dissenting:
I respectfully dissent and would make the rule absolute. The petitioner, after evaluation by mental health experts, was found to be incompetent to stand trial and was committed to the Colorado Mental Health Institute at Pueblo (Institute) on July 29, 1992. The majority holds that the record supports the district court’s determi*636nation that the administration of antipsy-chotic medication to petitioner, Freddie B. Donaldson, a nonconsenting incompetent and mentally ill patient, was appropriate based upon a hearing and the standards set forth, by this court in People v. Medina, 705 P.2d 961 (Colo.1985). The sole evidence before the trial court was the telephone testimony of Dr. Howard W. Fisher. Because the evidence in the record falls short of the “clear and convincing” standard required by Medina, I dissent.
I.
In People v. Medina, this court held, unless there is an emergency, a court may authorize the involuntary administration of antipsychotic medication after a full and fair hearing on the treatment decision only if there exists “clear and convincing” evidence that: (1) the patient is incompetent to effectively participate in the treatment decision; (2) 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; (3) a less intrusive treatment alternative is not available; and (4) 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. Medina, 705 P.2d at 963-64.
As the moving party, the burden of proving each of these elements by clear and convincing evidence is on the state. Whether Donaldson “offered any evidence on his behalf,” maj. op. at 633, is of little significance. Unless the state proved each of the factors required under Medina by clear and convincing evidence, the district court abused its discretion by authorizing antipsychotic medication to be administered involuntarily to Donaldson. In my view, the second, third, and fourth factors under Medina are not supported by clear and convincing evidence in the record.1
A.
The second factor set out in Medina requires that before antipsychotic medication can be administered to a nonconsenting patient, the treatment must be necessary to prevent a “significant and likely long-term deterioration in the patient’s mental condition.” 2 705 P.2d at 964. The third factor requires that there be no less intrusive treatment alternative available than the forced medication recommended.
To support its contention that these two factors are satisfied, the state presented the affidavit, psychiatric assessment report, and telephone testimony of Dr. Howard W. Fisher, a staff psychiatrist at the Colorado Mental Health Institute. Despite Fisher’s statements in his affidavit and testimony that antipsychotic medication is necessary to prevent Donaldson’s “significant and long term deterioration,” Fisher testified otherwise on both direct and cross examination. On direct examination he explained his true purpose in the forced administration of medication was to restore Donaldson to competency so that he could stand trial on the pending criminal charges. On cross-examination, Fisher stated, “I just feel without offering medication to him, we’re not going to get off the dime here, and he’s not going to go forward. And he may just stay in an incompetent to proceed status.” Thus, inconsistent with Medina’s clear requirement that forced drug intervention be necessary to prevent deterioration in Donaldson’s mental condition, the state is pursuing a treatment designed, as its “total goal,” to restore Donaldson to competency.3
*637Fisher also testified that forced injection with antipsychotic medication is the least intrusive treatment available. However, after stating that antipsychotic drugs should not be used if the patient does not suffer from a psychotic illness,4 Fisher expressed doubt regarding the nature of Donaldson’s illness:
Well, we don’t know whether he’s delusional or not. He told Dr. Chadwick a tremendous amount of delusional ideas but denied them all to us. It’s typical for delusional people to be able to hide this. Usually, they look paranoid while they’re doing it, but it’s possible for antisocial people to also be paranoid and delusional and hide it. It is difficult to know what is really wrong with Mr. Donaldson at this point, but we are concerned that without treatment, he may simply stay in the state hospital and not progress to being competent.
Further adding to the unconvincing nature of the record before us is Fisher’s Institute Psychiatric Assessment (IPA), a psychiatric evaluation of Donaldson prepared on July 31, 1992 (attached as Appendix C to Donaldson’s petition). In his IPA, Fisher suggests several less restrictive alternative treatments “expected to improve [Donaldson’s] clinical condition.” Among these alternatives are one-to-one and group psychotherapy, neuropsychological testing, and additional consultation, none of which are nearly as intrusive as the forced administration of prolixin. In his IPA, Fisher also states his belief that Donaldson suffers from “anti-social personality disorder,” not a psychotic illness requiring treatment with antipsychotic drugs: There is “no evidence of paranoid affect_ It is my impression that Mr. Donaldson is manipulating to make it appear as though he is mentally ill.” IPA at 5 (emphasis added). Fisher nevertheless concluded that the forced administration of antipsychotic medication is the least intrusive therapy available and is necessary to prevent Donaldson’s long-term deterioration.5
Additionally, in light of Fisher’s IPA, dated July 31, 1992, his affidavit, sworn to only three days later on August 3, appears incredible. The affidavit, a single-page, pre-printed document containing blank spaces for names, dates, and a doctor’s signature, affirms the presence of the four Medina factors necessary for forced medication. If anything, this affidavit lessens the clarity of the record because it is in direct conflict with Fisher’s examination report completed, apparently, on the very same day and there is no evidence whatsoever to explain Fisher’s abrupt change of opinion.6
Given the record before the district court, I do not believe there exists “clear and convincing” evidence that Donaldson is threatened by a significant and likely long-term deterioration in his mental condition but, rather, that he is being subjected to a course of action designed to meet a “goal” *638of bringing him to competency for trial.7 Additionally, it is not patently clear that he suffers from a psychotic illness. Therefore, forced treatment by prolixin cannot be the least intrusive treatment available.
