Necessity in English Law - Medical Necessity

Medical Necessity

In Quayle and Others v R; Attorney General's Reference (No. 2 of 2004) (2005) EWCA Crim 1415 each defendant appealed convictions associated variously with the cultivation or possession of cannabis resin to be used for pain management. The choice facing the appellants was not severe pain without cannabis or absence of pain with cannabis, rather it was absence of pain with adverse side effects without cannabis, and absence of pain with minimal side effects with cannabis. The difference was restricted to the adverse side effects which, however unpleasant, could not sensibly be said to raise a prima facie possibility of serious injury, let alone one such as would overwhelm the will of the defendant. There was no evidence from an objective stand point that the appellants were acting reasonably and proportionately to a threat of injury. The evidence was clear that it was possible for the appellants to control pain by conventional and legal means. To admit the medical use of cannabis on the ground of necessity would defeat the legislative purpose underpinning the Misuse of Drugs Act 1971. Further, for the defence of necessity to succeed, the threat of injury must be immediate and imminent, and come from an extraneous source. The parties were responding to continuous pain over a period of time and, in any event, pain is too subjective to qualify as an external threat. There was nothing urgent that overwhelmed their will to resist. The parties then argued that the law breached Article 8 European Convention on Human Rights by interfering with the right of privacy. Interference with the right of respect for private life is permissible under Article 8(2) if "in accordance with the law and . . .. necessary in a democratic society . . ... for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others". Within the limits indicated in Taylor (Joseph) v Lancashire County Council (2005) EWCA Civ 284, the court's decision would involve an evaluation of the medical and scientific evidence, but their conclusion was that this was a policy matter more properly within the remit of the relevant Minister. Thus, this unlawful self-help did not qualify as necessity and did not fall within the protection of Article 8 ECHR.

In Altham (2006) EWCA Crim 7 the defendant used cannabis for pain relief following injury in a road accident. He was charged with possession under s5(2) Misuse of Drugs Act 1971. The judge at first instance refused to leave the defence of medical necessity to the jury so the defendant changed his plea to guilty. The Court of Appeal held that Article 3 ECHR not to subject a person to inhuman or degrading treatment does apply to the State. The defendant argued that using cannabis was the only way in which his symptoms could be alleviated and that he could not do so without committing a criminal offence. Thus, the State, by prosecuting him, subjected him to degrading treatment. The Court said that the State, by refusing cannabis, neither did nor refrained from doing anything that would subject the defendant to degrading treatment. The State had done nothing to change the defendant's condition for better or worse, and there was nothing to require the Court to read the Misuse of Drugs Act 1971 as subject to a defence of medical necessity. The Court applied Quayle where the focus was on Article 8, and the defence of necessity was denied because it would be in conflict with the purpose and effect of the legislative scheme.

In Re A (Children) (Conjoined Twins: Surgical Separation) (2000) 4 AER 961 Jodie and Mary were ischiopagus conjoined twins (i.e. joined at the pelvis) and the Court of Appeal had to decide whether it was lawful to perform surgery to separate them, when the separation would kill Mary. If the operation did not take place there was evidence that both would die within six months. The court proceeded on the basis that the potential charge would be murder in that, although the girls were physically joined, they were separate "lives in being". The court decided that the operation would be lawful. Ward LJ. concluded that, by analogy with self-defence, it was lawful to kill Mary because she was, albeit lawfully, killing Jodie. Ward reasoned that causing Mary's death did not breach the public policy of "sanctity of life" because of the "quasi self-defence", but Brooke LJ, rejected self-defence because Mary was not unlawfully threatening Jodie's life. He concluded that necessity rather than duress of circumstances would apply because the doctor's will was not being overwhelmed by the threat. Instead, the doctors were making a rational choice to adopt the lesser of two evils, i.e. the death of one rather than the death of both twins. Ward LJ. reasoned that separation surgery was clearly in Jodie's best interests, but not in Mary's best interests, because it denied her "inherent right to life." Given the conflict of the children's interests and the consequent conflict in the doctor's duties to each child, there was "no other way of dealing with it than by choosing the lesser of the two evils and so finding the least detrimental alternative." Jodie could benefit from the surgery to enjoy probably a near normal life; refusal to allow separation would result in the death of both twins. So "the least detrimental alternative" was to allow separation. Necessity would not usually be allowed as a defence to murder, but Brooke LJ. distinguished Dudley & Stephens on the basis that the doctors were not selecting the victim unlike the cabin boy in Dudley. The decision is restricted to cases of medical necessity and a conflict of duty owed both by doctors to different patients and by parents to their children, but does provide an interesting expansion of the law albeit, as Michalowski (2001) comments, it poses difficult questions as to who should take such decisions on behalf of patients.