Necessity or Pragmatism? The Development and Use of the Justification of Necessity in Medical Law.

Abstract

Traditionally, the courts have been very reluctant to permit the use of necessity as a defence in civil or criminal cases. However, following the case of F v.West Berkshire Health Authority [1990] 2 A.C. 1 and up until the coming into force of the Mental Capacity Act 2005, the common law principle of necessity was extensively used in medical law to provide a lawful basis for the care and medical treatment of incapacitated adults without consent. This thesis examines why this was the case, and suggest that the answer may be found in the need to fill a “gap” in the law left by the ending of the parens patriae jurisdiction over incapacitated adults and in the development of the declaratory jurisdiction, enabling the courts to consider ex ante whether treatment is lawful and to exercise control over the application of the defence. It is suggested that judicial pragmatism, rather than legal principle lies behind this development and use of necessity This essentially historical study (although the impact that the Mental Capacity Act 2005 will have upon the justification of necessity is examined) critically considers what judicial pragmatism is, before examining the development of the declaratory jurisdiction and its role, together with the justification of necessity, in providing a substitute to the former parens patriae jurisdiction. The origins of and development of the defence and its use in medical law cases are critically scrutinised. It is suggested that the ‘principle’ of necessity developed in Re F is essentially a pragmatic, rather than a principled construct, and that ‘necessity’ in this medico-legal context is essentially a paradoxical concept, being a best interests defence rather than one of true necessity, with the test of best interests being sufficiently vague and broad to permit the courts to maintain an illusion of coherence and consistency whilst maximising flexibility.