Rennie v. Klein

653 F.2d 836

Opinions

OPINION OF THE COURT

WEIS, Circuit Judge.

Footnotes

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This appeal requires us to define the legal rights of the mentally ill with respect to the care and treatment supplied by the state. We hold that mental patients who are committed involuntarily to state institutions nevertheless retain a constitutional right to refuse antipsychotic drugs that may have permanently disabling side effects. The state may override that right when the patient is a danger to himself or others, but in non-emergency situations must first provide procedural due process. We further determine that the informal administrative procedures established by New Jersey meet constitutional standards, and accordingly, modify a district court injunction that required a formal adversary hearing and other measures before a patient’s refusal can be overriden.

John Rennie has been a patient at the Ancora Psychiatric Hospital, a state institution in New Jersey, on numerous occasions since 1973. In several instances, powerful antipsychotic drugs have been administered to him against his will. He brought suit in the district court alleging several violations of his constitutional rights and later amended the complaint to assert a class action. The district court defined a qualified constitutional right to refuse treatment and issued a preliminary injunction directing New Jersey to establish an independent review mechanism that went beyond procedures already prescribed by the state.

Rennie is a forty year old divorced man, a former pilot and flight instructor. In 1971 he first showed symptoms of mental illness, which became more serious in 1973 when his twin brother was killed. Shortly thereafter, Rennie was admitted for the first time to Ancora, one of five hospitals for the mentally ill operated by the state of New Jersey. He was depressed and suicidal and was diagnosed as a paranoid schizophrenic. At various times during his stays, Rennie refused to accept prescribed drugs despite the hospital staff’s insistence that it has a right to medicate him against his will. During his twelfth admission to Ancora, which began in August 1976 after an involuntary commitment proceeding, Rennie in stituted the suit that is the subject of this appeal.

Rennie’s complaint charged thé defendants with violating a number of his constitutional rights.¹ By agreement of the parties, the litigation has focused exclusively on motions for preliminary injunctions with respect to the right to refuse treatment, leaving other issues for future determination.

After evidentiary hearings and other proceedings lasting almost a year, the district court issued its first opinion, which recognized a qualified constitutional right to refuse treatment. Rennie v. Klein, 462 F.Supp. 1131, 1144-45 (D.N.J.1978). The court held that four factors determine whether treatment may be refused: (1) the physical danger posed by the patient to other patients and the staff at the institution; (2) the patient’s mental capacity to decide on his course of treatment; (3) the availability of less restrictive treatments; and (4) the risk of permanent side effects from the medication. See id. at 1145-46.

Finding that its hearings satisfied procedural due process insofar as Rennie was concerned, the court, nevertheless, felt it “appropriate to comment on . . . the shortcomings of the state’s new Bulletin 78-3 regarding psychotropic medication. ² Id. at 1142. The state’s failures to provide for an attorney and independent psychiatrists to assist the patient in asserting his right to refuse treatment were particularly faulted. Id. at 1147.

Rennie later moved to amend his complaint to include class action allegations.³ The district court granted this motion and conditionally certified three subclasses. The first consists of persons who are or may be hospitalized at Ancora and asserts violations of the right to adequate treatment and safe confinement. The claims of this group have not yet been determined.

The second subclass consists of all adult patients involuntarily committed to any of the five state mental health facilities — Ancora Psychiatric Hospital, Marlboro Psychiatric Hospital, Trenton Psychiatric Hospital, Greystone Park Psychiatric Hospital, and the Glen Gardner Center for Geriatrics. The third subclass is composed of all adult patients voluntarily committed to these five institutions.⁴

Further proceedings focused on the motions by the latter two subclasses for a preliminary injunction to enforce a right to refuse treatment. Seventeen days of additional hearings were held and an opinion was issued on September 14, 1979. Rennie v. Klein, 476 F.Supp. 1294 (D.N.J.1979). The district court reaffirmed its earlier conclusion that involuntarily committed patients have a substantive constitutional right to refuse medication and extended this right to voluntarily committed patients. The opinion concentrated, however, not on the substantive aspects of the right to refuse treatment, but on its procedural features.

The court ruled that the procedures promulgated in Administrative Bulletin 78-3 were insufficient to protect the substantive constitutional right it had recognized. In the district court’s opinion, review of the attending psychiatrist’s recommendation by the medical director was inadequate because institutional pressures would prevent him from exercising independent judgment. Additionally, the failure to provide procedures for obtaining informed consent, including a written form signed by the patients, was cited. 476 F.Supp. at 1309-10.

The court issued a preliminary injunction that requires the state hospitals to hold hearings to determine whether patients may be medicated against their will. The state must also provide a “patient advocate” to represent patients at hearings, and must retain independent psychiatrists to make the ultimate determination at those hearings. In addition, consent forms are mandated and provisions for administering drugs in an emergency are outlined. The staffs are also directed to file monthly reports on implementation of the decree. 476 F.Supp. at 1313-15.

The parties cross-appeal from the district court’s order.⁵ The defendants contend that the district court erred in recognizing a constitutional right to refuse treatment. In the alternative, they argue that the procedures embodied in Administrative Bulletin 78-3 are sufficient to protect any such right.

The plaintiffs assert that the relief ordered by the district court is inadequate. They contend that independent psychiatrists retained by and responsible to the Commissioner of the Department of Human Services cannot be the neutral decisionmakers required by the due process clause. Similarly, an attack is leveled against the effectiveness of the system of patient advocates who, likewise, would be retained by and responsible to the defendant Commissioner. Finally, plaintiffs challenge the portion of the court’s order that permits a doctor to medicate the patient by declaring him to be “functionally incompetent,” a procedure they say can allow the circumvention of the mandatory review of all refusals of medication.

I.

We first consider the appropriate scope of review. Generally, in an appeal from the grant of a preliminary injunction we are limited to determining whether there has been an abuse of discretion, an error of law, or a clear, mistake in the consideration of the proof. Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975). This narrow standard of review springs from the realization that the proof at a hearing for a preliminary injunction is abbreviated and that the trial court, under time pressures, may not have the opportunity for the more mature consideration of issues that is expected in usual adjudications. See United States Steel Corp. v. Fraternal Association of Steelhaulers, 431 F.2d 1046, 1048 (3d Cir. 1970).

Our review takes into account the factors that the district court considers in ruling on an application for a preliminary injunction. The moving party

“must demonstrate that irreparable injury will occur if relief is not granted to maintain the status quo until a final adjudication on the merits can be made and that there is a reasonable probability of eventual success on the merits. In addition, the court must weigh the possibility of harm to the nonmoving party as well as any other interested person and, when relevant, harm to the public.”

The Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir. 1980), citing Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 919-20 (3d Cir. 1974) (footnotes omitted). Here, the court did not expressly weigh the possibility of harm to defendants in implementing the extensive procedural mandate or to the public interest, which is clearly implicated here as well. See e. g., Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 923-24 (3d Cir. 1974).

When it is apparent that all the pertinent evidence will be presented in support of the motion for a preliminary injunction, Fed.R. Civ.P. 65(a)(2) permits the court to consolidate the hearings. Before the trial on the class action, plaintiffs’ attorney had suggested a consolidation, and during the taking of testimony counsel and the court discussed this alternative on several occasions. Defense counsel approved the concept but stated he lacked the authority to consent. In the absence of clear agreement between the litigants, the court declined to consolidate.

The hearings, however, were as extensive as would be expected in the case of a permanent, rather than a preliminary, injunction. In addition, the trial court prepared a comprehensive opinion that demonstrated complete familiarity with the issues and applicable law gained after several hearings in Rennie’s individual case. As is apparent, the court’s injunction, although labeled as preliminary, is a sweeping and detailed order that imposes substantial, continuing obligations on the state. The decree is not simply a passive prohibition but requires positive action and substantial expenditures by the state to carry out its provisions. The order will have a significant effect on the state budget and on the care and treatment of the institutionalized patients. In these circumstances, it is particularly appropriate to give substantial consideration to the public interest. When these factors are combined with the extensive fact finding and legal research embodied in the district court’s opinions, its order requires a more searching review than is customarily provided for preliminary injunctions.

II.

There are essentially two questions presented on this appeal. First, whether compulsory medication of involuntarily committed mental patients violates a liberty interest protected by the fourteenth amendment. Second, if such an interest exists, what procedures must the state follow to protect it.⁶

We first address the liberty interest issue, which may be divided into three inquiries: (A) does state law create a liberty interest that is infringed by compulsory medication of involuntarily committed patients; (B) if not by state law, does the Constitution itself create such a liberty interest; (C) if it does, what are the substantive contours of the right to refuse treatment. We consider these matters in turn.

. A.

The defendants deny the existence of a liberty interest and refer to a line of Supreme Court cases suggesting that a liberty interest protected by the due process clause must have its origin in “some right or justifiable expectation rooted in state law.” Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). See also Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Gagnon v. Scarpelli, 411 , 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). They argue that New Jersey law does not create a right or justifiable expectation, but to the contrary, affirmatively withholds any such right.

In their characterization of New Jersey’s statutory law, the defendants are probably correct, for N.J.Stat.Ann. § 30:4-24.2(d)(l) (West 1981), provides in part that “voluntarily committed patients shall have the right to refuse medication.” In context, the implication of the statute is that involuntarily committed patients do not have this right and a New Jersey trial court has so held. In re B., 156 N.J.Super. 231, 383 A.2d 760 (1977). Research has not disclosed any New Jersey appellate opinions interpreting the statute, nor has the Supreme Court of that state had occasion to determine the application of the New Jersey constitution or the common law in this situation.⁷

State statutes or practices may give rise to a liberty interest that would not otherwise exist. Thus, the Supreme Court has held that although states are not constitutionally mandated to provide parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. at 7, 99 S.Ct. at 2103; Morrissey v. Brewer, supra, or probation, Gagnon v. Scarpelli, 411 U.S. at 782, 93 S.Ct. at 1759, or good time credits, Wolff v. McDonnell, 418 U.S. at 556-57, 94 S.Ct. at 2974-75, once legislation does provide a right to these benefits, a liberty interest arises that is protected by the due process clause. By contrast, the court has held that where state statutes do not confer on an inmate the right to be incarcerated in any particular prison, but rather give prison administrators unfettered discretion to transfer inmates among different institutions, a prisoner has no liberty interest in remaining at a given location, even if a transfer is to a much more restrictive environment. Meachum v. Fano, 427 U.S. at 228-29, 96 S.Ct. at 2540; Montanye v. Haymes, 427 U.S. at 242-43, 96 S.Ct. at 2547.

A determination that a state statute itself does not create a liberty interest, however, is not the end of the inquiry. A liberty interest may flow directly from the United States Constitution itself, despite silence or contrary indication in state law. Were it otherwise, a state’s statutory law would occupy a position higher than the Constitution. Thus, it is not correct to say that a liberty interest can only originate in state law. A more accurate statement is that state law can give rise to a liberty interest that would not otherwise exist.

In Vitek v. Jones, the Supreme Court considered whether a Nebraska prisoner had a liberty interest in not being involuntarily transferred from a prison to a state mental institution. The Court examined state law with respect to inmate transfers to mental hospitals and concluded that a liberty interest was implicated since the Nebraska statute provided for transfer only when “a prisoner ‘suffers from a mental disease or defect’ and ‘cannot be given proper treatment in that facility.’ ” 445 U.S. at 483, 100 S.Ct. at 1258, quoting Nebraska Rev.Stat. § 83-180(1) (1976). In the next, and, for our purposes, critical part of its analysis, the Court held that a liberty interest would be implicated even without statutory limitations on such transfers. Id. at 491-94, 100 S.Ct. at 1262-1264. The Court accordingly held that the prisoner’s transfer to a mental institution must comply with requirements of procedural due process. Id. at 494, 100 S.Ct. at 1264.

It is evident, therefore, that liberty interests may spring from the Constitution itself and can be recognized without regard to state law. Consequently, we reject the defendants’ argument that because none is created by state law, plaintiffs have no liberty interest, and next consider whether one was created by the Constitution.

B.

An individual who has not been committed to a mental institution has a right to refuse medication sought to be administered against his will. The state cannot ignore due process and simply seize a person and administer drugs to him without his consent. The case before us is one step removed, since it involves the right of an individual to refuse treatment after he has been confined to a mental institution. Such a commitment requires a proceeding in conformity with procedural due process which, under New Jersey law, requires the state to prove that “the institutionalization of the patients is required by reason of his being a danger to himself or others or property if he is not so confined.” N.J. Civil Practice Rule 4:74-7(f).

An involuntary civil commitment in itself entails “a massive curtailment of liberty.” Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972). We must determine, then, whether, as the state argues, the freedom to refuse medication normally possessed by an individual is extinguished by involuntary civil commitment, or whether the patient “retain[s] a residuum of liberty that would be infringed” by compulsory medication “without complying with minimum requirements of due process.” Vitek v. Jones, 445 U.S. at 491, 100 S.Ct. at 1262.

