I see no rational basis for DOCS’s decision, and would hold it to be arbitrary and capricious. I would not reach the constitutional question.
Petitioner seeks a course of treatment which, it is undisputed, he may lawfully have. The FDA classifies it as “experimental,” but does not forbid doctors from prescribing it for their patients. Every doctor who examined petitioner—five in all—agreed that the treatment was medically indicated.
DOCS nevertheless refused to make the treatment available. Its reasons are not clear to me, either from DOCS’s submissions or from the majority opinion’s interpretation of them. Indeed, it is unclear to me whether DOCS claims to be, or the majority thinks it is, acting in petitioner’s interest or its own.
If only petitioner’s interests are considered, I see no possible defense of DOCS’s denial. It is undisputed, on this record, that the treatment offers at least some possibility of protecting petitioner against a life-threatening illness. Nothing in the record suggests that the course of treatment he seeks would endanger him, or subject him to any medical risk that would outweigh its possible benefits.
*284DOCS has sought to justify its position by reference to its own policy statement, which says: “Medical or cosmetic experimentation and pharmaceutical testing may not be conducted on inmates.” (DOCS Research Directive No. 0403, available at http://www.docs.state.ny.us/Directives/0403.pdf.) The purpose of this policy is self-evident: to prevent inmates from being used as guinea pigs in scientific research. The policy has no rational application here. No pharmaceutical company or research laboratory is trying to use petitioner to test an unproven product. Petitioner, supported by five physicians familiar with his case, is trying to get for his own use a course of treatment that the FDA has called “experimental.” It does not make sense to deny him that treatment in order to protect him from being experimented on.
I can conceive no rational basis for DOCS’s decision to withhold treatment unless it is to avoid the cost. I do not suggest that consideration of cost, even when it comes to treatment of dangerous illnesses, is irrational. There is surely some point at which the cost of treatment is so high, and the likelihood of benefit to the patient so low, that DOCS could reasonably decide that an expenditure of public funds is unjustified.
Perhaps that is the case here. But DOCS has not said so. It has not tried to justify its decision on cost-benefit grounds; it has not even disclosed what it thinks the treatment petitioner is asking for would cost. Under the circumstances, I cannot avoid the conclusion that DOCS has advanced no rational basis for the decision it made.
Judges Graffeo, Read and Pigott concur with Judge Ciparick; Judge Smith dissents in a separate opinion in which Chief Judge Lippman and Judge Jones concur.
Order affirmed, without costs.