B.
The final Medina factor requires that the state prove 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.8 This factor essentially mandates that prior to issuing such an order, the court must determine that the patient’s health interest is better served by being forced to take antipsychotic medication. The district court found that Donaldson’s medical need for treatment did override his interest in refusing treatment.
The substantial and debilitating side effects of prolixin accentuate Donaldson’s interest in refusing treatment. Of chief concern among these unwanted affects is tar-dive dyskinesia, a well-documented, incurable condition characterized by involuntary movements of the tongue, lips, and jaw. In its most severe form, tardive dyskinesia may interfere with all motor activity, making speech, swallowing, and breathing extremely difficult. See Medina, 705 P.2d 961 at 968 n. 3. Tardive dyskinesia is particularly dangerous because it is irreversible and its symptoms frequently do not occur until late in the course of treatment. Furthermore, it is difficult to predict who will suffer from the condition, and it strikes a relatively large percentage (10-40%) of those patients subjected to high dosages of antipsychotic medication for extended periods.9 See id.
According to Fisher’s testimony, Donaldson has already suffered a serious reaction to treatment with antipsychotic drugs. At the hearing, Fisher read from the report of the nurse who treated this reaction: “On August 6, while in the dining room [Donaldson] began clutching his throat. His right jaw was distorted, his tongue abnormally contracted. The patient stated T can barely talk. I can’t swallow.’ ” The attending nurse immediately administered co-gentin by intramuscular injection, the most rapid emergency procedure available to ward off side effects. Though Fisher concluded that Donaldson feigned this reaction in order to avoid further treatment, his conclusion is not convincing in light of the fact that Fisher did not observe the reaction. Fisher described the nurse who did observe and treat Donaldson’s reaction as “very responsible and reliable” and stated the nurse indicated no sign of malingering.10
In addressing the specific risk of tardive dyskinesia to Donaldson, the court stated “[t]his is not the type of situation with long-term medication, that if continued would be a serious problem. That type of problem, the doctor has indicated, is [limited to] the people who take this in high *639doses for long periods of time and are older people.” However, based on the record before us, this finding simply establishes that Donaldson is among those at high risk. Fisher testified that in the past Donaldson has been exposed to high dosages, approximately four times higher than that administered during the “acute phase” of psychosis.11 Simply because this state did not administer antipsychotic drugs to Donaldson in the past, this in no way lessens the district court’s duty to consider the risk of tardive dyskinesia in its analysis of Donaldson's liberty interest.
While it is true that the district court approved a limited treatment plan reducing the dosage and mandated a future review hearing to determine the success of the treatment and the hospital’s ability to control anticipated side effects, these precautions do not render Donaldson immune from these potentially fatal effects. In light of the debilitating and potentially fatal side effects, Donaldson’s documented reaction, and the lack of evidence regarding prolixin’s therapeutic value as applied to Donaldson,12 I do not believe the evidence as a whole is sufficient to support a conclusion by any reasonable person that Freddie Donaldson’s health interest will be better served by the forced administration of prolixin.13
II.'
In reviewing the decision of the district court, we must determine if the court abused its discretion in holding that the state provided “clear and convincing” evidence that the factors discussed in Medina were met. Clear and convincing evidence is proof which persuades the trier of fact that the truth of the contention is highly probable. It is stronger than a preponderance of evidence and is unmistakable and free from serious or substantial doubt. See People v. Taylor, 618 P.2d 1127, 1136 (Colo.1980); DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318, 323 (1980); Colorado Jury Instructions, 3:2 (2d ed).
Here, the court appropriately based its holding on the testimony of Dr. Fisher. However, since he is the only witness, his testimony should be examined in its entirety. Fisher testified that Donaldson suffered from paranoid schizophrenia, then admitted that he originally ruled out psychotic disorders, and was uncertain as to the nature of Donaldson’s illness. Fisher also testified that Donaldson’s condition will deteriorate without antipsychotic medication, but when questioned as to specifics, he stated that his “goal” was to restore Donaldson to competency. Fisher based much of his opinion on the patient’s comments about his past medical experience, yet Fisher never obtained Donaldson’s medical records.