We are not persuaded by the state’s argument that involuntary commitment takes away all aspects of a person’s liberty interest. In our view, the patient’s liberty is diminished only to the extent necessary to allow for confinement by the state so as to prevent him from being a danger to himself or to others.

The Supreme Court has held that solitary confinement “represents a major change in the conditions of confinement” in a prison setting, Wolff v. McDonnell, 418 U.S. at 571-72 n.19, 94 S.Ct. at 2982 n.19, and that revocation of parole, with a consequent return to prison, represents a loss to the parolee, Morrissey v. Brewer, 408 U.S. at 482, 92 S.Ct. at 2600. A fortiori, compulsory medication of a nonconsenting patient with its serious concomitant risks must be deemed a “major change in the conditions of confinement.”

The extent to which the plaintiffs’ liberty interest is invaded by compulsory medication appears dramatically from the record here. All the antipsychotic drugs induce a variety of disorders of the central nervous system as side effects.⁸ Most serious among these is tardive dyskinesia, a potentially permanent disorder. It is “characterized by rhythmical, repetitive, involuntary movements of the tongue, face, mouth, or jaw, sometimes accompanied by other bizarre muscular activity.” Rennie v. Klein, 462 F.Supp. at 1138. More common, but less serious than tardive dyskinesia, are akinesia and akathesia. The former can induce a state of diminished spontaneity, physical weakness and muscle fatigue. The latter is “a subjective state and refers to an inability to be still; a motor restlessness which may produce a shaking of the hands or arms or feet or an irresistable desire to keep walking or tapping the feet.” Id. Both of these disorders usually disappear either during or shortly after the course of medication. They can sometimes be controlled by anticholinergic or antiparkinsonian medications.

A variety of minor physical effects also attend the use of antipsychotics, which “include blurred vision, dry mouth and throat, constipation or diarrhea, palpitations, skin rashes, low blood pressure, faintness and fatigue.... These side effects tend to diminish after a .few weeks.” Id. (citations omitted). In rare cases the antipsychotic drugs have caused death.⁹

The impact of these side effects was highlighted by the testimony of several patients at the institutions. An older woman described involuntary jaw movements as a result of tardive dyskinesia so severe that she could not be fitted with dentures. As a result she is restricted to a diet of ground food. One young woman told of feeling sedated by the antipsychotic drugs to the point where she would sleep most of the day. Others testified to severe discomfort in response to the drugs. 476 F.Supp. at 1301-02.

The record convinces us that there is a difference of constitutional significance between simple involuntary confinement to a mental institution and commitment combined with enforced administration of antipsychotic drugs. It implicates the “right .to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.” Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977). This intrusion rises to the level of a liberty interest warranting the protection of the due process clause of the fourteenth amendment.

In support of a substantive constitutional right to refuse medication, the plaintiffs also point to the first and eighth amendments. They contend that compulsory medication deprives them of freedom of thought protected by the first amendment and constitutes cruel and unusual punishment proscribed by the eighth amendment. See Scott v. Plante, 532 F.2d 939, 945-47 (3d Cir. 1976). The district court rejected these alternative bases, relying instead on the right to privacy protected by the due process clause of the fourteenth amendment. 462 F.Supp. at 1143-44. We believe it is preferable to look to the right of personal security recognized in Ingraham v. Wright, supra.

We find the eighth amendment a particularly inappropriate- reference point. That provision is directed to preventing excesses in the punishment of those who have been convicted of crime. Failure to provide adequate medical care is a violation of that amendment only if the deprivation is the result of “deliberate indifference” to the serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). See also Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). It is necessary to distinguish the status of prisoners who are legitimately being punished for commission of a crime from that of persons who are mentally ill or retarded through no fault of their own and are innocent of any offenses against society. These people are victims who are entitled to society’s assistance and understanding. They do not merit retribution. It is a throwback to a more callous attitude of the past to equate the mentally ill or retarded person’s constitutional right of personal integrity to that of criminals. We reject the eighth amendment, therefore, as the proper minimal standard for the treatment of the plaintiff classes.¹⁰ They are entitled to more humane consideration.

C.

Having concluded that the patient has a constitutional right to be free from treatment that poses substantial risks to his well-being, we must consider the scope of that right. Like most rights, it is not absolute, but is limited by other legitimate governmental concerns and obligations. The administration of drugs generally is a recognized adjunct to the treatment of the mentally ill and indeed may be required by the state as a concomitant of its power to commit involuntarily.¹¹

Under the New Jersey statutes, a person who is mentally ill may not be committed against his will unless he is a danger to himself, others, or property. State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975). He may not constitutionally be confined involuntarily if he is “dangerous to no one and can live safely in freedom.” O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 2493, 45 L.Ed.2d 396 (1975). Whether a state may involuntarily commit a person solely because he may need treatment is a question the Supreme Court has not addressed, id. at 573-74, 95 S.Ct. at 2492-93, and one which has evoked serious reservations by the Chief Justice. Id. at 589, 95 S.Ct. at 2500 (Burger, C.J., concurring). That issue, however, is not presented here.

The power to confine involuntarily has been justified under either the state police power or the parens patriae theory. Coll v. Hyland, 411 F.Supp. 905 (D.N.J.1976) (three-judge court). The two often overlap. The powers of the state that justify deprivation of a mentally ill person’s freedom from confinement are the same sources of authority for administering drugs without the patient’s consent. It is obvious, however, that the state’s power is not without limits. A person who is committed because of mental illness may neither be detained after that condition ceases, O’Connor v. Donaldson, nor confined more restrictively than necessary. See Romeo v. Youngberg, 644 F.2d 147, 160-61, 166 (3fd Cir. 1980), cert. granted, - U.S. -, 101 S.Ct. 2313, 68 L.Ed.2d 838 (1981). Thus, without justification, the state could not shackle a mentally ill patient in a damp, unheated, inordinately small cell, when his condition is such that he could freely move about the institution.

The deprivation of liberty imposed by the state must not exceed that required by needed care or legitimate administrative concerns. What is at issue here is the administration of drugs — psychotropics—with the very real possibility of damaging results accompanying their use so that “the cure [cjould be worse than the illness.” Rennie v. Klein, 462 F.Supp. at 1146. To protect the liberty interest in the face of such a threat, the least intrusive infringement is required. Even a convicted prisoner retains a “residuum of liberty” that may not be infringed without due process protections. Vitek v. Jones, 445 U.S. at 491, 100 S.Ct. at 1262. And, as the Court has said, “due process requires that the nature and duration of commitment bears some reasonable relations to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972).

