a detainee the trial court has ruled incompetent to stand trial is also incompetent to give informed consent for invasive medical treatment.
. The Court majority in Riggins specifically eschews adopting a standard of strict scrutiny, — U.S. at-, 112 S.Ct. at 1815, not because the majority disagrees with such a standard but because the majority has "no occasion to finally prescribe such substantive standards.” — U.S. at-, 112 S.Ct. at 1815. The Court’s reasoning and language, however — e.g., its focus on the Nevada court’s failure to indicate whether "compelling [state] concerns outweighed Riggins’ interest in freedom from unwanted antipsychotic drugs,” — U.S. at -, 112 S.Ct. at 1816— virtually announces that the compelling state interest test applies. See id. — U.S. at-, 112 S.Ct. at 1826 (Thomas, J., dissenting). There is no principled way, after Riggins, that the trial court on remand can revert to Harper's "reasonableness” test.
. The trial court found that the hospital’s treatment decision to force-medicate Khiem was based on reasonable clinical considerations and was not "influenced by any bias, or institutional desire to comply with any perceived wishes of the Court or the government in this matter.” But this goes no further than to say the physicians made a medical decision to force-medicate without compromising their professional judgment; it is not a finding that Khiem had a medical interest in receiving medication without regard to his trial.
. The trial court and the division of this court may have assumed that a man charged with murdering his parents is dangerous to others— and that may be true — but that particular alleged homicide may or may not indicate more generalized dangerousness warranting medication. There is no finding on this issue. Footnote 11 of the division opinion — originally and on rehearing — merely refers to record evidence, not to trial court findings, concerning Khiem’s potential danger. This court should not rely on appellate court fact-finding to buttress its opinion.
. There are findings here, as there were in Harper and in Charters, that Khiem will be adequately protected against possible dangerous side effects from the proposed medication. The trial court found that "the Hospital’s procedures for treatment of patients who require medication constitute a careful scheme which assure that all possible effects of the proposed medications will be taken in to consideration before treatment is undertaken, and that possible risks of such treatment will be balanced against possible benefits of such treatment.” The court ordered "that Mr. Khiem shall be carefully monitored by the Hospital staff for potential harmful side effects of the said treatment, and that appropriate clinical steps shall be taken by Hospital staff in the event Mr. Khiem shall suffer any such side effects, including termination of the psychotropic medications treatment, if necessary for the well being of the defendant."
These findings fall short of assurances “that there is no significant risk that the medication will impair or alter in any material way the defendant’s capacity or willingness to react to the testimony at trial," and “that the side effects will not alter the defendant's reactions or diminish his [or her] capacity to assist counsel.” Riggins, — U.S. at -, 112 S.Ct. at 1818, 1819 (Kennedy, J., concurring).