In light of the critical liberty interest at stake and the uncertainty as to the effectiveness of the treatment when measured against the irreversible and potentially fatal risks involved, I believe, on this record, the state failed to meet its burden.14 Under the record before us, I am obliged to conclude that no reasonable person could be without “serious or substantial doubt” as to whether the state provided sufficient *640evidence to meet our test announced in Medina.
I respectfully dissent.
I am authorized to say that Justice LOHR joins in this dissent.
. Since it is undisputed that Donaldson is not competent, the first element in Medina is not at issue.
. Despite the majority’s observation that Donaldson was very dangerous, maj. op. at 633, I will not address the alternative portion of the second Medina factor, i.e., whether it is likely the patient will harm himself or others if not treated with antipsychotic medication, because the district court found Donaldson was not “as-saultive” and "not [ ] physically violent to the staff or any other patient.”
.The state would have us enlarge our holding in Medina to permit the state’s prosecutorial interest, in treating patients so they are competent to stand trial on pending criminal charges, *637to supplant the second factor in Medina, i.e., proof that treatment is necessary to prevent a significant and likely long-term deterioration in Donaldson’s mental condition. Answer to Show Cause Order, at 8. The issue of whether such a prosecutorial or public interest is sufficient is not before us.
. Fisher testified psychotic illnesses are thought disorders frequently characterized by paranoia, delusions, and breaks with reality.
. Despite testifying that "by definition, his [medical] history ... is extremely important," Fisher did not obtain Donaldson’s past medical records. For many of his treatment decisions about Donaldson, Fisher relied upon statements made by Donaldson himself — the very patient Fisher characterized as incompetent. In ascertaining the appropriate dosage of prolixin to be administered to Donaldson, Fisher relied upon Donaldson’s recollection that he was administered 1500mg per day, roughly four times that given to most psychotic patients.
.At the hearing, Fisher indicated that he changed his diagnosis based on observations by the ward staff. However, if we are to believe Fisher's affidavit, then his change of mind had to have occurred between his completion of the IPA dated July 31 and his execution of the affidavit, which was submitted by cover letter bearing the very same date, Friday, July 31. In my view, it is highly doubtful that Fisher had much opportunity for staff discussions in that short period of time. Thus, we are left with no plausible rationale for this crucial change of opinion, on which the district court so heavily relied.
. In Medina we instructed courts faced with petitions such as this to consider "[t]he patient’s actual need for the medication. To this end the court should focus on the nature and gravity of the patient's illness, the extent to which the medication is essential to effective treatment, the prognosis without the medication, and whether the failure to medicate will be more harmful to the patient than any risks posed by the medication.” Medina at 973.
. The majority recognizes that involuntary treatment with antipsychotic medication constitutes a severe infringement on a patient's liberty interest under the Due Process Clause of the United States and Colorado Constitutions. See Riggins v. Nevada, — U.S. —, —, 112 S.Ct. 1810, 1814, 118 L.Ed.2d 479 (1992); Washington v. Harper, 494 U.S. 210, 221, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178; People v. Medina, 705 P.2d 961, 967 (Colo.1985). Additionally, we have recognized a common law right and statutory scheme which permit a person to refuse medication "that poses a significant risk" to a patient’s "physical well-being." See Medina, 705 P.2d 961, 967-68.
. Another potentially grave side effect of prolix-in is neuroleptic malignant syndrome. According to Fisher, neuroleptic malignant syndrome is a potentially fatal side effect which is characterized by muscle rigidity.
. The nurse’s confidence in the credibility of Donaldson’s reaction is further bolstered by the fact that she administered the antidote, cogen-tin, by intramuscular injection, the faster method of treatment, despite the fact that an oral alternative exists.
. Since Fisher failed to obtain Donaldson’s medical records, there is no basis for assuming Donaldson has not been exposed to "high doses for long periods of time.”
. In Medina, we stated that the "therapeutic value of antipsychotic medication depends upon the existence of a trusting relationship between the patient and the psychiatrist,” Medina at 970, n. 6, and that a "vital component of any effective treatment program” is a patient's willingness to submit to treatment. Id.
. We previously held that forced medication is only "sufficiently compelling” when “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." Medina at 974.
.It should be clear that, first and foremost, we are not substituting our judgment for the expertise and judgment of Fisher, the staff psychiatrist, but applying legal requirements to the actions of the district court. And, second, nothing I would have the court hold today prevents the state from returning to the district court with new information to seek a subsequent authorization to forcibly administer prolixin to Donaldson.