Much the same reasoning applies to the involuntary administration of antipsychotic drugs. The record demonstrates that these drugs can be valuable in the treatment of certain mental illnesses, relieving symptoms on a short term basis as well as for lengthy periods. Their use often makes it possible to shorten the period of confinement drastically and also makes patients more manageable and, hence, less a threat to others. Thus, both the police power and the parens patriae interests are served.

Just as the power to confine is accepted, but its nature limited, so may involuntary administration of drugs be justified only when accompanied by appropriate restrictions. The involuntarily committed patient retains a “residuum of liberty,” and he correspondingly retains the right to be free from “unjustified intrusions on [his] personal security.” Ingraham v. Wright, 430 U.S. at 673, 97 S.Ct. at 1413. That concept has sometimes been paired with the “le’ast in trusive means” when objections to forced administration of drugs are raised. See e. g., Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980), cert. granted - U.S. -, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981).

Even though a person may be mentally ill, and has been properly committed involuntarily, he nonetheless is considered competent to some extent.¹² His constitutional rights to be free from confinement and personal intrusion are necessarily limited by commitment, but they are not totally extinguished. The Constitution is at least as viable behind the walls of a psychiatric hospital as in a prison. See Vitek v. Jones, 445 U.S. at 491-92,100 S.Ct. at 1262-63; Wolff v. McDonnell, 418 U.S. at 555-56, 94 S.Ct. at 2974.

In another context, the Supreme Court said, “ ‘even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty,’ Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S.Ct. 303, 308, 38 L.Ed.2d 260 (1973), and we have required that States adopt the least drastic means to achieve their ends.” Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 185, 99 S.Ct. 983, 991, 59 L.Ed.2d 230 (1979) (citations omitted). That view is consistent with the earlier case of Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960):

“In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose.”

Id. at 488, 81 S.Ct. at 252 (footnotes omitted).

The means chosen to promote the state’s substantial concerns must be carefully tailored to effectuate those objectives with minimal infringement of protected interests. See Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965). Although in those cases the Court wrote in the setting of. legislation affecting voting and first amendment rights, it has applied the same rationale in other circumstances as well. The' same philosophy applies in cases implicating a person’s “right to be free from .. . unjustified intrusions on personal security,” Ingraham v. Wright, 430 U.S. at 673, 97 S.Ct. at 1413, especially where, as here, physical and intellectual integrity is threatened by an unduly narrow construction of constitutional rights.¹³ It appears that at least thirty-five jurisdictions explicitly or implicitly acknowledge the least restrictive doctrine in their statutes as applicable to treatment or involuntary commitment.¹⁴

It is true that much turns upon the medical and psychiatric facts of each case. That the constitutional standard is closely intertwined with questions of medical judgment, however, cannot defeat the patient’s rights, nor require abdication of legal protection. That was made clear in Vitek v. Jones, 445 U.S. at 495-96, 100 S.Ct. at 1264-65, where the Court, recognizing that judges are not trained to make medical diagnoses, nevertheless found that “[t]he medical nature of the inquiry . .. does not justify dispensing with due process requirements.” See also, Parham v. J.R., 442 U.S. 584, 607, 99 S.Ct. 2493, 2506, 61 L.Ed.2d 101 (1979). Consistent with this is In re K.K.B., Okl. 609 P.2d 747 (1980), where the court discussed the right to refuse antipsychotic drugs, saying, “in a society ruled by laws, social actions that infringe or control individual freedoms must be judged by legal standards.” Id. at 751. “[Ljiberty includes the freedom to decide about one’s own health. This principle need not give way to medical judgment.” Id. at 749.

The least intrusive means standard does not prohibit all intrusions. It merely directs attention to and requires avoidance of those which are unnecessary or whose cost benefit ratios, weighed from the patient’s standpoint, are unacceptable. There must be a careful balancing of the patient’s interest with those to be furthered by administering the psychotropic drug.

This is not to say that the least intrusive means requires hourly or daily judicial oversight. Obviously that would be an unworkable standard. Rather, what is reviewable is whether the choice of a course of treatment strikes a proper balance between efficacy and intrusiveness. In its search for the correct answer, a court naturally will depend upon medical and psychiatric opinion, just as it does in deciding upon the competency of a defendant to stand trial, the necessity for involuntary commitment, and other similar medical or psychiatric issues.¹⁵ No doubt, some cases will present sharply conflicting professional viewpoints. That, however, is not a valid reason for refusing to make the inquiry.

In any event, promulgation of the standard merely serves to advise the psychiatric community that a conscious weighing of the constitutional liberty interest in any determination of proper treatment alternatives is necessary. It will not unduly hamper the standard of professional care to determine whether a different drug, or smaller dosages, or a different therapy would serve the interest of the patient as well as the state.

It must be observed that emergency conditions, for example, may require that more discretion be granted the attending physician. In the case of antipsychotic drugs, it would appear that treatment for a limited period is not as likely to have as intrusive an effect upon the patient as administration for an extended time. This, moreover emphasizes that the least intrusive standard is generally applicable to a regimen or treat- merit program rather than individual dosages. We emphasize that the emergency treatment provisions are not at issue in this case.

III.

Having concluded that a constitutional right to refuse treatment exists, it is necessary to consider whether the due process safeguards imposed by the district court were proper.¹⁶

Initially, we recognize that the decision to administer drugs depends upon a medical judgment based upon a variety of facts, such as the need for the drugs and their probable effects on the patient, including the possibility of side effects. Matters such as the likelihood of violence on the part of the patient; his previous reaction to acute psychotropic drugs, if any; the duration of previous drug therapy; the prognosis for improvement or stability; alternative medications; close confinement or other alternatives; and other factors too numerous to mention here, all enter into the decision-making. The nature of these elements makes it plain that the determination must be made on an individual basis. Due process procedures must therefore provide an opportunity for the exercise of professional judgment in these circumstances.

From a legal standpoint, the outline of due process protections that must guide state agency proceedings are summarized in Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Court listed three factors for consideration: (1) the private interest; (2) the risk of an erroneous decision through the procedures used as well as the value of the any of additional or substituted safeguards; and (3) the governmental interest, including fiscal and administrative burdens that other procedural requirements would impose. Id. at 335, 96 S.Ct. at 903. These guidelines permit flexibility to adjust to a variety of circumstances, such as the employment of professional judgment, and do not mandate adherence to rigid, traditionally adversary proceedings. Against this background, we turn to the administrative provisions adopted by the State.

New Jersey has enacted legislation regulating treatment for the mentally ill. It includes provisions that provide for the right to “medical care and other professional services in accordance with accepted standards ... [and] the right to participate in planning for his own treatment to the extent that his condition permits.” N.J. Stat.Ann. § 30:4-24.1 (West 1981). It has also enacted a mental patient “Bill of Rights,” which guarantees the right “[t]o be free from unnecessary or excessive medication,” the right not to have medication “used as a punishment, for the convenience of staff, [or] as a substitute for a treatment program,” and the right to have adequate records of medication maintained. Id. at 4-24.2(d)(l). Administrative Bulletin 78-3, issued soon after this litigation began, incorporates many of the provisions found in the statute and, while not conceding the right of involuntarily committed patients to refuse drugs, also defines the need for compulsory medication. For those not adjudicated incompetent, medication may be imposed involuntarily in some limited, non-emergency situations. If, without it, the patient is incapable of participating in any treatment plan that will give him a realistic opportunity to improve his condition, or if it will shorten the required commitment time, or if there is a significant possibility that the patient will harm himself or others before his condition improves, drugs may be administered. H II(2)(a) & (b).

Procedurally, the Bulletin sets up a mechanism through which a decision to administer drugs against a patient’s will shall be made and reviewed. At the first level, when a patient refuses to accept medication, the treating physician must explain to the patient the nature of his condition, the rationale for using the particular drug, and the risks or benefits of it as well as those of alternative treatments. If the patient still declines, the matter is discussed at a meeting of the patient’s treatment team, which is composed of the treating physician and other hospital personnel, such as psychologists, social workers, and nurses who have regular contact with the patient. The patient is to be present at this meeting if his condition permits. 111(B).

If, after the team meeting, the impasse remains, the medical director of the hospital or his designee must personally examine the patient and review the record. In the event the director agrees with the physician’s assessment of the need for involuntary treatment, medication may then be administered. K 11(D). The medical director is also authorized, but not required, to retain an independent psychiatrist to evaluate the patient’s need for medication. H 11(E)(1). Finally, the director is required to make a weekly review of the treatment program of each patient who is being drugged against his will to determine whether the compulsory treatment is still necessary. K 11(E)(2). In addition, the district court found that the Division of Mental Health and Hospitals had adopted a practice, not incorporated in the Bulletin, of having all cases of compulsory medication reviewed by a division director or another physician in the division’s central office. See 476 F.Supp. at 1303.

Despite the detailed mechanisms established by Bulletin' 78 — 3, the district court held that the procedures failed to meet due process standards. The judge found that the provisions were not being implemented by the state and that review of medication decisions by the director was not adequate. The court did not “impugn the good faith of the directors, who appear genuinely determined to reduce unnecessary reliance on drugs and to increase the involvement of patients in their own treatment decisions.” 476 F.Supp. at 1310. However, “institutional pressures . .. make it impossible for anyone in the medical director’s position to have sufficient independence, much less the appearance of fairness which due process required.” Id.

For these reasons, the court expanded on the state’s requirement and entered an injunction whose principal provisions:

1. Require the hospitals to employ consent-to-receive-medication forms, which advise patients of their right to refuse treatment, their right to have refusal reviewed before it is overridden, and describe “all known short-term and long-term side effects of the drug to be consented to,” id. at 1313;

2. Require the Commissioner of the Department of Human Services to set up a system of “patient advocates” to represent the patients who wish to refuse treatment. These advocates may be lawyers, psychologists, social workers, registered nurses, paralegals, or other qualified laymen;

3. Require the Commission to retain independent psychiatrists to make the ultimate determination by written decision on whether the patient’s refusal shall be honored;

4. Prohibit hospitals from administering psychotropic medication against a patient’s will, other than in an emergency, unless the independent psychiatrist so orders;

5. Direct the state to hold a hearing after five days’ notice to the patient to determine whether the hospital may medicate him against his will; and

6. Order the state to provide a patient advocate to represent the patient at the hearing and to allow the patient to retain an attorney (at the patient’s expense) to represent him at this hearing.

See 476 F.Supp. at 1313-14.

We must now determine whether the district court erred in ruling that Bulletin 78-3 was deficient and whether additional procedures were required to pass constitutional muster. Our task is not to compare the procedures of Bulletin 78-3 with those ordered by the district court, nor to determine which of the two programs is more effective in protecting a patient’s right to refuse treatment, nor which is sounder as a matter of policy. Our inquiry is far narrower: do the procedures established by New Jersey satisfy due process? A federal court is not to substitute its judgment for that of state legislative and executive authorities, unless the state’s response in protecting the liberty interest falls short of constitutional standards.

The first Eldridge factor, that of the private interest implicated in the patient’s right of refusal, has already been discussed. We pass, therefore, to the next point, the risk of an erroneous decision. We are satisfied that the state’s procedures, if carefully followed, pose only a minor risk of erroneous deprivation. We also are convinced that this risk will not be significantly reduced by superimposing the district court’s own requirements on those already required by the state.

The decision to compel medication will generally be made by members of the hospital medical staff who have had more connection with the treatment of the individual patient than an independent psychiatrist, whose experience would necessarily be limited to ad hoc situations. The weeks or months that a patient spends in these institutions should provide a more accurate and reliable basis for the staff’s judgment as to whether the patient poses a danger to himself or to others and whether he is capable of making a rational treatment decision. See Cruz v. Ward, 558 F.2d 658, 662 (2d Cir. 1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 740, 54 L.Ed.2d 765 (1978).

The adversary contest implicit in the district court’s order is ill-suited to the type of medical determination that must be made. The Supreme Court made this point forcefully in Parham v. J .R., where it wrote that “due process is not violated by use of informal, traditional medical investigative techniques.” Id. 442 U.S. at 607, 99 S.Ct. at 2506. The Court acknowledged

“the fallibility of medical and psychiatric diagnosis . . . [but did] not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative hearing officer after a judicial-type hearing. Even after a hearing, the nonspecialist decisionmaker must make a medical-psychiatric decision. Common human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real.”

442 U.S. at 609, 99 S.Ct. at 2507 (citations omitted). We find this reasoning equally applicable to the instant case. If an informal investigation by an admitting physician satisfies due process when the private interest at stake is the “massive curtailment of individual liberty” inherent in civil commitment, such informal procedures meet constitutional standards in the present context.

The final phase of our analysis of the second Eidridge factor examines the role of an independent decisionmaker. The district court doubted that doctors and patient advocates who are within the state mental health bureaucracy and who are responsible to the Commissioner of the Department of Human Services can be sufficiently independent to meet constitutional requirements. Although this point is arguable, it has repeatedly been rejected by the Supreme Court in analogous contexts. The Court found no due process violation in the use of decisionmakers employed by and responsible to the state bureaucracies in Vitek v. Jones, 445 U.S. at 496, 100 S.Ct. at 1262; Parham v. J.R., 442 U.S. at 607, 99 S.Ct. at 2506, or in Wolff v. McDonald, 415 U.S. at 570-71, 94 S.Ct. at 2981-82 (decision in prison disciplinary proceedings made by adjustment committee composed of three prison officials).

To follow the rationale of the district court would be to void almost all intra-administrative appeals, where institutional pressures abound. We also note that the New Jersey provision for retaining an outside psychiatrist in certain circumstances tends to blunt the district court’s concern that institutional pressures will prevent an independent decision. If the medical director desires some method of avoiding those influences, he has the power to call upon a disinterested authority for the final decision.

The third Eldridge factor is the government’s interest, including the function at stake and the fiscal and administrative burdens that additional procedural requirements would impose. More than either of the first two factors discussed, this element counsels our approval of New Jersey’s regulatory system, and consequently, our rejection of the district court’s response to the problem. Without question, the district court’s order will impose substantial additional financial burdens on the state and even greater expenditures of staff time at the hospitals.

The Supreme Court noted in Parham v. J.R., that “psychiatrists, psychologists, and other behavioral .. . experts in courtrooms and hearings are of little help to patients.” 442 U.S. at 606, 99 S.Ct. at 2506. Moreover, the adversary proceedings contemplated by the district court are more likely to be counterproductive, adding to the tensions that may have contributed to the patient’s initial commitment to the institution. The Supreme Court discussed this problem in Parham and remarked that the adversary atmosphere would only create stress, rather than facilitate successful long-range treatment. Id. at 610, 99 S.Ct. at 2508.

We are acutely aware of the finite state resources available for the care of the mentally ill. Diversion of these funds to finance nonessential administrative procedures, however beneficial and desirable, will not provide help for the patient’s most critical needs.

The New Jersey regulations provide a series of informal consultations and reviews to determine from a medical standpoint whether administration of the drugs is necessary. To the extent that other treatment possibilities are discussed and discarded, the process also provides a reasonable exploration of the least intrusive means. Romeo v. Youngberg, supra; Rogers v. Okin, supra. See also, Parham v. J.R., 442 U.S. at 606-13, 99 S.Ct. at 2506-10. The participants in the procedure are mental health professionals, rather than judges who have doffed their black robes and donned white coats. Nevertheless, the regulations and the statutes adequately focus the administrative proceedings on the facts that shape the constitutional standard and thereby protect the patients’ interests at stake.

We are persuaded, therefore, that the procedures established in Bulletin 78-3 are consistent with constitutional guarantees and the district court erred in applying the appropriate legal standard. Deficiencies in implementing those procedures should be remedied by the district court — not by providing additional requirements, but by enforcing those already promulgated through the Administrative Bulletin. Any reluctance that some hospital staff members might have in meeting the standards is unlikely to continue when it becomes apparent that the court is prepared to enforce them. If, after a reasonable time, it develops that the state procedures are not working, then the court may explore other methods to guarantee the patient’s constitutional rights. The record as it now stands does not demonstrate that the time for such action has arrived. We conclude, therefore, that the district court erred in engrafting its own procedures onto the requirements set out in Administrative Bulletin 78-3.

As noted earlier, it is a preliminary and not a permanent injunction that we modify. The district court retains jurisdiction over these proceedings, and may consider any future charge that the defendants refuse to recognize the constitutional right upheld here or are not complying with the procedures set forth in Administrative Bulletin 78-3 as incorporated in the modified decree. We do not address enforcement further at this point, and leave it for consideration by the district court, if appropriate. Our central concern has been with the procedures adopted by the state and their sufficiency as a matter of due process — not with whether those procedures have been breached.

IV.

Since we have determined that the provisions of Administrative Bulletin 78-3 ade quately protect the liberty interest of involuntarily committed mental patients who refuse medication, constitutional due process standards have been met.¹⁷ In order to give interim protection to institutionalized patients we will not vacate the decree, but do modify it to incorporate the applicable terms of 11II of Administrative Bulletin 78-3. In proceedings after remand, the district court may wish to modify the interim decree in accordance with this opinion or to enter a permanent injunction. A form of decree is attached hereto and is designated as Appendix A.

The case will be remanded for further proceedings consistent with this opinion. Each party shall bear its own costs.

APPENDIX A

For reasons stated in the court’s opinion filed this day,

It is on this_day of_, 1981, hereby ORDERED of defendants Klein and Rotov:

I. Defendants shall comply with the following procedures for the adult units of the Ancora Psychiatric Hospital, Greystone Park Psychiatric Hospital, Marlboro Psychiatric Hospital, Trenton Psychiatric Hospital, and Glen Gardner Geriatric Center:

II: The Involuntary Administration of Medication Definitions

1. A patient is considered incompetent only if he has been adjudicated incompetent by a court.

2. Medication is considered a necessary part of a patient’s treatment plan when either:

(a) The patient is incapable, without medication, of participating in any treatment plan available at the hospital that will give him a realistic opportunity of improving his condition; or

(b) Although it is possible to devise a treatment plan that is available at the hospital and will give the patient a realistic opportunity of improving his condition; either:

(1) a treatment plan which includes medication that would probably improve the patient’s condition within a significantly shorter time period; or

(2) there is a significant possibility that the patient will harm himself or others before improvement of his condition is realized, if medication is not administered.

A. Emergency Administration of Medication

The procedures described in this Bulletin are not intended to preclude the administration of psychotropic medication to a patient in an emergency.

Therefore, if a physician certifies that it is essential to administer psychotropic medication in order to prevent the death of or serious consequences to a patient, the Chief Executive Officer is authorized to consent to the administration of the medication recommended by the physician’s certification. If it is impossible to comply with this procedure without jeopardizing the life of the patient, the medication may be administered on a physician’s order.

B. If a patient refuses to take the psychotropic medication that has been prescribed for him, the attending physician shall speak to the patient and attempt to explain: his assessment of the patient’s condition; his reasons for prescribing the medication; the benefits and risks of taking the medication; and the advantages and disadvantages of alternative courses of action.

If the patient still refuses to take the medication and the physician still believes that medication is a necessary part of the patient’s treatment plan:

(a) The physician should tell the patient that the matter will be discussed at a meeting of the patient’s treatment team;

(b) If the patient’s clinical condition permits, the physician should invite the patient, to attend the meeting of the treatment team.

(c) The physician should suggest that the patient discuss the matter with a person of his own choosing, such as a relative or friend.

C. The treatment team shall meet to discuss the physician’s recommendation and the patient’s response.

(1) If the patient is present, the team shall attempt to formulate a treatment plan that is acceptable to the patient and the team. The patient may agree to take medication unconditionally or under certain conditions that are acceptable to the physician.

(2) If the patient is not present, the team and the physician shall discuss the physician’s recommendation and the patient’s response, and shall document their respective conclusions.

D. If, after the team meeting, the physician still believes that medication is a necessary part of the patient’s treatment plan and the patient still refuses to take the prescribed medication,

Then:

Case 1: Patients Adjudicated Incompetent by a Court

(1) If there is a consensus in regard to the necessity of the medication, the physician shall attempt to secure the consent of the patient’s guardian.

If the patient’s guardian, after reasonable notice of the proposed action and a request for consent, refuses or neglects to execute and submit a writing expressing either the grant or denial of consent,

Then, The Chief Executive Officer may consent to the administration of medication.

(2) If there is disagreement between the team and the physician in regard to medication, then the medical director (or his designee) shall conduct a personal examination of the patient and a review of the record. If the medical director (or his designee) agrees with the physician, the physician shall attempt to secure the consent of the guardian.

If the patient’s guardian, after reasonable notice of the proposed action and a request for consent, refuses or neglects to execute and submit a writing expressing either the grant or denial of consent,

Then, The Chief Executive Officer may consent to the administration of the medication.

Case 2: Patients Who Have Not Been Adjudicated Incompetent by a Court

Part I — Voluntary Patients

Medication may not be administered to a voluntary patient who refuses to accept it.

Part II — Involuntary Patients

The medical director (or his designee) must conduct a personal examination of the patient and a review of the record. If the medical director (or his designee) agrees with the necessity for medication, the medication may be administered as a part of the patient’s documented individualized treatment plan.

E. Miscellaneous

1. Independent Evaluations

Whenever the medical director (or his designee) is asked to review a medication decision, the medical director shall be authorized to retain an independent psychiatric consultant to evaluate the patient’s need for medication. This would be indicated particularly in cases where there is disagreement between the treating physician and the team.

If the patient is evaluated by an independent psychiatric consultant invited by the hospital and the consultant recommends a treatment plan that does not include the administration of medication, then the medical director in the report filed in the treatment record, shall address the conclusions and recommendations of the consultant.

2. Review

In addition to the reviews mandated by N.J.S.A. 30:24.2(d)(l), the medical director (or his designee) shall review each week the treatment program of each involuntary patient, who is refusing to accept medication voluntarily, to determine:

(a) Whether the patient is still refusing his prescribed medications;

(b) Whether medication is still a necessary part of the patient’s treatment plan; and

(c) Whether the other components of the patient’s treatment plan are being implemented.

3. Documentation

Each step of the procedures outlined above shall be documented in the patient’s chart.

Chief Judge Seitz, and Judges Aldisert, Adams, Gibbons, Hunter, Garth, Higginbotham, and Sloviter join in sections 11(A) (State Law liberty interest), and 11(B) (Constitutional liberty interest), of the majority opinion. Chief Judge Seitz, and Judges Aldisert, Adams, Hunter, Garth, Higginbotham, and Sloviter also join in sections I (Scope of Review), III (Due Process standard), and IV (Decree). Judges Adams, Gibbons, Higginbotham, and Sloviter join in section 11(C) (Least intrusive means).

1

. The complaint alleged violations of four rights: 1) to refuse treatment in non-emergency situations: 2) to receive treatment; 3) of access to counsel; and 4) to be free from physical abuse while in custody.

2

. Administrative Bulletin 78-3, issued by the Division of Mental Health and Hospitals of the New Jersey Department of Human Services, details substantive and procedural standards for the administration of psychotropic medication to voluntary and involuntary patients at state hospitals.

The Bulletin is reported in full as an appendix to the district court’s first opinion. See 462 F.Supp. at 1148-51.

The term ‘psychotropic’ medication refers generally to drugs used in treating psychiatric problems. One subclass of the psychotropics are the “antipsychotic” drugs, which are primarily used to treat thought disorders. Only the antipsychotics are the subject of our opinion here. Another subclass of the psychotropics are drugs such as lithium and antidepressants, which are primarily used to treat mood disorders. The latter medications, which were discussed briefly by the district court, are not considered here. See 462 F.Supp. at 1136-37; Rogers v. Okin, 634 F.2d 650, 653 n.1 (1st Cir. 1980), cert. granted, -U.S.-, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981).

3

. The court denied Rennie’s request for an injunction on his own behalf after the parties reached an agreement to use a different drug. Later, after Rennie’s condition worsened, the court agreed that antipsychotic drugs should be administered. See 462 F.Supp. at 1152-53.

4

. As originally certified, the second and third subclasses included minors as well as adults. The district court later placed voluntary and involuntary patients under the age of eighteen into separate subclasses and denied a preliminary injunction as to them because the plaintiffs “had not provided adequate proof concerning the treatment of minors and the role of parents and guardians in determining minor patients’ right to refuse.” 476 F.Supp. at 1298 n.2.

5

. A petition for certiorari for review of the order of the district court before judgment in this court was filed under U.S.Sup.Ct. Rule 18, 28 U.S.C. It was denied by the Supreme Court. 49 U.S.L.W. 3911 (No. 80-6660).

6

. The district court refers throughout its opinion to a privacy interest as the basis of the right to refuse treatment, rather than a liberty interest. We believe that nothing of significance turns on this choice of characterizations, but feel that a right to refuse treatment is better viewed as derived from constitutionally protected liberty. We shall refer, then, to a liberty interest throughout this opinion.

7

. There may be a lurking equal protection issue as well. If there is a constitutional right to be free from overly intrusive medication, and prima facie, involuntarily confined patients are as competent as voluntarily admitted persons, there would seem to be some question about excluding the former from the benefits of the statute. The parties have not addressed the issue, and in view of our disposition, we need not either.

8

. The risk of serious side effects stemming from the administration of antipsychotic drugs is a critical factor in our determination that a liberty interest is infringed by forced medication. Although there is spirited debate in the psychiatric community over the extent and severity of serious side effects, we accept the district court’s findings that such injuries occur often enough to be of deep concern. See, e. g., Plotkin, Limiting the Therapeutic Orgy: Mental Patient’s Right to Refuse Treatment, 72 Nw.U. L.Rev. 461, 474-78 (1978); Rhoden, The Right to Refuse Psychotropic Drugs, 15 Harv.C.R.-C. L.L.Rev. 363, 375-82 (1980).

9

. The district court also noted that recent research suggests that there may be a link between psychotropic drugs and suicidal depression. 462 F.Supp. at 1138. For a discussion of the possible emotional and social side effects of psychotropics, see Brooks, The Constitutional Right to Refuse Antipsychotic Medications, 8 Bull.Am.Acad.Psychiat. & L. 179 (1981); Comment, Madness and Medicine: The Forcible Administration of Psychotropic Drugs, 1980 Wis. L.Rev. 487, 530-39.

10

. Although Ingraham v. Wright, 430 U.S. at 669 n.37, 97 S.Ct. at 1411 n.37, did not foreclose the possibility that the eighth amendment may be applicable to punishments not labeled “criminal” and mentioned mental institutions. Bell v. Wolfísh, 441 U.S. 520, 99 S.Ct.1861, 60 L.Ed.2d 447 (1979), appears to have resolved the doubt. Wolfish determined that the eighth amendment is an inappropriate basis for analysis of conditions in which pretrial detainees must be confined since no adjudication of guilt has been made in their case. Id. at 535, 99 S.Ct. at 1872.

11

. The issue of a “right to treatment” is not presented in this case and we do not address it here. See Pennhurst State School and Hospital v. Halderman, - U.S. -, - n.12, 101 S.Ct. 1531, 1539 n.12, 67 L.Ed.2d 694 (1981).

12

. In this opinion we address only the rights of persons involuntarily committed to state institutions where no adjudication of incompetency has been made. N.J.Stat.Ann. § 30:4-24.2(c) (West 1981), provides in part that “[n]o patient may be presumed to be incompetent because he has been examined or treated for mental illness, regardless of whether such evaluation or treatment was voluntarily or involuntarily received.”

In this respect, New Jersey’s statute is like many other jurisdictions’. It is simply not true that all persons involuntarily committed are always incapable of making a rational decision on treatment. For example, in this case, the district court indicated that Rennie is sometimes capable of making such a decision, but that his capacity fluctuates. See 462 F.Supp. at 1141. Psychiatric literature indicates that many forms of mental illness have a highly specific impact on the victims, leaving decision-making capacity and reasoning ability largely unimpaired. See Developments in the Law— Civil Commitment of the Mentally III, 87 Harv. L.Rev. 1190, 1214-15 (1974).

13

. The Court of Appeals for the First Circuit has adopted a similar approach. In Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980), cert. granted, - U.S. -, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981), the court held that before antipsychotic drugs may be administered, “reasonable alternatives .. . must be ruled out.... Indeed, it may be possible that in most situations less restrictive means will be available.” Id. at 656.

Congress follows the same path. Section 9501 of the Mental Health Systems Act, 42 U.S.C.A. §§ 9401-9503 (Supp.1981), provides in part: “It is the sense of the Congress that each State should review and revise, if necessary, its laws,” taking into account that a patient should be accorded “(1)(A) [t]he right to appropriate treatment and related services in a setting and under conditions that ... (i) are the most supportive of such person’s personal liberty; and (ii) restrict such liberty only to the extent necessary consistent with such person’s treatment needs, applicable requirements of law, and applicable judicial orders.”

The report of the Senate Committee on Labor and Human Resources, in commenting on the Act, quotes approvingly from the President’s Commission on Mental Health: “The criterion ‘least restrictive setting’ refers to the objective of maintaining the greatest degrees of freedom, self-determination, autonomy, dignity, and integrity of body, mind, and spirit for the individual while he or she participates in treatment or receives services.” S.Rep.No. 712, 96th Cong., 2nd Sess. 77, reprinted in [1980] U.S.Code Cong. & Ad.News 3372, 3444.

14

. See Hoffman & Foust, Least Restrictive Treatment of the Mentally III: A Doctrine in Search of Its Senses, 14 San Diego L.Rev. 1100, 1113-15 (1977).

15

. This same point is made in the Senate Committee Report on the Mental Health Systems Act, supra note 12. In discussing section 501(1)(D) of the Act, (codified at 42 U.S.C.A. § 9501 (Supp.1981)), which requires a patient’s written consent to a “mode or course of treat- ' ment,” the Committee wrote that it “intendfedj to require written patient consent only to the type, manner, and pattern of treatment. It is not intended that a separate, written consent form be required for each pill, shot or treatment administered pursuant to the agreed-upon plan.” S.Rep.No. 712, 96th Cong., 2d Sess. 81, reprinted in [1980] U.S.Code Cong. & Ad.News 3372, 3449. See also, Brooks, supra note 8.

16

. The due process analysis is compatible with the least intrusive means approach as well as that utilized in the concurring opinions.

17

. This appeal has required us to review only the constitutional adequacy of New Jersey’s regulations. However, on October 10, 1980, Congress passed a Mental Health Systems Act, 42 U.S.C. §§ 9401-9503, which includes § 9501, a “Bill of Rights” for mental health patients. A comparison of § 9501 with New Jersey’s Administrative Bulletin 78-3 reveals that New Jersey has indeed anticipated and accommodated virtually all of the concerns expressed in the Mental Health Systems Act with the exception of the requirement for written patient consent.

We do not address any provisions of that act in this opinion, because it was not before the district court and has neither been briefed nor argued by the parties. Our decision to forgo discussion of the act will not prejudice the parties, not only because Bulletin- 78-3 is consistent and compatible with the statute, but also because our holding does no more than modify the district court’s preliminary injunction. As we have noted earlier, the district court retains jurisdiction and may in its discretion consider the Mental Health Systems Act as relevant to the remaining proceedings.

The modified decree which we order today includes no provisions requiring written consent forms before medication of either voluntary or involuntary patients. There is some indication in the record that the state may wish to institute such a procedure and we do not foreclose the possibility of such a requirement after further proceedings in the district court. Of course, the modified decree is not intended in any way to prevent the defendants, at their option, from implementing more expansive procedures to protect the patients’ interests.